Aug 29 2016

Gassing of Indigenous Youth in Australian Detention Centres Reeks of Colonialism

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By Leila Nasr*

This month, shocking footage depicting security personnel in a Northern Territory (NT) juvenile detention center teargasing and torturing indigenous detainees made headline news in Australia. In contrast to the uproar it has now engendered, this incident was actually first reported two years ago and attracted little outcry from a largely disinterested Australian public. Despite the tireless efforts of indigenous and social justice advocates, the vast majority of Australians remain reluctant to address the elephant in the room: that the use of mass incarceration among indigenous people in Australia is a tool of ongoing colonization.

It’s been 25 years since the Royal Commission into Aboriginal Deaths in Custodymade 339 recommendations on how the government could finally take action on the systematic discrimination and grave maltreatment of Aboriginal and Torres Strait Islander people in the Australian justice system. One of the foremost recommendations was that incarceration should be used as a last resort.

Today, this recommendation has been ignored wholesale as Indigenous Australians continue to be grossly overrepresented in prisons. Overall, indigenous incarceration has increased by 88 percent since 2004, while non-indigenous incarceration increased by just 28 percent. According to the ABS in June 2015, Aboriginal and Torres Strait Islander people made up 27 percent of prisoners nation wide, while comprising just 2 percent of the total population. This gives aboriginal people an incarceration rate that is 18 times higher than non-indigenous Australians. Indigenous incarceration figures also increase dramatically among youth, where 24 percent of all indigenous prisoners are under the age of 24, compared with 14 percent of non-indigenous youth.

Commenting on the lack of positive progress, aboriginal activist and Wiradjuri elder Ray Jackson laments, “There’s something totally wrong with a system that comes up with those numbers. We’re on a treadmill to nowhere at this point in time.”

Incarceration as a Tool of Colonial Conquest

Rightly so, commentators and lawyers have been quick to point out that thegassinghoodingarbitrary stripping and other forms of verbal and physical abuse of aboriginal youth that have surfaced at the NT’s Don Dale Youth Detention Centre amount to torture. In response to public pressure, the government is set to launch a federal inquiry into the matter. Given widespread examples of torture occurring outside of the Northern Territory, too, the buck shouldn’t stop at Don Dale; nor should it stop at labeling it torture. If we want to get serious about treating the root causes of the over-representation and abuse, it is imperative that we view these issues within the long history of mass incarceration as an abhorrent tool of colonization, suppression and control in Australia.

Since the invasion of European settlers in 1788, colonization in Australia has been about controlling a pre-existing indigenous population through varying forms of violence, manipulation and torture. Today, the justice system remains a key facilitator of all three of these, yet studies have inadequately considered the centrality of colonialism to the origins, nature, scope, and – importantly – widespread legitimization of discriminatory carceral power in Australia.

During the peak of colonial conquest in Australia, the torture and incarceration of aboriginal peoples was commonplace. Given that this history lives on in today’s increasing aboriginal incarceration rates, it has been suggested that, for some aboriginal communities, prison has simply become “part of their domain”, a “normal phase…of one’s life-course”.

Ultimately, this over-representation of indigenous people has been caused by – and is reflective of – the colonial imperative requiring the marginalization of indigenous people. Instead of dealing with this foundational marginalization issue, the government has diverted attention towards the indigenization of the justice system to make it as effective as possible in processing indigenous offenders. In this way, we’re still working within a broke system, rather than venturing out of it in any meaningful way.

Incarceration as Social Policy

Contributing to this marginalization and, therefore, mass incarceration, is the obvious lack of informed social policy in indigenous communities. In his 2007 analysis, Jonathan Simon wrote about how, in the US, criminalization and imprisonment are actually used as tools of social policy, resulting in ‘governing through crime’. In Australia, this goes one step further. Beyond being a ‘tool’ of social policy, the vast lack of appropriate government policies on health, education, housing, mental health and more in indigenous communities that take into account the continuing reality of colonialism, in conjunction with high incarceration rates, indicates that the indigenous incarceration is essentially being used as an alternative to effective social policy all together.

