Jul 8 2019

Resisting Empire in the Age of Facebook

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By Senel Wanniarachchi

Across India, one of the world’s ‘fastest growing economies’, humans from certain Dalit castes work as ‘manual scavengers’ that rummage through and clean other ‘high’ caste people’s dry toilets and carry their human waste. The men often clean the sewers and septic tanks while the women transport the human waste for disposal by carrying piles of excreta in cane baskets. It is estimated that over 600 such sewer workers die every year by inhaling poisonous gases. The figure is more than ten times the number of Indian soldiers who get killed each year.

In stark contrast, the internet is often held as a ‘modern’ hierarchy-less virtual space of limitless possibilities where ‘pre-modern’ categories such as caste, race and gender do not exist. I want to trouble this assumption and explore how the production, maintenance and ‘optimization’ of new media technologies that make some populations thrive and live a fantasy of a ‘post-human’ internet is often constructed through the invisibilization of the bodies and the labour, including the labour of death of (re)colonized others in ‘far away lands’.

The social imaginary that drove colonialism was based on the logic that knowledge emerged in West, and was extended to ‘the rest’ through the generosity of its violent imperial reach. It was believed that the colonized black and brown slaves needed the ‘civilizing project’ of colonialism and as such, colonialism was an inevitable righteous and pious endeavour. Almost all dominant institutions, including the scientific industrial complex, were mobilized to justify this truth claim. Meanwhile, colonial extraction continued to provide the resources that stimulated the Industrial Revolution. Some goods, including various technologies that were produced using the resources extracted off the colonies, were sold back to the colonized subjects, creating vicious cycles of dependency that exist to this day.

Many technology companies that emerge in the West often offshore the labour required for the production and maintenance of their technologies to ‘sweatshops’ in the global South. This is legitimized by invoking a neoliberal logic of ‘optimization’ as the ‘porno-tropics’ provide these companies with ample cheap (often female) labour with ‘nimble fingers and passive personalities’. This gendered, racialized and often orientalized labour is supplemented with the weak politico-legal infrastructures that exist in these countries which are struggling to lift their citizens out of poverty and a myriad of other social issues, some of which themselves are legacies of colonialism. Above all, as Lisa Nakamura says, in her work, Indigenous Circuits: Navajo Women and the Racialization of Early Electronic Manufacture, what many corporations find most attractive about this labour, is it’s disposability, in that ‘they could be laid off at any time’ while ‘their employers could close plants and reopen them in’ the ‘cheapest place possible’.

Shedding light on the labour of indigenous Navajo Women who produced circuits at a Fairchild factory at the Navajo reserve, Nakamura says, ‘some must labour invisibly for others of us to feel, if not actually be, free and empowered through technology use’. She argues that ‘when we look at the history of digital devices, it is quite clear that the burden of digital media’s device production is borne disproportionately by the women of colour who make them’. She suggests that seeing into the histories of these technologies, ‘both machinic and human, is absolutely necessary for us to understand how digital labour is configured today’. However, the labour of these ‘women of colour is almost never associated with electronic manufacture or the digital revolution’.

‘Fairchild was regarded as a pioneer because of its willingness to take risks and to venture onto foreign shores in search of cheap labour … It was such histories of offshoring that helped to launch the PC revolution, which begot the commercial Internet, which begot everything else’.

Furthermore, ‘in Fairchild’s promotional materials and in journalistic accounts’, Navajo workers were always orientalized to be ‘possessing innate racial and cultural traits that could be enhanced or rehabilitated to produce chips accurately, quickly, and painlessly’. Like manual scavenging, chip manufacturing, too ‘is a notoriously dirty business, and workers at Fairchild and other semiconductor manufacturers were falling victim to pollution-related disease’. ‘Ultimately, the Navajo nation failed to benefit economically as much as it had expected from the plant and was left to deal with the detritus and its long-term consequences’.

