Dec 8 2016

Nepal in Conflict: The War for Justice Continues

Leave a comment

*By Harsh Mahaseth

In 1996, a civil war broke out in Nepal between the national security forces and the Maoist political movement led by the Communist Party of Nepal – Maoists (CPN-M). The conflict came to an end a decade later in November 2006. In 2007 an interim government was established that incorporated the CPN-M. However, the conflict over justice still remains to be resolved.

The end of the civil war culminated in the Comprehensive Peace Accord (CPA), which was signed by the seven political parties in Nepal, including the CPN-M. However, the subsequent Enforced Disappearances Enquire, Truth and Reconciliation Act, 2071 (TRC Act) 2014 has resulted in provisions that are not in compliance with the CPA and do not uphold Nepal’s obligations under international law.

The idea of providing amnesty for war crimes is antithetical to the general principles of international law; however, the current Nepalese stance is pro-amnesty. Due to this there is a lack of trust in the Truth and Reconciliation Commission (TRC) and other transitional justice mechanisms and to date, the judiciary has played the largest role in the transitional justice system of Nepal. In personal interviews, the victims of the conflict expressed their lack of trust in the TRC, stating that because the perpetrators of the crimes were part of the committee itself, they did not expect justice.

While the CPA does not mention amnesty at all, Section 13(2) and 13(3) of the TRC Act have been read together to suggest that existing cases could be sent to the TRC for consideration, which could delay or even obstruct criminal investigations. This read along with Section 29 could provide for amnesty if deemed reasonable, except in cases of rape and grave rights violations. Additionally, the definition of grave rights violations has not been clearly defined and has been used inconsistently. While the Supreme Court has challenged the Truth and Reconciliation Ordinance as well as the TRC Act, which they have deemed to be unconstitutional, the implementation of the rulings is yet to be seen.

In contrast to what has transpired in Nepal, the transitional justice system in the Solomon Islands had a provision for amnesty, which was guaranteed under the Townsville Peace Agreement (TPA), but later all the perpetrators were tried for their crimes. The National Parliament of the Solomon Islands enacted two acts before the formation of the TRC, granting amnesty to people who would have been held guilty for their crimes during the civil war, as well as weapons amnesty and general amnesty as provided under the TPA. A largely Christian nation, many people in the Solomon Islands pushed for the forgiveness bill, but this is yet to be passed and only a few cases have been granted amnesty to date. Moreover, the judiciary has conducted several ‘tension trials’ in which former combatants who testified to their wrongdoings in belief that they would be provided amnesty ended up being convicted. Combatants who committed acts such as murder were sentenced to life imprisonment.

Unlike the transitional justice system of the Solomon Islands and the TPA, where there was a provision for amnesty, there was no express mention of providing amnesty in the CPA in Nepal, but the TRC included such a provision. To make matters worse, a 9-point agreement was signed between the current government and the CPN-M that also included a provision for amnesty.

A major concern for the perpetrators of war crimes is universal jurisdiction; they cannot leave Nepal as they could be tried for their crimes outside the country. Many fear the same fate as Colonel Kumar Lama, who had committed wartime atrocities and later fled to the United Kingdom only to be imprisoned there on two counts of torture. While this may not be of concern to every perpetrator, this does concern people in the higher levels of security forces, including those who work for the peacekeeping forces of the United Nations. The TRC Act, which may protect the perpetrators at the domestic level, does not protect them at the international level.

As a country that is heavily dependent on foreign aid and also a party to most Human Rights Conventions, Nepal’s push for amnesty has been short-lived. A provision of a special court, comprised of a domestic and foreign jury is something that could become a reality.

The establishment of the TRC is the Government’s final opportunity to provide the victims of the civil war with reparations and justice. But as hundreds of cases have already been shelved, people have lost hope in the TRC. Similar to the case of Cambodia where the Extraordinary Chambers in the Courts of Cambodia only awarded “collective and moral” reparations, in Nepal the Government cannot bare the financial burden of monetary reparations. The international community will likely have a huge role to play in the Nepalese Government providing the victims reparations; however, the international community would not support a system that goes against its principles. Thus the long running debate around the push for amendments in the TRC Act continues, as well as the fight for transitional justice in Nepal.

*Harsh Mahaseth is currently pursuing his bachelor’s degree in law from the National Academy of Legal Studies and Research (NALSAR). He has previously assisted the Centre of Legal Studies (CLS) in monitoring the transitional justice process in Nepal. With an aim to go back to Nepal and help establish a sustainable environment for peace and prosperity, he has been dedicated to International Humanitarian and Criminal Law with these forming his prime areas of interest.

