Jul 25 2016

The Architecture of a Human Rights Violation

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By Melissa Lazaro*

The American Institute of Architects’ Code of Ethics and Professional Conduct lists the standards that licensed architects in the United States are required to incorporate into their professional practices. It addresses an architect’s obligations to the public, the client, their colleagues, as well as the environment. However, it is Ethical Standard (E.S.) 1.4 that lists perhaps the most far-reaching obligation that a practicing architect should uphold. E.S. 1.4 reads, “Members should uphold human rights in all their professional endeavors.”

Aside from this one standard, human rights are never mentioned again within the ethics code and architects are left on their own to interpret both what E.S. 1.4 means and how to put it into practice. Regarding its meaning, Helene Combs Dreiling, the American Institute of Architects’ (AIA) former president, says, “The code has to do with the way architects practice, treat each other, perform in the eyes of our clients.” But Raphael Sperry, president of Architects/Designers/Planners for Social Responsibility, proposes a different understanding. He interprets E.S. 1.4 as a call for the AIA to adopt international human rights standards by prohibiting the design of buildings whose sole purpose is the violation of human rights—specifically the design of execution chambers and solitary confinement housing.

The Design and Intent of Execution Chambers

 Following the 2010 construction of the new execution chamber at San Quentin Prison in California, SFGate chronicled the chamber’s features. Costing $853,000, the new chamber is four times larger than the old one, includes three witness viewing rooms, is adjacent to a control room where the lethal injection cocktail is locked away, has four telephones with separate telephone lines in case of any last-minute pardons, and is wired with speakers so the prisoner can broadcast his final words.

Floorplan of San Quentin Prison’s newly designed execution chamber. Image: K. Fagan/SFGate

Floorplan of San Quentin Prison’s newly designed execution chamber. Image: K. Fagan/SFGate

 

All of the features of San Quenten’s new execution chamber are design elements; they exist to fulfill the design intent, which is to kill prisoners. If the purpose of the finished design is to facilitate an activity that will result in a human rights violation—which execution chambers certainly do—then how does it not constitute a violation of the AIA’s code of ethics under E.S. 1.4?

The Death Penalty at Home and Abroad

The death penalty in the United States has come before the Supreme Court multiple times. Although capital punishment was declared unconstitutional by the Court in Furman v. Georgia in 1972, the Court did so on the basis that its arbitrary imposition constituted a cruel and unusual punishment, and therefore a violation of the Eighth Amendment, rather than the punishment itself being a violation. However, the Court restored capital punishment in 1976 on the justification that “new procedures and requirements were, in theory, sufficient to limit arbitrary decisions.”

The issue most recently came before the Court in June 2015 following multiple, much publicized, botched executions, including the execution of Clayton Lockett, where it took 43 minutes for Mr. Lockett to die following the administration of the first execution drug. In Glossip v. Gross, the Court ruled against three death row inmates who claimed the lethal injection used in executions could cause excruciating pain, and would violate the Eighth Amendment. However, both dissenting Justices Stephen Breyer and Ruth Bader Ginsburg “came very close to announcing that they were ready to rule the death penalty unconstitutional.”

In contrast to its popularity in the United States (61% of Americans approve of the death penalty), capital punishment has been widely condemned by the international community and goes against international norms and standards; the United States and Japan are the only developed democracies who still use the death penalty. In December 2014, the United Nations General Assembly adopted a resolution calling for a moratorium on the death penalty, which passed by an overwhelming vote of 117 states in favor of the resolution and only 38 states—including the United States—opposed. The Second Optional Protocol to the International Covenant on Civil and Political Rights commits its 81 States Parties to abolishing capital punishment. Although General Assembly resolutions are non-binding and the United States is a non-member to the Second Optional Protocol, this demonstrates that there is a wide international consensus that capital punishment constitutes a human rights violation.

Significance of the Ethics Code

Each state has different requirements pertaining to the licensure of architects, but according to the National Council of Architectural Registration Board, “All jurisdictions require individuals to be licensed (registered) before they may call themselves architects and contract to provide architectural services.” That an architect must be licensed in order to practice is important because it means that architects have a monopoly over their practices and in exchange, architects are responsible for protecting the public health, safety, and welfare.

This monopoly means that only licensed architects can offer their services because they bear the responsibility of ensuring that the structures they design will not cause harm by collapsing, for example. This is why the ethics code is significant. The standards listed in the AIA’s ethics code are the standards an architect must abide by if they are to be charged with the responsibility of the public’s safety. According to Mr. Sperry, to demonstrate this responsibility, the AIA should ban the design of execution chambers because “the least architects could do is to say, ‘When you enter one of our buildings, it’s not intended to kill you.’”

It is understandable that the AIA is hesitant to wade into the murky waters of regulating the types of buildings architects are and are not allowed to build, especially when capital punishment is permitted under United States law. However, one of the AIA’s roles is to ensure compliance with the ethics code, which means to ensure that human rights are being upheld. If licensed architects are designing execution chambers—a structure whose sole function is to kill prisoners and therefore commit a human rights violation—then those individuals should be subject to disciplinary action and a case against them should be brought before the AIA’s disciplinary committee.

*Melissa Lazaro is a current MSc Human Rights candidate at the LSE. She can be reached at m.lazaro@lse.ac.uk. 

 

Posted by: Posted on by Leila Nasr

Jul 18 2016

The UN Needs to be Salvaged

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By Umar Lateef Misgar*

Yemeni children walk in front of buildings that were damaged by Saudi airstrikes in the capital Sana’a (AFP)

Yemeni children walk in front of buildings that were damaged by Saudi airstrikes in the capital Sana’a (AFP)


“All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination,”
reads the Universal Declaration of Human Rights, one of the foundational documents of the United Nations (UN). The formation of the UN at the end of Second World War is deemed a defining milestone in the course of human civilization – a moment of powerful cross-continental solidarity. It’s aims of maintaining world peace and preserving human dignity devoid of racial, ethno-sectarian, political or gender affiliations were unheard of; so was its commitment to the devolution of colonial structures. The UN established itself as an institution of bravery, prestige and most crucial of all, trustworthiness.

The United Nations, particularly its specialized institutions, have worked tirelessly in the fields of human rights, education, healthcare, refugee protection, environmental preservation, prevention of drug and human trafficking, preservation of common human architectural and natural heritage, prosecution of crimes against humanity, and eradication of epidemics, poverty, famine and so on. On the political front, the UN has negotiated 172 inter-state settlements, and hundreds of multilateral treaties on disarmament, oceans, outer-space and nuclear non-proliferation.

Despite these important successes, the UN remains hostage to the myriad interests of its most powerful members especially the P5; it also operates with a range of internal bureaucratic hurdles, corruption scandals, allegations of sexual abuse of minors and sex-trafficking, and the deadly incompetence influences of major funders. This translates into a serious loss of esteem and, thereby, authority.

For an institution that expects states to cede a part of one of their most inviolable elements – sovereignty – to it, this is nothing less than suicidal. The same is the case with non-state actors; if the UN cannot handle and penalize the subversive conduct of its own members with impartiality, non-state groups like terrorist organizations and individuals acting in contravention of international norms will not only trample the decisions taken by the organization but will also use the complicity of the UN as propaganda to garner support for their own ends.

