May 24 2017

Business and Truth Telling: The Bittersweet Case of the Colombian Peace Process

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By Maria Hoyos*

Last month, in a tiny village of central Colombia called Cajamarca, a local referendum was conducted to ask its citizens if they wanted the gold mining project of La Colosa – granted to the South African company Anglo Gold Ashanti – to be held in their territory. Over 98% of the citizens voted against the project, claiming their right to water, health and environment. As national media reported: “Water won over gold in Cajamarca”.

However, days after the results, the Minister of Mines came out to the public saying that a mining license for exploration has already been given to Anglo Gold, and he argued that this kind of popular decisions could not act retroactively. Although the future of the project is still uncertain,[1] the position of the Colombian government opens some questions for the path that the country will follow towards business and human rights, especially in the post-conflict context.

On one hand, beyond the fact that this decision holds a huge precedent to strengthen environmental rights, it is also an example of how collective action can oppose big business. However, it can determine what will happen in the future with conflicts between communities and extractive industries. In order to tackle poverty and inequality in the countryside – both seen as root causes of the armed conflict – the peace agreement has one chapter on rural development based on the empowerment of peasant farmers and the concept of “territorial peace”. If local participation, such as the one led by the people in Cajamarca, is not taken into account, this may weaken the rural transformations needed to achieve peace in the long-term and will delegitimize the entire process.

On the other hand, it opens some questions on the role that big companies will play in the processes of truth telling. During the negotiations, the discussions around the responsibilities of the private sector and their part in human rights violations were a key issue. As a result, the third chapter of the first peace agreement[2] included that the Special Jurisdiction of Peace – which contains the institutions and the scope of the transitional justice process – could be applied to all whom, directly or indirectly, participated in the armed conflict.

Although this was seen as one of the biggest advances in the peace process, the writing slightly changed in the second agreement. It now limits its participation only if the demobilized combatants name them as active and determinant financers of an armed group, leaving aside all those who acted or benefited indirectly. The Congress reaffirmed this position in the debates around the Special Jurisdiction of Peace. During the sessions, the common belief that companies were extorted rather than beneficiaries of conflict gained support.

This new framework has an important link with what just happened in Cajamarca. Anglo Gold has other mining titles around the country, most of them in places where the conflict was very high. This has led to the hypothesis that, although there is not proof that this company gave direct economic support to armed groups, it did gain some benefits from what was occurring in those areas. It acquired mining titles in places were guerrillas and paramilitaries were displacing and dispossessing thousands of people from their territories.

A good example of this is what happened in the Alto Andágueda Resguardo in Chocó – a protected indigenous territory of the Embera Katío community, a zone highly affected by human rights violations. According to an ABColombia report, by the year 2013, 62% of the community’s territory was subject to mining titles, the majority of them given to a joint venture agreement between Anglo Gold Ashanti and Glencore Colombia SAS.

In 2014, a ruling from the Tribunal of Land Restitution, an institution created under the Law of Victims – a transitional justice law that regulates the process of land restitution for victims of the armed conflict – questioned the timing and the context where the mining titles were requested. Most of them, including Anglo Gold’s, were granted when the indigenous community was in the midst of enormous human rights violations. By proving the vulnerabilities experienced by the Embera Katío community at the time when the titles were given, the Tribunal ordered the National Mining Agency to suspend the mining concessions already granted and to nullify other applications.

This case reveals how the Colombian state seems to have a contradictory position regarding how to manage the relationship between the private sector and the armed conflict. On one hand, it seems to be willing to place the reparation of victims in the centre, giving them back what they had lost. On the other hand, it seems that it is not willing to uncover the role played by big companies in the 50 years of war, especially after the changes introduced in the second peace accord.

The outcome from the popular consultation in Cajamarca, therefore, is not only a dispute between different ways of understanding what development should be like in rural areas, a debate in which the government seems to support mining projects that could bring other human rights violations in the future. It is also a statement about the past and the kind of truth that will be told during this transition. If the way in which Anglo Gold and other companies gained their properties and titles stays unknown, the narrative around what happened during the conflict and how this dynamics changed the reality of thousands of people and their territories will remain incomplete and affect the truth-telling process. If this occurs with other companies, the non-repetition of violent acts will be hard to sustain, as they may perceive that they will never have to face any kind of justice for the acts they have committed.

Works Cited

ABColombia (October 2015) “Fuelling conflict in Colombia: The impact of gold mining in Colombia” [online] http://www.abcolombia.org.uk/downloads/ABC-Choco_mining_report_V7_Screen.pdf

BBC News (28 March 2017) “Colombia minister in battle over Cajamarca mining ban” [online] http://www.bbc.com/news/world-latin-america-39425592

CETIM (11 November 2014) “Mining and Human Rights Violations in Colombia: The Case of Anglo Gold Ashanti vs the Afri-descendant Community of La Toma (Cauca)” [online] http://www.cetim.ch/mining-and-human-rights-violations-in-colombia-the-case-of-anglo-gold-ashanti-vy-the-afri-descendant-community-of-la-toma-cauca/

Cooke, Lacy (31 March 2017) “Colombian town turns down $35B gold mine – prefers a clean environment” [online] http://inhabitat.com/colombian-town-turns-down-35b-gold-mine-prefers-a-clean-environment/

IKV Pax Christi (May 2009) “Report on the AGA mining project in Cajamarca” [online] https://www.paxforpeace.nl/publications/all-publications/report-on-the-aga-mining-project-in-cajamarca

Specht, Doug (18 April 2017) “Cajamarca’s rejection of mining in Colombia was also a victory for social media and social mapping” [online] http://blogs.lse.ac.uk/latamcaribbean/2017/04/18/cajamarcas-rejection-of-mining-in-colombia-was-also-a-victory-for-social-media-and-social-mapping/

[1] AGA announced that it will paused their activities in Tolima for now.

[2] This agreement was voted against on through a referendum in October of last year: https://www.theguardian.com/world/2016/oct/02/colombia-referendum-rejects-peace-deal-with-farc

*Maria Hoyos is a MSc Human Rights alumni (2015-2016) and a former Blog Team Member. She is now working as a researcher in the Unit of Land Restitution for victims of forced displacement and dispossession of land in Colombia.  To see one of her previous posts follow this link http://blogs.lse.ac.uk/humanrights/2016/03/10/dismantling-labels-colombias-long-term-challenge-towards-peace/ 

She can be reached at mariahoyos4@gmail.com

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May 19 2017

Revisiting India’s Obligations against Custodial Torture

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By Aditya Manubarwala*

Although it has been 20 years since India signed the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, a ratification of the same is still nowhere on the anvil. India does not have any law specifically catering towards the prevention of custodial torture, nor does it have any robust procedural safeguards against possible custodial violence.

The statutory and procedural framework surrounding custodial violence is fraught with loopholes. A case in point is State of Uttar Pradesh v. Ram Sagar Yadav, where the Supreme Court of India recommended that the law pertaining to evidence be amended in order to place the evidential burden of proof on the police in cases of custodial violence. The said case was a textbook case of custodial death, where a farmer who denied paying a bribe to the local police constable was detained and found dead within six hours of the said detention, with some 19 bodily injuries. Subsequently, after two rounds of litigation, the Supreme Court of India convicted the accused constable and two others, one of whom happened to be the constable’s superior, a Station House Officer. The Court’s observations in this case go on to form the bedrock of the suggested safeguards in the law and procedure pertaining to custodial violence. The need to adopt a different approach when it came to cases of custodial deaths was strongly felt. It was observed, “Police officers, bound by ties of a kind of brotherhood, often prefer to remain silent and when they do choose to speak, they often put their own gloss upon the facts and often pervert the truth”. It was noted how in such situations, the police officer alone is in a position to explain the injuries a person suffered while in custody. Sound principles of criminal law and the very rule pertaining to bias advocate the need to reverse the evidentiary burden, and the court felt the same. The court rightly observed, “The law as to the burden of proof may be re-examined by the legislature so that the handmaids of law and order do not use their authority and opportunities for oppressing the innocent citizens who look to them for protection”.