 

Works cited: 

Posted by: Posted on by alkhudar

Dec 5 2016

Cultures of Care: Morality and Gender

Leave a comment

By Sabin Muzaffar*

This article was previously published at: http://anankemag.com/2016/08/07/cultures-of-care-morality-and-gender/

Cultures of Care

Stemming from a patriarchal mindset, care-giving responsibilities to the young and old alike are presumed to be mainly a woman’s job. All across the world, women spend disproportionately more time doing care work with little to no remuneration.

Additionally, care work either goes unacknowledged or is relegated to the lowest familial ranks and/or positions in the labour market, confining women to gendered and societally segregated roles of child-rearing and domestic work. Thus arises the notion of the “Second Shift”[1] – the idea of not only being grievously under-paid and under-valued, but also grossly exploited.

Eastern societies, especially those in the Indian subcontinent, have emerged from an agrarian-feudalistic civilization. These regions have historically based their values on the commodification of means of production. With feudalism sanctioning men and those in power to brazenly extract produce and surplus from direct producers. Such societies subordinate those economically challenged and/or physically weak, from the serfs to women and children – producing unequal economic relations and social reproduction, and paving the way to oppressively gendered hierarchies.

According to Nancy Folbre in her book, Greed, Lust and Gender: A History of Economic Ideas,[2] “Patriarchal feudalism could be described as a set of implicit exchanges in which the subordinated parties (whether serfs, women, or children) received protection and security in return for working long hours in the service of their superiors. But these exchanges were enforced by threat of violence as well as weight of political and military power… Men benefited from a division of labor that assigned women the least remunerative forms of work; feudal lords, for the most part, inherited their land and privilege. Men, having chosen a wife, were legally bound for life.”

Historically speaking, this patriarchal hegemony can also be seen in the Middle East, with fathers, brothers, or husbands possessing supreme authority over women.

This belief system places care responsibilities solely on women’s shoulders, creating an unfair cycle of social reproduction.

Cultural Diversity in the Subcontinent

History is replete with stories of women maintaining a high status in ancient Indian society, though that position gradually eroded during the medieval and modern times. By and by, women’s status in the agrarian subcontinent hit rock bottom as feudalistic exploitation grew.

As a consequence, it magnified the commodification of women as a means of production. Not only did this emerging “norm” completely ignore care and domestic work as real work, it even went on to overlook women’s untiring efforts outside the home and on the lands.

Society was eventually shaped into an ironically patrilineal one. Women had the double burden of work within the confines of their homes as well as outside chores from bringing in water to tending the crops. It was indeed a dire situation as they did not even have the right to bodily and financial autonomy, let alone be recognized as pivotal players in economic and social development.

Post partition, the subcontinent has experienced a systemic decline in the status of women and the consequent rise of gender inequalities, be it in bodily and financial autonomy, education, or exclusion from the labour market. And the status quo largely remains the same.

Although different shades of traditions and cultures can be found across Pakistan, Nepal, Bangladesh, and India, one common aspect is the uniformed patriarchal mindset. These societies thrive on power relations, which tend to exploit all activities including care work performed by women, even to the extent of discounting them.

Role of Culture

It is clear that a gendered approach to care finds its roots in economic power relations, bolstered by the imposition of biased belief systems, rigid mindsets, and traditions as interpreted by stakeholders – in other words, those with power.

The impact of such an approach to social reproduction is cataclysmic as far as economic development is concerned. Disempowering women through discounting their labour – be it care or domestic work – has dire ramifications on development, the overall quality of life, and therefore sustainability.

Talking about gender roles and Pakistan’s patriarchal society, Safeer Ullah Khan, Executive Director of Bedari[3] explains in an interview: “Culture plays a very important role in setting gender norms, and unfortunately, culture is heavily tilted against women. The division of labor is very clear – man is supposed to earn, and woman has to take care of the house. As the financial earning is responsibility of the man, hence the monetary control also remains with him. The woman takes up the role of the caregiver, which is an inherently unpaid job, so she remains dependent on man (on father in her early life, on husband in her middle life, and on son in her later life). The gender roles are so clearly defined that it becomes nearly impossible for men to come to the support of their women even if they want to. The social pressure is so great to adhere to your gender role that you just can’t breach it.”

