May 19 2016

Limiting Sovereignty and Legitimising Intervention

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By Nora Jaber*

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

Sovereignty and its limits

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

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

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

A legal versus a moral duty to intervene?

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

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

Should there be a legal duty to intervene?

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

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

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

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

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

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

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

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

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May 9 2016

Constitutional Rights Law and its Limitations: Topical Examples

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By Anthony Kennelly*

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

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

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

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

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

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

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

The Mirror Image

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

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

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

Wider Significance

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

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

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

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

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

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

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

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

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Apr 25 2016

Transborder Abduction of Hong Kong Booksellers: Implications under International Law

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By Sean Yau Shun Ming*

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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Apr 18 2016

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

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

By Cat Gough*

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[5] Ibid

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

[7] Ibid

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

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

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Apr 11 2016

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

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

By Jacqueline Stein*

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

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

Stigma and Poor Neighborhoods

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

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

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

Education and Incarceration Trends

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

States and Incarceration Data

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

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

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

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

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Apr 4 2016

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

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

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

Facebook: Sound Minds Radio
Twitter: @SoundMindsRadio

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

 

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Mar 10 2016

Dismantling labels: Colombia’s long-term challenge towards peace

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By Maria Hoyos-Carrero*

After fifty years of war the Colombian government and the Revolutionary Armed Forces of Colombia (FARC), the longest operating left-wing guerrilla army in the hemisphere, have agreed to sign a peace accord by the end of this month. Although it is still uncertain if they will be able to meet this deadline, it seems that the ongoing peace process is reaching its final stage. The parties have already agreed on four of the six points of discussion defined in the General Agreement that inaugurated the peace talks back in 2012 (integral rural development, political participation, transitional justice and victims, and illicit drug operation). They also have made important announcements towards other concerns, such as the definition of a “humanitarian demining mission” and a special compromise with the families of victims of forced disappearances. More recently, the UN Security Council has adopted a resolution to establish a political mission to monitor and verify the ceasefire and the end of hostilities. It seems that, this time, there is no turning back.

However, Colombia still has to face one major challenge: how to dismantle the friend/enemy distinction that has driven the conflict for all these decades. This is an urgent call, not only because former FARC members will look forward to reintegrating into society, but also because, in the development of Colombia’s conflict, labeling someone as an “enemy” became a dangerous way to consider some civilians as targets too. This process lead to the most horrible atrocities around the country and, aside from what has been achieved in the peace process, it seems that this friend/enemy dichotomy is far from disappearing.

A good example of this continuing issue is the story of Nelly Amaya Páez. She was a social leader from the Catatumbo region who was found dead in the urban centre of a small town called San Calixto, in the department[1] of Norte de Santander at the beginning of this year. According to the national press, Nelly was a member of the Catatumbo Peasant Association (ASCAMCAT), a strong social organization that since 2006 has demanded the recognition of peasants’ land rights and the implementation of rural development programs in the country. As its claims are similar to those demanded by FARC in the negotiations and most of its members live in places that have historically been controlled by the guerrilla army, ASCAMCAT has also been constantly labelled as a sympathiser of the rebel group.

The Catatumbo, like many other regions in Colombia, has a long history of violence. This is due to its natural resources (especially oil) and also because of its strategic position. It is located between the eastern mountain range and the border with Venezuela, a location that makes it ideal for drug trafficking. Hence, it is a very attractive zone for all armed groups.

Back in the 1980s, three major rebel groups—FARC, The National Liberation Army (ELN), and the Popular Army of Liberation (EPL)—dominated this region. Nonetheless, the guerrillas’ military strength and the rise of their political support among civilians (especially among peasants’ organizations) started to be seen as a terrible threat by landowners and drug traffickers who were being severely affected by the guerrillas’ activities. These landlords were being made victims of robbery, kidnapping, and extortion, among other crimes. Under this context some of these property-owners (in some cases with the help of drug traffickers) decided to support and finance self-defence armies.