Importantly, the UN’s principle of impartiality remains in serious doubt, especially after a host of recent developments. The organization not only failed to put an end to the gruesome civil war in Yemen but also failed to effectively sanction the primary perpetrators – Saudi Arabian-led coalition forces and Houthi rebels – for their indiscriminate use of cluster bombs, besiegement and bombardment of civilian areas, as well as for using civilians as human shields and recruiting child soldiers. Additionally, after persistent “blackmail” by Saudi Arabia and its gulf allies, the UN removed Saudi-led coalition fighters in Yemen from the annual blacklist of groups committing abuses against children. The UN’s own reports conclude that the coalition killed at least 510 children in Yemen last year and wounded another 667. The coalition also bombed schools, marketplaces and hospitals. Incredibly, Saudi Arabia also chairs the panel of independent experts on the UN Human Rights Council. However, this is not the first time that the UN has removed a perpetrator of child abuse from this list. Ban Ki-Moon’s office caved in to pressure from Israel to remove their name from last year’s version of the same damning report. Israel was on the list following Operation Protective Edge (2014), in which the Israeli military killed at least 501 Palestinian children in Gaza. Furthermore, 3,374 children were injured, of which 1,000 are expected to suffer lifelong disability.

In the Central African Republic (CAR) (which has been marred by a renewed period of civil war since 2012), the UN’s mission – BINUCA – which was already operating at the advent of crisis has virtually become dysfunctional. Moreover, the proximity of BINUCA officials to one of the warring parties rendered the body ineffective as a mediator. In informal circles, a UN placement in the CAR is thought to amount to a “punishment posting” for the underperforming staff – a “prison” and “a parking lot of the UN”.

The international peacekeepers deployed at CAR have also been accused of raping and forcing children to engage in acts of bestiality in IDP camps in exchange for food, water and money. An independent investigation headed by Marie Deschamps, a former justice of the Supreme Court of Canada, released a report in January accusing the UN of “gross institutional failure” to investigate the abuses by peacekeepers. Close to 600 cases of sexual exploitation and abuse – involving UN and other peacekeepers – have been reported in CAR since 2008. As a result, many underage girls have been left pregnant and are now dealing with severe trauma.

The UN not only failed to properly investigate and prosecute this criminal conduct but also hounded the whistleblower Andres Kompass who eventually resigned from the organization. Mr. Kompass cited “absolute impunity” enjoyed by the abusive peacekeepers as one of the reasons for his resignation.

More recently, in Syria, drawing on both the UN’s internal reports and interviews of the UN’s personnel, the Syria Campaign, a pro-regime advocacy group released a report accusing various agencies operating in Syria of shunning the basic humanitarian principle of impartiality and working in tandem with the Assad regime. According to the report, most of the aid delivered by the UN in Syria has been commandeered to regime-controlled areas. The aid convoys have driven through starving towns held by the opposition groups to offload food and medical supplies in areas controlled by the regime. The report clearly lays out how Assad has manipulated the multiple agencies of the UN operating in Syria into becoming the tools of his besiegement, starvation and surrender strategy; a strategy that may amount to war crimes. [1]

According to the Syria Campaign Group’s report, to avoid angering the Assad government, the UN gave up its power. Since then, “the Government has sought to impose itself on all aspects of the (humanitarian) response, refusing to acknowledge OCHA’s role as coordinator of humanitarian assistance,” according to an evaluation by the Office of the Coordination of Humanitarian Assistance (OCHA).

Surrendering its neutrality and thus credibility to a belligerent that has engaged in acts of mass-murder, gruesome human rights abuses, enforced disappearance, arbitrary detention and torture is another low for the UN. This culture of trade-offs and compromises has plagued the UN from Bosnia to Sri Lanka, for example, and now Syria.

The UN, at its best, is too important and sacrosanct to be lost to Kafkaesque bureaucracy, cowering diplomats and, most importantly, unblushing bullies. It has, at least in principle, given a chance for everybody to be heard. Hugo Chavez and George Bush, Che Guevara and Eisenhower, Ariel Sharon and Yasir Arafat, Noam Chomsky and Henry Kissinger, all have spoken from the same pulpit. But if it continues to act as the arena of might rather than uncompromising justice, the bravest experiment in human history risks being reduced to a laughing stock rather than a benchmark of fairness and motivator of the finest human conduct. It is high time that the UN starts cleaning the 42nd street.

[1] Current international humanitarian law – the law of armed conflict -prohibits deliberate starvation of the civilian population as a tactic of war and deems it as a prosecutable war crime. This prohibition finds expression in Article 54 (1) of Additional Protocol I of 1949 Geneva Conventions, which states that besieging forces may not starve civilians “as a method of warfare.”

*Umar Lateef Misgar is an International Relations student at Kashmir’s Islamic University of Science and Technology. His work has been previously published at OpenDemocracy.net and Counterpunch. Twitter @Kaashur

 

Posted by: Posted on by Leila Nasr

Jul 7 2016

Drones in Contemporary Warfare: The Implications for Human Rights

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By Alexandra Funk*

The complex relationship between war and human rights has evolved as new challenges have arisen. The nature of contemporary war has changed due to technological innovation, in particular, the use and further development of Unmanned Aerial Vehicles or ‘drones’. Drones have revolutionized the nature of war, becoming one of the most utilized, desired, and successful military advances in modern history. As evident in the outcomes of US drone policy, the way drones function within the modern world heightens the risks to civilians’ human rights, specifically their right to life. As drones advance, the international system must work to situate this technology within human rights obligations, specifically, within International Human Rights Law (IHRL) and International Humanitarian Law (IHL).

Drones and the US Military

The specific types of conflicts – between states, non-state actors, and subversive groups – of the post-9/11 world have accelerated the development and use of unmanned technology. Drone warfare has intensified under President Obama and has since become regular military policy against members and associates of al-Qaeda and the Taliban within Yemen, Somalia, Afghanistan, Libya, and Pakistan. Originally, the MQ-1 Predator drone conducted the majority of strikes. From 2002 to 2012, the number of US Predators increased from 167 to over 7,000. Subsequent generations of drones – the Reaper and the Avenger – are over nine times as powerful as the Predator and can fly while carrying thousands of pounds of weapons.

From a military perspective, drones are effective and advantageous, as they can precisely target opponents and minimize risks for soldiers by keeping them geographically removed from conflict. Drones give states an omnipresent involvement within conflict, minimizing any previous geographical or temporal restrictions to intervention and surveillance. Consequently, drone operations are only as successful and as accurate as the operators who command them and the intelligence that directs them, challenging the human rights of those within the modern battle space.