As with production, there has also been an exponential growth in the offshoring of the labour of maintenance of different technologies to countries in the global South and the same politics and violences embedded in these technologies’ materiality as in the case of the circuits produced by the Navajo women, are also (dis)embodied in their ‘virtuality’. Jacob Breslaw in Moderating the ‘Worst of Humanity’: Sexuality, Witnessing, and the Digital Life of Coloniality points out how ‘an estimated 100,000 people are employed worldwide to engage in the labour of digital content moderation’. This ‘army’ of invisibilized labourers ‘scavenge’ through 500 hours of Youtube video footage, 450,000 tweets, and 2.5 million Facebook posts produced on the internet every minute and ‘scrub’ social media of violent, ‘offensive’, ‘obscene’ and even traumatic content. This is what Adrian Chen calls social media’s ‘Grandma Problem’ — ensuring that your grandmother who has recently joined Facebook never has to see any of the obscene and vulgar images or videos that are being circulated on the platform. These could range from child pornography to violent beheading videos of the Islamic State. However, these content moderators often based in the global South, engage in the affective labour of viewing this content so that your grandmother does not have to. Their labour is invisibilized in order to ensure that the average social media user is able to live the fantasy of utilizing the affordances of a ‘safe’, ‘respectable’ and ‘post-human’ internet where you click a report button and content is taken down. Daniel Wry exposes that suicide rates, among those engaging in this affective labour of content moderation is extremely high, so much so that among the staff ‘almost everyone knows about a case where someone committed suicide because of the work’.

This offshoring of ‘digital waste’ produced by the former colonizers for the witnessing of the (re)colonized is also justified within an exploitative logic of optimization as ‘content moderators in the Philippines often make in a day what some US-based moderators will make in an hour’. The choices of India and the Philippines are also not accidental and have very much to do with both countries’ violent colonial histories. Its colonial past has been invoked in the selection of the Philippines ‘as the country was a former American colony and has maintained close cultural ties to the United States, which content moderation companies say helps Filipinos determine what Americans find offensive’. Meanwhile, the dominance of the English language-based programming languages has led to the concentration of programming jobs in former British colonies such as India.

‘The dominance of English, combined with the overwhelming U.S. predominance in portal sites and the dominance of northern telecommunications companies, all combined with the concentration of capital within the North, makes these enlightened bridging solutions attempts to solidify, rather than reduce, electronic disparities.’ – Wendy Chun

Many technology companies such as Facebook, make their moderators sign strict nondisclosure agreements, barring them from talking even to other employees of the same outsourcing firm about their work. While Facebook Chief Executive Officer Mark Zuckerberg makes speeches at the United Nations about ‘harnessing the power of the internet’ as an enabler of human rights promoting his platform as a champion of the freedom of expression, his company, has threatened to punish its (offshored) labourers with a penalty of €10,000 if they violate the terms of these agreements and speak about their work.

Coloniality was and still continues to be, central to the construction of technology as both a driver of ‘optimization’ and also a site that needs to be perpetually optimized in the name of ideals of ‘growth’ and ‘progress’. The politics and violences embedded in these technologies show us that such a paradigm of ‘progress’ which makes some populations thrive and live ‘comfortable’ and ‘efficient’ lives; rests over the invisibilization of the bodies, labour and even the deaths of others. Those like the Dalit sewage workers, the Navajo women at the Fairchild factory and the Filipino Facebook content moderators, on whose invisiblized labour, this process of ‘optimization’ is built on, are disqualified from our imaginaries and narratives of technological progress and optimization. ‘Looking closer to the metal’ reveals that there are human beings ‘in far away lands’ who engage in labour with real-life consequences including threats to life and health. The labour of their deaths too, is figured aside and invisibilized so the rest of us can continue to live our ‘optimized’ lives. Achille Mbeme coined the term necropolitics to discuss the politics of death that decide which populations should die so the others, could live, or in this case, which populations should die, so that others could live their most ‘optimal’ lives. In order to resist this neoliberal capitalist fantasy of optimization we need to transform our (re)colonial dependences to radical interdependences. It is imperative that such transformations are built on the lived realities of those people on whose labour, these fantasies have been built on. As Chun phrased, digital media after all, is ‘more than screen-deep’.

Senel Wanniarachchi is a student on the LSE Human Rights MSc. He is the co-founder of the Hashtag Generation.

References

Bhattacharjee. S. S. (2014). Cleaning Human Waste: “Manual Scavenging,” Caste, and Discrimination in India. New Delhi: Human Rights Watch.

Breslow, J. (2018). Moderating the ‘worst of humanity’: sexuality, witnessing, and the digital life of coloniality. In Porn Studies. Abingdon: Routledge.

