Jul 25 2017

A New Spate of Extra-Judicial Killings in Kenya: Redefining Rights and Obligations under International Law

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By Godfrey Mwango*

Introduction

On 1st April, 2017, Kenya’s television media [note: link to video contains potentially disturbing footage] broadcast appalling scenes of a young man being shot dead by the police in East Leigh, Nairobi.

The Black’s law dictionary defines extrajudicial as that which is done outside the course of regular judicial proceedings; not founded upon a court of law. Extra-judicial killings are acts of impunity that deny individuals the due process of law and the right to life as permitted by law.

The police in Kenya are enjoined to investigate criminal offences and also to enforce the law under Article 245 (4) of the Constitution and the provisions of the National Police Service Act, (Cap 84). Article 244 of the Constitution goes a step further by providing that the National Police Service must “comply with constitutional standards of human rights and fundamental freedoms”.

Requirement of the Due Process of Law

The general tenor of criminal law and procedure in Kenya is that the role of the National Police Service is limited to the establishment of reasonable suspicion on an accused person before preferring charges. The rest of the process is then left to the trial court to determine the guilt or innocence of an accused. In Francis Matheka & 10 Others vs. Director of Public Prosecutions and Another, HC Misc. App No. 362 0f 2014, the High Court asserted that only a trial court can make a finding whether or not a criminal offence was committed after hearing the evidence.

Article 2 (6) of the Constitution of Kenya domesticates any treaty or convention ratified by Kenya and provides that such instruments form part of the laws of Kenya. Article 26 (1) provides for the right to life and further emphasizes that this right can only be limited as authorized by the Constitution or any other written law. Article 50 provides that a suspect or an accused person must be subjected to the due process of law which embody the strict observance of the principles of natural justice. The due process of law is also captured under the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights, both to which Kenya is a signatory.

Kenya’s Breach of Obligation under Domestic and International Law

The requirement of the due process of law is both a domestic and an international obligation that Kenya must observe when dealing with the accused or persons suspected to have committed crimes. Kenya must comply with the State’s obligations under the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights. Under the auspices of the International Covenant on Civil and Political Rights,  every accused individual is to be subjected to a hearing. Article 14 of the instrument provides that the accused is to be informed of the nature of charge (s).

Article 10 of the Universal Declaration of Human Rights stipulates that every person is to be presented before an independent and impartial tribunal and is to be accorded fair and public hearing.

Conclusion

Succinctly put, the law is already cast in stone. The National Police Service have no legal authority to determine questions that affect the rights of persons suspected to have committed crimes. The Constitution is the grundnorm and must be respected by all the State actors including the police force. The goal of the Kenyan criminal justice system is not to brandish the sword of punishment of an individual by another or to settle personal vendetta. The course of justice is not to be actuated by ulterior motives or desire to oppress; but, by genuine concerns to render proportionate punishment on behalf of the public for a crime committed. The court is vested with this power and should dutifully guard against such motives that are incongruent to the goals of justice. It should safeguard against usurpation of the inalienable rights guaranteed by the Constitution. The fundamental principles of justice, which include fair play and decency, must not be profaned by the police, who are the high priests in maintaining law and order. The criminal justice system should not be reduced into a pawn by allowing the police to apprehend, prosecute, sentence and execute. The court should not, as it were, fold its arms and stare as the National Police Service execute citizens in broad daylight.

There is no justification for immediate retaliation by police against civilians under municipal law. Kenya is currently in breach of the State’s human rights obligations under both the municipal and international law. Acts of violation of Kenya’s obligations under international law by the National Police Service while discharging its mandate apportions responsibility of the State under the world order. It now behooves Kenya to take urgent remedial measures to ensure compliance with the State’s obligations under both domestic and international law, and to stop extra-judicial killings.

Works Cited

Black’s Law Dictionary 2nd edition available at: http://thelawdictionary.org/extrajudicial/

Video link available at: https://www.youtube.com/watch?v=ush2y3Nvdm4

Constitution of Kenya, Republic of Kenya, 2010 available at: http://www.kenyalaw.org/lex//actview.xql?actid=Const2010

National Police Service Act, Act no 11A of 2011 available at: http://www.kenyalaw.org/lex//actview.xql?actid=No.%2011A%20of%202011

Francis Matheka & 10 Others vs. Director of Public Prosecutions and Another, HC Misc. App No. 362 of 2014 available at: http://kenyalaw.org/caselaw/cases/view/113087/

United Nations Universal Declaration of Human Rights available at: http://www.un.org/en/universal-declaration-human-rights/

United Nations General Assembly, December 16, 1966, International Covenant on Civil and Political Rights, 2200A, New York available at: https://treaties.un.org/doc/publication/unts/volume%20999/volume-999-i-14668-english.pdf

National Police Service of Kenya Website available at: http://www.nationalpolice.go.ke

*Godfrey Mwango is an L.L.B graduate of the University of Nairobi. He is currently undergoing the Advocates Training Programme at the Kenya School of Law, where he also serves as a Students’ President. He has a bias for Human Rights, Constitutional and Administrative Law. He has trained under the Honourable Peter Kaluma in the area of Constitutional Law and Judicial Review.

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Jul 19 2017

The Right to Health in the Context of HIV Healthcare in India: Some Thoughts on the New HIV Bill

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By Diksha Sanyal*

On April 11, 2017, the Indian Parliament passed the Human Immunodeficiency Virus and Acquired Immunodeficiency Syndrome (Prevention and Control) Bill, 2017 (hereinafter referred to as ‘Act’). This Act was viewed as an opportunity to make access to affordable HIV healthcare a right. However, the Act in its current form does not substantively provide for it. On the one hand, the government has assured in Parliament that treatment would be provided free of cost. Yet, the national budget for fighting  HIV/AIDS has been steadily declining over the last couple of years and could have been remedied by this Act. Instead, it is non-committal to the right to health and neglects the availability of treatment while disproportionately focussing on prevention. In this blog post, I briefly outline the Act’s conceptualisation of the right to health vis-à-vis the international framework.

The right to the highest attainable standard of health is a human right recognized in Article 12 of the ICESCR. The normative contents of this right are found in General Comment No. 14 to the ICESCR. Under international law, the nature of State intervention is measured against the benchmarks of ‘availability,’ ‘accessibility,’ ‘acceptability,’ and ‘quality’. Because of differing levels of resource constraints, the General Comment recognizes the principle of progressive realization and a minimum core obligation which the State must fulfil at all times regardless of resource constraints.

In the context of a global epidemic such as HIV, the State has an obligation under Article 44 (c) of the General Comment No. 14 to “take measures to prevent, treat and control epidemic and endemic diseases)”. There is also a non-derogable obligation to “provide essential drugs, as from time to time defined under the WHO Action Programme on Essential Drugs” under Article 43 of the same document. As per the WHO Model List of Essential Medicines, certain antiretroviral medications are classified as essential. These include medicines required for the treatment and prevention of HIV, specifically those for prevention of mother-to-child transmission and post-exposure prophylaxis. Despite not doing so, the Act should have made access to these essential services and medicines, a right.

Keeping the framework in the backdrop, I evaluate the 2017 Act which has come into force at a time when the HIV/AIDS control programmes in India are facing a severe budget cut. This has severely affected the availability of diagnostic kits and paediatric formulations of anti-retroviral drugs.