These observations of the court in the year 1985 seem to hold ground even in the year 2015. Statistically, the number of custodial deaths in India is alarmingly high. According to the National Crime Records Bureau, between the years 2010 – 2015 some 591 cases of custodial deaths were reported in India. What is more alarming is that in 2015 alone, judicial inquiry was conducted in only 31 of the 97 custodial violence cases. It is interesting to note that out of the 28 police personnel charge-sheeted, not one was convicted; this clearly points to a nexus of sorts between the law enforcement agency and the accused. A report by Human Rights Watch entitled, “Bound by Brotherhood: India’s Failure to End Killings in Police Custody” also highlights this same disturbing trend.

Immediately following this case came a Report of the Law Commission of India, which recommended the insertion of Section 114-B in the Indian Evidence Act. The Law Commission in its wisdom advocated the need to reverse the burden of proof in cases of bodily injury or death of a prisoner in police custody, and recommended placing the said burden on the police. The Commission recommended giving the court discretionary power to reputably presume the bodily injuries on the accused to be the work of the police officers concerned. However, in my opinion, owing to the deep nexus between police officers and the accused, as well as repeated failures on the part of the Magistrates to follow the due procedure of law as highlighted through the Human Rights Watch report, it would be more prudent to not bestow the courts with a discretionary power, but rather make it incumbent upon the Courts to presume the officers guilty, thus placing the burden of proof solely on police officers. It would also be desirable to incorporate the view highlighted in the Law Commission’s working paper on the same issue, where it was suggested that every person on arrest, whether legal or illegal, be mandatorily examined medically for injuries. Suitable amendments in Sections 53 and 54 of the Criminal Procedure Code should duly be made.

The need for these recommendations seeing the light of the day cannot be understated. Recently, the Supreme Court of India, in response to a public interest litigation filed by Mr. Ashwani Kumar, a former Law Minister of India, sought a reply from the National Human Rights Commission regarding the need for an anti-custodial torture law. It is about time that India ratifies the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. With the Prevention of Torture Bill being passed in the Lok Sabha, it is about time that the legislature meaningfully passes the same in the Rajya Sabha as well.

Works Cited

Office of the United Nations High Commissioner for Human Right, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment OHCHR, http://www.ohchr.org/EN/ProfessionalInterest/Pages/CAT.aspx.

State of Uttar Pradesh v. Ram Sagar Yadav and ors, 1985 S.C.C.  (1) 552, http://judis.nic.in/supremecourt/imgst.aspx?filename=9390.

Indira Basu, At Least 591 People Have Died In Police Custody In India Since 2010: Human Rights Watch, THE HUFFINGTON POST (December 19, 2016), http://www.huffingtonpost.in/2016/12/18/at-least-591-people-have-died-in-police-custody-in-india-since-2/.

Charu Kartikeya, NCRB Report: Custodial deaths on the rise, but cops hardly convicted, CATCH NEWS (August 31, 2016), http://www.catchnews.com/india-news/custodial-deaths-on-the-rise-but-cops-hardly-convicted-ncrb-1472571233.html.

Human Rights Watch Report: “Bound by Brotherhood”– India’s Failure to End Killings in Police Custody (December 19, 2016), https://www.hrw.org/report/2016/12/19/bound-brotherhood/indias-failure-end-killings-police-custody.

Law Commission of India, One Hundred and Thirteenth Report on Injuries in Police Custody (July 29, 1985), http://lawcommissionofindia.nic.in/101-169/report113.pdf.

The Code of Criminal Procedure, 1978, Act No. 2 of 1974, § 53, https://indiankanoon.org/doc/633996/.

The Code of Criminal Procedure, 1978, Act No. 2 of 1974, § 54, https://indiankanoon.org/doc/441720/.

Dhananjay Mahapatra, Supreme Court seeks NHRC’s reply on anti-custodial torture law, THE TIMES OF INDIA, (January 10, 2017), http://timesofindia.indiatimes.com/india/supreme-court-seeks-nhrcs-reply-on-anti-custodial-torture-law/articleshow/56432105.cms.

*Aditya Manubarwala is a penultimate year law student at the Pravin Gandhi College of Law, Mumbai University. He is one of the youngest Indians to have appeared before a committee of Parliament. He has also been a former Law Trainee with a Judge of the Supreme Court of India and a former Attaché with the Office of the Speaker of the Lower House of the Parliament of India. In 2016, he received the Chinese General Chambers of Commerce HPAIR Scholarship at the Harvard Asia Conference, Hong Kong.

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May 16 2017

Statelessness and the Syrian Conflict

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By Dilys Hartley*

Syrian refugees seeking advice regarding registering the birth of their new child to ensure that it does not become stateless. (Copyright: NRC/Sam Tarling; Creative Commons license)

Source: https://www.flickr.com/photos/eu_echo/15350487815/in/photolist-potge2

Being stateless ultimately means having no nationality, and having no nationality usually means having no documents to prove one’s identity. People can become stateless for many reasons, two of which are conflict and forced displacement. Conflict not only impacts stateless people the most heavily in their ability to flee, but it also actively contributes to the creation of statelessness. It is this point that we will explore further in regards to the case of Syria.

Syria has been caught in the midst of civil war since 2011, resulting in the mass exodus of its citizens. Over 5 million Syrian refugees have been registered in neighbouring countries and over 1 million have travelled to Europe. Whilst the majority of these refugees hold Syrian nationality, there are a number who exist as stateless. It is these individuals who are most at risk of exposure to human rights abuses with no recourse to justice when attempting to rebuild their life abroad.

At the end of 2015, UNHCR, the UN Refugee Agency, estimated that there were 160,000 stateless persons in Syria. Fleeing war as a stateless person often results in significant difficulty for registering as a refugee once within a host nation, as there are no documents to support the claim for asylum. This leaves individuals at higher risk of authorities rendering their case inadequate or fabricated. In 2015, 108 stateless people were detained in Britain, without clear understanding of where these individuals could be deported to. The UK is the only nation in the European region with no set time limit on detention. This leads to concerns regarding the right to liberty, as well the multiple interpretations of this right within regional and national legislation.

Existing statelessness is not the only way this issue manifests itself among the populations of Syria fleeing war. There are a growing number of Syrian children born abroad after their parents have fled the situation of conflict; UNHCR estimates that 70% of these children are not registered at birth. This significantly heightens the risk of statelessness among these children and narrows their future potential to prove their Syrian nationality.

There are a number of factors which impede the potential for Syrian refugees to register a birth in host countries. One of the key barriers is a lack of documentation needed to complete the registration. Many Syrians have lost or had their documents destroyed before or during their journey to reach refuge. Additionally, non-state actors have begun issuing documentation in Syria, and the validity of these as legitimate identification is widely disputed. This issue is exacerbated by gender discrimination within Syrian nationality law. Whilst Syrian fathers can pass Syrian nationality to their children when born outside of Syria, Syrian mothers cannot. It is therefore necessary to document the connection to a Syrian father, but where there are difficulties with this – particularly within female-headed households – children are at particular risk of statelessness.