Brunton. F., Coleman. G. (2012). Closer to the Metal. In Gillespie. T., Boczkowski. P. J., Foot. K. A. Eds. Media Technologies: Essays on Communication, Materiality, and Society. Cambridge, MA: MIT Press.

Chen, A. (2014). The Labourers Who Keep Dick Pics and Beheadings Out of Your Facebook Feed. Wired. Retrieved 10 04 2018 https://www.wired.com/2014/10/content-moderation/Chun, W.H.K. (2005). Scenes of Empowerment in Control and Freedom: Power and Paranoia in the Age of Fiber Optics. Cambridge: MIT Press.

Escobar, A. (2018). Designs for the Pluriverse: Radical Interdependence, Autonomy, and the Making of Worlds. Durham : Duke University Press.

Hall, S. (1992). West and the Rest: discourse and power. Oxford: Polity.

Haraway, D.J. (1985). A Cybog Manifesto. In the Socialist Review. London: the Socialist Review.

Mbembe, A. (2003). Necropolitics. In Public Culture, Volume 15. Durham: Duke University Press.

Nakamura, L. (2014). Indigenous Circuits: Navajo Women and the Racialization of Early Electronic Manufacture. In American Quarterly, Volume 66, pp 919-941. Baltimore: Johns Hopkins University Press.

Wray, D. D. (2018). We spoke to the documentary-makers behind ‘The Cleaners,’ the film about the people who take down content after you report it. Vice Global. Retrieved 21 April 2019 https://www.vice.com/en_us/article/ywe7gb/the-companies-cleaning-the-deepest-darkest-parts-of-social-media

Posted by: Posted on by Madeleine Giles

Jul 3 2019

#IAmTheSudaneseRevolution: Unfinished and in Need of International Outrage and Action

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By Sara Sajjad

Image: The Guardian

“The bullet doesn’t kill. What kills is the silence of people.”

In April 2019, a viral image of anti-government protestor Alaa Salah chanting this line whilst standing on a car amidst crowds in Sudan’s capital, Khartoum, captured the fierce spirit of resistance amongst Sudanese civil society.

Crowds of demonstrators, like Alaa had taken to the streets to overthrow President Omar Al-Bashir – a leader that had subjected Sudanese people to a brutal regime during his thirty years of power. His legacy of austerity and economic hardship, severe human rights abuses (including an ICC indictment for war crimes and genocide), and continuous violence towards dissenters and religious minorities had driven Sudanese people to the streets – demanding his resignation. Most recently, a series of protests began in December 2018. They culminated in thousands of demonstrators defiantly enduring tear gas and arrests from security forces, whilst closing in on the military headquarters in April 2019. On the 11th of April, the military announced Bashir had been ousted and his three decades of tyranny had come to an end.

The protestors’ hard-won and historic victory was short-lived however. Bashir’s regime was swiftly replaced by a military junta, the Transitional Military Council (TMC). This was an outcome broadly rejected by the protestors who described the TMC as the same regime under a different leader. Hence, they continued a sit in protest near the military headquarters, led by the Sudanese Professionals Association (SPA) in Khartoum, calling instead, for a civilian led government. Negotiations and peaceful protests quickly came to a halt in early June when the TMC used a paramilitary group called the Rapid Support Forces (RSF) to attack protestors. The RSF had ties to Janjaweed, a notorious armed militia which was complicit in the ethnic cleansing that occurred in West Darfur in 2003-2004, during which they ‘killed, raped and tortured thousands’. Sarah Jackson, Amnesty International’s Deputy Regional Director for East Africa described the RSF’s crackdown on protestors as ‘senseless slaughter’. There have been over 128 people killed, over 700 people injured and more than 70 reported cases of rape.

In spite of this, in the face of rising violence – the United Nations pulled its staff from Sudan and the Security Council has failed produce a comprehensive and robust plan of action. Condemnations from the US and UK have not been matched with action and international outrage is scarce. Meanwhile, violence continues to escalate, bodies are being dumped in the Nile and a bloodied massacre is taking place.

Mirroring Alaa Salah’s protest chants in April – the Sudanese people have refused to be silenced.

