CHAPTER 50. International Law and the Forensic Nurse Examiner
Jane Weaver Diedrich and Alden Fahy
Relevance of International Law to Forensic Nursing
Forensic practitioners are well aware of the partnership between law and forensic science that their profession entails. Usually, U.S. forensic clinicians are enforcing municipal (local) ordinances or state laws, although the 14th Amendment to the U.S. Constitution also applies. If a federal crime is being prosecuted, then federal statutes and the U.S. Constitution are involved. It has also long been recognized that by harming a citizen of another nation, a country indirectly injures that nation as well because a nation state has an interest in protecting its citizens wherever in the world they may be or wherever in the world a crime is committed against them. These latter two ideas extend certain legal rights and privileges, as well as the rule of national laws, beyond national boundaries. U.S. jurisprudence, for instance, authorizes prosecution in the United States for certain crimes committed abroad. In 2008, Mexico extradited more than 95 suspects, mostly Mexican members of drug cartels, to face prosecution in the United States in the wake of drug smuggling to the United States and related murders surpassing 5300 in 2008 alone (Associated Press Mexico, 2008).
U.S. civil courts also allow causes of action to recover damages for wrongs alleged to have occurred abroad, often obtaining jurisdiction over non-U.S. citizens and ordering them to pay monetary awards. For example, in Massie et al. v. The Government of the Democratic People’s Republic of Korea, three U.S. servicemen, the USS Pueblo captain’s spouse, and one civilian oceanographer were awarded $65 million for being taken hostage in 1968 from international waters and then tortured while held in captivity for 11 months, causing permanent injuries. North Korea never responded to the lawsuit filed in the U.S. District Court for the District of Columbia.
Increasingly frequently, however, for both U.S. and overseas forensic practitioners, an entirely separate body of law—international law—may be involved.
International law involves agreements between two or more countries, formal bilateral or multilateral treaties, decisions of international courts, and universal norms as actually and consistently practiced from a sense of legal obligation by the majority of civilized nations (known as customary international law).
Although traditionally international law encompassed relations between countries or treatment of groups vis-à-vis nation-states, since the founding of the United Nations (UN), the individual has become a primary concern of international law. Indeed, the Preamble and Articles 55, 56, and 68 of the UN Charter indicate that the protection of human rights was to be one of the UN’s highest priorities (Buergenthal and Shelton, 1995 and Hannum and Fischer, 1993). Some examples follow. A “domestic” legal case might involve a forensic nurse giving evidence in a hearing regarding the granting of asylum status by the United States based on persecution by the applicant’s home country under rules of the U.S. Customs and Immigration Service. That same forensic nurse asked to testify before a regional international human rights body (such as the European Court of Human Rights) or to submit a statement to the Human Rights Council of the UN might be operating under international law originating outside the United States.
Forensic testimony as to the cause of kidney stones in children drinking Chinese-manufactured milk could be strictly a Chinese matter. Indeed, recently a Chinese dairy supplier and dairy manager were sentenced to death under Chinese criminal law for adding melamine, which like protein is rich in nitrogen, to watered-down milk to fool for protein content. Their actions resulted in kidney stones, thousands of ill children, and several children’s deaths (Associated Press Beijing, 2009). However, where importation of tainted milk or lead-containing Chinese toys is alleged to have harmed U.S. children, international trade law becomes involved (Cortez, 2008). Two final examples are the use of Tasers on handcuffed suspects/arrestees or waterboarding possible terrorist detainees. The first has been determined to be excessive force under the U.S. Constitution ( Orem v. Rephann, No. 07-1696, Fourth Circuit, April 28, 2008), and either might be ruled “torture” under the Covenant against Torture and Other Cruel, Unusual or Degrading Punishment (CAT), which the United States ratified in 1994. In the USS Pueblo case, besides finding North Korea liable for state tort claims such as intentional infliction of emotional distress, Judge Kennedy awarded damages for violations of the International Convention against the Taking of Hostages (1979; United States ratified in 1984).
Sources of International Law
International law emanates from a variety of sources. Two of the easiest to understand are treaties and laws or administrative regulations that originate in the international bodies such as the African Union or the Parliament of the European Union, as such entities parallel the legislative bodies found in most countries. A third source of international law, actually the oldest but perhaps the hardest to understand conceptually, is customary international law.