Whilst there are these systemic barriers to registering a birth, there are also considerable social barriers. Refugees are at a significant disadvantage in their ability to navigate the civil registration process in host countries, which may differ from their own perception of what is required to register a birth. Additionally, there may then be prohibitive costs and language barriers which further prevent the practice of ensuring that births are registered.

In 1954, the UN recognised the international obligation to end statelessness in the Convention relating to the Status of Stateless Persons. We are 63 years on from this point. There are still 10 million stateless people worldwide and 600,000 in Europe. Without the necessary papers, people are denied their basic rights, including access to education, employment, housing, healthcare and – ultimately in the case of Syria – a secure safe haven which could provide the potential to rebuild lives affected by war and conflict.

In 2014, the UN launched a global campaign to end statelessness by 2024. If we are to prevent this campaign from having as little effect as the 1954 convention, it is essential that organisations and state departments engaged in refugee responses understand the heightened risks for stateless people who are displaced from Syria as well as the creation of further statelessness, especially where national frameworks do not currently meet culturally diverse needs. With improved information on how statelessness interacts with their work, refugee practitioners will be able to frame their programmes and policies appropriately to mitigate these risks.

Works Cited:

Albarazi, Z and Van Waas, L (2015) Statelessness and Displacement. [Online] Tilburg, Norwegian Refugee Council. Available from: <http://www.institutesi.org/stateless_displacement.pdf> [Accessed 10th April 2017]

Albarazi, Z and Van Waas, L (2016) Understanding Statelessness in the Syria Refugee Context. [Online] Oslo, Norwegian Refugee Council. Available from: <http://www.syrianationality.org/pdf/report.pdf> [Accessed 10th April 2017].

European Network on Statelessness (2016) Detained and nowhere to go – new report sheds light on hidden misery of Britain’s stateless people. [Online] London, European Network on Statelessness. Available from: <http://www.statelessness.eu/sites/www.statelessness.eu/files/ENS-Press_release-Detention-UK-10-Nov-2016.pdf> [Accessed 20th April 2017].

European University Institute (2016) Syrian Refugees: A snapshot of the crisis – In the Middle East and Europe. [Online] Fiesole, European University Institute Migration Policy Centre. Available from: <http://syrianrefugees.eu/> [Accessed 20th April 2017].

Gentleman, A (2014) UN refugee agency launches global campaign to end statelessness. The Guardian. [Online] 4 November. Available from: <https://www.theguardian.com/world/2014/nov/04/un-refugee-agency-global-campaign-statelessness> [Accessed 20th April 2017].

UNHCR (i) (2014) UNHCR announces push to end statelessness worldwide by end-2024. [Online] Geneva, UNHCR. Available from: <http://www.unhcr.org/ceu/492-ennews2014unhcr-announces-push-to-end-statelessness-worldwide-by-end-2024-html.html> [Accessed 20th April 2017].

UNHCR (ii) (2014) UNHCR launches 10-year global campaign to end statelessness. [Online] Geneva, UNHCR. Available from: <http://www.unhcr.org/uk/news/latest/2014/11/545797f06/unhcr-launches-10-year-global-campaign-end-statelessness.html> [Accessed 20th April 2017].

UNHCR (2015) Global Trends: Forced Displacement in 2015. [Online] Geneva, UNHCR. Available from: <http://www.unhcr.org/576408cd7.pdf> [Accessed 20th April 2017].

UNHCR (2017) Syrian Regional Refugee Response: Inter-Agency Information Sharing Portal. [Online] Geneva, UNHCR. Available from: <http://data.unhcr.org/syrianrefugees/regional.php> [Accessed 20th April 2017].

*Dilys Hartley is a student currently studying Understanding and Securing Human Rights with the School of Advanced Study, University of London, with a particular interest in securing human rights for minority groups and a focus on refugee and migrant populations.

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Apr 24 2017

Human Rights and Renewable Energy: A Critical Link

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By Austin Schiano*

2016 was the year that, according to the World Economic Forum (WEF), renewable energy finally became a viable market alternative to fossil fuels. In a press release for the report  “Renewable Infrastructure Investment Handbook: A Guide for Institutional Investors,” the WEF states that “the cost of generating energy through solar and wind sources has dropped to the point of being competitive against coal and natural gas.” This is good news for those of us concerned with the climate and the crucial link it shares with human rights.

The connection between climate and human rights is well established. The Office of the High Commissioner for Human Rights recognizes an explicit link between the two issues, and clearly states that “climate change impacts, directly and indirectly, an array of internationally guaranteed human rights.” The National Resource Defense Council (NRDC), which is one of the leading global authorities on environmental science, has highlighted that renewable energy is one of the strongest tools to combat climate change. Therefore, a step toward renewable energy is a step towards improving human rights.

A strong case for leading market innovation is to show new efficiencies, which directly applies to renewable energy. The WEF highlights that “just ten years ago, solar costs would be around $600/MWh, much above the widely-used coal and natural gas sources at $100/MWh. However, solar costs were halved five years later, and compressed again to around $100/MWh today. Wind costs are around $50/MWh”. The chart below shows the cost in cents to produce a kilowatt hour of energy via land-based wind, wind offshore, solar photovoltaic, small hydro, coal, and nuclear options. Several of the renewable energy options (assessed globally) are close or equal to the cost of coal.

Renewable energy resources have been able to reach this point of cost effectiveness, largely due to an influx of investment (a projected amount of $285.9 billion in 2015). It is important to note that this advantage of renewable energy is not based on mass subsidies. The International Energy Agency states that in 2014, of the $493 billion in subsidies that were provided to fossil fuels globally, only one quarter of this amount was necessary for renewable energy subsidies. Renewable energy also provides greater stabilization of market energy costs, and has less volatility. Renewables are particularly attractive for the developing world, where in countries like Chile the cost of creating electricity was estimated at $29.10 per megawatt hour in January 2016, roughly half the price of coal. Interestingly enough, Bloomberg Technology states that the cost of creating large-scale renewable energy projects is more expensive in wealthier nations, as it has to compete with pre-existing “billion dollar coal and gas plants.”

If access to energy is a human right, then renewable energy and the more efficient distribution of energy is clearly advancing this cause. In fact, Greenpeace and Amnesty International released a joint statement in December 2015, showcasing that “protection of human rights from climate change requires [an] urgent shift to 100% renewable energy for all.” Access to energy is critical for the reduction of poverty, and is listed as Goal 7 of the 16 United Nations Sustainable Development Goals.

The development of energy is still a business, and business needs to be conducted responsibly. There have been several instances where renewable energy projects have jeopardized the human rights of communities much in the same way as fossil fuel distributors.  The Business and Human Rights Resource Center does tremendous work to chronicle “both negative and positive case studies concerning the impact of renewable energy on human rights,” and platforms such as this are crucial to keep businesses honest in their practices.

Works Cited

Peter Vanham, A Convenient Truth – Fighting Climate Change Turned Into a Profitable Business, World Economic Forum (Dec 22, 2016), https://www.weforum.org/press/2016/12/a-convenient-truth-fighting-climate-change-turned-into-a-profitable-business/.