The Dangers of Drones

Approximately 32 percent of those killed by US drone strikes in Pakistan have been innocent civilians. The Bureau of Investigative Journalism claimed that of the 416 to 959 civilians killed by drones in Pakistan between 2004 and 2014, 168 to 204 were children. Furthermore, between 2002 and 2014 in Yemen, drones killed at least 64 to 83 civilians with a possible 26 to 68 additional deaths unaccounted for. Additionally, those in the territories where drones operate live in habitual fear. Residents in the occupied Palestinian territories are frightened by potential Israeli strikes while those living in Pakistan experience perpetual terror from the constant hovering of drones, a reminder of enemies thousands of miles away. Within Yemen, the relentless buzzing above has caused thousands of citizens to develop psychological disorders – such as post-traumatic stress disorder or anxiety – and has induced miscarriages in some women.

Washington DC residents protest US drone strikes during Obama’s 2013 inauguration. Licensed under Creative Commons.

Washington DC residents protest US drone strikes during Obama’s 2013 inauguration. Licensed under Creative Commons.

 

States utilize drones for targeted killing and signature strikes; these are common practices in response to rising terrorism concerns and asymmetric conflicts. These attacks often kill targets despite no identification process and no access to a fair and public court hearing – a violation of Article 14 of the ICCPR. When making decisions on strikes, operators are reliant on the intelligence received from cameras and sensors. These are often the sole reporters of information, as there is little intelligence coming from the ground level. Consequently, they can be affected by the weather and can only assess one specific location at a time. Additionally, targets are often surrounded by innocent civilians who are victimized despite having no participation in conflict or war. Frequently, these people are only guilty of being in the wrong place at the wrong time. In 2002, Daraz Khan and two friends collected scrap metal on top of a Southern Afghanistan mountain. Hovering above, a Predator collected the following information: the men were wearing robes, they were in a suspected al-Qaeda area, and Khan was noticeably taller than his companions. The drone operator determined that the strike was justifiable because Khan had conspicuous similarities to bin Laden. A more accurate assessment of Khan would have shown that he was nearly half a foot shorter than bin Laden’s suspected height, which may have saved the lives of three innocent civilians.

Drones have also dehumanized war and enabled more lethal force than ever before by removing the combatant from the battlefield. US drone pilots may be at a base in Nevada while CIA personnel are in Virginia, all of which are following orders from an Afghanistan base. Since operators are physically isolated from their opponents, there are no moments of mutual humanity shared between two enemies before a kill. This physical distance may lead to emotional distancing, making operators more comfortable with using lethal force than soldiers on the ground. Additionally, drones are used similarly to that of gaming systems as targets are transformed from living people to insignificant icons on computers. A young lieutenant described the feeling while practicing an unmanned strike: “It’s like a video game, the ability to kill. It’s like freaking cool.”

The Future of Drones

International law has fallen behind in regulating the use of drones in contemporary conflict. However, much work has been done in attempts to reconcile drones with the rule of law. A 2010 UN report defined drone attacks as a violation of IHL and IHRL because they lack transparency in ensuring that targeted killing is legally justified. Within armed conflict where IHL applies, the use of drone warfare may be less legally ambiguous because of looser standards on the use of force, despite strikes often violating principles of distinction, proportionality, and necessity. Consequently, drone strikes in non-conflict zones raise complex concerns over state sovereignty and human rights violations. The US’ active drone policy in Yemen, Somalia, and Pakistan, where there is no armed conflict, has been highly controversial and has resulted in violations of IHRL, including the right to life and the right to due process.

As these violations ensue, there must be discussion about accessing some sense of justice for victims of unjust strikes and their families. The failure to hold states accountable for human rights violations under IHRL is yet another violation in itself. How will states be held accountable when they liberally use drones in sovereign countries where no armed conflict is occurring? There must be legal accountability for the use of lethal force on civilians. The prerogatives of the post-9/11 war on terror must not trump human rights and the needs of victims who are pursuing international and national justice.

Drone warfare walks a fine line between legal uses of force and extrajudicial killings. In order to protect and allow for the enjoyment of human rights, states must update their understandings of their human rights obligations under international law. Furthermore, this must be reinforced through strict accountability measures. Drones act as a new way of killing within modern conflict and may have lowered the threshold to the use of lethal force, posing both moral and legal dilemmas. As we continue to make war “less human, we may also be making it less humane.”

*Alexandra is a current MSc Human Rights candidate at the LSE and is especially interested in the relationship between the terrorism discourse, counter-terrorism policies, and human rights. She holds a bachelor of Arts in Philosophy and Political Science. She can be reached at a.funk@lse.ac.uk.

 

Posted by: Posted on by Leila Nasr

Jun 29 2016

Peruvian IDPs and the Search for Holistic Transitional Justice

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By Juan Pablo Perez-Leon-Acevedo*

Peru’s internal armed conflict (1980-2000) took place between the subversive Shining Path and state forces, causing the forced displacement of between half to one million people, mainly from indigenous groups. Approximately half of those people managed to return during the early nineties, however around 150,000 people remain displaced. These people would usually reside in marginal areas of the Peruvian capital, Lima, and other major Peruvian cities. Beyond displacement, they typically face economic limitations and their status as internally displaced persons (IDPs) makes their integration more difficult. While the Peruvian State has taken certain steps towards addressing the situation of IDPs, sixteen years after the conflict ended, a full solution remains elusive. The present blog post mainly seeks to critically analyse the Peruvian State’s actions handling the problems related to IDPs. Recommendations are also provided.

Legislative Framework

In 2003 the Peruvian Truth and Reconciliation Commission recommended that all people forcibly displaced during the armed conflict be recognized as victims and eligible for reparations. The planning and implementation of individual compensation, including housing, integral health and education, was also recommended. A high-level body started monitoring the implementation of the Commission’s recommendations in 2004, and the subsequent implementation of the Law of Internally Displaced Persons in 2004 (as complemented by 2005 Regulations) should be seen as milestones.

This legal framework recognises two categories of IDPs: i) those whose displacement is caused by an international or internal armed conflict or groups taking up arms; and ii) those displaced as a consequence of unforeseeable events, including natural disasters. The present blog focuses on the situation of the IDPs as a consequence of the former (internal armed conflicts). These IDPs constitute the most numerous group of Peruvian IDPs.

The above legal framework was adopted in light of the UN Guiding Principles on Internal Displacement, which offer protection against forced displacement and stipulate that those affected by displacement receive re-settlement and the right of return. Significantly, the legislation emphasizes state responsibility for the prevention of forced displacement, particularly concerning indigenous communities and their ancestral lands.

State Actions: Challenges and Limitations

Whilst the situation for IDPs has progressively improved since 2000, sixteen years have now passed since the end of the conflict, and significant societal and financial challenges for IDPs persist, despite the aforementioned legislative and institutional developments. The challenges are particularly acute for those living in urban areas.

The Peruvian state sponsored ‘Program in Support of Repopulation and Development of Emergency Zones’ (PAR) (1996), designed to assist IDPs’ return to their homelands, remains significantly flawed, as evidenced by findings released by the Norwegian Refugee Council and the Internal Displacement Monitoring Centre (NRC/IDMC). The findings found that the PAR has consistently failed to support IDPs wanting to settle in urban areas, focusing exclusively on individuals seeking a permanent return to the communities from which they came. Consequently, IDPs opting for dual residence (city/countryside) fall outside the PARs support scheme. The reluctance or inability of IDPs to return to their homelands is often the case where IDPs lack the resources necessary to reconstruct livelihoods, when their children have already been integrated into new urban areas, or when they are suffering psychological trauma and exclusion from their home communities. Even when IDPs do manage return to their homelands, as documented by the NRC/IDMC, it is common for them to endure harsh living conditions that force them to return to urban living.