This is particularly evident in Western Australia, for example, where the state government plans to forcibly close 100 to 150 remote aboriginal communities to relieve itself of the financial burden. This unwillingness to allow for the free pursuit of collective development reeks of a lingering colonial obsession with controlling and containing indigenous people at the least possible cost.

Losing a Generation

Pointing out how little we’ve learnt since the Stolen Generation era, Amnesty International has warned that we risk losing another entire generation of indigenous youth if their arbitrary incarceration continues unabated. As Salil Shetty, Amnesty International secretary-general, articulated back in June 2015, it is critical that “Australian governments get smarter about this, and fast”. Transformative and sustainable social policy reform is integral to this. Clearly, it’s time to progress the national conversation beyond Don Dale, and far beyond the language of isolated inquiries into incidents of torture. Instead, it’s time to start discussing how the tools and tactics of colonialism are still very much at work in modern day Australia.

[This article was first published in Intercontinental Cry and is reproduced here with permission.]

*Leila Nasr is a current MSc Human Rights candidate at the LSE, and the Lead Editor of the LSE Human Rights blog. She has a keen interest in issues of indigeneity and colonialism. Her master’s research explored the Palestinian people’s right of resistance against the Israeli colonial project. 

Posted by: Posted on by Leila Nasr

Aug 22 2016

The Doctrine of Humanitarian Intervention: Lessons from the Chilcot Report

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By Kim Nelson* 

In the midst of what can only be described as the tumultuous climate that defines Britain’s current political scene, the release of The Chilcot Report should not be forgotten as one of the most significant moments in the country’s recent history. While many agonize over an uncertain future, Chilcot reminds us of a not so distant past which some people – most of all, former Prime Minister Tony Blair – would rather forget.

The Chilcot Inquiry was originally established in 2009 with a mandate to investigate over nine years of political decision-making that led to Britain’s participation in the invasion of Iraq. Chilcot’s findings may come as unsurprising to some. For the millions of people who demonstrated against the war, the logic that Saddam Hussain’s regime was developing a sophisticated weapons programme that could threaten international peace and security was a blatant fallacy.

The report verifies this unequivocally. Despite the unanimous adoption of Security Resolution 1441 – which gave Iraq a “final opportunity” to comply with its disarmament obligations – Chilcot’s report shows Britain’s unwavering commitment to follow the United States (US) onto the path of war. The sentiment of this devotion was expressed most clearly in Blair’s personal note to Bush, saying “I will be with you, whatever” [1]. It was a position that viewed international law as weak and inadequate in the face of powerful unilateralism; an exceptional form of “Empire’s Law”[2] that sought to undermine the institutional premise of human rights, which in the minds of the interveners was a “strategy of the weak.”

Thirteen years later, one can only speculate what the political ramifications of Chilcot will be. Since its publication, renewed calls have rung out for Tony Blair to stand trial for war crimes (although the prospect of the International Criminal Court (ICC) having jurisdiction over this seems increasingly unlikely). Meanwhile, politicians have stirred from their backbenches to bring forward a motion of contempt against Blair, to ban him from public office for misleading parliament into voting for the Iraq War.

Yet, as Britain continues with its own soul searching, one should not forget the situation of Iraqis themselves. Iraq is a country that has since witnessed a deteriorating security situation, ongoing violence and large-scale human rights abuses. The UNHCR estimates that 3.1 million displaced persons currently reside in Iraq, with many desperately fleeing the brutal fighting between pro-government forces (supported by Coalition air strikes) and Islamic State. For Iraqi and Syrian refugees, the publication of Chilcot’s report offers little in the way of closure.

The doctrine for intervention

Undoubtedly, the long shadow of the Iraq War cast the very legitimacy of human rights into disrepute. Alongside Blair and Bush’s ‘legal’ justification for war – what Chilcot describes as the “ingrained belief” that Iraq had “chemical and biological warfare capabilities” [3] – the moral language of human rights was unashamedly exploited to substantiate the humanitarian case for intervention. One only has to listen to Blair’s impassioned address to parliament in March 2003 to witness this ‘moralization of politics’. As the invasion ran its course, and it became ever clearer that chemical and biological warfare had never even been an immediate intention or long-term possibility for Saddam’s regime, the case for humanitarian intervention became increasingly prevalent.