Remarkably, despite a ‘near-total’ internet blackout, the relentless civil disobedience of Sudanese civil society, their fatalities and ‘martyrs’, as well as protests and vigils held by the dispersed Sudanese diaspora, have been meticulously recorded on social media. Widespread hashtags such as #IAmTheSudaneseRevolution and #BlueForSudan have taken over Instagram and Twitter. In solidarity, people everywhere are changing their display pictures to blue, the favourite colour of martyr Mohammed Hashim Mattar, who was killed on the 3rd of June whilst protecting two women from shootings. Crucially, the social media response to the crisis in Sudan raises awareness and contests normalisation of the occurring violence.

However, the situation in Sudan is dire and social media outrage is not enough. We must consistently demand action – write to your MP, member of Congress or local representative and if their response is inadequate, write again. Show up in support to local demonstrations and vigils and continue to raise awareness on the internet. The deafening silence of the international community is lethal, and it is up to all of us to urgently challenge it.

Sara Sajjad is a student on the MSc in Human Rights at the London School of Economics and Political Science

Editorial Comment: Given the urgency of the situation in Sudan, and the lack of coverage in mainstream outlets, the editorial team have chosen to publish this op-ed as it carries an important call to action.

Posted by: Posted on by Madeleine Giles

Jun 21 2019

The Geopolitics of Trade Deals and How They Threaten Human Rights

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By David Lawrence 

BRENDAN SMIALOWSKI/AFP/Getty Images

Brexit means that the UK is reviewing its trade policy, hitherto an EU competence, for the first time in over forty years. So far, the Conservative government has not offered any radical overhaul, and has done little to reassure campaigners that post-Brexit trade deals will take human rights commitments seriously. However, one positive sign is that civil society is increasingly cognisant of the relationship between trade and human rights. As Brexit unfolds, this is likely to be a key battleground on which human rights campaigners must hold the Government to account.

Perhaps the most important thing I’ve learned since leaving Parliament to work for the Trade Justice Movement is that trade deals have less to do with trade and more to do with politics. This is an important realisation, because it challenges the assumption that trade deals necessarily increase prosperity, and opens up the possibility that there are winners and losers in our global trading system. Furthermore, the political nature of international trade has important implications for human rights.

No one exemplifies the political nature of trade better than Donald Trump, who recently threatened Mexico with crippling tariffs unless they accepted his demands on immigration. Indeed, the new US-Mexico-Canada trade agreement (which replaces NAFTA), is a reflection of US domestic politics, with protections for industries in parts of the US that voted for Trump. The trade war with China, threatened tariffs on India, and sanctions on Venezuela and Iran illustrate this truth further.

The Economist describes Trump’s approach to trade as a “wholesale weaponisation of economic tools,” which “used to be reserved for times of war”. But this is not a new phenomenon. Over the last forty years, the reality is that the content of trade deals has been shaped by political priorities.

The political nature of trade deals mean that they affect human rights. This can take place in less direct ways; for instance, trade agreements often include requirements for governments to liberalise domestic industries, including public services. Recent research highlights how this can have a disproportionate effect on women’s rights. Similarly, consumer rights and public health can be impacted by trade agreements which increasingly include ambitions to harmonise regulations. In each of these examples, policy which would usually be designed and agreed at the state-level, subject to democratic oversight, is instead designed in the context of international trade deals.

There are also more direct ways in which trade affects human rights. Investor protection clauses in trade agreements (known as ‘ISDS’) allow multinational companies to sue governments in secretive international tribunals for passing policy which damages their profits. These controversial clauses have been criticised by human rights groups such as Amnesty International. ISDS has been used to challenge anti-discrimination legislation in South Africa, has been shown to impact on the rights of indigenous communities in Ecuador and health legislation in Australia. Furthermore, ISDS can lead to ‘regulatory chill’, where governments choose not to introduce rights legislation for fear that it will be challenged.

Ultimately, these problems stem from the fact that trade agreements are not subordinate to international human rights law. While trade agreements tend to have a high degree of enforceability, international human rights agreements, such as the UN Guiding Principles on Business and Human Rights, are difficult for states to enforce. This means that where there is a conflict, the trade interest often wins out.

In the aforementioned case, Canadian firm Bear Creek won US$18 million in compensation because Peru cancelled a mining license after the company failed to obtain informed consent from indigenous land owners, ignoring the ILO Convention 169 on indigenous peoples. US firm Chevron recently challenged Ecuador in a similar case, after domestic courts ruled that the firm’s polluting activities in the Amazon violated human rights.