Adding further, Khan states: “Culture puts the responsibility of care giving exclusively on women’s shoulders, making life difficult for them. I don’t know about other societies, but in Pakistan men are actively discouraged from sharing the care related responsibilities by the society, which means it would take really long to change the mindset, and bring any improvement in women’s lives. And because they are mostly caring for their own children, husband, or in laws, women are not supposed to ask for money as it would be highly offensive to make such a demand. Any woman making such a demand would be severely censured by the entire community.”

Care work impacts all of us, yet it is hardly recognized or endorsed as so. To achieve gender equality in every socioeconomic sphere of society, recognizing and elevating the status of care work is a must. Rights-based policies and laws on the premise of shared responsibilities by all stakeholders (individuals, public and private sectors) are fundamental stepping-stones to achieve this end.

Additionally, gender-sensitive education and awareness that promotes co-sharing of responsibilities is important as it has the power to fracture stereotypes within the family and community.

Until our hegemonically patriarchal mindset is completely dismantled, all will remain but a bombastic rhetoric.

[1] See http://geekfeminism.wikia.com/wiki/Second_shift.

[2] See http://blog.oup.com/2011/02/patriarchal-feudalism/.

[3] http://www.bedari.org.pk/.

*Sabin Muzaffar (Twitter @Critoe) is the Executive Editor of Ananke (www.anankemag.com) – eZine empowering women. She has been in the publishing business for two decades and has worked for prestigious media globally. Sabin believes in creating social impact and empowerment through education.

Posted by: Posted on by dhananit Tagged with: , , ,

Nov 23 2016

The new surrogacy law in India fails to balance regulation and rights

Leave a comment

*By Simran Aggarwal and Lovish Garg

India has a thriving surrogacy market with an estimated valuation of over 2 billion USD. However, the industry – which has been largely unregulated until now – is expected to witness an extensive overhaul with the proposed Surrogacy (Regulation) Bill, 2016. The watershed provisions of the new Bill seek to impose a blanket ban on commercial surrogacy primarily to check the exploitation of poor women, while permitting altruistic surrogacy in the country.

The Bill, however, comes with two caveats while allowing altruistic surrogacy: first, it outlaws altruistic surrogacy for unmarried couples, foreigners, single parents, live-in partners, and homosexuals; and second, only Indian couples who have been legally married for a minimum of five years can avail its benefits.

The proposed law is not only legally unsound but also highly divorced from the Indian social reality. By banning, rather than regulating, the market, the government cannot ameliorate the exploitation of poor women who are coerced into surrogacy. It is a regressive law embedded with overtones of Indian patriarchal mindset, which is bound to push the surrogacy market underground and escalate the oppression faced by Indian women.

Constitutional invalidity of the proposed law

The Surrogacy Bill fails to adhere to the “Golden Triangle” test devised by the Indian Supreme Court to inspect the constitutional validity of the laws enacted by the Government. This test of reading equality, liberty, and freedom of rights conjunctively aims to ensure that the basic fundamental rights of individuals are not encroached upon by the State.

Firstly, the proposed law infringes Article 14 of the Indian Constitution, which guarantees “equality before the law and equal protection of laws to all persons.” Restricting altruistic surrogacy to only married Indian couples and disqualifying others on the grounds of nationality, marital status, and sexuality impinges upon the right to equality for being an unreasonable classification. Given that the Bill is motivated by a desire to shield women from exploitation and prevent commodification of the birth process, the restriction also fails to bear any nexus with the intended objectives of the legislation.

Further, by disallowing the right to choice vis-à-vis surrogacy for homosexuals and unmarried couples, the Bill reinforces the majoritarian Indian morality that stigmatizes the idea of homosexuality and unmarried people living together. Here, it is pertinent to note that being a homosexual or residing in a live-in relationship is not illegal per se in the country, and limiting the access of altruistic surrogacy is a clear instance of discrimination against these minorities.

Secondly, the Bill violates the “right of livelihood” and “right to reproductive autonomy” enshrined under the broad framework of Article 21 of the Constitution. The ban on commercial surrogacy threatens the livelihood of many poor women in the country who have been able to educate their children, establish businesses, and financially support their families through surrogacy. The number of such women, many of whom are sole breadwinners, is estimated to be more than 100,000.

Further, the Indian Supreme Court has interpreted the right to reproductive autonomy to mean that the parents have the prerogative to choose the mode of parenthood, either naturally or through surrogacy in this case. Normatively and constitutionally, the method of procreation and parenthood lies outside the domain of the State, and any interference in this choice will warrant an infringement of this Fundamental Right.