Despite the outcome of Iraq, humanitarian intervention continues to remain at the forefront of the international agenda. Tellingly, David Cameron’s response to the Chilcot report was a hastened defence of multilateral intervention, stating that “we should not conclude that intervention is always wrong”. This was from the same man who voted for interventions in Iraq, Libya and Syria. This overwhelmingly popular political preference for intervention has been substantiated by a rich body of academic literature, which argues that the humanitarian threshold of jus ad bellum (the right to go to war) and jus in bello (the conduct of war) still holds truancy.

Michael Walzer, in his influential book Just and Unjust Wars, argued that foreign intervention is justified in the face of atrocities that “shock the conscience of mankind”. The use of this archaic phrase reflects the fact that the doctrine of humanitarian intervention is seen by Walzer as a moral response to what are the core legal principles laid out Article 2.4 of the UN Charter: the principles of non-intervention and the territorial integrity of sovereign states.

Whilst from a purely legalist position, one might argue that the UN Charter clearly prohibits intervention from foreign states (unless it meets the clear threshold of self-defence), others decry the “moral impotence of the concept of sovereignty” that international law so clearly privileges. How, after all, can you uphold the principle of state sovereignty when that very state is killing or violating the rights its own citizens?

It is from this particular logic that the doctrine of humanitarian intervention, somewhat paradoxically, places the values of human rights at its very philosophical centre. The idea that when states are unable or unwilling to uphold the rights of their citizens, they should no longer be protected by international law. This is reflected in the conception of sovereignty as ‘responsibility’ that was laid out in the landmark report by the International Commission on Intervention and State Sovereignty (ICISS) in 2001. This ‘Responsibility to Protect’ proposal, which sanctions the moral imperative for multilateral intervention, has since been adopted by the UN in the context of the Libyan and Syrian conflicts.

It is clear that the ‘human right hawks’ utilised the language of human rights in favour of the Iraq occupation. For instance, philosopher Fernando Teson made an interesting distinction between the (humanitarian) “intention” and the (political or even imperial) “motivation” of the Coalition forces. By making this distinction, Teson was able to argue that the intention of the US-led Coalition to supplant the tyranny of Sudam’s regime, made the Iraq War decisively humanitarian in its nature.

With the benefit of hindsight, it is easy to dismiss this line of argument, especially when we look at Iraq’s catastrophic legacy. However, in response, some may argue that the aftermath of Iraq could just as easily be attributed to the military and political incompetence of the Coalition forces[4].

Although such a response is certainly valid, the real contradiction that lies within the fact that doctrine of humanitarian intervention should be more critically exposed. To reveal this contradiction one must look to Michael Walzer’s concession that “states do not send their soldiers into other states, it seems, only in order to save lives.”

This is a revealing admission indeed. The doctrine of humanitarian intervention fails to acknowledge the important fact that motivation and intention are impossible to disentangle. Needless to say, the moral argument in 2003 that the UK and US could fly the flag for democracy and freedom was an idea severely tainted by the intervener’s own appalling human rights record. What Iraq and subsequent interventions in Libya and Syria have shown us is that, as Ayça Çubukçu aptly points out, sovereignty is the “bloody licence to kill.”

 Keeping in mind the hundreds of thousands of Iraqis who have lost their lives since 2003 and the millions more who are now displaced, the Iraq invasion should have important implications for the legitimacy of humanitarian intervention. Human rights should not be used to give credibility for such political and imperialist agendas, but should exist to hold state power to account against the protection of individuals.

One must wonder whether the lessons of Iraq will ever be learnt.


[1]
Executive Summary, paragraph 94

[2] Bartholomew, A (2007) Empire’s Law: The American Imperial Project and the ‘War to Remake the World”, p.165

[3] Executive Summary, paragraph 496

[4] Executive Summary, paragraph 814


*Kim Nelson is a current MSc Human Rights candidate at the LSE. He can be reached at K.A.Nelson@lse.ac.uk. 