The law, following nearly three decades of campaigning, fails to bring a longevity and sustainability to the basic demands of the campaign. In terms of availability and accessibility, the Act fails to improve or strengthen the existing mechanism. In a complete mockery of the sustained campaign, Section 14 deals with the provision of Antiretroviral Therapy (ART) and Opportunistic Infection. It only obliges the government to take measures to provide these services “as far as possible.” It does not make this available to people as a matter of right. Section 46(2)(e) provides that the State may lay down guidelines for providing such treatment, thus leaving the entitlement completely in the hands of executive authorities.

Although free antiretroviral treatment, or ART, has been provided in India since 2004, the uptake remains low. Further, these clinics are neither easily accessible nor economically, physically or informationally available. National Aids Control Programme IV in fact aims to make second-line ART treatment free. However, given the steady decline of international funding in India for HIV since 2012 and domestic funding falling by 22% between 2014-2015 and 2015-2016 will severely compromise any plans to make treatment facilities more accessible. Currently, most efforts are directed at the prevention level with 68% of the NACP budget being allocated to HIV prevention. On the other hand, only 31% goes to treatment, care and support. With overall funding decreasing, this amount is going to fall in real terms.

The new law does not move beyond the prevention model to make access to safe treatment accessible. A study showed that physical and economic accessibility to treatment services remains low. The number of clinics set up so far has been way below the expected target.

Interestingly, in 1999, a public interest petition was filed before the Supreme Court of India seeking to address the barriers faced by HIV/AIDS patients in accessing treatment. Among other issues, access to second line ARV treatment also arose before the court. National Aids Control Organization argued in favour of its guidelines which provided that treatment would be made available free of cost to only to certain groups such as widows, children, persons below the poverty line and those who had been accessing this treatment under a government programme for at least two previous years. The lawyers of the petitioner argued on the other hand that these guidelines violated the right to equality under Article 14 and the right to life under Article 21. The court in W.P(C) No. 512 of 1999 on 1/10/2010 upheld the petitioners’ argument and indicated that such a scheme was against the constitutional order, thereby making the roadway for a universal access to HIV healthcare.

Instead of enshrining the principle of universal accessibility upheld by the Court, the Act relies on the language of ‘as far as possible,’ which leaves essential healthcare entitlements vulnerable to the whims and fancies of the executive.

Making access to HIV healthcare a right would have put pressure on the State to provide the necessary infrastructure for the realization of this right by providing a channel of accountability. Creating a statutory right to HIV healthcare facilities would have been easier to enforce given that much of the infrastructure to make such a right meaningfully accessible already exists, although requiring reforms. Moreover, it would have ensured better accountability and last mile delivery of services.

This would have ensured a true rights-based legislation. Rather, the current law will not force the State to invest in HIV treatment, only prevention. The current Act is a half- hearted attempt to engage meaningfully with the right to health for persons living with HIV/AIDS.

Works Cited:

The Human Immunodeficiency Virus and Acquired Immunodeficiency Syndrome (Prevention and Control) Act, 2017

What is the HIV/AIDS Bill: All Your Questions Answered, Indian Express, 13/04/2017, available at http://indianexpress.com/article/what-is/hiv-aids-bill-passed-parliament-lok-sabha-nadda-discrimination-4611167/ [Accessed 7 Jul. 2017].

Aditya Kalra and Zeba Siddiqui, Funding Crisis Puts India’s AIDS Programme and Lives at Risk’, Reuters, 24/07/2015, available at http://in.reuters.com/article/aids-india-funding-idINKCN0PY1JU20150724 [Accessed 7 Jul. 2017].

Office of the High Commissioner of Human Rights, CESCR General Comment No 14: The Right to the Highest Attainable Standard of Health (Art 12), 22nd Session of the Committee on Economic, Social and Cultural Rights, (11/08/2000),  E/C.12/2000/4, available at <http://www.ohchr.org/Documents/Issues/Women/WRGS/Health/GC14.pdf> [Accessed 7 Jul. 2017].

World Health Organization, “WHO Model List of Essential Medicines” (04/2015), available at < http://www.who.int/medicines/publications/essentialmedicines/en/> [Accessed 7 Jul. 2017].

See, Vina Vaswani and Ravi Vaswani, Perceptions of People Living With HIV/AIDS Regarding Access to Healthcare, 33, Journal of Medicine and Law, 64, 69-70, (2014)

HIV and AIDS in India, AVERT: Averting HIV and AIDS https://www.avert.org/professionals/hiv-around-world/asia-pacific/india [Accessed 31 May 2017].

Sankalp Rehabilitation Trust v. Union of India, P © 512/1999

*Diksha Sanyal graduated with a BA (LLB) Hons from the West Bengal National University of Juridical Sciences, Kolkata, India in 2016. She was employed as a litigator and researcher with the Centre for Law and Policy Research, Bangalore till April 2017 where she was involved in constitutional litigation and lawyering in the public interest on issues pertaining to disability rights, the right to education and health, among others.

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Jul 14 2017

5 Reasons Why Cooperation is Key for Development

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By Elisabeth Rochford*

The launch of the Sustainable Development Goals in 2015 focused the world’s attention on 17 “Global Goals” to be met by 2030. They highlight the significant challenges that lie ahead for every one of us, as a student, community member, policy maker or NGO worker. Goal 17 is to “Strengthen the means of implementation and revitalize the global partnership for sustainable development” – but just why are partnerships so important in sustainable development and why could cooperation be vital to achieving these goals by 2030?

  1. It works better

Locals commonly know best what is needed for their own communities, and local experience is a powerful tool and motivator. Local people are often expert guides in their own culture, environment, geography and society. However, strong state support and international resources can also be crucial to bolstering locals who may be lacking in capacity to act on their own. Through a combined effort from both communities and bigger organisations in setting up and maintaining development projects, the initiative can benefit from the varied expertise of all involved.

It can also mean that resources are better utilised in ways that are relevant and targeted to local needs. This avoids misinformed aid ideas, where good intentions can miss the point and fail to address the real social problems at play. Thorough cooperation and co-production can also improve transparency and accountability, reducing the possibility of corruption.

  1. It lasts

Cooperation between local and international actors leads to the improved sustainability of development projects. Locals often also have a great deal of influence in their community and can help promote development initiatives through informal local networks with greater success than international actors, who may be seen as untrustworthy or to have conflicting interests. In this way locals, as community organisers, may achieve greater support and cooperation in their locality for the development initiative, helping it last.

  1. It promotes equity and inclusiveness

High-quality programmes produced by locals and outsiders can promote equity and inclusiveness in communities, tackling issues of marginalisation and exclusion. By working together, local and international actors can ensure that resources are distributed fairly and everyone is involved in the process. This can mean a more equal power balance that also incorporates an external perspective, driven by a desire for fairness.

Inclusiveness between local and international agents in development initiatives can also help to engage those who might otherwise be marginalised in the wider processes to ensure that their rights and needs are recognised.

  1. It empowers local communities

When it comes to development, empowerment is a vital element in its success. Working with communities and involving locals in the decision-making and implementation of initiatives can empower them to assert control over their own development, and help them access resources and capacity needed to do so. It encourages self-reliance, helping to free people from control by mainstream political processes and manipulation or exploitation through unequal power relationships with the state or international actors. That’s why local people’s ability to negotiate with and to hold accountable the institutions and initiatives that affect their lives must be fostered and acknowledged.