Thirdly, the proposed law is foul of Article 19 in general, and Article 19(1)(g) specifically, which guarantees the “freedom of trade and profession” in India. The surrogacy industry is the source of bread and butter for not only the surrogate mothers but also the numerous surrogacy clinics in the country. A blanket ban on commercial surrogacy cannot be justified as a reasonable restriction because it jeopardizes the interests of multiple stakeholders in this multi-billion-dollar industry.

Infringement of international covenants and obligations

The Surrogacy Bill also contravenes several safeguards to human life, health” and dignity enshrined in the various international covenants ratified by India. By interfering with the reproductive rights of the individual, the proposed law infringes upon the “right to found a family” enshrined in Article 16 of the Universal Declaration of Human Rights. An additional challenge to the Bill also arises from Article 16(1)(e) of the Convention on the Elimination of All Forms of Discrimination against Women,  which requires state parties to ensure equality of rights for men and women “to decide freely and responsibly on the number and spacing of their children.”

The UN Special Rapporteur on the Right to Health has also highlighted the importance of freedoms and entitlements pertaining to reproductive, maternal, and sexual right, including the right to family planning services for the attainment of the highest possible standard of physical and mental health. The Bill further violates the state’s core obligation to ensure equal treatment and non-discrimination in access to reproductive health service by restricting the access to altruistic surrogacy.

Unanswered questions and the way forward

In its present form the Surrogacy (Regulation) Bill 2016 seeks to achieve the twin goals of: (1) preventing the exploitation of poor women; and (2) preventing the equating of the surrogacy process with renting a womb. While the legislators’ intentions are well placed, their provisions aren’t. Yes, the State must intervene to check the exploitation of poor Indian woman who are coerced into surrogacy, but it should not be done in a manner which is inimical to other individuals who are well within their legal and human rights to avail surrogacy services.

Instead of imposing a ban, the commercial surrogacy market should be regulated for the protection of the vulnerable in the surrogacy contract. A balanced path by the Government would be the adoption of a rights-based approach addressing the concerns of the surrogate mother, children born out of surrogacy, and other stakeholders in the surrogacy market. India needs a centralized system that could regulate the surrogacy market by addition of supplementary checks and balances, transparency, and registration of surrogacy contracts. This would also eliminate the middleman, ensuring that the entire compensation reaches the surrogate mother.

The proposed law is a clear case of homophobia, majoritarian enforcement of cultural norms, and discrimination against non- heteronormative relationships. By limiting the access to surrogacy on fallible and exclusionary grounds, the government will also provide impetus to a rising black market for wombs. Lessons have not been learnt from the ban on sex-determination tests and organ donations, which have previously pushed the entire market underground and left it completely unregulated.

Works Cited

  1. Law Commission of India, Government of India, “Need for Legislation to Regulate Assisted Reproductive Technology Clinics as well as Rights and Obligations of parties to a Surrogacy,” Report Number 228 (August 2009).
  2. Department of Health Research, Government of India, “The Surrogacy (Regulation) Bill, 2016” (August 2016).
  3. UN General Assembly, “Convention on the Elimination of All Forms of Discrimination Against Women”, 18 December 1979, United Nations, Treaty Series, vol. 1249.
  4. UN General Assembly, “Universal Declaration of Human Rights”, 10 December 1948, 217 A (III).
  5. UN Human Rights Council, “Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Dainius Pūras,” 2 April 2015, A/HRC/29/33.
  6. The Constitution of India, Republic of India, 1950.
  7. Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789.
  8. Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1.
  9. Indra Sarma vs V.K.V.Sarma, 2013 (14) SCALE 448.
  10. Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180.
  11. Suchita Srivastava v. Chandigarh Administration, AIR 2010 SC 235.

 *Simran Aggarwal and Lovish Garg 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 alkhudar

Nov 21 2016

Durable Solutions For Refugees: Principles And Implementation Strategy Of A General Framework

Leave a comment

Continue reading

Posted by: Posted on by sekyerek

Nov 14 2016

#StandWithCongo

Leave a comment

By Elizabeth Edwards*

On Monday 24th October, I attended the London premiere of the documentary When Elephants Fight at the LSE.[1] What I watched left me both stunned and appalled. I would urge you all to find an opportunity to watch the documentary and join in on the debate. #StandWithCongo

The film discussed how a vast wealth of mineral resources, mined deep within the grounds of the Democratic Republic of the Congo, have fuelled a complex, multi-faceted war which has perpetuated human rights abuses on an atrocious scale. It was shocking to me that I knew so little about the horrendous realities faced by many men, women, and children living in the Congo – particularly in the eastern provinces of North Kivu, South Kivu, and Katanga – including brutal physical and sexual violence at the hands of rebel groups (such as the FDLR) and government militia (FARDC). People living in the Congo also experienced gross levels of structural violence as a result of political corruption and mismanagement. The Congolese people explained that they lived in a world fuelled by economic uncertainty: lack of secure, well-paid jobs and inadequate access to education perpetuated cycles of poverty and conflict. Vulnerable children were militarised to such an extent that war became a game to play and death became something to sing about. What will become of these children’s futures? The documentary paints a bleak picture.