 

Posted by: Posted on by Leila Nasr

Aug 15 2016

If My Rights Were Clothes…

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By Nora*

Saudi Arabia’s male guardianship system leaves every Saudi female under the legal guardianship of a male for the duration of her life. It deprives women of the ability to make decisions concerning their own lives without the approval of their male guardian. A woman’s rights are, forever, left in the hands of men who in many cases are abusive and power-obsessed. The #StopEnslavingSaudiWomen is a campaign initiated by women inside the Kingdom who have had enough of this system that infantilises and often abuses women.

This poem is a minimal contribution expressing my support for this campaign.

 

“If my rights were clothes, then I stand here naked before the men who’ve stripped me of my fabric and then told me to cover when the sight of my skin burned their immoral eyes.

They can’t look too long at the bruises that gleam on my arms that they’ve tied. They can’t bear to let me see their eyes that burn, not just with lust that they try hard to hide, but with fear of the woman they’ve stripped of her rights.

So they cover and they silence because even our voices ring with a strength that they can’t stand to hear. And they whisper that we’re precious- So precious, they’ll protect us from the burning eyes and the fearful ears that they think we don’t know are their own as well.

And they’ve built the ceiling of fear so low. We’re afraid now to say what we’re allowed to think- In case we upset the wrong man, in case our words fall into the hands of a coward who fears dissent so fiercely, he would have our skin stripped now that he’s taken the rest.

So I’ll stand here naked, before the men who crave and fear. Who claim to love but don’t know how. I’ll stand, back straight, arms outstretched, and I’ll bask in my nudity until their eyes burn so much they throw rights on me to cover the woman they can’t bear to see.”


*Nora (@noraj27) is a Saudi Arabian LLM candidate at the LSE specialising in Public International Law. She completed her LLB at King’s College London. Her main interests are public international law with an empahsis on human rights, and counter-terrorism. 

Posted by: Posted on by Leila Nasr

Aug 12 2016

The Colombian Conundrum: Transitional Injustice and Beyond

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By Lakshana Radhakrishnan and Harsh Mahaseth*

The fall of the last major leftist insurgency in Latin America might finally give the Colombians some cause for happiness. It seems that the world’s longest running civil war will soon be brought to an end after a bilateral ceasefire was signed between President Juan Manuel Santos and the leader of the Revolutionary Armed Forces of Colombia (FARC) Timoleón Jiménez alias “Timochenko”. This deal was signed with the presence of the United Nations (UN) Secretary General Ban-ki Moon, the Presidents of Cuba, Venezuela and Chile, and the Norwegian Foreign Minister. The accord has been hailed as a tremendous milestone in the history of Colombia and it is perceived by many Colombian citizens as the peaceful culmination of the era of strife and violence which they were born into. But a final peace deal is yet to be negotiated or put to a referendum. While pessimists have written-off the current peace deal, some sections believe that concrete steps beyond mere handshakes can and will be taken.

The Colombians continue to hold hope as former FARC leaders shift their gaze towards peace. While former FARC commander, Carlos Antonio Lozada, who is being touted as the potential leader of the upcoming political avatar of FARC, went so far as publicly repenting past inhuman actions of FARC – in a 180 degree shift from his position less than a year ago – the leader of FARC has also fuelled a peace rampage over world media through catchy statements like, “let this be the last day of war”. Only time can reveal the true motivations behind them but historical precedents- as discussed below- are not in favour of Santos, as he seeks to make history in Colombia with this historic peace deal.

The situation in Colombia has huge humanitarian implications that resonate globally, from Nepal to Uganda. These situations of transition and change do not seem to be positioned to head in the direction of transitional justice, whether it is the blanket amnesty provided by the Nepalese Truth and Reconciliation Ordinance, 2014 or the striking lack of implementation of the well-founded draft transitional justice policy of Uganda. The Colombian peace deal is hardly different and it falls short of expectations of transitional justice.

