Roxanna Altholz | University of California, Berkeley (original) (raw)

Papers by Roxanna Altholz

Berkeley Law La Raza Law Journal, 2017

Since the 1990s, U.S. Customs and Border Protection (CBP) agents have killed approximately fifty ... more Since the 1990s, U.S. Customs and Border Protection (CBP) agents have
killed approximately fifty Mexican and U.S. nationals along the U.S.-Mexico border. Many of the victims, including several teenagers, were unarmed and shot in the back. The vast majority of CBP agents have faced no criminal, civil, or disciplinary action for their conduct. This Article identifies U.S. legal doctrines, defenses, and procedures that make justice elusive for the relatives of victims. The Article argues that there is mounting legal and political pressure to hold CBP agents accountable for violence at
the border and suggests that reformists look to international standards to help guide efforts to address systemic barriers to redress.

To date, no civil plaintiff has prevailed at trial in a case involving a CBP
killing. Courts have dismissed most federal civil claims for lack of jurisdiction or after finding the U.S. government or CBP agent has immunity. Federal legislation, specifically the Westfall Act, effectively bars state-law tort claims in this context. As for criminal charges, federal prosecutors have declined to bring charges in all cases but one and the few state prosecutions have rarely resulted in a guilty verdict.

There is, however, mounting legal and political pressure to hold CBP agents
accountable for border killings. In 2017, the U.S. Supreme Court is expected to decide whether the U.S. Constitution protects foreign nationals killed in foreign territory by CBP agents. The U.S. Department of Justice recently brought criminal charges against a CBP agent for a border killing for the first time in the CBP’s nearly 100- year history. The Mexican government is also investigating multiple deaths and issued an arrest warrant for a CBP agent who killed an unarmed Mexican teenager. In addition, international human rights bodies have denounced the United States for use
of excessive force and the failure to track or adequately investigate border deaths.

This Article discusses doctrines and defenses such as sovereign and qualified immunity, extraterritoriality, and the Westfall Act that have led to the dismissal of civil suits and the closing of criminal investigations without pursuing charges. But legal doctrines do not alone explain the lack of accountability—institutional policies and practices also play a critical role. This Article argues that international human rights standards reveal how far U.S. law enforcement has strayed from global standards in
preventing the excessive use of force and serves as a guide to identify and address the systemic barriers to redress faced by victims’ families.

International Human RIghts Law Clinic, 2020

Oakland has been one of the most violent cities in the United States since the 1990s. Over the la... more Oakland has been one of the most violent cities in the United States since the 1990s. Over the last decade, approximately 76% of the city’s homicide victims were black. During that time, Oakland police made arrests in just 40% of murder cases when the victim was black, compared to 80% when the victim was white. As a result of high rates of violence yet low arrest rates, the Oakland Police Department has over 2,000 cold homicide cases on its books.

“Living with Impunity: Unsolved Murders in Oakland and the Human Rights Impact on Victims’ Family Members” presents work by Berkeley Law International Human Rights Law Clinic Co-Director Roxanna Altholz and other researchers who found that surviving family members often were victimized a second time as law enforcement and other agencies treated them with indifference—and even hostility. The impact of this “impunity” falls most heavily on African Americans in low-income neighborhoods, the study found.

For families in Oakland, the report describes a troubling reality in the aftermath of murder: “lackluster police responsiveness and often disrespectful and discriminatory treatment, checkered availability of crime-victim services and restrictions on who can take advantage of them, and stigma and safety concerns that not only often go unaddressed but are exacerbated by the criminal justice system’s cramped approach to justice.”

The report uses the concept of “impunity”—the idea, commonly used in the field of international law, that the failure to bring perpetrators of a violent crime to justice creates continuing trauma for survivors—to expose underexamined impacts of these unsolved murders on the families of homicide victims.

The “Living with Impunity” report calls on federal, state, and local authorities to invest in the well-being of family members and ensure better treatment and improved communication by the police during the criminal investigation. The report urges officials to provide all family members, including individuals who are on probation, access to wraparound services and long-term care to specifically address the complex needs of family members of homicide victims.

The World Bank Group created the Office of the Compliance Advisor Ombudsman (CAO) in 1999 to ensu... more The World Bank Group created the Office of the Compliance Advisor Ombudsman (CAO) in 1999 to ensure that development projects financed by its private-sector lending arm are environmentally and socially sound. The report uses quantitative and qualitative methods to offer an empirical view of how CAO works, what factors influence its approach and outcomes, and when communities believe it is effective and fair.