As I watched footage showing the aftermaths of ruthless violence and listened to the testimonies of disempowered individuals, I was gradually filled with a deep sense of crisis and outrage. Why does all this conflict, this abuse, this misery, continue to happen to so many people living in the Congo? And how could I, just one person who sat thousands of miles away, do anything at all to help mitigate the situation?

Well, the documentary left me in little doubt about what to do. It gave me a sense that I could do something, however small. Firstly, by simply talking about these issues and raising awareness. Because we are not disconnected or distanced from the Congolese struggle. The film brought the terrifying realities of people’s lives into the very heart of London that dark night. It brought their grim stories into the minds of everyone who watched it. But to those of you who haven’t watched it yet: let me just tell you, that you too are not as many miles away from the Congo as you think. Because you carry a bit of it with you. Perhaps you are even holding a bit of it now. If you own a smartphone, or some form of technological device, you are most likely in possession of Congolese minerals such as coltan, tin, and gold. These minerals are essential to the smooth running of your gadgets but they may have a dark and untraceable history. This is the heart of the problem. And this is why these atrocities continue to happen.

I am not an expert on Congolese history and clearly I cannot give you the answers to the issues so succinctly put forward in the documentary. But I can make you more conscious about conflict minerals so that they do not end up in your hands again. The people who mine these minerals in desperate, unsafe, and dangerous conditions are not the ones who see any financial returns. The minerals are illegally smuggled out of the country and sold through the neighbouring countries of Uganda and Rwanda. This profits armed gangs and rebels, and fuels conflict and human rights abuses. Furthermore, lucrative and furtive deals between politicians in the Congolese government and predatory transnational corporations has resulted in the loss of billions of dollars of revenue (approximately $1.36 billion between 2010 – 2012) as international mining firms are granted land concessions to plunder the earth for its natural resources. Mineral wealth does not contribute to the national economy, which is desperately needed for education, health, and development, but is held in the hands of a few, mysterious, economically elite throughout the globe.

So, what can you do? Well, the next time you are thinking about buying a new device, make sure it comes from a company committed to sourcing ethically produced minerals, which can be legitimately tracked from their source all the way through the supply chain. This will help reduce armed conflict, illegal smuggling, and hopefully improve working conditions for the miners. Hopefully, this will help stem the flow of mineral wealth leaving the country and ensure that the profit goes to the people who need it the most.

You can also #StandWithCongo. Share with your friends, host a free screening, and sign their pledge to demand transparency and full disclosure within all Congo mining industries run by the state and multinationals. This is so that we can discover who exactly is benefiting from the mineral wealth being extracted from the Congo and ensure that all companies comply with OECD standards on minerals mined in conflict zones.

Thank you.

Watch the trailer to the film When Elephants Fight.

[1] You can listen to the Q&A session after the event by clicking here.

Works Cited

United Nations Security Council (2004) Security Council Committee Established Pursuant to Resolution 1533 (2004) Concerning the Democratic Republic of Congo
<https://www.un.org/sc/suborg/en/sanctions/1533/materials/summaries/entity/forces-democratiques-de-liberation-du-rwanda-(fdlr)>

Woudenberg, A V et al (2009) “You Will Be Punished” Attacks on Civilians in Eastern Congo
<https://www.hrw.org/report/2009/12/13/you-will-be-punished/attacks-civilians-eastern-congo>

War Child (date unknown) Congo’s Conflict Minerals
<http://www.warchild.org.uk/issues/congo-conflict-minerals>

#StandWithCongo (date unknown) The Facts
<http://standwithcongo.org/wp-content/uploads/2016/08/SWC-Quick-Facts.pdf
>

Bloomberg, T W (2016) What it takes to make a conflict-free smartphone
<http://www.mineweb.com/news/industrial-metals-and-minerals/what-it-takes-to-make-a-conflict-free-smartphone/>

*Elizabeth Edwards is a recent graduate (2016) from Durham University where she received a B.A. (Hons) in Anthropology with a Year Abroad. She is currently at LSE where she is studying for an MSc in Human Rights.