The International Center of Transitional Justice (ICTJ) has espoused an understanding of transitional justice as a crucial post-war process that contains the core requirements of reparation, truth and reconciliation, criminal prosecution and institutional reform. It is premised upon the understanding that when grave crimes and atrocities have been committed en masse in any State, measures should be taken to bring past crimes to justice. This forms the essence of the peace-building process without which States tend to relapse into conflict within a few years.

A positive example of transitional justice could be the process that the draft transitional justice policy in Uganda sought to set in motion. The policy acknowledges that reparations, among other measures, are needed to reintegrate victims back into society and to deal with issues common to post-conflict situations, such as land disputes and children born in captivity. Though the Uganda Amnesty Act was put in place, the perpetrators of serious war crimes like genocide were not to be entitled to amnesty, as held by the Supreme Court of Uganda. Much to the anguish of Ugandans and the world community, the Government of Uganda (GoU) has yet to implement the policy.

FARC cease-fire deal: wounded peace

The ongoing peace process in Colombia has produced a series of peace agreements with FARC that aspire towards transitional justice amidst apprehensions about regress. The cease fire-deal signed on June 23 provides for surrender of arms, preparation of the guerrillas for entry into civilian life and their protection and security through the removal of deadly threats posed by paramilitary groups.

In terms of justice, a special tribunal is to be constituted to process war crime cases involving offenders from both sides. It has been mutually agreed that full confessions will be rewarded with lighter sentences of five to eight years during which the offenders will “contribute to their re-socialization through work, training, or study.” Those who persist in denying responsibility for serious crimes will be tried and, if found guilty, sentenced to up to 20 years in regular prisons. This pardoning clause, inserted in the interest of compromise, has received mixed responses: while some have perceived it as a throw-away that has compromised the ideals of transitional justice and the values behind the peace struggle, certain others have justified it as an indispensable requirement to further the transitional justice process.

Colombian conundrum: an international insight

Optimism for the sake of optimism cannot be more dangerous than in present transitional Colombia. Similar occurrences in the Solomon Islands and Uganda do not suggest a positive future. Peace deals were struck in the archipelago and the African country with provisions for amnesty. In the former, the judiciary contravened the mutual agreement and punished the perpetrators for their war crimes. In the latter, a blanket pardon was denounced and rejected as the perpetrators sought to unsuccessfully escape the case instituted against them in the International Criminal Court (ICC). Though the justice process has evidently taken off, the common citizens of the two countries still live the distorted lives of violence.

It can be argued that international judicial intervention is a hope in this bleak situation but the fall-outs are incalculable. The Nepalese situation is a case in point. The Enforced Disappearances Enquiry, Truth and Reconciliation Act, 2071 (2014) of Nepal has been read so as to provide amnesty to perpetrators. This has been deemed unconstitutional by the Supreme Court and it has even alerted international organizations such as the International Commission of Jurists, Amnesty International and Human Rights Watch who have contended that the inclusion of the provision is a breach of Nepal’s obligation under international law and refused assistance until an amendment is made.

The situation in Colombia is only just maturing; there is time to right the wrongs, punish the wrongdoers and do right to the victims. For example, the UN Convention against Torture internationally obliges Colombia to punish the perpetrators from both sides. Colombia made significant progress in this direction when it inserted a provision for “Special Jurisdiction for Peace” in the agreement made in 2015. One hopes that the provision shall be restored and the victims reinstated through expedient trials held by mixed tribunals with indirectly elected national and international judges.

Conclusion: the way forward

Mere hope cannot be its very own actualisation, though a larger part of the international community seems to have merged these two distinct entities, as it perceives the end of the world’s longest civil war to be a harbinger of peace. Colombia has an obligation under international law to deny amnesty and punish the perpetrators of crimes against humanity, war crimes and genocide. This is not only a call for the Colombian State but also for the international community which should monitor the implementation of the agreements and pressure the state to comply. Moving forward is indeed important but not at the cost of unjustly ignoring the past sufferings of millions of civilians. The tragic pasts of countless Colombians must be reconciled with the present bilateral agreement to achieve sustainable peace, which has so far remained elusive.