Since the 1990’s, officers with the United States’ largest law enforcement agency, Customs Border... more Since the 1990’s, officers with the United States’ largest law enforcement agency, Customs Border Protection, have killed at least forty people near the U.S.-Mexico border, including minors, people shot in the back or in fleeing vehicles, and U.S. citizens. This working paper finds that no agent has been held accountable in a criminal or civil court of law for a killing and identifies the legal doctrines that hinder accountability.

Rape and other forms of sexual violence are common features of the social upheaval and mass viole... more Rape and other forms of sexual violence are common features of the social upheaval and mass violence that has marred post-independent India. This report examines efforts in Punjab, Jammu & Kashmir, Gujarat, and Odisha by women victims of sexual violence to access justice and the response by India. Based on this analysis and applicable international standards, the report makes specific recommendation for actions by the Indian State to address common institutional weaknesses.

For thirty years, the Alien Tort Statute (ATS) has provided U.S. courts with civil jurisdiction o... more For thirty years, the Alien Tort Statute (ATS) has provided U.S. courts with civil jurisdiction over human rights abuses committed abroad and a small group of victims a modest measure of justice. The Supreme Court’s April 2013 decision to limit the extraterritorial reach of the ATS in Kiobel v. Royal Dutch Petroleum prompted declarations from experts that human rights litigation in the United States is dead. This view overstates the value of ATS litigation to human rights victims and ignores the availability of other legal strategies.

This Article explores the implications of Kiobel for the interests of those most affected by human rights violations—its victims and identifies strategies for how advocates can best use existing legal remedies in the United States to vindicate victims’ rights. First, the Article defines a metric to evaluate the significance of U.S. legal strategies from a victim-centered perspective. The metric is based on international standards related to victims’ rights: the rights to truth, justice, and reparations.

Second, the Article catalogues the multiple legal strategies available in the United States to hold perpetrators accountable for human rights abuses committed abroad. Even after the Supreme Court’s holding in Kiobel, the United States remains the only country in the world where a nonnational victim can bring a civil action against a nonnational perpetrator for human rights abuses committed on foreign soil. U.S. courts also have extraterritorial jurisdiction over international crimes, such as genocide, war crimes, torture, and the recruitment of child soldiers. Under crime victims’ rights legislation, the foreign victims of these crimes have participatory rights in criminal proceedings. U.S. immigration authorities have also denaturalized and deported hundreds of perpetrators of human rights abuses who were discovered residing in the United States in violation of immigration laws.

Third, the Article looks beyond the mere existence of these formal opportunities to explore how available legal mechanisms can advance the rights of victims. The Article uses a victim-centered metric to dissect the myriad vague and unproven claims about the objectives of human rights litigation and identify concrete opportunities to advance victims’ rights to truth, justice, and reparations through legal advocacy in the United States.

On September 25, 2012, California Governor Jerry Brown signed into law Assembly Bill 685 (Eng) to... more On September 25, 2012, California Governor Jerry Brown signed into law Assembly Bill 685 (Eng) to ensure universal access to clean water. The bill statutorily recognizes that “every human being has the right to safe, clean, affordable, and accessible water adequate for human consumption, cooking, and sanitary purposes.” AB 685 places the human right to water at the center of state policy and underscores the role of state agencies in addressing the human impact of unsafe water. The purpose of this document is to guide state agencies
in efforts to implement the historic human right to water bill.

On May 13, 2008, the U.S. Ambassador to Colombia, William Brownfield, announced the extradition t... more On May 13, 2008, the U.S. Ambassador to Colombia, William Brownfield, announced the extradition to the United States of fourteen leaders of Colombia’s largest paramilitary group, Autodefensas Unidas de Colombia (United Self-Defense Forces of Colombia or AUC), to face drug charges. These paramilitary leaders are implicated in terrorizing and killing thousands of innocent civilians. As part of their efforts to seize control of territory and drug routes, paramilitary leaders targeted trade unionists and other members of civil society who they perceived as threats. Ambassador Brownfield pledged that the transfer of these individuals to the United States would not interfere with Colombia’s efforts to hold paramilitaries accountable for mass atrocities in Colombia. Thirty former members of the AUC (Defendants) are currently in U.S. custody. Despite U.S. stated goals, review of available data indicates that the extraditions of paramilitary leaders have had adverse consequences for U.S. foreign policy by undermining rule of law in Colombia. The extraditions have (1) substantially diminished Defendants’ cooperation with ongoing human rights and corruption investigations in Colombia; (2) severely curtailed access to remedies for Colombian victims; and (3) undermined U.S. counternarcotics efforts by prompting a ruling by Colombia’s Supreme Court to block future extraditions of demobilized paramilitaries to the United States.