Posted by: Posted on by dhananit Tagged with: , , , , , , ,

Oct 25 2016

The Constitution Trumps Mr. Trump’s Presidential Plans

Leave a comment

By Rory Mondshein*

Over the past few months, we have heard Republican Presidential nominee, Donald Trump, make numerous promises to the American people. As part of his platform, Mr. Trump vowed to: (1) ban refugees from our shores; (2) simplify our tax code; and (3) construct a wall along the United States-Mexican border–which would be funded by the Mexicans–because “a nation without borders is not a nation, a nation without laws is not a nation.”

Although Mr. Trump is very vociferous about his plans, one must inquire their feasibility. For these reasons, I will explore the constitutional constraints to Mr. Trump’s policy proposals, particularly the way that the federal and state powers will limit his ability to implement his ideas. The United States political system operates on a system of checks and balances in all walks of life.

A. Immigration

The Tenth Amendment states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people” (U.S. Constitution). That means that, if the Constitution does not explicitly give Congress powers, then it falls into states’ hands. Unfortunately, the Founding Fathers lacked the power of foresight, and intentionally limited congressional powers to avoid government vituperation.

Over time, the descendants began to realize that the Constitution was plagued by cognitive dissonance: the Tenth Amendment granted the states any power that was not explicitly given to the Congress; however, the bureaucratic limitations inhibited Congress from fully performing their duties. The Constitutional confusion was discussed in the 1819 Supreme Court case McCullough v. Maryland, which centered on states’ ability to operate their own banks. The Court’s decision in McCullough produced the concept of “implied powers,” which referred to powers that were not explicitly stated in the Constitution but were needed to perform other duties. After McCullough, Congressional power began to expand vis-a-vis the “Necessary and Proper Clause,” but states still sought to protect their powers and only ceded to the federal government in necessary instances.

Although it was not explicitly stated in the Constitution, immigration has been federally regulated since 1952, which would put it under Mr. Trump’s purview (if he is elected). That said, although the states could complain that Mr. Trump’s “Great Wall of Mexico” is inconvenient, they cannot exert further control in the immigration debate.

In that case, Mr. Trump could easily commission the wall from the American side, but he would need state governments to oversee the construction in their respective areas. Although the state cooperation caveat could be seen as a logistical concern, many Southern states (including Arizona, Texas, and New Mexico) tend to lean towards the Republicans, which increases the likelihood that they will both support Mr. Trump in both the election and the implementation of policy proposals. California, on the other hand, tends to be more liberal so their cooperation in the large-scale wall project is questionable. Californian recalcitrance may add an additional complication for Mr. Trump, as numerous Mexican drug cartels have been found in California warehouses.[1]

In that case, he could commission the wall, but may have a hard time getting it done in California. Mr. Trump, however, can force compliance by threatening to withhold state funding in the style of Lyndon B. Johnson, but this could cost him in his re-election campaign.[2]

B. Deporting Immigrants

On numerous occasions, Donald Trump has made it clear that he plans to deport 11 million undocumented immigrants, but, unfortunately for him, the Constitution inhibits his ability to implement his plan.

As previously mentioned, the Tenth Amendment bifurcates federal and state power, and, while immigration is a federal issue, the states would have to consent and actively work towards deporting all of the “illegals” within their territories. The massive deportation movement would be a logistical nightmare because it would require perfect coordination.

If Mr. Trump wanted to deport all of the illegal immigrants, he would require the states’ assistance in actively identifying them. The fact that the “illegal immigrants” are, in fact, undocumented and therefore not on state records would complicate the identification process. He could, perhaps, advocate for all states to adopt the stop-and-identify approach that was made famous by Sheriff Joe Arpatio, but that would lead to large-scale racial profiling and the deprivation of dignity for members of a certain population.

In addition to coordination, Mr. Trump’s efforts would be enervated by states’ potential unwillingness to cooperate in the mass identification and deportation movement. Although immigration would be under his purview, state recalcitrance would enervate his entire plan, and, due to constitutional constraints, Mr. Trump would not be able to enter each state and personally facilitate the deportation process.