*Lakshana Radhakrishnan and Harsh Mahaseth are third-year law students at National Academy of Legal Studies and Research (NALSAR) University of Law, Hyderabad. They will be graduating in 2019.

 

Posted by: Posted on by Leila Nasr

Aug 7 2016

Beyond Victimization: Female Perpetrators of Genocide

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By Miranda Wolford*

Reflecting on major instances of genocide, we often develop archetypes of what the perpetrators of such dehumanizing crimes look like. In the Holocaust, white German men bearing the ominous Swastika characterized the perpetrators. In the Rwandan genocide, barbaric Hutu men wielding machetes defined the enemy. A defining characteristic of each of these perpetrator archetypes is masculinity.

Whether due to lack of evidence or lack of prosecution, there is a surprising paucity of concrete information surrounding women’s roles in major acts of genocide. Unsurprisingly, media accounts of these monstrosities characterize women as the eternal victims and left-behind widows, incapable of taking part in such hateful activities. Yet, new testimonies from previously unrecorded witnesses coming from a variety of backgrounds has caused modern historians to call into question women’s involvement in furthering genocidal acts.

In many of the regions in which genocide and its surrounding political turmoil have been prevalent, there is, or was, a significant gender gap, particularly in the social structure. In the era of the Holocaust, women of Central and Eastern European backgrounds were typically the upholders of the family and household, naturally subservient to men. Under Hitler, German women were financially rewarded by the government for having higher numbers of children under the Law for the Encouragement of Marriage, yet were discouraged, even blocked, from joining the workforce during the war. Contrary to this value placed on Aryan maternity, in times of the genocide, Jewish and Roma women became systematically targeted simply because of their fertility.

As a result, most of the accounts of women in the Holocaust characterize them as the innocent, blameless victims of assault, rape, and murder. While this is unfortunately true for the majority of Jewish and Roma women during this time, this categorization ignores women who elected to be perpetrators of the genocide, wrongfully portraying them too as victims.

The argument has been made in court that many of the women and men who partook in egregious acts of cruelty during the Holocaust were doing so against their will, merely following orders from their superiors out of fear. From more of a gendered perspective, Nazi women were assumed to be acting on behalf of their husbands, following their lead. However, evidence has surfaced suggesting that this is only the case for a few select female perpetrators; the majority did so of their own convictions, namely for financial purposes or to pursue their personal ideologies.

One infamous female “villain” of the Holocaust is Irma Grese. One way of understanding her mental disposition and motivations for joining the regime is to analyze the events in her youth critical to her cognitive development. Her mother committed suicide by drinking hydrochloric acid when Grese was barely a teenager, and she dropped out of high school at the age of fourteen, with her absentee father off supporting the Nazi Party. Stemming from a place of vulnerability, her interest in the League of German Girls, a Nazi youth group, continued to grow until she became so entrapped in the Nazi’s ideology, she left home to partake in female SS guard training. She felt a psychologically-driven need for social belonging amidst societal pressures, which she found in the Nazi regime.

While the widespread conclusion on what drives a person to join the Nazi regime points to psychopathic tendencies, this was not usually the case. Rather, male and female perpetrators of the Holocaust were merely actors shaped by the murderous agendas and social norms of their time, acting on their own convictions yet nevertheless puppets in the larger scheme. Still, female perpetrators are painted in the media aftermath of the Holocaust as particularly cruel and barbarous.

Grese serves as a paramount example of this trend. In various witness accounts from the Bergen-Belsen concentration camp, Grese brutally beat and tortured female prisoners from both a mental and physical standpoint, inflicting pain to the point of dehumanization of her victims, grouping them together and randomly selecting who should be gassed. Several prisoners broke down and attempted to hide, but she would hunt them down and beat them mercilessly. Going beyond carrying out ordered punishments, she relished the opportunity to crush the hopes of escape held by captive women, using an entourage of starving dogs to psychologically terrorize the prisoners.