Those who decide, or are now forced, to live in urban areas have only benefited from general state run poverty-alleviation programs, which involve little consideration of the particular needs of urban IDPs. Evidence from the NRC/IDMC shows that IDPs living in inner Peru still face extreme poverty, low education levels/illiteracy, lack of basic services, food, jobs and identification documents, family disintegration, and insufficient water, sanitation and housing. The integration of IDPs into urban areas has been limited, with many facing ongoing marginalisation and discrimination. This can be attributed to lower levels of technical training and education, as well as ongoing stigmatisation of IDPs as subversives (former members of the non-state terrorist organisations who struggled against the Peruvian State during the armed conflict).

Meanwhile, a reparation council to elaborate a unified victim registry was established in 2005. Categories of victims of international crimes committed in the conflict, including IDPs, were listed for reparations. A two-step process began in 2006: creation of a list of the officially-recognized IDPs, and a high-level commission on reparations. State entities normally rely on identity documents and birth certificates in order to register IDPs officially. This approach suits victims in urban contexts; however, it does not suit victims originating from – or living in – rural areas and, thus, these IDPs are excluded. Even amongst registered IDPs, however, granting reparations has been slow, with the situation compounded by large numbers of IDPs in addition to the PARs limitations. It is important to note that the general poverty eradication policies for IDPs do not have the same symbolic or financial impact of reparations (compensation included), something particularly significant given that many IDPs belong to indigenous communities, traditionally excluded from Peru’s economic growth.

Recommendations for State Reforms

Overall, a holistic transitional justice approach to the IDPs’ problematic should be adopted in which IDPs as an important category of victims of the Peruvian internal armed conflict are finally given centre-stage. The following steps are recommended.

First, the Peruvian State must accurately and promptly identify the totality of IDPs. This registration process must be completed as victim-friendly as possible. For example, bureaucratic barriers must be lifted and factors such as background or native language of the victims should not in practice become obstacles for their registration as IDPs.

Second, the Peruvian State has to implement policies specifically oriented to integration of the IDPs in urban areas and, in due time, the IDPs’ voluntary return to their homelands. The State must consider and prioritize the views and concerns of the IDPs during these processes. Thus, IDPs can be empowered as active actors, in full and real exercise of their citizenship, and not be treated merely as aid beneficiaries. Particular attention must be given to the protection of vulnerable groups of IDPs such as the sick, minors, women and the elderly.

Third, the State must implement reparations programs tailored to the harm inflicted on the IDPs and thereby provide them with an important quota of restorative justice. To redress as much harm as possible, reparations must address the psychological, material and physical harm inflicted upon the victims as a consequence of forced displacement. To reflect the seriousness of the forced displacement and to be proportional to the harm inflicted upon the IDPs, reparations granted to the IDPs should combine material or financial elements through compensation, rehabilitative elements through healthcare and psychological services and symbolic elements through, for example, public apologies and guarantees of non-repetition. Considering that entire communities were displaced during the internal armed conflict, besides individual reparations, collective reparations such as provision of healthcare and educational community services should be granted to communities or groups of IDPs regarded as collective victims.

Fourth, when adopting these reforms, the State should meet and follow international legal standards on IDPs. Particularly, the Peruvian State should consider inter alia the UN Guiding Principles on Internal Displacement and the Inter-American Court of Human Rights’ important case law on IDPs and related reparations (e.g. see Nech et al. vs. Guatemala). Additionally, best national practices and comparative experiences on IDPs in Latin-America and beyond may be considered to shed some light on reforms to be implemented by the Peruvian State.

Overall, the State needs to holistically address the core problems that continue to affect IDPs more than fifteen years after the conclusion of the war itself. This should be done through the implementation of the proposed set of transitional justice measures so that this vulnerable people group can be provided with an important quota of restorative justice.

*Juan is a researcher (Vice-Chancellor’s Postdoctoral Fellow) at the Centre for Human Rights of the University of Pretoria, South Africa. PhD in international law (Abo Akademi University, Finland); LLM (Columbia University, USA); LLB (Catholic University of Peru). He has served in diverse capacities at, among others, the International Criminal Court, United Nations, Abo Akademi University, and human rights NGOs.

Posted by: Posted on by Leila Nasr

May 19 2016

Limiting Sovereignty and Legitimising Intervention

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By Nora Jaber*

International law’s elevated focus on the protection of human rights has resulted in a shift from a purely state-centered body of law to one that is increasingly focused on individual rights. This has been accompanied by a shift away from the concept of sovereignty as protection against external interference, to one of sovereignty as responsibility. According to Anne Peters, sovereignty can no longer be regarded as the “first principle” of international law; rather “it should be seen to exist only in function of humanity.” While this is desirable, this article argues that it presents a rather utopian and unrealistic understanding of international law as it is currently formulated. To what extent has sovereignty been limited by human rights and what are the implications of this for non-intervention?

Sovereignty and its limits

Sovereignty entails the exclusive right of a government to rule over its internal affairs without external interference. The legitimacy of governmental authority derives from it being democratically conferred by the people, or because it functions to “to protect human rights, to create and preserve a space for individual and collective self-fulfillment.” Thus, legitimacy is the basis of sovereignty. Therefore external intervention is prima facie not permitted as it lacks the same legitimacy as the state government. Moreover, allowing external intervention may set a dangerous precedent by which powerful states would increase their interventions into weaker states and eventually contribute to the instability of the international legal order. This would negatively affect the individual citizens of the states subject to intervention. Therefore, external intervention must itself be legitimised before it is contemplated.

One function a government must carry out in order to maintain its legitimacy and, thereby, its sovereignty, is to effectively protect the human rights of its citizens. This is what Peters refers to as the “humanisation of sovereignty”. Related to this idea is the concept of ‘sovereignty as responsibility’: each government is responsible for the protection of the human rights of its citizens, and where it fails to carry out this responsibility, its sovereignty can be limited. However, because of the well-established principle of non-intervention (Article 2(4) and 2(7) of the UN Charter), the threshold for intervention must be high.

Intervention should only be contemplated when there is no question about the legitimacy of its objective. In order for sovereignty to be limited to the point of justifying external intervention, the state must display a clear unwillingness to protect human rights on a large scale, or an active violation thereof vis-a-vis its population. In such scenarios, the discourse shifts from a right to intervene, to a duty to intervene. The nature of this duty is discussed below.

A legal versus a moral duty to intervene?

It is difficult to speak of a universal morality in international law as this is often shot down by cultural relativists (see Mutua or An-Na’im) who argue that claims of universality are premised on ‘Western’ values, and that any attempt to impose them on non-Western states constitutes a form of moral or cultural imperialism. However, some human rights are indisputable, a violation of which may justify external intervention (i.e. genocide, war crimes, ethnic cleansing, and crimes against humanity).