  1. It ensures that we all get to play our part in the world

Ultimately, each and every one of us has an important role to play in global development and deserves to be given the chance to do so. Community development cannot operate in a vacuum, but needs local coordination via local government structures and support from international sectors. We need to foster greater development dialogue and cooperation rather than a simple bottom-up or top-down approach.

A successful sustainable development agenda requires widespread participation and the formation of partnerships between local and international actors. In the words of Ban Ki-moon: “To successfully implement the 2030 Agenda for Sustainable Development, we must swiftly move from commitments to action. To do that, we need strong, inclusive and integrated partnerships at all levels.”

It’s up to all of us who study global development, volunteer and aspire to make the world a better place to ensure true, productive cooperation between organisations or individuals with the resources for change, and those who seek to solve their own problems.

Works Cited:

  1. UN Sustainable Development Goal 17. https://sustainabledevelopment.un.org/sdg17
  2. Suzy Mmaitsi. “In Kenya, A Skill Can Turn A Girl From Bride Into Business Owner”. BRIGHT. https://brightreads.com/in-kenya-a-skill-can-turn-a-girl-from-bride-into-business-owner-30b5b9c19c38
  3. North Carolina State University. “Where Credit is Due: How Acknowledging Expertise Can Help Conservation Efforts”. ScienceDaily. https://www.sciencedaily.com/releases/2014/04/140408122139.htm
  4. World Bank. “Localizing Development: Does Participation Work?”. http://econ.worldbank.org/WBSITE/EXTERNAL/EXTDEC/EXTRESEARCH/0,,contentMDK:23147785~pagePK:64165401~piPK:64165026~theSitePK:469382,00.html
  5. Richard Stupart. “7 Worst International Aid Ideas”. Matador Network. https://matadornetwork.com/change/7-worst-international-aid-ideas/
  6. Adam Grech. “The Role of Aid Theft in Africa: A Development Question”. Development in Action. http://www.developmentinaction.org/the-role-of-aid-theft-in-africa-a-development-question/
  7. James Stewart. “Local Experts in the Domestication of Information and Communication Technologies”. http://www.tandfonline.com/doi/abs/10.1080/13691180701560093
  8. Lisa Cornish. “In an Era of Declining Trust, How Can NGOs Buck the Trend?”. DevEx. https://www.devex.com/news/in-an-era-of-declining-trust-how-can-ngos-buck-the-trend-89648
  9. Katy Jenkins. “Practically Professionals? Grassroots Women as Local Experts – A Peruvian Case Study”. Science Direct. http://www.sciencedirect.com/science/article/pii/S0962629807000996
  10. UN Research Institute for Social Development. “Social Inclusion and the Post-2015 Sustainable Development Agenda”. http://www.unrisd.org/unitar-social-inclusion
  11. World Health Organization. “Track 1: Community Empowerment”. http://www.who.int/healthpromotion/conferences/7gchp/track1/en/
  12. John Gaventa, Gregory Barrett. “So What Difference Does it Make? Mapping the Outcomes of Citizen Engagement”. http://www.gsdrc.org/document-library/so-what-difference-does-it-make-mapping-the-outcomes-of-citizen-engagement/
  13. “Goal 17: Revitalize the Global Partnership for Sustainable Development”. http://www.un.org/sustainabledevelopment/globalpartnerships/
  14. “Partnerships: Why They Matter”. http://www.un.org/sustainabledevelopment/wp-content/uploads/2017/02/ENGLISH_Why_it_Matters_Goal_17_Partnerships.pdf

*Elisabeth Rochford, MSc Human Rights student at London School of Economics and Political Science and Communications Intern at the Wonder Foundation.

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Jul 11 2017

Prohibition of Beggary Acts: Criminalizing a Way of Life and the Need to Amend These Laws

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*By P Avinash Reddy

The Bombay prevention of Begging Act (1959), The Karnataka prohibition of Beggary Act (1975) and twenty other Anti-Beggary laws have been enforced as a way of criminalizing the act of begging in India. These acts define ‘beggar’ as anyone who solicits or receives alms in a public place whether or not under any pretense such as singing, dancing, fortune telling, performing tricks or selling articles.” In so doing, they essentially prohibit individuals or groups from earning their livelihoods by performing in public places.

The Anti-beggary laws criminalize a particular way of life and have adversely affected the livelihoods of many communities, especially that of the traditional street performers. Busking is equated with begging in most Indian States and as a consequence, the traditional street performers are deprived of the opportunity to earn their livelihood. The provisions of Anti-Beggary laws are arguably in conflict with Article 23 (1) of the Universal Declaration of Human Rights and Article 6 (1) of the International Covenant on Economic, Social and Cultural Rights, both of which explicitly recognize the right to work, which also includes the right to freely choose the kind of work an individual pursues.

Traditional street performances have been an integral part of Indian society for a very long time and anti-beggary laws have degraded them by bringing them under the ambit of begging. Individuals involved in these professions predominantly belong to certain tribal communities and it is the way of life that these communities have known, practiced and banked upon to earn their livelihood. Whenever they try to earn their livelihood through their performances, they face the wrath of the policing authorities . These laws are effectively wiping out certain cultures, traditions, practices and are imposing the dominant way of life on these communities.

The ‘Prohibition of Beggary Acts’ closely resemble laws passed between 1757 and 1871, that were enacted with the objective of suppressing thugs (dacoity and banditry) in India. More than trying to address the acts of banditry and dacoity, these laws focused on criminalizing the communities to which such individuals belonged. In effect, they propagated guilt by association and penalized individuals for being born into a certain group. In the pursuit of strengthening their position in India, the colonizers employed various tactics to subjugate and neutralize individuals or groups that were perceived to be a threat to their position in the hierarchy of power. While sheer physical violence was one of the most commonly employed tactics to subjugate the Indians, laws were used as the tool to legitimize and authorize such tactics.

The task of governing India had never been easy for anyone, especially due to the existence of varied cultures, languages, religions, sects and tribes. India has been and is home to groups which are constantly moving from one place to another without settling in any one particular place. This marked difference between the dominant and the nomadic groups proved to be vital in criminalizing the identity of certain tribes. The tribal way of life was seen to be barbaric by the Colonizers and as such, they enforced laws which criminalized it. This same tendency to perceive individuals or groups that do not conform to the dominant way of life as criminals, has perpetuated into the legislation of contemporary India.

While the Colonizers conceptualized crime as a profession of certain communities, the Anti-Beggary laws branded certain professions as criminal in nature. These Anti-Beggary laws are detrimental, on multiple levels, to the lives of the communities practicing these professions. By criminalizing their identities the colonizers forced the tribal communities to give up their nomadic way of life and similarly, the Anti-beggary laws are forcing the traditional street performers to settle in one particular place and adopt a way of life which is completely alien to them. This imposed transition, coupled with the absence of any sort of arrangements to ensure that these communities do not struggle to earn their livelihood, pushes them into destitution and deprives them of the opportunity to lead dignified lives.

Criminalizing traditional professions is no different than criminalizing the identity of the people practicing it, as these professions and identities are intertwined in such a manner that each one of them determines the value attributed to the other in society. Criminalizing certain professions can be conceptualized as a mode of establishing control over the individuals involved in such professions, by making them move away from their traditional professions and forcing them to adopt the dominant way of living. As such, there is a dire need to amend The Bombay Prevention of Begging Act, The Karnataka Prohibition of Beggary Act and other similar laws, in order to decriminalize traditional street performances and to ensure that such traditions, professions and cultures find their due place and space in the society without succumbing to the dominant culture.