What has made the case of Grese such a fascinating fixture in the media is the stark contrast her actions create with the behaviors of female prisoners at the time. Captive women forged protective bonds with each other in a response to the rules against maternity mandated by the Reich, initiating a strong sense of survival and familial connection. Despite the fact that Grese acted the same way a male guard would have in similar situations, a common misconception views her actions as a betrayal to fellow women, not as an act of a Nazi guard in genocide. She is often viewed as a woman void of empathy, not as a Nazi war criminal.

Still, Irma Grese was an exception, but not for the reason one might expect. She is one of many voluntary female perpetrators during the Holocaust, yet she is one of only a few who was actually tried and executed for her crimes. Male perpetrators, on the other hand, were tried much more frequently.

While women received fewer trials in most regions due to lack of concrete and visual evidence, their trials had a higher rate of convictions. In the War Crimes Tribunals between 1945 and 1949, only sixty accused women, out of roughly 3,600 female concentration camp workers, were put on trial, with twenty-one of them executed. Conversely, a total of 5,025 men and women were convicted by American, British, and French forces, but only 500 were sentenced to death.

It is not representative of the judicial process taking place to analyze purely the quantitative data surrounding trials for war crimes, though. Using leading expert Andrea Pető’s research on people’s tribunals in Hungary as a case study, it is evident the effect of gender roles in carrying out justice. Women on trial who testified, whether truthfully or wrongfully, that they were merely acting on the accord of their husbands or superiors received significantly lesser sentences and oftentimes sympathy from the judge. On the other hand, women who acknowledged their role as political leaders or orchestrators in acts of genocide received disproportionately higher sentences, as the witnesses and judges perceived their actions as going against the status quo of gender norms. Because of the lack of photographic evidence of female involvement in genocide, female witnesses and victims were oftentimes called upon as the main source of information about the crimes committed, leading to a clear bias in the perspectives presented. From a male perspective, the testimony that a male guard was simply acting upon orders was less effective. Men only received lesser sentences if they had the means to hire a lawyer, but they were still convicted less harshly than the women in the same people’s tribunals.

The pursuit of justice for the victims of the Holocaust was unfortunately colored by the widespread stereotypes of who the “villains” were: Nazi men. It is undeniable that men comprised the majority of perpetrators of the Holocaust genocide, but to deny the role of many women carrying out such cruel crimes as well is to deny the suffering of their victims.

In remembering the trials and tribulations faced by the targeted groups during the Holocaust, we must clear our preconceived notions of who can be a victim and who can be a villain, eliminating bias from the judicial process.

*Miranda Wolford is a high school youth advocate working in international relations and development, currently interning at the Tom Lantos Institute. The Tom Lantos Institute (TLI) is an independent human and minority rights organisation based in Budapest, Hungary, www.tomlantosinstitute.hu.  This essay is a response to some of the topics presented in lectures at the Tom Lantos Institute’s Prejudice, Genocide, Remembrance Summer School 2016.

Posted by: Posted on by Leila Nasr

Aug 1 2016

Statelessness: a forgotten dimension of the Syrian refugee emergency

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* By Harriet Massie

The Syrian civil war continues to cause asylum seekers to flee in search of safety and security. People hastily leave their homes and begin the treacherous journey across the continent. This has presented a number of difficulties for those in search of sanctuary, which is exacerbated as children are born and brought up abroad, creating a subset of stateless people.

Statelessness is a difficult concept to compute. Having a nationality and being afforded the rights and protection of a state is often taken for granted. One would assume that being born on a state’s land automatically entitles them to the nationality of that country. If this theory fails, then perhaps their parents’ nationality would allow them access to the protection of that state. In reality, limited countries give automatic right to citizenship to those born on the land. Therefore, when they are forced to leave, many are unable to return to their parent’s homeland in order to access their nationality and are prevented from accessing the one in which they were born, leaving them stuck in a ‘legal limbo’, which causes an ongoing stateless population. Although it is very difficult to assess figures due to their lack of registration, it has been estimated that there are around 10 million stateless persons worldwide.