The main aim of these new paramilitary groups was to eliminate the guerrillas by any means. Taking the friend/enemy logic to an extreme, they not only went after rebel combatants, but also started to prosecute anyone who could be considered a “guerrilla civilian”. As the National Centre of Historic Memory has reported, “the social and geographical coexistence of armed groups and civil population has functioned as a pretext to raise the criminal formula of ‘civilian rebels’”. Under this pretext and ignoring the fact that in armed conflicts relationships between civilians and combatants are usually blurred and mobile, labelling peasants as “enemies”, especially those who were actively engaged with any political activity, was one of their major tactics. The paramilitaries went after peasants, labourers, and left-wing leaders, especially those who were members of the Patriotic Union, a political party that was founded by former FARC members who demobilized during a previous peace deal in 1985.[2]

In the year 1997, the formation of the United Self Defence Forces of Colombia (AUC), a group that brought together all the paramilitary groups, looked forward to turning this plan into a national strategy. But during those years the means used to label someone as an “enemy” went far beyond what is permitted under international law. In Mapiripán, for example, a town usually related to FARC’s activities, the paramilitary leader Héctor Buitrago (alias “Martín Llanos”) dressed himself as a member of the guerrillas to ask for shelter and food. He also made a list of “rebel collaborators” that included every peasant who helped him. This same list was then used by the paramilitaries to target and kill fifty “rebels”. Now known as the “Mapiripán massacre” the Inter-American Court of Human Rights declared that these were not FARC members and imposed sanctions on the Colombian state for failing in the protection of civilians. However, what happened in Mapiripán is far from being an extraordinary event in Colombia. According to the National Centre of Historic Memory, between 1985 and 2012, there have been a total of 1,982 mass killings across the country.[3] The Centre claims that 1,166 of these cases have been attributable to paramilitary groups.

If we go back to the story of Nelly Amaya, it can be said that this targeting of civilians as “enemies” has not yet vanished. Today, FARC and ELN are still present in the Catatumbo. In addition to that, there is an important presence of Los Urabeños, one of the rising criminal gangs (now known as BACRIM) formed by some ex-members of the AUC[4] and a wide number of new recruits. Nelly, on the other side, was a true believer in the peace process. She was leading the pedagogic activities of the agreements and she wanted the peasants to lead the changes already approved by the two parties; but she still carried a stigma. She was a peasant leader in a region usually associated with a strong guerrilla presence. She was a former member of the Patriotic Union and she was politically engaged in ASCAMCAT. Once again it seems that a peasant leader lost her life after being labelled as a rebel collaborator.

With the signature of a peace accord, there will be an open door for the guerrilla to become a legal political movement. Whether ASCAMCAT or any other civilian organization has close relationships with FARC or not, one of Colombia’s greatest challenges is to learn how to dismantle this unhelpful friend/enemy dichotomy that has shaped the conflict for more than fifty years. There is a need to start thinking within a new political sphere where different ideas can coexist and be debated without people feeling in danger of being targeted for those very ideas. No advocacy in the name of a rural transformation should be seen as a threat. No one should lose their lives purely for being labelled an “enemy”.

* Maria is a current MSc Human Rights candidate at LSE and can be reached at M.Hoyos-Carrero@lse.ac.uk.

[1] A ‘department’ is the term commonly used for Colombian administrative units, or ‘states’.

[2] The party lost its political status in the year 2002 after a systematic prosecution and the homicide of most of its main leaders.

[3] The concept includes the killings of four or more persons found in a state of defencelessness.

[4] The AUC demobilized in the year 2005.

Posted by: Posted on by Leila Nasr

Mar 3 2016

Alone in the Jungle

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By Daniel Sippel*

About 30 miles away from Dover, Rambo asks Liz for new shoes. He needs them to jump on a lorry, which is supposed to take him to his paradise. Last week, a friend of Rambo’s died when he tried to do the same thing. Rambo, wearing white forearm protectors, will not die, because he is the king of the universe. At least, that’s what Rambo believes. He also believes that he is about 12 years old, but he doesn’t know for sure. Only a few of the boys in the Calais Jungle know their actual age.

“I’m horribly committed now”, says Liz, who volunteers as head of the unofficial Women’s and Children’s Centre in the Calais refugee camp. The Centre’s Facebook page has this “unofficial” in its title, a way to subtly point to the fact that despite the existence of 500 children, there is a conspicuous lack of “official” governmental assistance, or even a single UNHCR representative.