Works cited

  1. Section 2 (2) (a), The Karnataka Prohibition of Beggary Act, 1975, http://dpal.kar.nic.in/.%5C27%20of%201975%20%28E%29.pdf.
  2. Swati Janu, Wealthy Indians and colonial-era laws have wiped out snake charmers and street magicians, Quartz India, 8th May 2017, https://qz.com/978116/wealthy-indians-and-colonial-era-laws-have-wiped-out-snake-charmers-and-street-magicians/.
  3. Shoma A. Chatterji, A balancing act, One India One People, 1st January 2017, https://oneindiaonepeople.com/a-balancing-act/.
  4. Swati Janu, Where have all the snake-charmers and street magicians gone? A Raj-era law might be to blame, in, 4th May 2017, https://scroll.in/newsrepublic/832448?s=cm.
  5. Henry Schwarz, Constructing the Criminal Tribe in India, Introduction, p.3, https://drive.google.com/file/d/0B1_bt1xcwr-IRXZsN2xITTVyWms/view?usp=sharing.

*P Avinash Reddy is a third year LLB student at NALSAR University of Law in Hyderabad, India and Co-Founder of DEVISE (Developing Inclusive Education).

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Jul 7 2017

Non-Refoulement as Lex Specialis?

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By Jenny Poon*

Academic debates often surround whether refugee law is lex specialis, so that when both refugee law and human rights law apply in the same scenario, refugee law will take precedence over and displace the human rights law norm. I suggest that both refugee law and human rights law should apply in the scenario where the exception to non-refoulement applies – i.e. when a refugee is sent back where he or she has been deemed to be a danger to the community or a national security risk (Refugee Convention, art 33(2)). Here, a normative conflict arises where lex specialis as a legal interpretive tool may be potentially triggered. Displacing this norm is potentially dangerous in the scenario where the refugee is being sent back to persecution (currently permitted under Article 33(2)), when human rights law is supposed to protect the refugee from being sent back to torture or inhuman degrading treatment or punishment. However, where the future violation does not rise to the level of torture or inhuman degrading treatment or punishment, the refugee will be sent back to persecution. Here, neither a strict reading of refugee law nor human rights law is able to offer protection to the refugee being sent back under the exception to non-refoulement as a result of the operation of the lex specialis principle, permitting refugee law to displace human rights law.

Non-Refoulement as Lex Specialis in the Refugee Context

Lex specialis is a legal doctrine used to aid interpretation of legal norms in situations of normative conflicts (ILC report, p. 34-35). According to an International Law Commission (ILC) report, the maxim lex specialis states where a matter is being regulated by both a general and a specific rule, the latter will take precedence. Lex specialis should only be invoked as an interpretative aid in cases where there is some actual inconsistency between the general and specific rule, or otherwise in situations where the application of one provision will exclude the application of the other (‘Articles on State Responsibility’, art 55). As the International Court of Justice held in the Nuclear Weapons case, lex specialis was only invoked to determine the meaning of the general provision in the right not to be arbitrarily deprived of one’s life in the context of armed conflict in relation to the more specific rule applicable under international humanitarian law (‘Nuclear Weapons case’, p. 240).

According to Jane McAdam, the Refugee Convention is a type of lex specialis with respect to the status it confers on protected persons (McAdam, p. 4). McAdam asserts that although the Refugee Convention is considered lex specialis, it does not displace the lex specialis nature of human rights law, but rather complements and strengthens its application. In this sense, human rights law and refugee law act together and complement one another to broaden the scope of international protection for persons of concern. For instance, human rights law covers the gap that exists where non-refoulement obligations do not apply as is the case for asylum claimants found to be a danger to the community or national security of the country where they have been convicted of a serious crime under Article 33(2). As stated in the preamble of the Refugee Convention, the purpose of the instrument is to ensure ‘refugees [are given] the widest possible exercise of […] fundamental rights and freedoms’ (Refugee Convention, preamble). Furthermore, refugee law does not supersede human rights law as lex specialis where the human rights norm or instrument provides greater protection than offered by refugee law (Persaud, p. 5).

Non-Refoulement in the Broader Human Rights Context

Some scholars have posited that the lex specialis nature of non-refoulement in the refugee context is necessary to ensure adequate protection for persons of concern, including, but not limited to, asylum claimants and refugees. International human rights law in and of itself is inadequate as a source of substantive protection for asylum claimants and refugees. For example, although human rights law requires states to protect the rights of persons within their jurisdiction and control, the quality of such rights may vary depending on the legal status of the person concerned vis-à-vis the State (McAdam, p. 5). McAdam asserts that international human rights law creates a gap between rights guaranteed and rights implemented.

McAdam argues that, in contrast with human rights instruments, the Refugee Convention is ‘unique in creating a legal status for its beneficiaries,’ and, despite lex specalis, the rights contained in the Refugee Convention are not superior to those in universal human rights instruments, but are applied differently and have been extended by the latter (Complementary Protection, p. 6). According to McAdam, for international refugee norms, states tend to regard Convention rights as a status required by international law, while for human rights norms, state practice may not always follow as a result of poor implementation of those norms. Other scholars such as Vincent Chetail argue that the Refugee Convention cannot be lex specialis because general human rights norms cannot be dissociated from their treaty body interpretations, which may result in more precise understanding of the norm than their refugee law counterparts (Chetail, p. 19-72). Chetail argues that ‘human rights law is the primary source of refugee protection, while the Geneva Convention is bound to play a complementary and secondary role’.

I suggest that reading refugee law (or non-refoulement) as lex specialis so that it displaces human rights law in situations where the refugee is sent back to persecution as permitted under Article 33(2) may create the potential danger of overly emphasizing the Refugee Convention as a specialist instrument. At the same time, the intersections between refugee law and human rights law should not be understated. In spite of this, I suggest that the two branches of international law should be interpreted as working to complement one another to offer the widest possible protection for refugees and individuals seeking asylum, rather than an interpretation where one would take precedence over the other in situations where normative conflicts arise.

Works Cited

Convention Relating to the Status of Refugees 189 UNTS 137 (adopted 28 July 1951, entered into force 22 April 1954) at preamble, art 33(2)

International Law Commission, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law – Report of the Study Group of the International Law Commission, UN Doc A/CN.4/L.682, 13 April 2006, pp. 34-35.

International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries, 2001 at art 55.

International Court of Justice, Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, pp. 240.

Jane McAdam, “The Refugee Convention as a rights blueprint for persons in need of international protection”, UNHCR Research Paper No 125, July 2006, pp. 4-5.

Santhosh Persaud, “Protecting refugees and asylum seekers under the International Covenant on Civil and Political Rights”, UNHCR Research Paper No 132, November 2006, pp. 5.

Jane McAdam, “Complementary Protection in International Refugee Law” (Oxford: OUP, 2007), pp. 6.

Vincent Chetail, “Are Refugee Rights Human Rights? An Unorthodox Questioning of the Relations between Refugee Law and Human Rights Law” in Ruth Rubio-Marin (ed) Human Rights and Immigration (Oxford: OUP, 2014), pp. 19-72.

*The author is a Barrister & Solicitor in Ontario, Canada, and a Ph.D. Candidate at the Faculty of Law of the University of Western Ontario, Canada, where her research looks at the principle of non-refoulement as a norm in both international and European law. The author was a Visiting Study Fellow at the University of Oxford, Refugee Studies Centre for Trinity Term 2017. All views and any errors are the author’s own.