The disparity between the enforceability of international human rights agreements and trade agreements has led many civil society campaigners to call for a multilateral Binding Treaty at the UN, which would empower states to prosecute multinationals which abuse human rights under the cover of trade deals. The campaign has a long way to go to win the backing of major Western economies, but offers a model for international human rights enforcement which takes trade deals seriously.

In the interim, and as the Brexit debate unfolds, human rights campaigners must take seriously the need to hold governments to account on trade policy.

David Lawrence is Senior Political Adviser at the Trade Justice Movement, which represents 70 civil society organisations campaigning for trade rules that work for people and planet. He studied MSc Political Theory at LSE and previously worked in Parliament.

Posted by: Posted on by Madeleine Giles

Jun 19 2019

Justice Interrupted: The Erosion of Human Rights for Prisoners with Disabilities

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By Ariana Arzani

Historically, societies and states have systematically overlooked, ignored, and wholly denied the human rights of individuals with disabilities. In particular, the punitive nature of penal systems around the world only heightens the social control and abuse prisoners with disabilities face. According to former UN Special Rapporteur on Torture, Manfred Nowak, social norms traditionally held that the existence of a disability justified ‘far-reaching restrictions and interventions by the State into the dignity of human beings.’ This blog post explores the rights of incarcerated individuals with disabilities, and argues that their access to justice violates international legal frameworks.

Disability and the Law

“Access to justice” is a broad concept which encompasses people’s effective access to “the systems, procedures, information, and locations used in the administration of justice.” According to the UN, access to justice is a basic principle of the rule of law, and in its absence, people are “unable to have their voice heard, exercise their rights, challenge discrimination or hold decision-makers accountable.” Equal access to justice for all is particularly crucial for members of vulnerable groups, such as individuals with disabilities.

International human rights law has countlessly established that prisoners and detainees have human rights. Originally adopted in 1955 by the UN Congress on the Prevention of Crime and the Treatment of Offenders, the UN Standard Minimum Rules for the Treatment of Prisoners (SMRs), or Nelson Mandela Rules, constitute the universally acknowledged minimum standards for the treatment of prisoners. The SMRs are broad in scope, addressing issues such as untried prisoners, personal hygiene, discipline, instruments of restraint, and more.

The rights of persons with disabilities is a comparatively new concept in the field of international law, but the bodies of persons with disabilities have been regulated by the state for centuries. Indeed, much has progressed since the internationally-codified “ugly laws” of the 16th through the 20th centuries, which made it illegal for “any person, who is diseased, maimed, mutilated or deformed in any way, so as to be an unsightly or disgusting object, to expose himself to public view.” The Convention on the Rights of Persons with Disabilities (CRPD) was adopted in 2006, and prior to its adoption, very few conventions made mention of the rights of persons with disabilities, or did so in dismissive ways which did not acknowledge the full rights of such groups. For example, Article 5 (1) (e) of the 1950 European Convention on Human Rights accepted that detention of “persons of unsound minds” was an explicit exception to the right to personal liberty.

In contrast, the language of Article 13 (1, 2) of the CPRD discusses access to justice for persons with disabilities in a manner which retains the inherent dignity of persons:

  1. Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings.
  2. In order to help to ensure effective access to justice for persons with disabilities, States Parties shall promote appropriate training for those working in the field of administration of justice, including police and prison staff.

The SMRs and the CPRD emphasize the importance of recognizing that persons with disabilities must enjoy full and effective access to human rights and fundamental freedoms, and both treaties underscore the inherent dignity and value of all persons, be they persons with disabilities or persons incarcerated in prisons.

Heightened Vulnerability for Prisoners with Disabilities

As human beings subject to domestic legal systems, persons with disabilities may be deprived of their liberties for a variety of reasons. However, prisoners with disabilities are entitled to enjoy their human rights on an equal basis with other prisoners, with no discrimination on the basis of their disability or any other grounds, as codified in international law. This following section analyzes the right of prisoners with disabilities to habeas corpus, a fair trial, and access to justice.