Thus Liz, a former British fire-fighter who worked with young arsonists in her free time, is left to be the camp’s Swiss army knife; for the 20 unaccompanied children between the age of ten and 13, she is mom, carer, psychotherapist and sparring partner. She hates her children, and she loves them. She swears from time to time when she speaks about them, calls them idiotic, brazen, stupid – and she is right.

Liz and Children. Calais. February 2016, D. Sippel.

Liz and Children. Calais. February 2016, D. Sippel.

Rambo is one of these stupid, unaccompanied children. He is from Afghanistan, like almost all his friends who were sent away by their families. Son and heir, he was dispatched to reach the Promised Land, Britain. For his family, who live in rural, Taliban-controlled Logar Province, Britain is the safe haven. It is the place where NATO does not kill civilians by accident, a region the Taliban surely does not invade. It is a country that has historically been a land of migrants, an island that offers a good welfare system, even for little Rambo, who has come from so far away.

“Reach the UK at any price. Do not engage with anyone until you are there,” is the lesson his family drilled into him. Unlike some of his friends in the camp who have family members in Britain, he has not. There is no legal way to fulfil his seemingly impossible ambition. But Rambo is determined to heed his family’s wish. He is determined to be a good son.

They call him Rambo here because he takes the greatest risks, Liz admits. For his last attempt, he left Liz’s van, where he lives, at 1am to walk seven hours to the nearby camp in Dunkirk, in order to have easier access to UK-bound lorries. Then he tried to jump on them. That is why he needs good shoes, and why Liz hates her children. She is utterly worried about them, like a mother, and describes Rambo as “scary”. Not because she is scared of him channelling his trauma through violent fights with her. She is a former fire-fighter – she knows how to defend herself. It is because she is scared what might happen to him. “It is a bit of a fucking nightmare” is Liz’s felicitous way to describe both her feelings and the humanitarian crisis in Calais.

A slender woman in her fifties, Liz knows her children. Over time, she has learned some Pashto, but the boys also understand her English by now. And if they don’t, they still can clearly distinguish the different tonalities of her voice: The indignant reproof when Rambo has erased all contacts on her antiquated, grey phone. The fervid plea, mixed with anger and frustration, when she appeals to the French Government to manage the crisis in a humane way. The incredible tenderness that her raspy voice miraculously evokes when she consoles the delicate yet hardened souls to make them forget what they have experienced.

A toy lies in the mud at Calais, a reminder of a childhood misplaced. Calais. February 2016, D. Sippel.

A toy lies in the mud at Calais, a reminder of a childhood misplaced. February 2016, D. Sippel.

For their journey to Europe, the boys have been drugged, beaten and put into tiny spaces by traffickers. Nevertheless, Liz says, they were hopeful when they arrived in Calais. They were close, very close to their goal. Just thirty miles from the white cliffs of Dover. Months of knee-deep mud; temperatures around freezing point; panic and riots over food distribution, and unfruitful attempts to cross the Channel, have taken their toll. Liz’s children are changed. Now, all Liz and her team can offer them is resilience, because they are “fucked, lonely, and frightened”. Like all frightened children the boys want to talk to their mom — their real mom, in Afghanistan, if she is still alive. So Liz organised phone top-ups for them, because it hurts her watching them falling apart slowly.

The French authorities are impatient. Rather than waiting for the camp or the boys to fall apart, the riot police will evict a part of the Jungle this week. The countless flashing blue lights on the horizon — police vans that surround the camp day and night — augur through the smoke of wooden stoves: the state is ready to restore its power monopoly. For the boys, the lights are the sword of Damocles. It means that they will be registered, that fingerprints will be taken. Their chances of crossing the Channel will be taken as well, they sense. The state will put them in containers, far away from the Children’s centre with film nights, counselling, kickboxing classes, and Liz, she believes. She does not know, the authorities have never spoken to her. Who knows what will happen. In any case, they must run soon to fulfil their parents’ dream. Rambo needs new shoes for that, his pair has holes. Liz gets him a new pair, size 2.