Treaties
Treaties are formal written agreements between two or more countries’ governments intended to be legally binding by having the status of at least national law and national law enforcement behind them. Most international agreements and treaties into which the United States entered before World War II are bilateral (between two countries) as compared to trilateral (among three countries) or multilateral. Bilateral agreements can be conceived of and entered into force within a week, whereas multilateral treaties can take years of drafting, or months of debate within the international organization(s) involved, and even decades to obtain enough countries’ ratifications for them to finally enter into force. The Supremacy Clause of the U.S. Constitution, Article VI, clause 2, states:
… and all Treaties made…. under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every state shall be bound thereby, any Thing in the Constitution or laws of any state to the Contrary notwithstanding.
Even though a country has supported a multinational treaty through the arduous drafting process, it does not mean it will then become a party to it. For instance, despite its often claimed leading role in advocating for human rights, by 1994 the United States had become a party to only four major post–World War II human rights treaties (Box 50-1). Specifically, the United States helped negotiate and draft the International Covenant on Economic, Social, and Cultural Rights, which President Carter signed and sent to the Senate, but it still remains pending (Article 12 recognizes the right of everyone to the enjoyment of the highest attainable standard of physical and mental health). The United States was also instrumental in calling for the global improvement of the status of children and women worldwide, which led to the Convention on the Rights of the Child (CRC, 1989) and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW, or the women’s convention of 1979). The first has now been ratified by 192 countries (virtually every recognized country in the world save Somalia and the United States), the latter by at least 186 countries (National Committee for CEDAW, 2009).
Box 50-1
The following list presents key human rights conventions. The first date indicates the adoption, or opening, for signature of the treaty; the second indicates when the United States ratified.
• Convention on the Prevention and Punishment of the Crime of Genocide (1948/1988)
• International Convention on the Elimination of All Forms of Racial Discrimination (1965/1994)
• International Covenant on Civil and Political Rights (ICCPR, 1966/1992). Held not self-executing
• Convention against Torture and Other Cruel, Inhumane, or Degrading Treatment or punishment (CAT, 1984/1994). When Congress passed the Antiterrorism and Effective Death Penalty Act of 1996, the United States retroactively lifted the immunity of foreign states officially designated as state sponsors of terror, as well as the immunity of their officials who participated in terrorist activities.
*In 1872, after five years of political lobbying and advocacy by Clara Barton, the United States ratified one of the first multilateral treaties: the Geneva Convention (humanitarian law as deals with armed conflict). In 1949, the United States ratified two additional Geneva Conventions, but it has not ratified further Geneva Conventions (circa 1967) that deal with situations such as the Vietnam War (civilian clothes by day, combatants at night) or treatment of armed conflict created refugees.
The United States President signed CEDAW in 1980 and sent it to the Senate where it languished in committee. President Clinton sent a letter to a Democratic-majority Senate requesting ratification. However, even with significant reservations, understandings, and interpretations added by the U.S. Department of State designed to meet critics’ objections, the Senate still failed to vote on CEDAW. The children’s convention (CRC) has yet to even be sent to the Senate for ratification, ostensibly over parental rights issues. Because the U.S. Senate has not given its advise and consent to either of these two treaties, the United States has ratified neither.
A well-organized U.S. National Committee for Ratification of CEDAW, with support from both the American Nurses and American Bar Associations, would certainly welcome forensic practitioners’ support as well. Indeed, grassroots efforts to support the women’s convention, without waiting for Congress to act, have resulted in many states and towns enacting legislation adopting the treaty within their own geographical jurisdictions. (See Box 50-2.)
Box 50-2
The UN’s Convention on the Elimination of All Forms of Discrimination against Women was the fastest modern multilateral treaty to be ratified by a sufficient number of countries to go into effect. The method that its 186 parties use to measure progress is through initial and then staggered periodic self-assessment reports (each 70 to 100 pages long) concerning every article of the convention. Countries are urged to involve NGOs (such as IAFN) in preparing their reports. Rapporteurs assist the UN CEDAW Committee to raise issues and make country-specific recommendations based on discussion of the reports, which are available on the website of the Office of the UN High Commissioner for Human Rights. Additionally, to address issues common to many countries, the Committee has adopted at least 25 general recommendations, including one on violence against women (No. 19) and one on access to healthcare (No. 24).
In 1999, an optional protocol was adopted allowing individual women to bring communications to the Committee’s attention for possible inquiry. To date, more than 11 communications have been received and several inquiries initiated. While Senators, both Joseph Biden and Barack Obama pledged support for U.S. ratification of the “Women’s Treaty.” In January 2008, the Secretariat of CEDAW was transferred to the office of the High Commissioner for Human Rights in Geneva.