Katherine Bleich and Rafael Dantas Guimaraes, Renewable Infrastructure Investment     Handbook: A Guide for Institutional Investors, World Economic Forum (Dec 2016), http://www3.weforum.org/docs/WEF_Renewable_Infrastructure_Investment_Handbook.pdf.

 Human Rights and Climate Change, United Nations Human Rights Office of the High Commissioner (2016), http://www.ohchr.org/EN/Issues/HRAndClimateChange/Pages/HRClimateChangeIndex.aspx.

Key Messages on Human Rights and Climate Change, United Nations Human Rights Office of the High Commissioner (2016), http://www.ohchr.org/Documents/Issues/ClimateChange/KeyMessages_on_HR_CC.pdf.

Noah Long and Kevin Steinberger, Renewable Energy is Key to Fighting Climate Change, National Resource Defence Council (Jul 26, 2016), https://www.nrdc.org/experts/noah-long/renewable-energy-key-fighting-climate-change.

World Energy Outlook- Energy Subsidies, International Energy Agency (2017), http://www.worldenergyoutlook.org/resources/energysubsidies/.

Dan Lieberman and Siobhan Doherty, Renewable Energy as a Hedge Against Fuel Price Fluctuation How to Capture the Benefits, Commission for Environmental Cooperation (Sep 2008), http://www.cec.org/islandora/en/item/2360-renewable-energy-hedge-against-fuel-price-fluctuation-en.pdf.

Tom Randall, World Energy Hits a Turning Point: Solar That’s Cheaper Than Wind Emerging markets are leapfrogging the developed world thanks to cheap panels, Bloomberg Technology (Dec 15, 2016), https://www.bloomberg.com/news/articles/2016-12-15/world-energy-hits-a-turning-point-solar-that-s-cheaper-than-wind.

Adrian J Bradbrook, ACCESS TO ENERGY SERVICES IN A HUMAN RIGHTS FRAMEWORK*, United Nations Sustainable Development Knowledge Platform (Aug 23, 2005), http://www.un.org/esa/sustdev/sdissues/energy/op/parliamentarian_forum/bradbrook_hr.pdf.

Joint Statement: Greenpeace – Amnesty International Protection of human rights from climate change requires urgent shift to 100% renewable energy for all, Greenpeace and Amnesty International (Dec 8, 2015), http://www.greenpeace.org/international/Global/international/briefings/climate/COP21/Joint-Statement-GP-Amnesty.pdf.

Report of the Secretary-General, “Progress towards the Sustainable Development Goals”, E/2016/75 (June 3, 2016), https://sustainabledevelopment.un.org/sdg7.

Justine Calma, Renewable Energy is Violating Human Rights as Much as Fossil Fuels Have for Decades, Quartz (Nov 25, 2016), https://qz.com/845206/renewable-energy-human-rights-violations/.

Case Studies: Renewable Energy & Human Rights, Business and Human Rights Resource Center (2017), https://business-humanrights.org/en/case-studies-renewable-energy.

*Austin Schiano is a strategic communications professional, with experience in the UN system, Media, US Government, and non-profit space. He is a graduate of New York University’s Center for Global Affairs (2015) and has published academically and journalistically in an array of respected outlets. 

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Mar 24 2017

Women’s Rights in Retrograde: Understanding the Contentious Politics of Gender Violence Law in Nicaragua

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By Pamela Neumann, Ph.D.*

Last month, Russian President Vladimir Putin approved a new law reducing the penalty for some forms of domestic abuse from a prison sentence to a fine. Although the legislation has been roundly criticized by international human rights observers, Russia’s move to decriminalize certain forms of domestic violence is not unique. For the last several years, a similar situation has been unfolding in Nicaragua, where a comprehensive law addressing gender-based violence (Law 779) passed in 2012, has been systematically weakened via legislative action and presidential decree. At the time, women’s organizations viewed Law 779 as a culminating achievement following decades of advocacy, but today that law is little more than papel mojado (wet paper). For the last five years, I have been closely following the trajectory of Law 779 as part of my broader research examining women’s experiences with the legal justice system in Nicaragua. The story of how a landmark law against gender-based violence was undermined in Nicaragua is a cautionary tale about the precariousness of women’s legal gains in political environments in which conservative religious actors wield substantial influence. It may foreshadow some of the challenges that women’s movements in other Latin American countries like Brazil, Argentina, and Peru could face in defending women’s rights given the wave of new center-right governments in the region.

Law 779 originated with a campaign by local women’s organizations in Nicaragua who were deeply concerned about rising rates of femicide and high levels of impunity in the country. In the midst of these women grassroots efforts, the government formed its own inter-agency commission to study the issue. These dual processes (one from below, the other from above) led to the drafting of two legislative proposals that eventually became the Ley Integral Contra La Violencia Hacia Las Mujers (Law 779), which went into effect in June 2012.

Law 779 expanded the legal definition of violence against women, established special prosecutors and courts to hear gender-based violence cases, and introduced new protections for female victims. One of the law’s most important provisions was the elimination of mediation. Prior to Law 779, mediation was commonly used by Nicaraguan police to informally settle disputes between female victims and the accused. According to local women’s organizations, this practice only put the lives of women in further jeopardy.

When the details of the law became known, it was the ban on mediation that generated the most controversy. Conservative religious leaders denounced Law 779 as an attack on evangelical values, discriminatory against men, and a tool that would destroy families. One bishop went so far as to compare Law 779 to “the number of the beast,” a biblical reference to the end times. A challenge to the law was filed in the Nicaraguan Supreme Court, which subsequently ruled that the law was constitutional, but the article prohibiting mediation would need to be revised. The National Assembly responded in 2013 by passing a reform of Law 779, which reinstated mediation under limited circumstances (for first time and minor offenses). Then, in 2014, President Daniel Ortega issued an executive order mandating the formation of community councils to resolve domestic violence disputes. According to the presidential decree, women would be obligated to seek “family counseling” via these councils and/or the Ministry of the Family before filing a legal complaint with police.

These changes outraged local feminists, who argued that they represented a direct violation of regional agreements signed by Nicaragua, such as the 1994 Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women. Yet they were wholly consistent with the religious and pro-family discourse that Ortega has maintained since forming a strategic political alliance with prominent Catholic and evangelical leaders in the early 2000s.

The Catholic Church in Nicaragua has been called “the fifth branch of government” because of its historical political influence. Prior to the country’s 2006 presidential election, Ortega and his long-time partner Rosario Murillo (and now vice-president) were officially married in the Catholic Church. This act cemented Ortega’s alliance with his powerful long-time critic Cardinal Miguel Obando y Bravo, who was later appointed head of the government’s Peace and Reconciliation Commission. Ortega has also reached out to evangelicals, who have become an increasingly influential group in Nicaraguan society, now comprising approximately 30% of the population. During the 2011 presidential campaign, Ortega adopted the slogan “Christian, Socialist, Solidarity,” and at least one prominent group of evangelicals issued a public statement in support of Ortega. In recent months, some prominent intellectuals in Nicaragua have criticized evangelical leaders for their silence on the Ortega government’s crackdown on dissent. For the most part, however, conservative religious leaders in Nicaragua enjoy widespread favour and respect within the population.