 

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Jul 4 2017

Accountability for North Korean Human Rights Abuses: Five Questions

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By Andrew Wolman*

In the past few years, one deceptively simple concept has come to dominate the international discourse on human rights in North Korea: accountability. The UN Human Rights Council resolution on North Korean human rights emphasized the concept, as did reports by the Commission of Inquiry on Human Rights in the DPRK and the Special Rapporteur on Human Rights in the DPRK, and the concept was the focus of the UN established Group of Independent Experts on Accountability. This emphasis on accountability appears set to continue: the most recent Human Rights Council resolution on North Korea mandates the initiation of a review of information by “experts in legal accountability” in order to develop “possible strategies to be used in any future accountability process”, and advocates implementation of the recommendations of the Group of Independent Experts on Accountability.

At first glance, this focus seems appropriate. Who could oppose accountability for perpetrators of grave human rights abuses, as have been committed in North Korea? We are, after all, living in the “age of accountability”.[i] The International Criminal Court, regional human rights courts and the UN Human Rights Committee have all propagated a “global accountability norm”, or at least have tried to do so.[ii] This focus on accountability, however, brings up important questions that have been insufficiently addressed.

First: what does it mean?  The Independent Group devotes the majority of its analysis to individual criminal accountability, specifically criminal prosecution in North Korea, other countries, or through international or internationalized courts. However, state and institutional accountability have also been addressed by North Korea watchers, and some scholars have defined lustration or truth commissions as accountability mechanisms.[iii] In the North Korean context, one analyst has even defined accountability to encompass helping victims and improving the situation in North Korea.[iv] In short, there is no consensus on a definition of the term. Does this matter? Maybe not, if an elastic concept allows for more creative attempts to address the problem. But without an accepted definition, it will be hard to understand what different actors mean, and how to measure whether particular policies in fact promote accountability or not.

Second: why accountability? Individual accountability is oftentimes discussed as if it were an end in itself. However, without totally discounting the value of retribution, I would argue that legal accountability has primarily instrumental benefits, by furthering other worthwhile objectives. In the North Korean context, these might include deterrence, alleviating victim suffering, establishing the truth about past violations, incentivising good behavior, preventing war, and promoting societal reconciliation. We should be clear about which of these other objectives we really want to further, and if accountability is the best method to do so.

Thus, the third question: how does the quest for accountability affect these other goals? Certainly, if defined as criminal prosecution, accountability would be likely to involve the compilation of information and testimony on human rights abuses, thus furthering the search for truth. Criminal convictions could be expected to provide at least some comfort for victims, whether in the form of reparations, apologies, or simply by fulfilling an expectation of justice. Some observers have argued that the focus on accountability could also have (and indeed may already be having) a deterrence effect.[v] In addition to (possibly) deterring crimes in North Korea, the international community may be incrementally acting to deter crimes by abusive regimes elsewhere in the world by strengthening a global accountability norm.

However, the focus on accountability could also have a detrimental effect on potentially desirable objectives. Most significant, of course, is the question of whether Kim Jong Un and his associates might (at some point) be discouraged from peacefully giving up power due to fear that they would immediately be held accountable – and thrown in jail – once they stepped down. The focus on accountability could also distract attention from other approaches that could potentially reach desirable human rights goals, such as negotiation.

Fourth, how do we achieve accountability? This question has been the focus of most analysis so far, but there are no easy answers.[vi] International criminal prosecution seems unrealistic, due largely to the Chinese Security Council veto. Domestic prosecution within North Korea is utterly implausible, and prosecution in other countries using (for example) universal jurisdiction seems impractical as well, in part because regime leaders seldom travel abroad. Of course, accountability can be furthered through the collection of evidence for post-transitional prosecutions. But if that is all the international community can do, then the focus on accountability is nothing new: human rights activists, state entities, and the UN have been investigating North Korean human rights abuses for years, and the regime’s crimes are well documented.

And fifth: is this the right time to address accountability? One issue is that North Koreans themselves – the primary victims of the regime’s abuses – are not yet in the position to influence decisions that are being made about their future. However, the UN itself advocates for the “centrality of victims” to the design and implementation of transitional justice programs. Of course, one can ask North Korean escapees, but, as is often the case with exile communities, the escapees are not representative in terms of geographic origin, gender, or political views, and their views should not be taken as identical to those of the millions of other victims still in the country.

Another issue is the uncertainty as to the proper time for engaging in different transitional justice mechanisms. Some scholars argue that an early focus on reconciliation followed by later moves towards accountability leads to more stable transitions.[vii] In any case, the optimal timing is likely to depend on important unknown factors, such as whether unification will quickly succeed the Kim regime’s fall, whether the current regime leaves power voluntarily, and what role China will play in the process. Given these uncertainties, hasty decision-making may be counter-productive.[viii]

This post is by no means intended to show that accountability is undesirable. Any observer with a sense of justice would wish to see Kim and his henchmen in prison. But accountability is not necessarily an uncomplicated objective, nor the sole appropriate focus for the international community. It should be debated and justified, and not accepted uncritically.

[i] Francesca Lessa & Leigh Payne (eds). 2012. Amnesty in the Age of Human Rights Accountability (Cambridge).

[ii] Louise Mallinder. “Amnesties’ Challenge to the Global Accountability Norm”, in Francesca Lessa & Leigh Payne (eds). 2012. Amnesty in the Age of Human Rights Accountability (Cambridge).

[iii] Lizzie Buehler. 2016. The Future of Accountability in North Korea. 4 July. Daily NK. http://dailynk.com/english/m/read.php?num=13973&cataId=nk02501; Cynthia Horne. 2017. Building Trust and Democracy: Transitional Justice in Post-Communist Countries (Oxford); Carlos Fernandez Torne. 2015. “Truth Commissions and the Accountability Relationships they Generate: A New Framework to Evaluate their Impact”. Asian Journal of Peacebuilding, 3(2): 233-251.

[iv] European Parliament. Directorate General for External Policies. 2016. Human Rights in North Korea: Accountability v. Engagement. http://www.europarl.europa.eu/RegData/etudes/IDAN/2016/578004/EXPO_IDA(2016)578004_EN.pdf.

[v] Roberta Cohen. 2015. “Human Rights and Humanitarian Planning for Crisis in North Korea”. International Journal of Korean Studies. https://www.brookings.edu/wp-content/uploads/2016/07/Roberta-Cohen-NK-art-reunification.pdf; Oknam Yi & David Sungjae Hong. 2013. “Start Thinking Now About Transitional Justice in a Post-Transition North Korea”. 11 July. PacNet: 51.

[vi] Michael Kirby, 2016. “North Korea and our Dilemma: How to Secure Accountability for Crimes against Humanity by a Recalcitrant Nuclear State”. Speech at University of Chicago Law School. March 29; Buehler (n 3).

[vii] Tricia Olsen, et al. 2010. Transitional Justice in Balance. USIP Books; Laurel Fletcher & Harvey Weinstein. 2009. “Context, Timing and the Dynamics of Transitional Justice: A Historical Perspective”. Human Rights Quarterly, 31: 163-220.

[viii] Fletcher & Weinstein (n 7).

*Andrew Wolman is a professor of human rights and international law at the Graduate School of International and Area Studies at Hankuk University of Foreign Studies, in Seoul, Korea, and a member of the Law and Development Research Group at the University of Antwerp Faculty of Law.