Source: National Committee, 2008; Working Group on Ratification of the U.N. Convention on the Elimination of All Forms of Discrimination Against Women (195 U.S. NGOs engaged in outreach and education to achieve ratification by the United States of the treaty for the rights of women), (www.womenstreaty.org, accessed 09/29/2009).
A treaty that is self-executing takes effect immediately. If a treaty is not self-executing, each country/state intending to be legally bound must enact further domestic laws to see that the treaty is given full effect and enforced. The Geneva Convention of 1864 is an example of a self-executing international treaty. Thus, as soon as the United States ratified the treaty (thanks to the efforts of Clara Barton), meaning that the U.S. President had signed it and the U.S. Senate had given its advise and consent, its terms became the supreme law of the land (U.S. Constitution, Article VI). On the other hand, the International Covenant on Civil and Political Rights (ICCPR, 1966), a multilateral treaty promulgated by the UN General Assembly in the mid-1960s and ratified by the United States in 1992, is not considered by the U.S. executive or judicial branch to be self-executing. Therefore, it requires the U.S. Congress and/or individual states/municipalities to pass further domestic laws before the treaty is given full force and effect by U.S. courts. When such further internal legislation has been enacted, U.S. tribunals are more likely to grant individuals their treaty rights. The U.S. Supreme Court ruled recently that even detainees from the “war on terror” at Guantanamo have recognized Constitutional rights. Yet, in 2008 the same Supreme Court refused to make Texas remedy its international law violations of foreign nationals’ treaty rights to contact their embassies upon arrest in the United States. The United States ratified the Vienna Convention on Consular Relations (VCCR) in 1969, which requires such notification. The difference can be explained by the Supreme Court’s ruling that the VCCR is not self-executing, despite then President George W. Bush’s requests/direction to states to abide by U.S. treaty obligations (Medellin v. Texas, 128 S. Ct. 1346 (2008)). Apparently, within our federal republic, concurrent consensus by all three branches of the federal government is the determining factor in whether the United States behaves as if a treaty is self-executing. What this local nonrecognition and enforcement of treaty law in individual communities of the United States means, however, is that when U.S. citizens are arrested abroad, the U.S. Embassy or U.S. consular officials may not be notified.
Because there are an increasing number of treaties governing almost every aspect of human behavior, from oceanic disposal of medical waste to creation of an international criminal court, the scope and origin of laws, rules, and regulations that forensic practitioners will practice under will increasingly originate from international law. Although this may take more time in the United States than elsewhere, the process is well under way. One example involves the definition of refugee in deportation proceedings. In the case of INS v. Cardoza-Fonseca, 510 U.S. 421, 441 (1987), the Supreme Court recognized that in writing legislation on refugees, Congress purposefully incorporated the definition from the UN Protocol on the Status of Refugees, which the United States ratified in 1968. Other terms, such as torture and genocide, continue to carry different meanings even within our own branches of government, let alone around the world (Albrecht, Apt, Frazier, et al., 2005). To understand treaty law as currently applied to forensics in the United States then, forensic practitioners must know whether a treaty is considered self-executing or has been implemented by parallel U.S. federal or state laws, and what the legal definitions of the treaty’s terms are.
International law originating in international bodies
This source of international law includes both laws passed by regional governmental organizations, such as the European Union, or by international bodies such as the International Labor Organization (ILO) founded in 1919. The ILO typifies many other specialty international bodies whose members have developed a considerable body of international law, as well as an effective global monitoring system (Mission of Inquiry, 1990). With some 200 international labor conventions now in operation, plus the Convention on the Rights of Migrant Workers (1990), international law even concerns the working conditions, living standards, and equitable treatment of forensic practitioners (Associated Press, 2007). (See Box 50-3.)
Box 50-3
The following sources give the international legal standards on hostage, prisoner, and detainee treatment, as well as U.S. congressional legislation interpreting these international obligations. Since 2004, as many as 62 detainees have died in U.S. immigration custody, largely because of untimely or inadequate medical care (Neeley, 2008).
• Standard Minimum Rules for the Treatment of Prisoners (Sales No. E 1956 IV. 4, annex I.A). United Nations (1956). New York: United Nations Secretariat.
• Vienna Convention of Consular Relations 1967 (see Article 36).
• Principles of medical ethics relevant to the role of health personnel, particularly physicians, in the protection of prisoners and detainees against torture and other cruel, inhuman, or degrading treatment or punishment. Res 37/194 (December 18, 1982). New York: United Nations General Assembly.