The causes of statelessness may vary. Following the fall of the Soviet Union in 1991 and Latvia gaining its independence, many Latvians found themselves at risk of statelessness. Only those who could trace their family’s existence in the state before the Soviet occupation in 1940 were granted Latvian citizenship. Similarly, those with expired Soviet passports who have been unable to acquire the nationality of the state they reside in suffer a similar fate and are still defined as “non-citizens”. This leaves 276,797 people in Latvia alone without a nationality.

The majority of European countries are bound by the 1954 Convention Relating to the Status of Stateless Persons, which seeks to protect “a person who is not considered as a national by any State under the operation of its law”. This requires all countries that have ratified the treaty to assist people without a nationality to obtain one and to access the necessary documents. Without a nationality, individuals are restricted from accessing health services, employment and education, among other rights. Their quality of life is severely diminished and can lead to abject poverty and ongoing suffering. Victims are often subjected to intimidation, lengthy periods of detention and the constant threat of deportation, but, as stateless persons, they have nowhere to be deported to. This continues to cause a great emotional impact and strain, which further worsen the mental health of those suffering from as a result of the reality they faced in Syria. The unregistered or “maktoumeen” as they are known, often feel they are unseen and have to struggle just to lead normal lives.

While the parents are in Syria, they often fail to register their children due to the ongoing conflict or the lack of will of some authorities. Alternatively, babies are born in their host countries after the families have fled. Often documents are destroyed during the attacks or families are forced to leave without them. This situation makes it hard to register a birth in the host country because to do so, they often require their marriage certificate or other relevant documents in order to prove their own legal status, identity and nationality.

UNHCR recently highlighted that the ongoing war in Syria has fractured countless Syrian families. It found that around 25 percent of displaced families are growing up in a single mother household due to fathers being dead, imprisoned or missing. As is common in many conflicts, Syrian males are being arbitrarily detained or forcibly recruited into rebel or government armies. Many of these families have no knowledge of the father’s whereabouts and, as a result, they continue to face difficulties in registering their children’s birth.

In addition, Article 3 of the Syrian Nationality Act has presented problems for children who are born outside of Syria. In such circumstances, a child can only inherit his/her nationality from the father, which affects those who are growing up in single-mother households. This is based upon Sharia Law and the cultural belief that Syrian men are more likely to teach and strengthen Syrian national patriotism in their children, unlike their female counterparts who may marry foreigners and instil in their children a love of their fathers’ foreign nation, instead. This problem is exacerbated among children conceived through rape, therefore removing the chance of contacting the father. The fathers’ absence means that verifying information for the birth certificate is near impossible and further hinders any progress.

The expense and strain of the ongoing refugee influx has caused government bodies to be too slow to assist.  The UN has stated that 30,000 Syrian babies in Lebanon and 60,000 babies in Turkey are at risk of statelessness, but this is not a problem specific to these countries only. The UNHCR has widely criticized the delayed action and has highlighted the need for “straightforward legal and practical measures” which could be implemented to ensure the maintenance of children’s connection to their country and their nationality. This includes suggested amendments to nationality legislation that will safeguard against statelessness. Further, they are providing technical support to partner organisations in order to establish statelessness determination procedures to assist people in accessing documents and acquiring a nationality.

Little progress has been made, but amongst growing pressure from the UNHCR and partner NGOs, it is hoped that wider recognition of the need to obtain documentation for victims of statelessness will lead to further implementation of a clearer legal framework. The High Commissioner for Refugees highlighted this pressing need as follows: “Statelessness can set in stone grave problems that will haunt them throughout their childhoods and sentence them to a life of discrimination, frustration and despair”. A lack of documentation can expose children to human trafficking and abuse, which will have life long dilapidating effects. Furthermore, it is in each state’s interest to access documentation for these children as a matter of urgency. Without this, they risk becoming a burden on the state and their lack of access to education will hinder their progression. Further, they may be prevented from returning to Syria when the war ceases if they do not possess the necessary documentation. It is evident this matter needs to be urgently addressed by host states in order to prevent the crippling effects of statelessness for generations to come.

*Harriet Massie is trainee solicitor with a keen interest in statelessness and advocating for the rights of minors. She can be reached at harriemassie@hotmail.com.

Posted by: Posted on by Leila Nasr

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