 

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Jun 19 2017

Violence Against Doctors: A Subtle Violation of Human Rights

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*By Ananye Krishna

In the state of Maharashtra, generally, the people and the doctors are not aware of their rights and liabilities. This lack of awareness leads to the grief and anger of patients being targeted at the first person who can be held responsible for any injustices they face. The issue gets made into a battle between two factions, while in reality both sides are victims.

On March 12th 2017, in the city of Dhule, a doctor from Dhule Civil Hospital was beaten up by the relatives of a patient because he referred the patient to a tertiary hospital- as a neurosurgeon was not available at the civil hospital. This was the 48th attack on a doctor in Maharashtra since January 2015.

The World Bank stated that up to 38% of health workers suffer from some form of violence during their career, while a recent study by the Indian Medical Association stated that nearly 80% of doctors face violence at their workplace. Amidst these circumstances it is important that the purpose behind these acts are brought to light. There is no doubt that an assault on a doctor or, for that matter, any individual is something unacceptable in any civilized society, but at the same time it is important to ensure that the accused had a guilty intent (mens rea) as well as performing an illegal act (actus reus).

Due to a lack of education, people have the assumption that any and every doctor has complete control over the biology of the patient, and therefore attack them out of grief and anger when something goes wrong. Doctors are blamed for a variety of things, ranging from an incorrect diagnosis to faulty equipment. It is hard for them to come to terms with the fact that, even when problems occur, the doctor carried out their work with the utmost sincerity.

Because of the centrality of a lack of education in these attacks, it may be more difficult to argue that the aggressors had a guilty intent (mens rea), but rather the lack of education, which is a state responsibility, is the reason for the attacks. Under such circumstances, it should be the state’s responsibility to provide a proper remedy to all the aggrieved parties, both doctors and patients, and not to criminalize anyone unless, and until, a guilty intent can be proved beyond reasonable doubt.

So, under such circumstances the question arises as to how to protect the rights of the doctor without unnecessarily criminalizing every outburst of anger. The most evident and highly demanded solution is that proper security should be provided to the hospitals. It cannot be denied that an immediate solution should be along these lines, but it has to be kept in mind that this wall of security between the professionals and the people can eventually turn into a ‘capitalist manifestation’ (Cammett, 2009).  Ann Cammett presented the idea that prisons are not to control crime but to allow capitalists to forward their economic interests by ways of prison construction. Similarly, this focus on security may lead to the satisfaction of capitalists engaged in the manufacture of surveillance systems. Further, as security is considered to be the only solution and hospitals start engaging private security agencies, they will simply be getting further trapped into the web of capitalism.

These security measures might protect the doctors, however, it risks alienating the patients. Most patients of government hospitals in India belong to the working class, who are generally less educated and thus more likely to be wary of doctors, so instead of facilitating peaceful dispute settlements, security measures may just suppress the dispute and render the patients powerless. This is even more likely to be the case in a country like India, where the common man is apprehensive of being involved with the police or the courts.

In such a situation putting restrictions on people will likely not work. History teaches us that no matter how many laws are made to curb criminal acts, crime does not cease to exist. Thus, it is important not just to curb crime but also to understand why people engage in criminal activities in the first place and to resolve these underlying issues. In the present situation it is first important that the people are educated in order to understand the basic nuances of the medical profession, essentially helping them to understand that the doctor is not omnipotent. Secondly, people should be made aware of their legal rights and the law enforcement agencies and the judiciary should be more cooperative and accessible for the people.

Presently, the court wants the doctors striking against the attacks to immediately get back to work, while directing the government to provide for adequate security. This shows, unfortunately, just how ignorant the judiciary seems to be of the ground-level realities, making it difficult to even hope that they will be able to solve the underlying problems. Thus, as stated in the beginning, both the patients and the doctors are the victims here. They are victims of subtle violations of human rights by the state, as it fails to provide them with the proper capabilities to lead a healthy and peaceful life.

Works Cited

  1. Tabassum Barnagarwala, Dhule doctor beaten up by patients relatives, admitted in hospital (March 15 2017)

http://indianexpress.com/article/india/dhule-doctor-beaten-up-by-relatives-over-patients-treatment-admitted-in-hospital-for-surgery-4568395/.

  1. Jyoti Shelar, Patient’s Relative Assault doctor in dhule hospital (March 15 2017)

http://www.thehindu.com/news/national/other-states/patients-relatives-assault-doctor-in-dhule-hospital/article17462885.ece.

  1. Avinash Supe, Violence against doctors cannot be tolerated (March 29 2017)

http://blogs.bmj.com/bmj/2017/03/29/avinash-supe-violence-against-doctors-cannot-be-tolerated/.

  1. KK Agarwal, 80% doctors concerned about violence at work: IMA Survey (January 21 2017)

http://imahq.blogspot.in/2017/01/80-doctors-concerned-about-violence-at.html.

  1. Arshad G Mohamad, Mahrashtra doctor’s strike: Voilence against medics makes them defensive in practice, paranoid in outlook (March 25 2017)

http://www.firstpost.com/india/maharashtra-doctors-strike-violence-against-medics-makes-them-defensive-in-practice-paranoid-in-outlook-3351632.html.

  1. Ann Cammett, Queer Lockdown: Coming to terms with the ongoing criminalization of LGBTQ communities (2009)

http://scholars.law.unlv.edu/cgi/viewcontent.cgi?article=1626&context=facpub.

  1. Rajeev Dhawan, Harassing Hussain (2007)

https://www.jstor.org/stable/pdf/27644194.pdf .

  1. Bobins Abraham, 40,000 Delhi doctors join protest even as Bombay HC orders those in mumbai to resume work immediately (March 23 2017)

http://www.indiatimes.com/news/india/40-000-doctors-from-delhi-s-indian-medical-association-join-protest-bombay-high-court-orders-striking-mumbai-doctors-to-resume-work-immediately-274076.html.

 

*Ananye Krishna is a third year student at NALSAR University of Law pursuing his BALLB (Hons.).

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Jun 14 2017

UN General Assembly Assisting the UN Security Council

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*By Ewelina U. Ochab

The UN Security Council has been struggling to pass a resolution that would provide for some decisive steps regarding the situation in Syria. Eight of the proposed resolutions, including a resolution referring the situation to the International Criminal Court (ICC), were vetoed by Russia. Eight vetoes over the period of over six years may suggest that the members of the UN Security Council are unable to agree the best approach to the situation in Syria. However, such a deadlock at the UN Security Council does not mean the end of the story. The situation in Syria is deteriorating, people are dying on a daily basis, and a solution is urgently needed. There may be a solution that the UN Security Council has not looked into yet.

In accordance with Resolution 377(V) of 3 November 1950, the UN General Assembly could take some steps when the UN Security Council fails to do so. The so-called ‘Uniting for Peace’ Resolution: ‘Resolves that if the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to the peace, breach of the peace, or act of aggression, the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to Members for collective measures, including in the case of a breach of the peace or act of aggression the use of armed force when necessary, to maintain or restore international peace and security.’

In order to trigger the applicability of the resolution, 1) a resolution would have to fail because of a veto of one of the permanent members, and 2) there would have to arise a threat to the peace, breach of the peace, or act of aggression. Ultimately, if the requirements are fulfilled, the UN General Assembly would then be required to consider the matter expeditiously and make recommendations. These recommendations would not be binding and the states would be free to decide whether to implement them or not. Because of the ‘voluntary’ nature of the recommendations, the significance of this mechanism is questionable.