Whether this constitutes a legal duty to intervene is debatable. This position has been advanced under the concept of “responsibility to protect” (R2P) which arose out of a desire to prevent a repeat of the atrocities committed in Rwanda and Kosovo, for example. R2P is premised on the idea that it is the primary responsibility of a state to protect the human rights of its citizens, but where it fails to, an obligation arises on the international community to intervene to protect those rights. This is qualified by the requirement that the intervention be authorised by the Security Council. However, the extent to which R2P has been accepted as a legal norm is not clear as state practice and opinio juris[1] have not provided a solid basis to qualify this as a rule of customary law. The reluctance of the international community to set this out as a clear legal obligation indicates its reluctance to fully accept the idea of sovereignty as responsibility. The international community is not prepared to let go of the concept of non-intervention, even where it is needed to protect individuals from grave human rights violations.

Should there be a legal duty to intervene?

Although there is currently no clear legal duty to intervene to prevent large-scale violations of human rights, these waters should be navigated while maintaining respect for the principle of equality of states. Sovereignty should not be a barrier at this point because where such violations of human rights occur, a state should have its sovereignty suspended.

It is submitted that unilateral humanitarian intervention (without the authorisation of the Security Council) should not be an option as it undermines the (formal) equality of states, and because it assumes that one state is not only in a better position to protect human rights, but also in a position to determine which states are in need of external intervention. Moreover, history has shown that it is susceptible to abuse (Iraq 2003). Therefore, in line with the R2P criteria, any intervention must be done with the authorisation of the Security Council. Furthermore, in order for it to be effective, R2P must impose a legal obligation on the Security Council to authorise proportional intervention where it recognises that serious violations of human rights are occurring.

However, considering the current composition of the Security Council[2], a veto by a permanent member would be inevitable in many cases. Therefore, a framework must be constructed whereby a veto in cases where there is an indisputable violation of serious human rights would itself be not only illegitimate, but also unlawful. This has been articulated by Peters who has argued that the Security Council is bound by customary human rights law, and by Article 24(2) of the UN Charter which obliges the Security Council to act in accordance with “the Purposes and Principles” of the Charter in discharging its duties. Therefore, R2P is an obligation not only imposed on states, but also on the Security Council. Because the decisions of the Security Council are subject to the rule of law, “[t]he endorsement of R2P as a legal principle fully thought through means that a permanent member’s exercise of the veto power in a [clear] R2P case would be illegal.” If the exercise of the veto by a permanent member in such cases is illegal, this would necessarily trigger the member’s international state responsibility which in cases where the human rights violations in question are considered erga omnes[3], could be invoked by any member of the UN.

In light of these considerations, sovereignty can no longer be seen as a definitive excuse for non-intervention; rather, along with sovereignty comes a serious responsibility to protect human rights which, if not carried out, can legitimise external intervention. However, consensus on the role of human rights in international law remains elusive, and to claim that human rights have completely altered the international understanding of sovereignty (as existing only in “function of humanity”) is not realistic. Moreover, there is still much disagreement regarding the implications human rights violations, so to claim that they give rise to a legal duty of intervention, as desirable as it may be, is inaccurate.

[1]Opinio juris is the second requirement, along with widespread and representative state practice (North Sea Continental Shelf Case 1967), for establishing customary international law. It is the subjective belief of a State that it is acting in accordance with a legal obligation.

[2] The Security Council is currently composed of five members: United States, United Kingdom, France, Russia and China. Each member has a veto power which could block any action by the Security Council which means decision making by this body is highly politicised.

[3] Obligations owed by all States towards the entire international community of States.

*Nora Jaber is a Saudi Arabian LLM candidate at the London School of Economics and Political Science, specialising in Public International Law. She completed her LLB at King’s College in London. Her main interests are public international law with an emphasis on human rights and counter-terrorism.

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May 9 2016

Constitutional Rights Law and its Limitations: Topical Examples

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By Anthony Kennelly*

One consequence of the post-World War II ‘rights revolution’ is the ever growing use of constitutional law to protect fundamental rights. The goal of this is not only to protect such rights by judicial enforcement, at which it can be relatively successful, but to ultimately place them beyond political contestation.[1] However, it is regularly argued that placing rights beyond political contestation is very difficult to achieve where deep and sustained disagreement over rights exists.[2]

While this issue has been debated ad nauseum elsewhere, this post aims to highlight how looming re-ignition of the abortion controversy in the US and Ireland provides a timely example to support the arguments of Mark Tushnet and others. In Comparison with other issues, this also underlines the importance of these arguments for those advocating the ‘constitutionalisation’ of socio-economic rights in some jurisdictions, or the adoption of constitutional Bills of Rights in countries such as Australia, where none currently exists.

Roe v Wade and Continued Opposition to Legalised Abortion in the US

Opposition in the US to the infamous Roe v Wade judgment of 1973 has maintained traction in a way that few other issues have. By extending a constitutional right to privacy to choice surrounding abortion, the case prevented state governments from outlawing abortion prior to foetal viability. Though it was an attempt to use constitutional law to place a putative right beyond politics, Roe has resulted instead in four decades of legislative attempts to undermine it.

An upcoming Supreme Court decision now presents a real possibility of Roe being stripped of any practical effect. Due to be decided by the Court this June, Whole Woman’s Health v Hellerstedt concerns a Texas law (known as HB2) which places onerous restrictions on the operation of abortion clinics, in the name of protecting women’s health. Seen as making the provision of abortion services largely unfeasible, it is one of the most far-reaching restrictions on abortion providers in the US. The Court must decide whether HB2 complies with the principle in its 1992 decision in Planned Parenthood v Casey, that while states may place restrictions on access to abortions (prior to foetal viability), they may not place an ‘undue burden’ on pregnant women seeking them. If the Court finds that HB2 does not create ‘undue burdens’, other states will be free to enact similar provisions. Roe would then be little more than theoretical in effect, as state legislatures seeking to prohibit abortion could do so by less explicit means than formally outlawing it.

The potential outcome is complicated by Justice Antonin Scalia’s death, but the effects of Roe nevertheless remain in a precarious position. Supporters of Roe can undoubtedly celebrate its success at striking down and preventing outright bans on abortion in the US. However, the perpetual vulnerability of Roe’s precedent highlights a failure of constitutional law to completely insulate a putative right from sustained political disagreement.

This can also be seen in a mirror phenomenon occurring in Ireland.

The Mirror Image

The Eighth Amendment to Ireland’s Constitution confers a right to life on what it calls the ‘unborn’. Passed with overwhelming support in 1983, its purpose was to use constitutional rights to preclude the legalisation of abortion, whether by legislation or an equivalent Irish case to Roe v Wade.

However, attitudes have changed, and a referendum on its repeal seems increasingly likely. Key to this have been practical consequences of the Amendment, and it’s imperative that abortion may only be legislated for as a means of protecting pregnant womens’ lives. This is alleged to invite a complex legal framework for doctors, while numerous tragedies have also been attributed to it. These issues and the lack of further exceptions for rape and fatal foetal abnormalities have been catalysts for the current movement to repeal the provision.