Forty years ago, there was a brief window during which the trajectory of gender relations in Nicaragua might have been radically shifted. The triumph of the Sandinista revolution in 1979 gave birth to a strong popular class consciousness in Nicaragua, but that same kind of critical consciousness was far less widespread on gender-related issues. Then, as now, the Sandinistas were led by Daniel Ortega, but at that time, they faced a powerful counter-revolutionary force backed by U.S. military power which forced the government to devote the vast majority of its resources to survival rather than social and economic reforms. Today, Ortega faces no comparable threats, but he still remains uncommitted—and at times, openly hostile—to implementing reforms that would advance women’s rights efforts, preferring instead to maintain the alliances which keep him in power. In such a climate, the church’s traditional teaching about appropriate gender roles and sexual behavior continue to hold sway, and even made its way onto the bulletin boards of some government offices I visited during my research. Likewise, local outcry over issues like the country’s total ban on abortion (in effect since 2006) has been limited to a small but vocal group of women’s organizations.

Just a few months ago, the Nicaraguan government took an even more drastic step, shutting down the specialized police units established to investigate domestic violence cases, supposedly due to lack of funds. Local women’s organizations have publicly denounced this move, but to no avail thus far. Looking back, the events of the last four years in Nicaragua make clear the fragility of women’s legal gains, especially on the issue of gender-based violence. Nicaragua’s history shows that progress is neither linear nor inevitable. Vigilance is required to ensure that women’s voices are heard and their rights protected.

Works Cited

Aizenmen, N.C. 2016. “Nicaragua’s Total Ban on Abortion Spurs Critics.” Washington Post.  28 November. http://www.washingtonpost.com/wp-dyn/content/article/2006/11/27/AR2006112701577.html

Amnesty International. “Russia: Domestic Violence Law Puts Women at Greater Risk.” 8 February 2017. https://www.amnesty.org/en/latest/news/2017/02/russia-domestic-violence-law-puts-women-at-greater-risk/

Aragon, Rafael. 2011. “¿Es cristiano el proyecto del gobierno de Daniel Ortega? ¿Y cuál es el proyecto de la Iglesia?” Envio Magazine (Nicaragua). http://www.envio.org.ni/articulo/4320

Cerda, Arlen and Danae Vilchez. 2016. “Campesinos resisten represión con valentía.” 30 November. Confidencial. https://confidencial.com.ni/campesinos-resisten-represion-y-avanzan/

Chamorro, Emiliano. 2016. “El silencio de los pastores evangélicos ante la crisis del país.” 13 December. La Prensa. http://www.laprensa.com.ni/2016/12/13/politica/2149400-silencio-los-pastores-evangelicos

“Demandan Apertura de las Comisarias de la Mujer.” 23 November 2016.  La Prensa (Nicaragua). http://www.laprensa.com.ni/2016/11/23/lptv/2139545-demandan-apertura-de-comisarias

“Evangélicos apoyan a Daniel y plantean alianza” 31 October 2011. Radio La Primerísima. http://www.radiolaprimerisima.com/noticias/109187/evangelicos-apoyan-a-daniel-y-plantean-alianza

“IACHR Takes Case Involving Nicaragua to the Inter-American Court.” 26 September 2016. Organization of American States. http://www.oas.org/en/iachr/media_center/PReleases/2016/138.asp

Jubb, Nadine. 2014. “Love, Family Values, and Reconciliation for All, But What about Rights, Justice, and Citizenship for Women? The FSLN, the Women’s Movement, and Violence against Women in Nicaragua” Bulletin of Latin American Research 33(3): 289-304.

Kampwirth, Karen. 2014. Latin America’s New Left and the Politics of Gender: Lessons from Nicaragua. Springer.

Luna, Yader. 2015. “Crece población evangélica en Nicaragua.” 16 January. El Nuevo Diario. http://www.elnuevodiario.com.ni/nacionales/339425-crece-poblacion-evangelica-nicaragua/

Molyneux, Maxine. 1985. “Mobilization without Emancipation? Women’s Interests, the State, and Revolution in Nicaragua.” Feminist Studies 11(2): 227-254.

Nechepurenko, Ivan. 2017. “Russia Moves to Soften Domestic Violence Law.”  25 January. New York Times. https://www.nytimes.com/2017/01/25/world/europe/russia-domestic-violence.html?_r=2

Neumann, Pamela. 2017. “When Laws are Not Enough: Violence against Women and Bureaucratic Practice in Nicaragua.” Social Forces 95 (3): 1105-1125.

“Nicaragua’s Daniel Ortega Wins Third Term, Wife to Serve as VP.” 7 November 2016. Associated Press. http://www.nbcnews.com/news/latino/nicaraguas-daniel-ortega-wins-third-term-wife-serve-vp-n678766

“Obando asume Comisión de Reconciliación, Paz y Justicia.” 9 May 2007. El Nuevo Diario. http://archivo.elnuevodiario.com.ni/nacional/209604-obando-asume-comision-reconciliacion-paz-justicia/

“Obispo Sándigo propone revisión de Ley 779.” 10 May 2013. El Nuevo Diario. http://www.elnuevodiario.com.ni/nacionales/285636-obispo-sandigo-propone-revision-ley-779/

Romero, Elizabeth. 2016. “Comisarías pasarían a Auxilio Judicial como parte de cambios en la Policía Nacional.” 29 January. La Prensa. http://www.laprensa.com.ni/2016/01/29/nacionales/1977560-comisarias-pasarian-auxilio-judicial-parte-cambios-la-policia-nacional

Sharma, Ruchir. 2016. “The Anti-incumbency wave is changing the politics of Latin America.” Time. 6 June. http://www.time.com/4358194/the-anti-incumbency-wave-is-changing-the-politics-of-latin-america/

Van Note, Sara. 2015. “The Promise of Justice is Receding, Nicaraguan Women Say.” 10 September. Public Radio International. https://www.pri.org/stories/2015-09-10/promise-justice-receding-nicaraguan-women-say

*Pamela Neumann is a Post-Doctoral Fellow at the Stone Center for Latin American Studies at Tulane University in the United States.

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Feb 22 2017

Battle of Mosul: Mass Displacement of Natives and a Blatant Violation of International Humanitarian Laws

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By P Avinash Reddy*

Islamic State of Iraq and Levante (ISIL/ISIS) startled the international community when it seized and established control over the city of Mosul in June 2014. Since then, the city had become a major hub for terrorist activities and subsequently became ISIS’ de facto capital in Iraq. The ongoing ‘Battle of Mosul’ to regain the city began in October 2016, more than two years after ISIL/ISIS occupied the city. This offensive has been mounted by the coalition of a number of armed forces including the Kurds, Iraqi soldiers, and Sunni Arab tribesmen coupled with air and strategic support from the U.S., France, and the UK.

At the outset, both the ISIS and Coalition forces are bound by Article 3 of the Geneva Convention, 1949 as it is applicable to the armed conflicts which are not of an international character. Article 3 explicitly prohibits any inhumane treatment of the persons not taking an active part in the battle and also prohibits the taking of hostages. In the ongoing battle, ISIS is found to be in gross violation of this Article as it is constantly using hostages as ‘human shields’ as a defensive strategy. The group has been deliberately positioning itself in hospitals – where there are disproportionately large numbers of civilians – to shield itself from the offensive, which has led to a significant number of civilian deaths.