Recognizing the constitutional constraints, Mr. Trump’s big plans can only exist as offensive words meant to exacerbate the ostensible racial tensions, and deprive particular groups of their human rights to dignity. The racial profiling that is the basis of Mr. Trump’s dreams of building a wall and deporting all illegal immigrants is simply atrocious, but there is comfort and solace in the idea that our institutional structures actively limit the full implementation of these xenophobic and poorly constructed initiatives that seek to “make America great again” by antediluvian standards of human rights.

[1] In 2011, U.S. Senator Dianne Feinstein led a meeting with the Senate Judiciary Subcommittee on Immigration and The National Interest to discuss immigration. During this meeting, Senator Feinstein showed the elaborate tunnels that the cartels used to come into the United States.

[2] If he does have a hard time in California, he can punish their state in other ways, like decreasing federal funding, to get the job done. In fact, tons of Presidents have threatened to withhold federal funding in the face of state recalcitrance, most notably Lyndon Johnson threatened to withhold federal funding for states that refused to comply with Brown v. Board of Education so, considering the interdependence between each branch of government and the relationship between federal and state government, there are ways to get around this.

Works Cited

  1. Constitution, U. S. “Article I.” (1999).
  2. Constitution, U. S. “Article II.” (1999).
  3. Constitution, U. S. “10th Amendment” (1999).
  4. Marshall, Chief Justice John. “McCulloch v. Maryland.” United States reports4 (1819): 400-437.
  5. Trump, Donald “Positions” com (2015) https://www.donaldjtrump.com/positions/immigration-reform

*Rory Mondshein received her B.A. in Political Studies and Social Policy from Bard College in 2014. Currently, Rory is the founder of Make It Appn, and serves as the Chief Community Officer of the Political Student. She is pursuing her MSc in Human Rights at the London School of Economics.

Posted by: Posted on by dhananit Tagged with: , , ,

Sep 14 2016

Are Human Rights Really ‘Universal, Inalienable, and Indivisible’?

Leave a comment

By Leila Nasr*

Eleanor Roosevelt inspects a copy of the Universal Declaration of Human Rights in 1949. (Creative Commons)

At a time of great promise, Eleanor Roosevelt inspects a copy of the Universal Declaration of Human Rights in 1949. However, do the declaration’s core principles of universality, inalienability and indivisibility continue to ring true today? (Credit: Creative Commons)

 

Following centuries of ongoing revision, repetition and reconceptualisation, international human rights theory and practice continues to grapple with three integral concepts: universality, inalienability, and indivisibility. These concepts are perceived as being essential to its continued validity, yet themselves also embody human rights’ most pressing critiques.

Human Rights as Universal

Universal human rights theory holds that human rights apply to everyone simply by virtue of their being human. The most obvious challenge to the universality factor comes from ‘cultural relativism’, which maintains that universal human rights are neo-imperialistic and culturally hegemonic. While this perspective may be tempting, the relativist argument encompasses a debilitating self-contradiction; by postulating that the only sources of moral validity are individual cultures themselves, one is precluded from making any consistent moral judgements. Further, the cultural relativist in fact makes a universalist judgement in arguing that ‘tolerance’ is the ultimate good to be respected above all. Hence, it is a naturally self-refuting theory that engages universalism in its own rejection of the concept. In a practical sense, the cultural relativist position is foundationally incompatible with human rights, as human rights themselves could not exist if they were stripped of common moral judgement.

And yet, the question remains: even if human rights must be universal in order to remain coherent, what should we do when faced with practices or cultures with which ‘our’ version of human rights clashes? Should we stand idly by when atrocities are committed? Surely not. While universal human rights should not be geographically or culturally ‘flexible’ (so as not to undercut their entire purpose), we must see the continuum of rights and culture as relational, not exclusive.

Along this vein, some have argued that we actually need to see human rights as a culture in and of itself – a collective learning about what is in the best interests of humans around the world. This is because, as cultures are non-homogenous and inherently malleable, so too must be their conceptualisations of human rights. Essentially, human rights must be able to absorb cultural difference.

Further still, other commentators have taken issue with the question itself, noting that dichotomised and uncompromising questions over whether human rights should be universal or not actually tend to “arbitrate the correct form of human existence”. In this way, the ability of human agency to integrate, move between and even override cultures is often overlooked. Instead, he argues that the best way forward is for people remain aware of alternative value systems to be able to freely move in and out of them as per their preference. While this may be seen as too liberal or individualistic (as is a common critique of ‘western’ human rights), it best gets to the core of what the purpose of human rights ought to return to: the human.