The UN Security Council members have made such a request to the UN General Assembly on seven occasions. The UN General Assembly members have made such a request on five occasions. Five of the UN Security Council members’ requests were made because of a stalemate caused by Russia’s vetoes (then USSR). Nonetheless, the Uniting in Peace Resolution has not been considered as a response to the UN Security Council’s inaction. Despite the stalemate at the UN Security Council on Syria for years, it has to be emphasised that the UN Security Council has not made such a request for a Uniting in Peace resolution since 1982 and the UN General Assembly since 1997.

However, December 2016 has seen a different development at the UN General Assembly that may mark the new era of the UN General Assembly becoming more active to address the failing of the UN Security Council.

In December 2016, the UN General Assembly passed a resolution establishing the International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011. The mechanism will:

‘collect, consolidate, preserve and analyse evidence of violations of international humanitarian law and human rights violations and abuses and;

prepare files in order to facilitate and expedite fair and independent criminal proceedings, in accordance with international law standards, in national, regional or international courts or tribunals that have or may in the future have jurisdiction over these crimes, in accordance with international law.’

This is a late, small, but positive step forward. Obtaining, securing and preparing evidence for any future proceedings is crucial to ensure the administration of justice. However, the successful adoption of the resolution by the UN General Assembly suggests also that the failings of the UN Security Council to act will not be tolerated by the UN General Assembly. If the UN Security Council does not act, the UN General Assembly must fill the gap. Ideally, this would have been the case. However, based on the one resolution one cannot assume that this would always be the case. One can just hope.

The UN General Assembly December’s resolution has faced a lot of criticism, notably from Syria and Russia. Mr Ja’afari, representative of the Syrian Arab Republic voiced his objection to the UN General Assembly’s resolution. First, the resolution was in breach of Article 2, paragraph 7 of the UN Charter, that prevents the UN from interfering in matters of domestic character. Second, the resolution was in breach of Article 12, paragraph 1 of the UN Chapter, in that the UN General Assembly was interfering with a matter that the UN Security Council was ‘exercising… the functions assigned.’ Third, the UN General Assembly did not have the jurisdiction to establish the relevant mechanism. This criticism was echoed by Mr Zagaynov, representative of the Russian Federation echoed Mr Ja’afari’s concerns. Nonetheless, the resolution was adopted by 105 votes in favour, 12 votes against and 52 abstentions. This sends a clear message that the UN Security Council’s inaction could not be tolerated by the UN General Assembly. Not when crimes against humanity or war crimes are being committed. Not when thousands of civilians are being killed. Not when chemical weapons are being used.

*Ewelina U. Ochab is a human rights advocate and author of the book “Never Again: Legal Responses to a Broken Promise in the Middle East.” Ochab works on the persecution of minorities around the world, with main projects including Daesh genocide in Syria and Iraq, Boko Haram atrocities in West Africa, and the situation of religious minorities in South Asia. Ochab has written over 30 UN topical reports (including Universal Periodic Review reports) and has made oral and written submissions at the Human Rights Council sessions and the UN Forum on Minority Issues. Ochab is currently working on her Ph.D. in international law, human rights and medical ethics.

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Jun 12 2017

The Indonesian Ahmadis: No Place for Praying

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By Max Regus*

Religious freedom has been considered one of the most crucial and serious issues in contemporary Indonesia, as religious minority groups frequently experience attacks due to their beliefs. This article will focus on the status of Ahmadis in Indonesian society, who provide a clear example of attacks against certain religious minorities in Indonesia.

In Indonesia, the Ahmadiyya—founded by Mirza Ghulam Ahmad in India in 1890 – arrived for the first time in the 1920s. While they recognize themselves as part of Islam, some other Islamic groups do not. Their presence as a ‘minority’ within the hegemonic ‘Muslim majority’ influences the prospect of them enjoying rights to religious freedom.

On February 25th 2017 the Al-Hidayah Mosque, an Ahmadis’ mosque, located in West Java Province was shut down by the Bekasi administration. This event continued a trend of oppression created by mobs and radical groups, such as the Islam Defender Front (FPI), alongside other discriminatory policies and practices against the Ahmadis.

Two Types of Justification for Discrimination

An opinion stated by Rafendi Djamin echoed many other sources about the problem faced by the Ahmadis and attempts to analyze the ‘two types of discrimination’. These types of discrimination are based on decrees declared by the Islamic majority and the state. The first type relates to religion, in 2005 the Council of Indonesian Muslim Scholar (Majelis Ulama Indonesia, MUI) declared that the Ahmadiyya is a “non-Muslim…heretical, and deviant” group. Since that time, the Ahmadiyya have officially been stated as ‘a non-Islamic’ group, and are not recognized as part of official Islam in Indonesia.

The second type of discrimination is the government’s treatment of the Ahmadis. The MUI and radical groups have continuously demanded the Indonesian government to take a direct step towards ‘freezing’ the Ahmadis’ activities. Under the pressure of the MUI declaration, on June 8 2008, the Minister of religious affairs, the Home Minister and the Attorney General signed a special decree that was called the ‘Joint Decree’.

This Decree bans the Ahmadis’ activities and prohibits them from expressing their beliefs. Following the ‘Joint Decree’, Ahmadis’ mosques in several locations were attacked, burnt down or closed. The Joint Decree has been used as a tool and justification by the radical groups to violate the Ahmadis’ rights to religious freedom.

Along with the Joint Decree, the Indonesian Ahmadiyya Jamaah, the national representative of the group, reported that five provinces and 22 Mayors and Regents issued anti-Ahmadiyya regulations as a follow-up of the 2008 Decree. For instance, on March 3rd 2011, Ahmad Heryawan, a governor of the West Java province, also prohibited the activities of the Ahmadis.

It is widely agreed that these two decrees have justified discrimination against the Ahmadis and this discrimination, both religious and political, has caused the Ahmadis to become socially excluded. In view of this it is my assertion that the attitude shown by Indonesia’s Muslim majority towards the Ahmadis and the political inability to provide protection, has directly led to attacks against the Ahmadis. At this point, the Ahmadis are excluded and restricted from claiming and enjoying their basic rights.

The Right to Religious Freedom

The destruction of Ahmadi places of worship is a common and all too frequent occurrence. Having a place of worship and the ability to pray, privately and publicly, are some of the most important indicators in measuring whether or not certain religious minority groups enjoy the right to freedom of religion. A house of worship and the ability to pray are basic necessities in the daily exercise of religious freedoms.

From 2000 to 2006, large-scale attacks and widespread discrimination against the Ahmadis has occurred in the Kuningan regency, West Java Province. During September 2014, whilst I was in the Kuningan district, I found that the Ahmadis had refused to renovate a mosque that had been destroyed as they wanted to show it as a symbol of the continuous discrimination.

Slicing Up Uncertainties

The accumulation of attacks faced by the Ahmadis and other religious minorities requires the state to provide a strong protection framework. The state needs to demonstrate a strong political commitment to implement its constitutional stance of protecting minorities who are living in socially and politically uncertain environments. Indonesia should move from ‘the inter-faith clash to inter-communal peace’. The Indonesian public must hope that the new political regime under President Jokowi can provide effective protections for the Ahmadis and other religious minority groups.

 

*Max Regus; Priest from Ruteng Diocese, Flores, Indonesia; Master in Sociology from the University of Indonesia, Jakarta; Researcher at the School of Humanities, University of Tilburg, Netherlands; Grant Holder from the Institute of Missiology Aachen, Germany, 2012 – 2016.