While a recent election upset has made the timeline for such a referendum less certain, there nevertheless appears to be significant momentum behind the movement to repeal the provision. While successful in preventing legalisation of abortion thus far, the fact that constitutions may always be amended means the Eighth Amendment has been unsuccessful in putting the rights it contains beyond political contestation. The constitutional right to life in Ireland thus appears to be in a similarly precarious position to the constitutional right to choice in the US.

Wider Significance

As noted above, these examples provide a timely illustration of a point frequently made by jurists engaged with these issues; i.e. that while constitutional recognition of fundamental rights has tangible effects by providing greater legal protection through judicial enforcement, rights become truly entrenched only when attitudes and power structures have shifted in ways that make them politically irreversible. A thorough treatment of this argument is beyond this post, but further illustration is provided by contrasting the abortion controversy with more settled rights issues in the countries discussed above.

In the US, the right to sexual privacy which Roe expanded on was first grounded in the right to contraception access (Griswold v Connecticut), which came in the 1960s alongside the sexual revolution of that era. Likewise, in Ireland, the right to privacy in reproductive matters was recognised by the Supreme Court in McGee v Attorney General. However, it was only legislated for gradually over the next two decades or so as public support increased. Without this growing public support, McGee could well have become similar to Roe v Wade in terms of having a precarious legacy.

Another example of this phenomenon in the US is the striking down of laws criminalising homosexual activity in Lawrence v Texas (2003), and more recently in the same-sex marriage decision of Obergefell v Hodges (2015). This has also been true of Ireland, where the decriminalisation of homosexual activity in 1993 followed ECHR litigation and shifting social attitudes, and where a 2015 referendum gave constitutional validity to same-sex marriage following further evolution of attitudes surrounding homosexuality. In both cases, the particular processes of change (i.e. litigation or popular mobilisation) varied, but the changes themselves have come to be seen as irreversible as much because of changed attitudes as because of constitutional law in its own right.

These examples are worth bearing in mind by those advocating a constitutional Bill of Rights in Australia, or the constitutionalising of socio-economic rights in other jurisdictions. Advocates of such measures would do well to recognise the limits of constitutional law, as these examples once again highlight the important political context in which constitutional law operates.

[1] A notable exception is the development of the ‘New Commonwealth model’ for judicial protection of human rights in countries such as Canada, New Zealand and the UK.

[2] Mark Tushnet, for instance, points to how rarely supreme or constitutional courts deviate greatly from accepted or consensus views in society. In addition, Jeremy Waldron argues that where there is sustained disagreement in a democracy over applying human rights instruments to particular issues, the delicate considerations involved can leave reasonably well-functioning parliaments no less likely to reach certain decisions than courts.

Note: The author does not assume a particular stance on the wider abortion debate. The post is not intended to be a discussion of any particular rights controversy, but instead an observation of the trends identified to add to a wider legal debate.

Anthony Kennelly holds a Master of Laws (LLM) from the LSE, which he obtained in 2015. His LLM dissertation outlined reasons for caution in including certain rights guarantees in constitutions.

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Apr 25 2016

Transborder Abduction of Hong Kong Booksellers: Implications under International Law

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By Sean Yau Shun Ming*

In late 2015, five co-owners of a Hong Kong bookstore – specialising in selling Chinese political books mostly banned in China – all disappeared. Among them, the international community has paid considerable attention to Gui Minhai, a Swedish national who went missing in Pattaya, Thailand last October, and Lee Bo, a British national who disappeared from Hong Kong last December. Later on, Gui ‘confessed’ on state-run CCTV that he had fled because he had been involved in a fatal drunk-driving car accident more than a decade ago and that he was returning to China voluntarily. Rumour has it that the detention of the five booksellers is to prevent the publication of a particularly provocative book, Xi Jinping and His Lovers, together with other politically-sensitive books criticising the senior Chinese leadership.

The five missing booksellers are being detained in mainland China. Photograph: Ringo Chiu/ZUMA Press/Corbis

The five missing booksellers are being detained in mainland China. Photograph: Ringo Chiu/ZUMA Press/Corbis

 

To get the obvious issue out of the way: the suspected abduction of Gui and Lee by Chinese authorities would seemingly constitute enforced disappearance. The media and human rights groups dealt very carefully with these two cases due to the lack of evidence. However, the fact that four Chinese men reportedly entered Gui’s flat in Thailand and that Lee disappeared from the bookstore’s warehouse and miraculously entered China with his travel document still at home, should logically point to a clear case of abduction.

Against this background, this incident – while unprecedented in Hong Kong – simply falls in line with the Chinese practice of suppressing freedom of expression. In 2014, the US State Department documented the Chinese censorship of books containing politically-sensitive content, as well as the use of televised confessions by public security authorities in order to establish guilt before trial proceedings. A telling example is the case of Gao Yu, a veteran Chinese journalist, who was forced to confess on state television in May 2014 in order to avoid her son being targeted and punished.

In the present case, the booksellers were abducted following a 2013 Chinese government directive, “Sweeping the Source”, which explicitly targets the Hong Kong publishing industry to stop “counter-revolutionary” publishing activities. The aftermath of televised confession of Gui seemingly made under duress, as well as the unconvincing hand letters by Lee, demonstrated the decentralisation and thoughtlessness of Chinese law enforcement. Meanwhile, the incident entails significant ramifications under international law as well as in Hong Kong.

First, the fact that Gui was forcibly removed – by whatever means – from Thai to Chinese jurisdiction deserves examination under the international law of enforced disappearance, which is defined in Article 2 of International Convention for the Protection of All Persons from Enforced Disappearance (ICCPED) as:

… arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.

If the Thai Government had given consent, Gui’s case might have been one of extraordinary rendition for its lack of judicial permission. This is not without precedent: Jiang Yefei and Dong Guangping, Chinese dissidents and recognised refugees by UNHCR, were deported from Thailand to China in November 2015. Previously, the Thai authorities had also forcibly returned some 100 ethnic Uighurs of Chinese citizenship to China where they were at risk of torture.

Likewise, Gui’s case might point to Thailand’s violation of the non-refoulement principle, which prohibits transferring people to jurisdictions where they would be at real risk of human rights violations or abuses. The adoption of a rights-based perspective also reveals a substantial breach of the booksellers’ human rights, particularly the deprivation of their right to individual security and liberty. As further codified in Article 9 of ICCPR, anyone deprived of his or her liberty by arrest or detention shall be entitled to proceedings before a court which, without delay, will determine the lawfulness of detention.

Moreover, the incident represents a serious attack on China’s commitment to Hong Kong’s autonomy under the “one country, two systems” configuration. Under such framework, Hong Kong citizens are supposedly to be protected by the Basic Law under which Chinese law enforcement officials have no capacity to exercise any legal authority, let alone the transfer of individuals back to the mainland.