*Daniel Sippel is a final-year BSc student in Politics and Philosophy at LSE. Last year he received a Certificate in Social Sciences and Humanities from the Institut d’études politiques (SciencesPo) in Paris. The research trip to Calais was kindly supported by LSESU Student Action for Refugees.

Posted by: Posted on by Leila Nasr

Feb 25 2016

Can we predict a humanitarian emergency?

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By Nicolò Maganza*

Since the end of the Cold War, the humanitarian field has witnessed the emergence of new early warning systems, as well as the improvement of old ones, the purpose being to alert us of imminent humanitarian emergencies. To date, notwithstanding the proliferation of these instruments, their capacity to function effectively within the framework of humanitarianism is questionable. In discussing whether or not early warning systems can be made to function as planned, I argue that their current dysfunction within the humanitarian field is due the existence of a particular emergency imaginary.

Starting briefly with terminology, an early warning system can be defined as any ‘analytic forecasting tool’ or ‘any initiative that focuses on systematic data collection, analysis and/or formulation of recommendations, including risk assessment and information sharing’. The indicators used to collect data are those of potential conflict, food shortages and other related issues.

The objective of early warning systems is to allow for an early intervention by governments and other humanitarian actors (such as international organisations and NGOs), in order to reduce the possible predicaments deriving from an imminent hazard.

Early warning systems are now characterised by a higher degree of sophistication and reliability than ever before, thanks to consistent investments in this sector. Yet they do not function as planned in the hands of humanitarian actors in terms of risk prevention or reduction. To date, in addressing their inadequacy, the relevant literature seems to only focus on their technical and operational shortcomings.

Through the myopic identification of technical and operational shortcomings as the root cause of early warning systems’ dysfunction, though, the relevant literature seems to implicitly assert that improvements in the areas where these shortcomings are present may eventually transform early warning systems into efficient tools in the hands of humanitarian actors.

However, operational and technical deficiencies are only one of the aspects – albeit probably the most apparent – which explain why these instruments do not function adequately. Moreover, the focus on the technical fixes necessary to overcome the deficiencies mentioned above risks overlooking the real obstacle preventing early warning systems from functioning in the humanitarian field as intended: the current emergency imaginary.

The notion of ‘emergency’ has a broad meaning that includes any sort of disaster or crisis, ranging from natural catastrophes and conflicts to other forms of human suffering. As noted by prominent scholars like Calhoun and Cannon, even though there must be material conditions—either natural or depending on human agency—for an emergency to happen, this notion is socially constructed. Indeed, this construction of the ‘emergency imaginary’ is pivotal, as it ‘shapes the definition and rhetoric of emergencies, the ways in which they are produced and recognised, and the organisation of intervention’ (emphasis added).

Within this imaginary, emergencies are perceived as sudden and unpredictable events in contrast with the normal order. Thus, while Cannon argues that patterns of people’s vulnerability to the hazards that lead to emergencies develop over the course of time, the current emergency imaginary seems, instead, to consider emergencies as proceeding from ‘a background of ostensible normalcy, causing suffering or danger and demanding urgent response’. The way media speaks about emergencies (as being shocking and unexpected) represents proof of this social construction of emergencies.

The emergency imaginary’s emphasis on the immediacy of each occurrence and not on its causes affects the scope of the humanitarian response required. Such an imaginary provides an idea of humanitarianism based upon the concept of urgency—that is, the necessity of providing an immediate response to an acute and unpredictable need. It also recalls the older value of charitable action, whose purpose is sympathy and mitigation of suffering, not the transformation of the social order. As so constructed, humanitarian action should be ‘free from longer-term political and economic entanglements’ and should be limited to providing material assistance and relief from suffering through, for example, the distribution of food, medical supplies, and the building of shelters.

It can be argued that, since the end of World War II the current emergency imaginary has developed what is now called ‘classic humanitarianism’, that is, the idea of a humanitarian intervention free from any political and economic bias and geared to saving lives, not livelihoods. Additionally, the notion of ‘classic humanitarianism’ has not been relegated to the theoretical realm but has become the distinctive feature of the ICRC’s action, as it appears clear from its Fundamental Principles.