Moreover, there is a valid apprehension that the Iraqi forces are also violating International Humanitarian Law (IHL); for example, they have aerially dropped ‘barrel bombs’ while retaking the densely populated city of Fallujah, and these weapons have been banned by the UN Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons. Barrel bombs qualify as incendiary weapons as per the definition provided under Protocol III of this convention, while Article 2 explicitly prohibits air-delivered incendiary weapons in areas with a concentration of civilians. A similar rule is applicable for international conflicts in the form of Article 51 of Additional Protocol I, which elaborates on the rights of the civilians to be protected and not made targets in conflict situations. Article 51 (4) of this protocol specifically prohibits indiscriminate attacks in such situations. By using weapons such as barrel bombs, the parties to the conflict are playing a major role in blurring the distinction between combatants and non-combatants, thereby inflicting greater harm on the civilian population.

The Coalition forces also include ‘Shiite Militia Groups’ who have been accused of perpetrating atrocities against the Sunni community members after Fallujah was liberated from ISIS. One of the basic principles to be followed by the State in situations involving serious violations of IHL is to adopt an “adequate, effective and prompt reparation” process to effectively promote justice. Even though the Iraqi government has issued strict guidelines against Shiite militia groups entering the Sunni majority city of Mosul, it is evidently downplaying the war crimes committed against the Sunnis by involving the accused group in the offensive. Such disregard to the violations of IHLs will only end up propagating many more of such violent acts and will in turn make it even more difficult for securing the basic human rights in conflict-ridden areas. Through its actions, the Iraqi government has turned a blind eye to the suffering of the Sunni community by compromising their right to reparation.

The offensive, which marks the most complex presence of armed forces in this area since the 2003 U.S. invasion of Iraq, is set to displace at least one million natives. It is quoted to be “One of the largest manmade disasters,” as it will add onto the 3.5 million internally displaced individuals spread all over Iraq. As vital it is to retake Mosul from the Islamic State, so is the need to protect the displaced population from succumbing to the extreme climatic conditions and/or lack of basic amenities. Though UN and other international organizations in collaboration with the Iraqi government have pitched in to provide shelter and basic amenities, their efforts have proven to be inadequate to cater to the requirements of such a large number of displaced individuals.

All of this bolsters the proposition that as long as IHL is not given its due importance and is not implemented in strict sense, the parties to the conflict will seldom adhere to them and will continue to disregard the lives of the civilian population. The disproportionately large number of civilian casualties in the Battle of Mosul should at least serve as a trigger to effectively monitor and curb such gross violations of human rights and IHL.

Works Cited

  1. Luis Martinez, Why the Battle for Mosul Is Important, ABC NEWS (Oct 16, 2016), http://abcnews.go.com/Politics/iraqi-offensive-retake-mosul-important/story?id=40850305.
  1. David Sim, Battle for Mosul: Rival forces band together to fight common enemy – but then what? INTERNATIONAL BUSINESS TIMES (Sep. 26, 2016), http://www.ibtimes.co.uk/battle-mosul-rival-forces-band-together-fight-common-enemy-then-what-1583397.
  1. Article 3, The Geneva Conventions of 1949, ICRC, https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=BAA341028EBFF1E8C12563CD00519E66.
  1. Fazel Hawramy and Emma Graham-Harrison, Islamic State using hostages as human shields in Mosul – UN, THE GUARDIAN (Oct 28, 2016), https://www.theguardian.com/world/2016/oct/28/islamic-state-uses-hostages-as-human-shields-mosul-says-un.
  1. Iraq Dropping Barrel Bombs On Fallujah, Attacking Hospital: Human Rights Watch, THE WORLD POST (May 27, 2014), http://www.huffingtonpost.com/2014/05/27/iraq-barrel-bombs_n_5395245.html.
  1. Protocol III, UN Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons, ICRC (June 2005), pages 45-46, https://www.icrc.org/eng/assets/files/other/icrc_002_0811.pdf.
  1. Article 51, Additional Protocol I, Geneva Conventions of 1949, UN.org, page 26, https://treaties.un.org/doc/publication/unts/volume%201125/volume-1125-i-17512-english.pdf.
  1. Principle 7, Guideline 11, Victims’ right to remedies, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, ohchr.org, http://www.ohchr.org/EN/ProfessionalInterest/Pages/RemedyAndReparation.aspx.
  1. Molly Hennessy-Fiske, Battle for Mosul could spark ‘one of the largest man-made disasters’ in years, U.N. warns, LOS ANGELES TIMES (Oct 3, 2016), http://www.latimes.com/world/middleeast/la-fg-mosul-humanitarian-snap-story.html.
  1. UNHCR Fears Mosul, Hawiga Fighting will Trigger Displacement Wave, unhcr.org (Feb 3, 2017), http://www.unhcr.org/news/briefing/2017/2/589453174/unhcr-fears-mosul-hawiga-fighting-trigger-displacement-wave.html.

*P Avinash Reddy is currently pursuing his Bachelor’s degree in law from National Academy of Legal Studies and Research (NALSAR) in India. He has previously worked on a project with the Centre for Legal Philosophy and Justice Education (CLPJE) to realize socio-economic rights. International humanitarian law and human rights form his primary domains of interest.

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Feb 8 2017

It is Time

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By Rory P. Mondshein*

Mahatma Gandhi once said that the “earth provides enough to satisfy every man’s needs,
but [it does] not provide enough to satisfy every man’s greed.”[1]
Our earth is bountiful, its resources are plenty,
but we live in a society where some have all the power, and others do not have any.
The rich continue to usurp the natural resources to increase their wealth,
while the poor live in destitution as they beg for help.
In an increasingly globalized world, politicians focus on economic prosperity
even if their people’s safety is compromised in the wake of their temerity.
In the 21st century, politics has become a global game of chess,
and governments neglect the environment in their pursuit of (relative) economic success.
Unfortunately, many believe that focusing on the environment will stunt economic growth,
which is why they fail to think about the ways that they can have both.
In China, local governments dump all of their industrial waste in the water,
ignoring the effect that this practice will have on their sons and daughters.
On the Niger Delta, politicians continue to fumble,
leaving their ecosystems to crash and crumble.
In Chile, desalination is destroying their crops and soil,
while the ecosystems in the Gulf of Mexico have been destroyed by oil.
In the Third World, many politicians fail to think
about the consequences of polluting the water that their poorest are forced to drink.
Instead, we are driven by selfishness and a desire to compete,
which is why our crops have been destroyed and our children have nothing to eat.
Thanks to capitalistic selfishness, many populations have been neglected,
and many more will face the music if the environment is not protected.
Although some countries, like Canada, have stringent environmental regulations,
it is imperative for us to have a global conversation.
Consequently, the UN General Assembly has worked to create global objectives
to protect the environment in the name of the collective.
It is time for introspection, it is time to conserve,
it is time to give our planet the attention it deserves.
It is time for corporations, like Monsanto, to be less cruel,
it is time for nations to decrease their dependence on fossil fuels.
It is time for nations to work together, and, instead of focusing on economic competition,
governments must collectively commit to reducing greenhouse emissions.
It is time for all of us to wake up, and tackle the problem at its core,
and it is time for us to realize that the environment is actually worth fighting for.

*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.

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Feb 6 2017

Obstetric Violence and Human Rights in Brazil: What Happened, Mrs. Adelir de Goés?

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By Suelen Gil*

Can a person be forced to have any medical procedure performed on them without indication? Perhaps not, but the answer is never simple when the subject concerns delivering a baby in Brazil.