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Jun 5 2017

The Regressive Russian Amendment

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By Surya Rajkumar*

Note: This post was originally published in Oxford University’s Human Rights Blog. It has been republished with minor edits here. To read the original, visit http://ohrh.law.ox.ac.uk/domestic-violence-and-the-regressive-russian-amendment/

On the 8th of February 2017, Russian President Vladimir Putin signed into law an amendment that relegated domestic violence to an administrative offence. This post will argue that the new law lacks any persuasive justification and does not comply with Russia’s international human rights obligations. Under the new law, a first conviction for domestic battery (use of physical force) carries a penalty of a $500 fine or 15 days in jail. However, only injuries like concussions or broken bones, or repeated offenses committed in a family setting, would lead to charges. Previously, domestic violence was punished criminally. Now, less grave injuries are treated as an administrative offence. The new law also returns the crime to the realm of “private prosecution”, where the victim is responsible for collecting evidence and bringing a case. The problem with this is that the abusers within the family are generally husbands and they may have authority over their wives. If the wife would like to bring a case against her husband – irrespective of the fact that she is injured – she will have to gather evidence to prosecute her husband, which is difficult at times. It also becomes problematic in the case of children, as they cannot be reasonably expected to collect evidence or to file a complaint against their fathers or mothers. Repeat offences would be criminal infractions, but only within a year of the first. This means that repeat offenders within a year will be arrested and penalized as criminals. However, if a person commits the same crime after a year has passed, that crime would only be construed as an administrative offence.

Justification and Crime Statistics

Defenders of the law say that it is inappropriate for the law to interfere in family life, and argue that domestic abusers within the family should be exempted from criminal liability. There is, however, no reason for this disparity of treatment. Disparity of treatment means that if a crime – for instance, beating somebody up – is committed within the family, it is excused with a fine, whilst if the same crime is committed by a stranger, she/he will be convicted criminally. The following statistics demonstrate why an effective and comprehensive law is needed to prosecute and clamp down on domestic violence within the home. Statistics from the Ministry of Internal Affairs in Russia show that 25% of murders registered in Russia in 2014 were committed within families, and almost 42,000 crimes toward family members were registered for the same year. The statistics show that 40% of violent crimes happen within the family, and 14,000 women die annually from injuries inflicted by their husbands or partners – nearly 40 per day in 2014. While official data on domestic violence in Russia is very limited, estimates based on regional studies suggest that each year 600,000 women face physical and verbal abuse in the home, including violence not penalized in the new law such as beatings and pulling of the hair. Up to 36,000 women and 26,000 children face violence in the family every day. The move to criminalize domestic violence only came after the Supreme Court gave a ruling last July. The rapid shift back towards decriminalizing domestic violence is seen as a move to appease the Russian Orthodox Church. This means that the aforementioned statistics from 2014 are from a period when domestic violence was not specifically criminalized; rather, domestic abusers were prosecuted (if at all) according to the general criminal law. With this most recent move, the situation may remain the same or even become worse as there is no criminal punishment, whereas previously there was criminal liability.

Inconsistency with International Law

Under Article 9 of the International Covenant on Civil and Political Rights, and Article 5 of the European Convention on Human Rights, both of which Russia is bound by, everyone has the right to liberty and security of person. In addition, under Article10(3) of the International Covenant on Economic, Social and Cultural Rights, which is also binding on Russia, special measures of protection and assistance should be taken on behalf of all children and young persons. The latest amendment seems to be in contravention of these provisions. In addition, the former Russian Federation also signed the Convention on the Elimination of all Forms of Discrimination against Women in 1980; the new law is also in contravention to this Convention. This is because, in the first case, the security of a person is put in danger, and in the second, instead of protection, there is limited assistance to children. Moreover, children are put at risk by the absence of any form of strict punishment for domestic battery. One may argue that the Russian State is not violating any of these conventions as there are punishments for such violations under the new law, but easing rules against domestic violence partly condones such behavior, which works against the very objective of these conventions. In order to properly protect human rights, the State should criminally condemn any form of domestic violence.

Conclusion

It is clear that the new law is inconsistent with international law and fails to address Russia’s domestic violence problem. Before the situation gets worse, it is the duty of the international community to come forward to oppose the new law and put pressure on Russia to produce effective strategies for responding to and reducing domestic violence.

Works Cited

Article 5, European Court of Human Rights, September 3, 1953, T European Convention on Human Rights, F-67075 Strasbourg
<http://www.echr.coe.int/Documents/Convention_ENG.pdf>

Article 10(3) United Nations General Assembly, December 16, 1966, International Covenant on Economic Social and Cultural Rights, New York
<http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx>

Author Unknown, “Russia: Bill to Decriminalize Domestic Violence”, Human Rights Watch, January 23, 2017,
<https://www.hrw.org/news/2017/01/23/russia-bill-decriminalize-domestic-violence>
(Accessed 25 Apr. 2017)

Author Unknown, “The Duma’s War on Women: Why Russia is About to Decriminalize Wife Beating”, The Economist, January 28, 2017,
<http://www.economist.com/news/europe/21715726-it-fits-traditional-values-lawmakers-say-why-russia-about-decriminalise-wife-beating> (Accessed 25 Apr. 2017)

Author Unknown, “The Silent Nightmare of Domestic Violence in Russia”, BBC.com, March 1, 2013,
<http://www.bbc.com/news/world-europe-21474931> (Accessed 25 Apr. 2017)

Broomfield, M, “Russia to Decriminalise Domestic Violence as Vladimir Putin Bows to Ultra Conservative Pressure”, Independent, January 23, 2017,
<
http://www.independent.co.uk/news/world/europe/russia-decriminalise-domestic-violence-vladimir-putin-ultra-conservative-family-laws-a7541371.html> (Accessed 26 Apr. 2017)

Costerina, I, “Russian Faux Family Values: Domestic Violence Decriminalized in Russia”, Free Russia, February 3, 2017,
<http://www.4freerussia.org/russian-faux-family-values-domestic-violence-decriminalized-in-russia/> (Accessed 25 Apr. 2017)

Cauterucci C, “Russia Decriminalized Domestic Violence With Support From the Russian Orthodox Church”, slate.com, February 8, 2017,
<http://www.slate.com/blogs/xx_factor/2017/02/08/russia_decriminalized_domestic_violence_with_support_from_the_russian_orthodox.html> (Accessed 26 Apr. 2017)

Solomon, F, “Vladimir Putin Just Signed off on the Partial Decriminalisation of Domestic Abuse”, time.com, February 8, 2017,
<http://time.com/4663532/russia-putin-decriminalize-domestic-abuse/> (Accessed 26 Apr. 2017)

Stuvoy, K, “The Politics of Fear: Russia Decriminalizes Violence Against Women”, Noragric blog, January 18, 2017
<http://blogg.nmbu.no/noragric/2017/01/18/the-politics-of-fear-russia-decriminalizes-violence-against-women/> (Accessed 25 Apr. 2017)

United Nations General Assembly, December 16, 1966, International Covenant on Civil and Political Rights, 2200 A, New York<http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx>

United Nations General Assembly, 1980, Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), New York
<https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-8&chapter=4&lang=en>

*Surya Rajkumar is a student of law from the O.P. Jindal Global University, Sonipat, Haryana, India. He writes on issues related to human rights, international relations and domestic Indian politics.

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