Returning to the early warning systems, it seems, at this point, that the current emergency imaginary leaves no room for their proper functioning in the hands of humanitarian actors. As long as emergencies are socially constructed as sudden and unpredictable events that are outside the normal order of things and demand immediate response, the scope of humanitarian intervention seems to be limited only to those acts providing material relief from suffering after the outbreak of an emergency and lasting until the end of it. Earlier actions, which are performed on the basis of early warning systems and attempt to hinder any emergencies from breaking out, are therefore outside its scope.

Events surrounding the 2011 famine in Somalia support this argument. At the time, the famine seemed to have come as a surprise. However, states had collected several early warnings over the course of the preceding years—they just did not take action until the famine had been declared by the UN and had reached the front covers of newspapers. States, therefore, did not undertake any preventive humanitarian intervention before the situation fit the characteristics of an emergency as currently imagined and constructed.

Drawing on this example, it is clear that ‘the failure of the international community to respond to potential crises before the declaration of a humanitarian catastrophe is not a technical failure of early warning’. Instead, it is a failure of humanitarianism itself, as constructed by the current emergency imaginary.

This argument is not meant to present early warning systems as fundamentally incompatible with humanitarianism. In fact, they may operate and become a valuable asset in the hands of humanitarian actors if a change in the current emergency imaginary occurs which draws us towards a social construction of emergencies as long term patterns of vulnerability developed through societal, economic and political factors.

The adoption of a new emergency imaginary would also entail a new and different humanitarian intervention with a more developmental approach to relief. Humanitarianism should not only be geared to saving lives but should also consist of an action early enough to protect livelihoods before lives are threatened, in accordance with people’s own priorities. It is also worth noting that this approach in favour of a new – and more appropriate – construction of the emergency imaginary and, subsequently, of humanitarianism is already present in the mandates of several international organisations and NGOs, which attempt to combine humanitarian intervention along with developmental goals.

Early warning systems can be fit for humanitarian intervention. However, what is primarily needed for this to occur is not, as most of the relevant literature seems to suggest, the resolution of their operational and technical shortcomings. Only accepting a new emergency paradigm, which shapes a different notion humanitarian intervention, as capable of achieving developmental objectives through early actions, may allow humanitarian actors to fully take advantage of the life-saving function of early warning systems.

*Nicolò Maganza is a current MSc Human Rights student at the LSE. He also holds a Master’s in Law from the Università degli Studi di Milano.

Posted by: Posted on by Leila Nasr

Feb 18 2016

Genocide is the tip of the iceberg: Reviewing the Guatemalan case

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By Diego Alburez-Gutiérrez*

In 2013 the former Guatemalan dictator Efraín Ríos-Montt was tried in a national court for genocide and crimes against humanity. He was found guilty and sent to prison, but the verdict was quickly overturned on technical grounds. Local reactions to these events were varied, since the Mayan genocide is one of the most controversial issues for Guatemalan society today. In this article, I draw on the Ríos-Montt case to discuss the Mayan genocide not as an isolated event, but only as the momentary surfacing of a set of institutional arrangements that also explain the astonishing inequality that prevails in this Central American country.

The background

There are around 17 million people in Guatemala, half of whom are of mixed Hispanic ascent while the rest belong to one of the 23 Mayan indigenous groups. The Guatemalan civil war (1960-1996) left approximately 200,000 civilian casualties; 83% were indigenous Mayan. The conflict reached its peak towards the end of the 1970s, when the Marxist guerrillas gained strength and popular support following the Sandinista victory in neighbouring Nicaragua.

Ríos-Montt was de-facto president from 1982 to 1983 and established the most brutal government of the civil war. In a short period, his government formalised a counterinsurgent strategy that eventually led to the downfall of the guerrilla movement. The new military approach combined scorched-earth policies with psychological warfare to isolate the fighting guerrillas from their supporters in rural areas. The beginning of the 1980s was the civil war’s most violent period (measured both in terms of the absolute number of civilian casualties and the magnitude of the mass killing events), since entire villages were burnt down and their inhabitants murdered in an effort to drain the water and let the fish die.