In 2015, according to Ministério da Saúde, 40% of the deliveries in Brazil’s public health service were performed via caesarean sections (“C-sections”), while this rate reached 85% in the private service. In comparison, the World Health Organization (WHO) recommends a rate of 10 to 15%. The result is that most women in Brazil are being submitted to this surgical procedure without any medical indication, which can cause complications for both mother and baby, or even death.

Yet, there is a difference between being submitted to a C-section and being forced to have one. Many women believe that a natural delivery is painful and unnecessary, and the same is said by their doctors, who often do not inform them about the dangers involving this kind of procedure, or the benefits of a natural delivery. Actually, C-sections are frequently more profitable to health professionals; as a result, birth-giving becomes a business. Nevertheless, once the patient is informed about the risks of having a C-section, she can decide to have one or not. On the other hand, any surgical procedure performed without consent is a serious ethical, medical, and juridical problem. This very issue arose two years ago in Brazil with the case of Adelir Lemos de Góes.

In April 2014, Mrs. de Góes, a 29-year-old woman, called the world’s attention to, and began a debate about, the Brazilian model of maternity hospital care. She intended to have a vaginal delivery without the need for any medical intervention because she had been advised by an obstetrician that she could not have a C-section again—having already undergone two and with no complications to preclude her from having a natural delivery. But once in the hospital, she was informed that her baby was in a transverse position, so the child would not have a natural birth. The doctors in that hospital considered the baby’s position a reason to perform a C-section, although there are different professionals’ opinions about the natural delivery in this specific medical case. Therefore, Adelir signed a responsibility term and went home, where she would wait for the natural labour process to develop in order to return to the hospital in an advanced stage of labour.  But, her plans failed when justice officers made her immediately return to the maternity unit by virtue of a court order. The order also allowed the hospital to operate on Adelir because it was alleged that she and her baby’s lives were at risk.

Adelir de Goes and her husband with their child in the hospital. Photo made by Erika Carolina, from Folha de São Paulo.

Adelir de Goes and her husband with their child in the hospital. Photo made by Erika Carolina, from Folha de São Paulo.

Medical ethics extinguishes the need for consent when there is an imminent risk of death. In these cases, the doctor must act to save the patient, no matter what the patient thinks about the doctor’s judgement. In addition, Brazilian law states that nobody can be submitted to a medical procedure which presents the risk of death, unless an agreement is reached. Yet, it is not clear whether something presented a real threat to either Adelir’s or her baby’s health, especially since no judicial decision has been published since then and the government publicly acknowledged her consent as essential. 

Mrs. de Góes’ case was relevant to outline a critical problem in Brazil called obstetric violence, a kind of gender and institutional violence that victimizes numerous women and can occur through a large variety of bad practices during pregnancy, childbirth, and postpartum healthcare. These mistreatments include verbal humiliation; the denial of treatment before, during or after childbirth; the denial of admission into public hospitals; the refusal of water and food; and unnecessary and invasive procedures.

A report from 2010 showed that 25% of women surveyed suffered from some type of mistreatment during or before delivery in Brazil. But it is a common problem throughout all of Latin America. For example, Bolivia was recently found responsible for performing forced sterilization, and some countries, like Venezuela  and Argentina, have already codified “obstetric violence” into their laws. Indeed, obstetric violence involves other common Brazilian problems, such as racism, sexism, and social prejudice, which altogether make this problem even harder to fight.

Nevertheless, Adelir’s case is an important illustration of the discussions by which some ethical and judicial debates are surrounded. First, she was forced to deliver her baby contrary to her choosing because a judge thought Adelir and her baby’s lives were in danger. Did the judge make the best decision? At the time, another professional had affirmed she could die and that there was not much time to waste, so the judge trusted a medical opinion. Therefore, on these terms, it seems that the Brazilian State inhibited Adelir’s ability to harm her own life. But what about her dignity?

The answer could be quite simple if debates regarding human rights were not so complex. Some people say human dignity sustains all fundamental rights but there are many of them, including the right to life, the right to health, and the right to personal integrity, for instance. Obstetric violence is harmful to personal integrity, including its social and psychological aspects, which is protected by the Brazilian Constitution of 1988, civil and penal codes, human rights treaties incorporated into Brazilian Law, and other legal documents. Perhaps, Mrs. de Goes’ dignity was diminished when some of her rights were disrespected: she was not given a say, she faced rude treatment, she was not told about her state of health, and she was forced to have her body cut open. In the end, was all of this acceptable or not? But, that is a job we have reserved for judges.

Works Cited

Perseu Abramo Foundation; Social Service of the Commerce (SESC). Mulheres brasileiras e gênero nos espaços públicos e privados (August 2010).

Brazil, Ministry of Health, CONITEC. Diretrizes de Atenção à Gestante: a Operação Cesariana (March 2016) Report n. 179.

World Health Organization, Human Reproduction Program. WHO statement on caesarean section rates (April 2015) WHO/RHR/15.02.

*Suelen Gil is majoring in Law at Federal University of Paraíba (UFPB), Brazil. Her study interests involve Human Rights, Human Dignity, Women Rights, and Labour Law.

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Feb 2 2017

“Protecting The Nation From Foreign Terrorist Entry” And Other Bogeymen: Is Trump’s Populism Compatible With The Rule Of Law?

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By Laurin Liu*

Totalitarianism begins in contempt for what you have. The second step is the notion: “Things must change—no matter how, Anything is better than what we have.” Totalitarian rulers organize this kind of mass sentiment, and by organizing it articulate it, and by articulating it make the people somehow love it. . . . Totalitarianism appeals to the very dangerous emotional needs of people who live in complete isolation and in fear of one another.

— Hannah Arendt, comments made during an interview with the French writer Roger Errera (1974).

Arendt was writing about totalitarian Germany, but her observations about nationalist populism strike at the heart of current events. Trump’s executive order signed last week is an attempt to capitalize on populist Islamophobia. It closely followed executive orders on securing the nation’s interior, directing the U.S. Immigration and Customs Enforcement to provide reports quarterly “studying the effects of the victimization by criminal aliens present in the United States.” This, despite the fact that census data demonstrates that immigrants are less likely to commit crimes in United States than those born in America.

Trump’s election has spurred debate among human rights scholars about whether or not populism can be compatible with respect for human rights. Can the rule of law withstand populist behemoths, and are Western institutions strong enough to protect fundamental human rights against the overarching power of the President?

At the same time as we decry Trump’s lawlessness, a closer examination of executive power enshrined in law also appears to be necessary. In other words, at the same time as Trump ignores or blatantly violates international law, we may ask ourselves whether legal precedents set by the United States are the very institutions that enable Trump to act.

The enabling legal provision that allows for the order can be found in section 212(f) of the INA, 8 U.S.C. 1182(f). The sweeping powers this provision enshrines cannot be understated. It allows the president to suspend entry of entire groups of individuals upon finding “the entry of any aliens or of any class of aliens into the United States”, to be “detrimental to the interests of the United States”.

Moreover, as multiple observers have pointed out, “Donald Trump didn’t come up with the list of Muslim countries he wants to ban. Obama did.” Sara Harvard notes that some of the countries affected by the ban are those previously named by President Obama in his Visa Waiver Program Improvement and Terrorist Travel Prevention Act.

Meanwhile, Trump’s order explicitly invokes the rule of law: “The United States cannot, and should not, admit those who do not support the Constitution, or those who would place violent ideologies over American law.” Legal experts note that, contrary to what is stated, no statutory requirement exists that requires noncitizens entering the United States to support the Constitution. When the Trump administration falsely claims that the law is on their side, one wonders if this falls within the current administration’s tactic of inundating an uninformed public with “alternative facts.”