• International Convention Against the Taking of Hostages (1979; United States ratified in 1984).
• United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, UN Document A/39/51 (1984, entered into force June 26, 1987).
• Torture, Death Penalty and Participation by Nurses in Executions (2006). Geneva: ICN
Customary international law
As certain truths, practices, or fundamental rules become recognized authority universally or generally and consistently practiced as behavioral standards across a majority of territories and borders, they attain status as customary international law. Such laws are said to be “of custom” as opposed to being decreed or written by particular authorities. One example is the right of all nations’ ships to sail the high seas, free from piracy. Although not initially written down as a legal decree, legal scholars have historically recognized this right as customary international law since at least the 1700s, and since that time the majority of civilized nations have actually consistently pursued and prosecuted pirates. Lip service to “universal” morality or norms is insufficient to confer status as customary international law; only actual consistent behavior resulting from a sense of legal obligation by the majority of civilized nations meets the criteria.
As the world becomes more interdependent, the body of customary international law will be expanded and refined. For example, in 2008, a U.S. appellate court upheld the right of sexual abuse victims to sue U.S. archbishops, bishops, and priests who, following a 1962 Holy See “secrecy policy,” refused to report cleric child abusers to police. The U.S. federal court held that such behavior violated the customary law of human rights (O’Bryan et al., 2008).
Customary international law refers to minimum standards as actually practiced from a sense of legal obligation governing relations between governments, between governments and certain citizens, and among human beings in general. In many societies, notions of universal justice or natural law support the concept of customary international law.
Human Rights Under International Law
Critics have claimed that some standards identified by legal scholars to be customary international law emanated too predominantly from Western cultural perspectives or that the values of Western cultures and religions did not encompass the full range of human rights. However, such criticism has subsided since 1948 when the UN General Assembly adopted the Universal Declaration of Human Rights (UDHR). After President Roosevelt’s death, President Truman asked Eleanor Roosevelt to be U.S. representative to the UN, where she chaired the committee that developed the UDHR; copies are available at www.udhr.org. A declaration is not intended to be legally binding and therefore is not the same as a treaty. However, the UDHR is cited not only as evidence that nations representing numerous cultures and all the major religions recognize certain minimum standards or “inalienable” human rights, but also as evidence of what those international standards encompass. Such universally recognized rights include certain rights to life and the humane treatment of prisoners. Having stood the test of 60 years’ time within the 186+ nation forum of the UN, the UDHR is now considered by some to constitute customary international law.
Since 1951, many detailed declarations, agreements, conventions, and numerous treaties to flesh out the human rights enumerated in the UDHR have been negotiated and come into force. This development, often referred to as the modern human rights movement, does impact nurses. (See Box 50-4.)
Box 50-4
Josephine Ensign, an associate professor of psychosocial and community health nursing at the University of Washington, Seattle, described her experiences with homeless teenagers in Thailand since 1993:
Things about my work there certainly inform my work [in the United States]. It has spurred me to be bolder in doing things here. Thai people who work with issues relating to street children use an international human rights framework to guide their work, such as the UN’s Convention on the Rights of the Child. Their example has made it clear to me what a necessary framework this is for my work with homeless young people here in the United States—and how important more equitable access to basic education and healthcare [is] to our young people (Unrau, 2007).
One way devised to address philosophical, religious, and cultural differences when it comes to codifying human rights into enforceable international law is the reservations, declarations, and understandings mechanism. This allows nations becoming a party to a treaty to file certain legal interpretations and reserve aspects of domestic law, even while ratifying a treaty. For instance, more than 185 countries have ratified the Convention on the Elimination of All Forms of Discrimination against Women. However, most of those signatory parties also filed reservations, some of which have been criticized as so extensive and so incongruent with the intent and spirit of the treaty as to effectively nullify the country’s obligations to comply. The United States often files an “understanding” that the U.S. Constitution will prevail if there appears to be any conflict between it and a treaty. As nations file reservations to written international laws being created by multilateral entities like the UN, as international courts render decisions interpreting written treaties, and as sovereign nations comply with the findings and orders of international judicial forums by paying damages or changing certain behaviors, the body of customary international law is clarified and grows. For instance, war crimes tribunals (beginning with Tokyo) have firmly established that rape, when used systematically against a civilian population or as a strategy toward ethnic decimation, constitutes a war crime under humanitarian law (de Brouwer, 2005). Human rights forums have established that rape can also be a crime against humanity.
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