The United States should reform its policies and practices regarding criminal prosecutions of extradited Colombian paramilitaries to better support U.S. foreign policy interests by promoting Defendants’ cooperation with Colombian law enforcement. Active U.S. support of Colombian accountability measures will (1) strengthen the rule of law in Colombia; (2) address unsolved murders of Colombian trade unionists, an obstacle to securing a U.S.-Colombia free trade agreement; and (3) align U.S. foreign policy with international law.

WE RECOMMEND THAT THE UNITED STATES:

» Create an effective and efficient procedure for judicial cooperation. The United States should establish a procedure that provides timely, consistent, and reliable access by Colombian prosecutors, judges, and victims to extradited paramilitary commanders. This procedure should also ensure that information obtained by U.S. law enforcement from extradited paramilitaries is shared with Colombian judicial authorities.

» Incentivize extradited paramilitary leaders to disclose details about all their crimes and the identities of their accomplices in the military, government and national and foreign businesses. The United States should actively encourage extradited leaders to testify about their crimes and allies by conditioning sentence reductions or other benefits achieved through plea bargaining on effective cooperation. Possible benefits of cooperation should include provision of visas to family members of Defendants under threat in Colombia.

» Initiate investigations for torture committed by extradited paramilitary leaders. The United States should hold extradited leaders accountable for all their crimes under federal law, including torture, and promote justice for Colombian victims. Torture prosecutions will also provide additional incentives for Defendants to cooperate with Colombian and U.S. authorities.

This article defines the right to identity as a distinct and autonomous right explicitly and impl... more This article defines the right to identity as a distinct and autonomous right explicitly and implicitly protected by international law. The right to identity is associated with several other rights, such as the rights to a name, nationality, juridical personality, family, and culture, but does not precisely equal any one of these rights. Nevertheless, commentators widely recognize a lack of consensus as to the right to identity’s meaning and scope. Here, we propose a unifying definition of the right to identity. This task becomes all the more pressing in light of an initiative to achieve universal civil registration in the Americas by 2015 as a means for guaranteeing the right to identity.

Articulating a definition of the right to identity is an essential first step in establishing the key principles that should inform its application and enforceability under international human rights law. The definition, as elaborated in this article, is premised on an understanding of identity as a spectrum of significant personal characteristics and social ties. As such, we propose the following definition of the right to identity: THE RIGHT TO IDENTITY PROTECTS AN INDIVIDUAL’S SIGNIFICANT AND KNOWABLE PERSONAL ATTRIBUTES AND SOCIAL RELATIONSHIPS.

Our construction of a working definition for the right to identity begins with a brief overview of historical violations of identity rights (Part I). In Part II, we review and interpret obligations related to identity and identity rights imposed by international treaties and examine the relevant scholarship and jurisprudence on identity rights. This analysis lays the foundation for the definition of the right to identity that we elaborate in Part III. Part IV applies our definition of the right to identity to explore emerging issues related to civil registration.

Many unincorporated communities in California’s San Joaquin Valley are burdened by low property v... more Many unincorporated communities in California’s San Joaquin Valley are burdened by low property values, high unemployment, and poverty. These communities often lack basic infrastructure, clean water, and access to social services. Residents are frequently excluded from political decisions that profoundly impact their day-to-day lives. Some of the worst problems include:
• Housing that is unaffordable to community residents, in disrepair, not supported by necessary infrastructure, and often inaccessible to essential social services.
• Contaminated water supplies that expose residents to severe health problems and require them to purchase water they cannot afford.
• Local governments that shut citizens out of municipal elections and other forms of political participation on the basis of property ownership, geography, and race.

Human rights law can be a powerful tool for community members and advocates who are working to improve these conditions. This paper originated in a request from California Rural Legal Assistance to identify applications of human rights law to housing, water, and political participation problems in unincorporated communities. However, it is also part of a larger movement to “bring human rights home”—a movement which has influenced recent Supreme Court decisions, sparked the passage of state and local laws that incorporate human rights standards, and provided rhetorical and moral clout to activists and organizers on issues ranging from the death penalty to women’s rights to disaster relief.