More specifically, the inherent autonomy enjoyed by the Hong Kong Special Administrative Region (HKSAR) enables itself to proactively investigate. Evidence to the contrary, however, suggests the potential participation or acquiescence of the HKSAR, especially when Lee crossed the border without his travel documents. Despite speculations over the possible assistance by the HKSAR, the present circumstance showcases the passive and intimidated attitude of the HKSAR under the current political landscape. Ostensibly, its recent pro-Beijing moves have sparked concern over whether the Hong Kong government is still capable of safeguarding the effective implementation of the ‘One Country, Two Systems principle of governance.

To date, some of the most pressing questions, such as where they are detained or on what charges they are being investigated, remain unanswered. To secure procedural justice and due process to all five booksellers, they need to be afforded the right to legal representation and access to court. The violation of these rights by China is equivalent to arbitrary detention.

Moving forward, if Chinese law enforcement officials could make cross-border arrests, China would be stepping outside the bounds of the rule of law. More precisely, the case of Lee Bo as a precedent for the Central Authorities to carry out law enforcement in Hong Kong is particularly worrisome: it not only signified increased scrutiny on the political freedom of the autonomous region, but also potentially damage its constitutional principle of ‘One Country, Two Systems’. Consequently, as former Chief Secretary Anson Chan suggested, “a high degree of autonomy” as promised to Hong Kong since 1997 is at risk.

Sean Yau Shun Ming is a LLB candidate at University of Hong Kong. He is also the Program Director of Justice Labs and a research intern at Amnesty International Hong Kong. He can be reached at seanyau@connect.hku.hk.

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Apr 18 2016

A Conversation on Race (Part 3): ‘Race, UK Policy and the Chagos Islander’s case post-2000’

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The following article is the third and final post in a three-week series on the LSE Human Rights Blog entitled ‘A Conversation on Race’. This series has been compiled by MSc Human Rights candidate Allie Funk (A.Funk@lse.ac.uk). 

By Cat Gough*

“The Foreign Office is not acting in good faith to get things moving in our favour. It seems they are not interested in us, maybe because we’re black skinned and African origin. If you take the Falklands, the problem was solved. If you take Montserrat, everything was solved.”[1] – Olivier Bancoult, leader of the Chagos Refugee Group, in conversation with Mark Curtis in 2002. 

“We were being asked [in the 2000 High Court ruling] to pick up the financial tab to allow, almost on an exploratory basis, for people to go back to the islands.” [2]– Bill Rammel, MP Parliamentary Under-Secretary of State for Foreign and Commonwealth Affairs, BBC interview with John Pilger 2004. 

Utilising medieval legislation to overturn a High Court ruling; commissioning reams of “patently flawed” reports and studies; paying a University scientist to ‘review’ a 2002 feasibility study, ensuring much of the initial scientific conclusions were scrapped; and disregarding financial support from the US and the European Union to support British Chagossian victims. This is how a series of twenty-first century British governments have acted to remedy a British post-colonial crime against humanity, treating those subject to Foreign and Commonwealth Office policy as expendable citizens.

The Chagos Archipelago, British Territory. Licensed under Creative Commons.

The Chagos Archipelago, British Territory. Licensed under Creative Commons.

This was an illegal British foreign policy, a crime against humanity, pursued covertly by the British government. It began with the 1966 bilateral agreement, which would see Britain receiving a nuclear missile system from the United States in return for the USA’s complete access to the Chagos Islands. As a result, beginning in 1968, the British government forcibly evicted around 1500 vulnerable British citizens from their homes on the Chagos Islands in the South Pacific. This was done, as suggested by Lord Hoffman, “with a callous disregard of their [the islanders] interests.” The Chagos Islands were promptly gifted to the United States by the British government as a brand new military base for America on the island Diego Garcia. In a post 9/11 context, the United States have since described Diego Garcia as an “indispensable” military base. Now a vital platform for “policing the world,”[3] the base is used as a strategic launchpad for both the Afghanistan and Iraq invasions.

Through examining the UK government’s response to the extraordinary legal battle for basic human rights since the High Court ruling in 2000, questions arise regarding the ways in which the race of the Chagos islanders has informed the response of the government. Mark Curtis’ analysis offers some insight: that the principal victims of Britain’s foreign policies are seen by the government as Unpeople.[4] Unpeople, Curtis argues, are those whose lives are deemed worthless in the pursuit of power and commercial gain. Those subject to foreign policy are treated as either useful, or expendable, the modern equivalent “of the ‘savages’ of colonial days, who could be mown down by British guns in virtual secrecy.”[5]

The deployment of the plethora of obscure measures used by successive governments to stifle the High Court ruling in 2000 has posed serious indictments about how race has informed and continues to influence the core of UK foreign policy. This includes using the Royal Prerogative to overturn the High Court ruling, carrying out numerous costly and flawed feasibility studies, and using specious reasons to justify their continued legal opposition to resettlement. Evidence that race has deeply and negatively tempered the decisions made by the societies in which we participate, particularly the prominent arms of our democratic system, are clear in this instance.

Just three months prior to the 2000 High Court ruling in favour of the islanders’ right to return to the outlying Chagos islands, the Foreign Office made their opposition to the expected ruling clear. Foreign Office Minister, Peter Hain reminded the government that “any resettlement would present serious problems…in relation to our treaty obligations.”[6] Whilst making no mention of their obligations to the rights of the islanders, the priorities of the Foreign Office were made plain: their covert 1968 military agreement with the United States was most pressing. There was explicitly no priority given to the human rights of the forcibly exiled Chagossians.

The very fact that a key Foreign Office minister reminded the government of this priority, indicates the explicit sidelining of Chagossian human rights in favour of economic and military agreements. In a bold pursuit of diplomatic leverage, the lives of Chagossians were expendable.

Following this assertion by the Foreign Office for their preferred response to the High Court ruling, the government proceeded to overturn the High Court ruling via two Orders in Council under the Royal Prerogative. In doing so, the government utilised medieval legislation to obstruct their obligation to assist forcibly exiled Chagossians to return to their homes.[7] Using the Royal Prerogative, was ultra vires and was made without legal authority, according to a claim upheld by the Court of Appeal.

Going beyond conventional legal authority, the British government has utilised obscure royal powers to curtail the human rights of those subject to British policy; this seems reminiscent of a British colonial past, when racism was inherent within the coloniser’s legal treatment of its subjects. It suggests how the Foreign Office has evidently taken exceptional measures, bypassing democratic means, and utilising all of its powers to capture the law, in order to stifle the human rights of some of its most vulnerable “black skinned and African origin” [8] citizens.

Whilst the government will proactively seek to veto basic human rights for those it has forcibly exiled, in order to maintain good relations and military favours with foreign powers, it seems quite clear that the principal victims of Britain’s foreign policies are seen by the Foreign Office as Unpeople.[9] Further evidence of this continues to be uncovered. Foreign Office correspondence with an academic indicates that the Foreign Office paid an academic to “massage” the drafting of a key resettlement feasibility study, exposed via a Freedom of Information request. This further underpins the arguments of Mark Curtis, and exhibits a post-colonial British government taking extraordinary measures to curb and limit the basic human rights of vulnerable black British citizens, in favour of a military agreement made under legally tenuous circumstances in 1968.