In neighbouring Canada, The Canadian Immigration Minister has announced that temporary residence permits will be offered to travellers stranded in Canada as a result of the travel ban. However, so far, Canada has indicated that it does not plan to make any changes to its refugee policy in response to the executive order, and has put into place no measures to offer asylum to those turned away from American soil.

Canadian lawyers and advocates, including two hundred law professors, Amnesty International, the Canadian Association of Refugee Lawyers, the Canadian Council for Refugees, the Quebec Immigration Lawyers Association and the Canadian Civil Liberties Association, have called on the Canadian government to immediately suspend the Safe Third Country Agreement (STCA).[1] The agreement prohibits any asylum-seeker entering Canada by way of the United States from applying for refugee status, under the principle that refugee claimants must be required to request protection in the first safe country they arrive in. To date, the U.S. is the only state that is designated as a safe third country by Canada under the Immigration and Refugee Protection Act. The Canadian government has consistently claimed that the requirements of the STCA continue to be met.

*Laurin Liu was the member of Parliament for Rivière-des-Mille-Îles (2011-2015), and has served as deputy critic in the Official Opposition for the environment, science and technology and international trade. She is currently completing a MSc in Human Rights at the London School of Economics and Political Science.

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[1] Article 10 of the agreement contains provisions for its suspension:

  1. This Agreement shall enter into force upon an exchange of notes between the Parties indicating that each has completed the necessary domestic legal procedures for bringing the Agreement into force.
  2. Either Party may terminate this Agreement upon six months written notice to the other Party.
  3. Either Party may, upon written notice to the other Party, suspend for a period of up to three months application of this Agreement. Such suspension may be renewed for additional periods of up to three months. Either Party may, with the agreement of the other Party, suspend any part of this Agreement.
  4. The Parties may agree on any modification of or addition to this Agreement in writing. When so agreed, and approved in accordance with the applicable legal procedures of each Party, a modification or addition shall constitute an integral part of this Agreement. See full text: http://www.cic.gc.ca/english/department/laws-policy/safe-third.as
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Jan 31 2017

Let’s Be Clear: This is a Muslim Ban

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By Alexandra Funk*

On Friday, 27 January, President Trump signed an executive order – “Protection Of The Nation From Foreign Terrorist Entry into the United States” – that suspended entry to the U.S. for any refugee for 120 days; indefinitely halted entry for Syrian refugees; and imposed a 90-day immigration ban for citizens of Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen. Individuals with visas or permanent residences within the U.S. are also affected, and many were detained at airports. The American Civil Liberties Union successfully challenged this provision in court on Saturday, 28 January, and a federal judge temporarily blocked part of the order, allowing a number of those detained to enter the United States. However, the Department of Homeland Security stated that while it would comply with judicial rulings, it would still enforce all aspects of the executive order.

This is a Muslim Ban

As much as Trump and his administration disguise their aims as being oriented toward protecting Americans and countering terrorism, this executive order works to keep Muslims out of the U.S., and it is intended to do so.

Throughout Trump’s campaign, he repeatedly advocated for a Muslim ban. Rudolph Giuliani, a prominent White House advisor, explicitly told Fox News that Trump tasked him to create a commission of expert lawyers to determine how to legally institute a Muslim ban. These facts should serve as a lens through which to view this executive order. The realities of governing differ from those of campaigning, and signing an order explicitly banning Muslims is politically perilous. This toned-down version, then, is a means to practically ban Muslims by using language that one might be able to rally behind. An executive order that comes under the ostensible purpose of pursuing national security offers legitimacy, and this is how leaders like Paul Ryan can justify their support.

By analyzing the executive order and Trump’s statements, however, it is clear that this is about Islam. After all, it simply cannot revolve around terrorism alone. Terrorism as a tactic of violence has been used since the first century, and has since been employed by individuals of any number of religions and nationalities. People intent upon using terroristic tactics can come from anywhere, and the decision to block entry into the U.S. for citizens of specific countries in the name of fighting terror must be based upon a fundamentally flawed understanding of terrorism.

The order’s text and the President’s words, however, show this executive action to be the Muslim ban that it is. This begins with the fact that it bans over 130 million people from seven predominantly Muslim countries from entering the United States. On the same day that these restrictions were enacted, though, Trump spoke about wanting to admit more Christian refugees from among the countries whose citizens are now persona non grata. Trump’s declaration that he hopes to “admit those into our country who will support our country, and love deeply our people,” spoken after his signature blocked access to that country for millions of the world’s most vulnerable people, suggests that somehow the predominantly Muslim countries from whence they might have come are unable to offer up anybody who love and support the United States. This order bans entire nationalities that predominantly identify as Muslim, while Trump simultaneously speaks of welcoming Christians from among them. This further suggests that he is intentionally targeting Muslims, and that it is only Islam that he believes can be terroristic.

“Keeping Americans Safe”

Trump’s executive order represents the institutional persecution of individuals ascribing to one religion, under the guise of “keeping Americans safe.” His order is not based upon any policy or academic understanding of terrorism. Instead, Trump is equating one of the world’s largest religions with terrorism. Trump’s administration is pushing Samuel Huntington’s Clash of Civilization’s narrative, an idea that the division among people and states is a cultural, and, thus, religious identity. Here, terrorism is falsely presented as inherently Islamic, while terrorism in reality is inherently political. Trump is refusing to acknowledge the political and social root causes that work to bring terrorism into being. Nor does he understand that the language he employs in this order and in public statements can be exploited as a recruiting mechanism by organizations that utilize terrorist tactics.

Furthermore, the claim that refugees make Americans unsafe is not factually supported. Over three million refugees have been resettled in the U.S. since 1975, making the year-over-year chance of dying in a terrorist attack perpetrated by a refugee approximately 1 in 3.64 billion. In fact, a number of refugees have joined the U.S. military, and fought beside American-born citizens.

Immigration and refugee resettlement actually benefits cities and their economies. Studies have shown that wages are lifted when refugees join the work force in advanced economies. People like Sayed Soheil Saeedi Saravi, an Iranian scientist who was en route to his Harvard fellowship studying cardiovascular medicine, are a benefit to the U.S., not a detriment.

A Disgrace to Religious Freedom

America is built upon religious freedom. It is a defining pillar of the Constitution, and is a key element of both the Republican and Democratic parties’ platforms. Trump and his administration have stained the very principle of religious freedom for which the U.S. stands – or once stood.

This executive order violates the U.S. Constitution and the International Covenant on Civil and Political Rights, which the U.S. is party to despite attaching an unprecedented amount of reservations, understandings, and declarations. It should not take courage to stand up to Trump and against this shameful and immoral action, but rather the most basic human decency. Last Friday, America shut its doors to Syrian children fleeing from a deadly conflict; it turned its back to Yemeni civilians who have seen their hospitals and marketplaces bombed using explosives manufactured in the U.S. and sold to Saudi Arabia; it denied thousands of people who could better the U.S. economy; and it betrayed the very ideals and principles upon which it was founded and without which it can never be made great.

*Alexandra Funk holds an MSc in Human Rights from the London School of Economics and Political Science and a BA in Philosophy and Political Science from the University of Louisville. She is a human rights activist in Washington D.C., and her research interests include terrorism and foreign policy. You can find her on Twitter @alfunk.

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