In this paper, we discuss the advantages of international human rights law in working to change water, housing, and political participation conditions in San Joaquin Valley unincorporated communities. Specifically, we illustrate how human rights can be used by advocates and activists to fill in gaps in U.S. law and enhance protection to vulnerable groups:
• Human rights law recognizes that adequate housing is not simply four walls and a roof over one’s head, but also includes the right to infrastructure and access to social services. It also requires that housing units be affordable and equally accessible. U.S. law does not guarantee these rights.
• Under human rights law, individuals have the right to an adequate amount of clean and safe water for personal and domestic uses. Governments must make affordable water accessible without discrimination. U.S. law does not recognize or guarantee these rights.
• Human rights law assures the right to take part in local political processes, including decisions affecting the daily livelihood of community residents. It provides stronger protections than U.S. law, prohibiting unreasonable exclusion from decision making on the basis of race, property ownership, and geography.

Throughout the paper, we illustrate how activists and advocates use a combination of tools— organizing, litigation, reporting, and legislative lobbying—to increase global and local awareness of human rights violations in their communities and to bring about positive change.

In August and September of 2005, two powerful hurricanes slammed into the Gulf Coast of the Unite... more In August and September of 2005, two powerful hurricanes slammed into the Gulf Coast of the United States, flattening coastal towns in Texas, Louisiana, Mississippi and Alabama. The storms claimed over a thousand lives and uprooted millions of people from their homes. In images broadcasted on the nightly news, two groups of individuals stood out – one for its visibility and the other for its absence. Heartrending images of African American Gulf Coast residents pleading for assistance from rooftops above toxic waters reminded the United States of its legacy of discrimination and the persistence of poverty. The fate of immigrant communities living on the Gulf Coast remained conspicuously unaddressed by mainstream media.

The suffering of hundreds of thousands of poor people of color was not only the result of nature’s fury but of the failure of the United States government to adequately and effectively plan for and respond to one the most anticipated disasters in U.S. history. Unfortunately, the U.S. government has not learned from its mistakes. The needs and the rights of low-income African Americans and immigrants continue to be largely ignored during the reconstruction and resettlement efforts currently underway.

This analysis responds to the United States government’s periodic report under the International Covenant on Civil and Political Rights. Notably, the government’s official report omits any mention of the government’s planning and response to Hurricane Katrina despite the storm’s significant impact on the human rights of Gulf Coast residents. Based on a review of government reports, documentation published by nongovernmental organizations, and newspaper reports this submission highlights how the government’s failure to incorporate human rights protections in natural disasters preparedness, response and recovery has affected the human rights of low-income African American and immigrant communities.

This analysis concludes that:

• Preexisting human rights conditions rendered low-income African American and immigrant communities particularly vulnerable to the destructive forces of Hurricane Katrina;

• The failure of the U.S. government to take into account the preexisting vulnerabilities of African American and immigrant communities in its natural disaster planning jeopardized the welfare of these populations;

• The U.S. government did not ensure low-income African American and immigrant populations adequate and accessible emergency assistance in a nondiscriminatory manner;

• The U.S. government has not adopted the necessary measures to ensure the right of return of African Americans and immigrants displaced by the storm. The government has failed to ensure community participation in reconstruction efforts, the residents’ right to property, the residents’ right to shelter and a safe and healthy environmental conditions in disaster-affected regions; and

• The U.S. government has a duty to safeguard the human rights of individuals participating in the cleanup and reconstruction effort.

Based on these conclusions, we respectfully request that the Human Rights Committee adopt the following draft concluding observations:

• The Committee is concerned that the U.S. Government’s failure to take into account the pre- existing vulnerabilities of African American and immigrant communities in developing evacuation plans jeopardized the personal integrity of members of these communities and contributed to loss of life. The Committee recommends that the State party takes positive measures required by Articles 2.1, 6 and 26 to ensure that victims receive equal treatment in the evacuation context by, for example, providing publicly-accessible transportation and requiring multi-lingual emergency warnings.

• The Committee is concerned that emergency humanitarian assistance was not available and accessible to African-American and immigrant communities in a non-discriminatory manner. The Committee recommends that the State party takes positive measures, required by Articles 2.1 and 26 to ensure that members of racial minorities and immigrant communities can obtain life-saving assistance by developing and implementing human rights standards for aid policies and programs as well as mechanisms for monitoring human rights compliance with said standards.

• The Committee is concerned that post-Katrina reconstruction does not promote the right of displaced minority communities to return. The Committee recommends that the State party improves community participation in reconstruction planning and implementation, guarantees the right to property and shelter, and ensures safe and healthy environmental conditions in disaster-affected regions.