Human Rights as Inalienable

By definition, inalienability involves the “inability of something to be taken from or given away by the possessor”. While the 1776 United States Declaration of Independence, the 1789 Declaration of the Rights of Man, and the 1948 Universal Declaration of Human Rights repeatedly affirmed that rights were inalienable, it remains today that very few can agree on the meaning of this.

Early philosophers and scholars such as Locke, Mason and Lilburne spoke of natural rights in terms of inherentness, natality and inability to be surrendered, helping later thinkers better conceptualise the core of inalienability by asking who the ‘human’ is in human rights.

Constant debate on this topic has brought out the best and worst in more recent philosophers. For example, one scholar notes that one must contribute to both self and society in an autonomous capacity in order to be a rights-bearing person. He thus doubts whether rights could possibly apply to infants, the “severely mentally retarded”, or people in irreversible comas. Thankfully, others have stepped away from crude biological distinctions to conceptually consider the multiplicity of ways in which one might be considered ‘unhuman’ such as through heavily gendered and animal-human power dichotomies [1]. In such cases, victims are often stripped of their personhood and basic rights, revealing the alienability of rights in practice.

Along this vein, Hannah Arendt articulated one of the most timeless perspectives on inalienability on the backdrop of the Holocaust. Noting the lack of tangible access to rights experiences by refugees by virtue of their statelessness, Arendt concluded that the only true right was ‘the right to have rights’ in the sense that modern rights had become linked inextricably to the emancipated national state. Of course, important critiques have been lodged against Arendt, such as that of Jacques Rancière, who finds that humans can never be entirely depoliticised and devoid of rights (even when stateless) as they are inherently political beings by the mere fact of birth. However, while somewhat convincing, Rancière’s critique should easily be dismissed as far too abstract to be of great use in the face of the severe and ultimately tangible human rights violations occurring today.

Given today’s challenges of displacement and statelessness, it therefore seems more helpful to eschew abstract reasoning surrounding inalienability and acknowledge that rights are inseparable from statehood and citizenship in the international human rights system. As Arendt reasoned, “inalienability has turned out to be unenforceable”.

Human Rights as Indivisible

Turning to indivisibility, this principle maintains that the implementation of all rights simultaneously is necessary for the full functioning of the human rights system. Beyond discussions of violations, indivisibility is equally the idea that no human right can be fully implemented or realised without fully realising all other rights. Those who fall within the indivisibility camp reason that the enforcement of human rights is arbitrary and incomplete without a commitment to indivisibility, and that anything less than simultaneous implementation of all human rights may fuel dangerous rights prioritisations by governments (i.e. emphasising first or second generation rights while neglecting third generation ones will mean that all rights values suffer).

Issues surrounding the prioritisation and partial fulfilment of human rights are at the core of the indivisibility question. Here, Nickel makes a number of strong arguments against indivisibility by distinguishing the concept from interdependence. For example, an arm and leg are not mutually indispensable (indivisible) because one can function without the other. While they may be interdependent to some extent, they are not indivisible. Conversely, a heart and brain cannot function irrespective of each other, thus making them indivisible by definition. Such is the distinction we must make with human rights, too.

It isn’t necessary for every single right to be fully realised in order for the others to mean anything at all. If this were not the case, it may be terrible news for developing countries; rather, such countries do not automatically enter into conflict with the principle of indivisibility if they prioritise some rights over others along a given timeline in light of available resources. This line of thought is an important critique of others, such as Donnelly, who insists on the centrality of system-wide indivisibility, and whose argument fails to appreciate this indivisibility-interdependency distinction.

Conclusion

It is therefore apparent that some of the most widely accepted and central tenants of human rights – universality, inalienability, and indivisibility – emerge as highly contentious upon close inspection. Yet, rather than undercutting the entire concept of human rights, these critiques simply remind us to continually revaluate our assumptions of rights to make them ever more inclusive and ever more tangible to those who remain on the outside, looking in.

[1] Rorty uses the example of the dehumanization of Bosnian Muslims at the hands of Serbian soldiers during the Bosnian war. He explains that this reduced Bosnian Muslim to an ‘animal-like’, or non-human status relative to his/her oppressor, thus stripping the victim of any relevance in discussions on ‘human’ rights.

*Leila Nasr is the Lead Editor of the LSE Human Rights Blog. She can be reached at L.Nasr@lseac.uk.

Posted by: Posted on by Leila Nasr

Aug 29 2016

Gassing of Indigenous Youth in Australian Detention Centres Reeks of Colonialism

Leave a comment

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

Leave a comment

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…

Leave a comment

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