Notions of race, therefore, seem to have deeply and negatively influenced the decisions made by the societies in which we participate in this instance; meanwhile the British government continues to treat forcibly exiled Chagossian islanders as expendable citizens.

* Cat Gough can be reached at catgough267@gmail.com

[1] Olivier Bancoult, interview by Mark Curtis. Web of Deceit: Britain’s Real Role in the World, (Vintage : London, 2003) p.426

[2] Bill Rammell, interview by John Pilger, “Stealing a Nation”, produced by Carlton Television, 2004.

[3] Milmo, Cahal, “Chagos Islanders tell Britain they want to resettle their former home”

[4] Curtis, Mark, Unpeople: Britain’s Secret Human Rights Abuses, (Vintage : London, 2004), p.2

[5] Ibid

[6] Curtis, Web of Deceit, p.428

[7] Ibid

[8] Olivier Bancoult, interview by Mark Curtis. Web of Deceit: Britain’s Real Role in the World, (Vintage : London, 2003) p.426

[9] Curtis, Mark, Unpeople: Britain’s Secret Human Rights Abuses, (Vintage : London, 2004), p.2

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Apr 11 2016

A Conversation on Race (Part 2): ‘Incarceration of Black Lives in America’

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The following article is the second in a three-week series on the LSE Human Rights Blog entitled ‘A Conversation on Race’.

By Jacqueline Stein*

To a foreigner, American incarceration rates must be haunting. Figures today report American prison rates toping world charts, with over two million people in prison, far above incarceration rates in China, Russia, Brazil and India. However, looking closer into domestic incarceration statistics, the numbers quickly indicate another trend. According to research conducted by the Pew Research Center in 2010, black men in America on average were six times more likely to go to jail, state or federal prison than white men. In a country where values like freedom and equality are exported abroad through mass media and wars, in the land of the free, Americans are not so equal after all.

With Netflix dramas and documentaries such as Orange is the New Black and Making a Murderer, which have started thoughtful discourses on the failings of the criminal justice and prison systems in the United States, it is also important to consider America’s role in sustaining (and increasing) racial and class inequalities, especially on the subject of incarceration. With prison massively altering one’s life course—possibly affecting their job prospects, mental health, relationships and voting rights—this situation cannot be taken lightly. So, why is African American incarceration so disproportionately high? In the following sections, I will briefly discuss the war on drugs, education and states’ behaviors contributing to racial inequality in the United States.

Stigma and Poor Neighborhoods

In the 1970s, a new social problem emerged: America’s drug problem and the increasing deaths related to this phenomenon. American politicians responded by launching a nationwide war in attempt to halt crime and eradicate drug trade. The consequences of this proposal, however, turned out to be much more complicated than simply the drug dealer going to jail.

Simultaneously, while new policies began a war on drugs, low-skilled job opportunities also decreased in the country; consequently, with limited economic choices, more poor black men living in disadvantaged neighborhoods turned to drug dealing. Becky Pettit and Bruce Western, two professors researching incarceration and social inequalities in America, summarized, “If poor black men were attracted to illegal drug trade in response to the collapse of low-skill labor markets, the drug war raised the risks that they would be caught, convicted and incarcerated. As Sampson and Lauritsen observed, trends in drug control policy ensured that ‘by the 1990s, race, class, and drugs became intertwined.’”

With this trend, African Americans, living especially in poor neighborhoods, became re-stigmatized. Police targeted these neighborhoods though undercover assignments and street sweeps, leading more black men serving time in prison. Instead of helping these citizens gain education and job opportunities, thereby opening new experiences and equalities across the country, new anti-crime and anti-drug campaigns put these men behind bars, affecting not only themselves, but also generations ahead. In America’s fight towards reducing crimes and preventing drugs-related deaths, new crimination policies led to increased racial inequalities throughout the country.

Education and Incarceration Trends

In the last 10 years, Pettit and Western researched incarceration in America and determined several important trends. According to the scholars, “For black men in their mid-thirties at the end of the 1990s, prison records were nearly twice as common as bachelor’s degrees.” As tuition rates climb higher each year, access to higher education becomes more difficult, thus increasing inequalities and preventing many from attending university, as the burden of debt becomes heavier. Instead of making public education more affordable, American society keeps building higher barriers for people living in disadvantaged neighborhoods. Moreover, Pettit and Western note that incarceration has increasingly become a common life path for many non-college black men. As average incarceration rates for black men have risen over the past few decades, too many African American men are spending years in prison, instead of starting new jobs and spending time with their loved ones. Instead of creating opportunities to eliminate class and race inequalities, American society has failed those living in poor minority neighborhoods.

States and Incarceration Data

In February 2015, The Washington Post wrote an article on John Legend’s insightful observation about incarceration. While at the Oscars, the popular singer/songwriter/actor expressed, “We know that the Voting Rights Act that they fought for 50 years ago is being compromised right now in this country today. We know that right now, the struggle for freedom and justice is real. We live in the most incarcerated country in the world. There are more black men under correctional control today than were under slavery in 1850.” The blogger from The Washington Post, Jeff Geo, had a colleague, Max Ehrenfreund fact check this information and he found Mr. Legend’s conclusions were true. However, Ehrenfreund clarified that correctional control did not mean only behind bars, but also incorporated black men on parole or probation. Moreover, Ehrenfreund noted that today in the United States the population of African Americans is 10 times larger than in 1850.

The blog also included data about racial disparity in different states across the country. It revealed that Iowa and Minnesota were amongst the worst states with the largest black-white disparities. These states, which are overwhelmingly white, hold the highest divides between black-white incarceration rates.

 In the land of the free and the home to the American dream, race and class inequality, especially relating to the subject of incarceration, persists. The American incarceration system is broken; with black men being incarcerated on average six times higher than white men, reform is much needed. In today’s society, America’s wars on drugs and crime have stigmatized African Americans and poor neighborhoods. Incarceration is now a common-life path for non-university black men. It is time for America to stop putting African Americans’ concerns behind bars and begin to change this trend.

*Jacqueline Stein is a MSc Human Rights candidate at the LSE. She can be reached at j.r.stein@lse.ac.uk.

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Apr 4 2016

A Conversation on Race (Part 1): ‘The Geographies of Racism’

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The following podcast episodes are the first in a three-week series on the LSE Human Rights Blog entitled ‘A Conversation on Race’.

This special program has been created by Sound Minds Radio – a research communication project funded by the Community Broadcasting Association of Australia. These two, fifteen minute radio episodes discuss issues related to the geographies of racism in Australia. The first episode is entitled ‘The Migrant, The Refugee and The Border’, and focuses on the notion of the border, and the construction of national identity. The second episode, ‘Navigating the City as a Young Muslim’, deals with how claims of ‘Islamic terrorism’ in the media play out at the local level.

Facebook: Sound Minds Radio
Twitter: @SoundMindsRadio

See also the written response to this Conversation on Race from Dr Jacqueline Nelson, here.

 

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