• The Committee is concerned about reports of abuses of worker’s rights committed by federal contractors including allegations regarding the failure of employers to pay workers as well as egregious violations of health and safety standards. The Committee recommends that the State party strengthen employer accountability for labor violations by allocating adequate resources to monitor and enforce labor laws in the region.

In August and September of 2005, two powerful hurricanes slammed into the Gulf Coast of the Unite... more In August and September of 2005, two powerful hurricanes slammed into the Gulf Coast of the United States, flattening coastal towns in Texas, Louisiana, Mississippi and Alabama. Over a thousand lives were lost, and millions of people have been uprooted from their homes. In images broadcasted on the nightly news, two groups of individuals stood out – one for its visibility and the other for its absence. Heartrending images of African American Gulf Coast residents pleading for assistance from rooftops above toxic waters reminded the United States of its legacy of discrimination and the persistence of poverty. The fate of immigrant communities living on the Gulf Coast remained conspicuously unaddressed by mainstream media.

The suffering of hundreds of thousands of poor people of color was not only the result of nature’s fury but of the failure of the government of the United States of America (“the U.S. Government” or “the State”) to address the preexisting vulnerabilities of these communities in disaster planning and response. Unfortunately, the State has not learned from its mistakes. The needs and the rights of low-income African Americans and immigrants continue to be ignored during the reconstruction and resettlement efforts which are currently underway.

Natural disasters have devastating and far-reaching effects on the impacted communities, but these negative consequences can be significantly reduced with adequate government planning. Under international law, it is the duty of the State to ensure that the human toll of natural disasters is minimized not only through effective humanitarian response, but also by addressing the human rights challenges that victims may face. As evidenced by the 2004 Tsunami, groups vulnerable before a catastrophe strikes – the economically disadvantaged, racial or ethnic minorities, women and children, the elderly, undocumented and documented immigrants and refugees, and persons with disabilities – are exposed to risk of human rights violations after disaster strikes. Consequently, the failure of national authorities, international agencies and non-government organizations (“NGOs”) to take the preexisting vulnerabilities of these at-risk populations into account in disaster response exposes these populations to the risk of numerous human rights violations.

This submission highlights the importance of incorporating human rights protections in natural disasters preparedness, response and recovery through an assessment of the impact of Hurricanes Katrina and Rita (“the Gulf Coast Hurricanes”) on the human rights of low-income African American and immigrant communities. This document is being submitted in support of the presentations by local community leaders and Hurricane Katrina survivors made during the March 3rd, 2006 general thematic hearing on “Human Rights and Natural Disasters” before the Inter-American Commission on Human Rights (“Inter-American Commission”).

There are four specific objectives of this document. First, it provides the Inter-American Commission with general factual information related to the Gulf Coast Hurricanes’ impact on the affected region. Second, it identifies and explores the preexisting human rights conditions that rendered low-income African American and immigrant communities particularly vulnerable to the destructive forces of the Gulf Coast Hurricanes. Third, it sets forth the human rights legal framework that applies in natural disaster contexts. Finally, it evaluates the U.S. Government’s practices and policies regarding evacuation, humanitarian assistance, return and reconstruction in light of its international human rights obligations.

Berkeley Law La Raza Law Journal, 2017

International Human RIghts Law Clinic, 2020

WE RECOMMEND THAT THE UNITED STATES:

This analysis concludes that:

• Preexisting human rights conditions rendered low-income African American and immigrant communities particularly vulnerable to the destructive forces of Hurricane Katrina;

• The U.S. government did not ensure low-income African American and immigrant populations adequate and accessible emergency assistance in a nondiscriminatory manner;

• The U.S. government has a duty to safeguard the human rights of individuals participating in the cleanup and reconstruction effort.

Based on these conclusions, we respectfully request that the Human Rights Committee adopt the following draft concluding observations:

In August and September of 2005, two powerful hurricanes slammed into the Gulf Coast of the Unite... more In August and September of 2005, two powerful hurricanes slammed into the Gulf Coast of the United States, flattening coastal towns in Texas, Louisiana, Mississippi and Alabama. Over a thousand lives were lost, and millions of people have been uprooted from their homes. In images broadcasted on the nightly news, two groups of individuals stood out – one for its visibility and the other for its absence. Heartrending images of African American Gulf Coast residents pleading for assistance from rooftops above toxic waters reminded the United States of its legacy of discrimination and the persistence of poverty. The fate of immigrant communities living on the Gulf Coast remained conspicuously unaddressed by mainstream media.