Number of victims per violent event. Observations above the red line are mass killings (i.e. four or more victims per event). Data was obtained from a convenience sample. Source: Author, with data from the AAAS/CIIDH (1999) database.

Number of victims per violent event. Observations above the red line are mass killings (i.e. four or more victims per event). Data was obtained from a convenience sample.
Source: Author, with data from the AAAS/CIIDH (1999) database.


The setting of a genocide

What makes genocide ‘the crime of crimes’? Technically, it’s not the scale of the event. Article 2 of the Convention for the Prevention and Punishment of the Crime of Genocide of 1948, and Article 6 of the Rome Statute of the International Criminal Court provide the legal definition of genocide. These treaties do not specify any kind of threshold over which an event should be considered genocidal. As a matter of fact, the essential element of genocide is intent – the motivation to kill or otherwise harm individuals because of their belonging to ‘a national, ethnical, racial or religious group’, as a means of destroying the group in part or as a whole.

It is important, then, to understand the origins of this intent when talking about the Guatemalan case. Was it a spontaneous phenomenon? Or was it the outcome of long historical processes? Answering these questions is complicated by the fact that genocide is a huge endeavour, which makes it difficult to attribute sole responsibility to any individual person. Genocide is never the achievement of a lonely madman. In fact, the Guatemalan genocide required institutional support and close coordination between the military, militias, national administrative systems, and more. How or why genocide happens is not fully understood, but it is believed that social institutions play a central role in its development; hence, a focus on institutions is particularly useful for understanding the Guatemalan events.

In Guatemala, the idea of a genocide against the indigenous population was not born in Ríos-Montt’s head, nor in the heads of any of his military predecessors. This idea has been there since the Spanish conquistadors established the blueprints of the country’s economy and modern state. As a result, the national institutions have systematically excluded the indigenous populations, as shown by the unequal investment in health and education for indigenous areas. Current income inequalities are a consequence and a sad reminder of this. In 2014, the World Bank’s Living Standards Measurement Survey showed that 80% of the Mayan population are poor (in contrast, ‘only’ 50% of the non-Mayans are poor). And this gap has been widening over the past ten years. In Mayan regions, healthcare, justice and many other services are often provided by traditional means. However, these indigenous institutions have also been weakened by the Guatemalan nationalist project. Since the country’s independence from Spain in 1821, various state policies have aimed at homogenising the population with the hope of achieving an ideal of ‘one country, one people’.

In this context, not only did state institutions evolve in a way that did not work to prevent a genocide, but also they nurtured its potentiality by developing unevenly – like a two-legged stool, providing for some, but not for others. Since the national institutions were never intended to protect the indigenous populations, they obviously failed to do so during the civil war. There were simply fewer obstacles on the road that led to the extermination of the Mayan populations. Furthermore, it is possible that even repressive measures like press censorship were ethnically biased. My ground-level research shows that, throughout the civil war, violence against indigenous communities was considerably less likely to make it into the news. A violent event in a non-indigenous area had a 50% chance of being reported in the newspapers. By contrast, if the event took place in an indigenous area, the probability was only 5%.

As a final point, the previous discussion is not meant to excuse the military men who were in charge at the time, but seeks to highlight the necessity of a historical reflection on the institutional setting that facilitated the genocide. If the leaders had the power to prevent or stop the genocide and failed to do so, then they are guilty by definition. But it is important to note that it was not enough for them to want the genocide to happen. Everything needed to be set up in such a way that it could happen. This is why the current discussion on the Guatemalan genocide concerns much more than the imprisonment of a handful of ex-military. It is imperative that the Guatemalan justice system proves that it can find responsibilities for the historic atrocities. However, from an institutional standpoint, it would be good if the trials took place along with the necessary measures to prevent the historical inequalities and exclusion of indigenous communities from being further reproduced. In this sense, it is encouraging that young people are starting to realise that they can join the national discussion without fearing the state repression that affected their parents’ generation. As members of the post-war generations become more politically engaged, there are reasons for optimism.

*Diego Alburez-Gutierrez is a PhD Candidate in Demography and Population Studies at the London School of Economics. His current research looks at the population effects of displacement and excess mortality during the Guatemalan civil war.

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