A. The Right to Habeas Corpus, a Fair Trial, and Access to Justice

Any person deprived of his or her liberty is entitled to “take proceedings before a court” that will decide on the lawfulness of the detention. All persons “shall be equal before the courts and tribunals,” and have the right to be treated without discrimination on any grounds while also being entitled to procedural equity. One of the minimum guarantees afforded to all prisoners under international human rights law is the right to be informed—in a language they understand —of the nature and charges against them, their right to legal counsel, and to the free assistance of an interpreter if they cannot understand the language used in the court. Such rights are particularly salient for prisoners with disabilities, who face different barriers in the enjoyment of such guarantees of equality. Some detainees with intellectual disabilities may face challenges which arise from the formal language, complex formulations of questions, and use of legal terms during court proceedings, precluding them from enjoying their right to a fair trial. In his 2017 paper published in the Southern California Interdisciplinary Law Journal, author Peter Blanck emphasizes the “non-obvious” nature of many disabilities, such as “cognitive disabilities, intellectual or mental disabilities, traumatic brain injuries, and learning impairments from which inmates cannot effectively read, write, and understand informational documents.” Further, some detainees with sensory disabilities may face serious barriers if no sign language interpreters are available for interpretation, infringing on their rights to habeas corpus, a fair trial, the right to be informed in a language they understand.

In an article published in the International Journal of Prisoner Health, author Jenny Talbot details her research into the UK prison system. Over a period of two and a half years, Talbot consulted professionals and practitioners of the criminal justice system in the UK and conducted interviews with prison staff and prisoners. The study highlighted several significant statistics: 20-30% of offenders have learning disabilities or difficulties that interfere with their ability to cope within the criminal justice system, 25% have an IQ of less than 80, and 20% of the prison population has a “hidden disability” that “will affect and undermine their performance in both education and work settings.”

The main finding in Talbot’s research was that “people with learning disabilities or difficulties are discriminated against personally, systematically and routinely as they enter and travel through the criminal justice system.” Without necessary accommodations, many prisoners with disabilities are denied their civil and political rights as enshrined in the ICCPR, CPRD, SMRs, as well as domestic legal instruments.

B. General prison conditions

Rule 1 of the SMRs states that “all prisoners shall be treated with the respect due to their inherent dignity and value as human beings.” Article 10 (1) of the ICCPR affirms this notion, stating that all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. As codified in the SMRs, states are required to provide detainees in their custody with access to health, exercise, drinking water, personal hygiene, windows and artificial light, and more. An analysis of jurisprudence and case studies demonstrates that such minimum rules for prisoners with disabilities are frequently not met.

In a 2017 article, Megan Gabbard Bruyns examines the accommodations provided to prisoners in South Africa’s correctional centers. She notes that the primary legal framework is found in Section 35 of the South African Bill of Rights which guarantees to “those who have been detained the right to conditions of detention that are consistent with human dignity, including exercise, adequate accommodation, nutrition, reading material, and medical treatment.”

The South African Department of Correctional Services policy states that “within the first six hours of admission” to a prison facility, the needs and risks of prisoners with disabilities must be assessed. Following this assessment, the incarcerated individual must provide the authorities with “all necessary information” related to their disability. This policy is problematic for prisoners with disabilities in several ways: first, the policy forces prisoners to disclose potentially sensitive information in situations with extreme power differences, and second, it assumes that prisoners are able to articulate their disabilities and are aware that they must share them.

Despite the codifications of accommodation policy, financial restraints have forced inmates in South Africa’s correctional centers to share assistive devices, such as wheelchairs. The sharing of assistive devices can cause extreme hardships for prisoners, and forces them to adapt to life without necessary accommodations, including “having to wear diapers because of inability to access a bathroom” or, as stated by a former Department of Correctional Services employee “walk around on [their] hands.” Such policies which do not provide reasonable accommodations for prisoners with disabilities violate both Rule 5 (2) of the SMRs and Article 2 (2) of CRPD. Such treatment is pervasive worldwide, as evidenced by recent Human Rights Watch reports on abuse and neglect of prisoners with disabilities.

Conclusion

Prisoners with disabilities undoubtedly retain human rights while also being entitled to increased rights for accommodation and access to justice. Despite this, states continue to intentionally or unintentionally accept that the presence of disabilities allows for far-reaching restrictions and regulations on the dignity of persons with disabilities. Direct and indirect discrimination also often pockmark the treatment of prisoners with disabilities. Despite these challenges solutions do exist, such as heightened transparency in detention centers and greater ratification of the CRPD Optional Protocol. With these protections, drastic changes can and must be made to account for severe gaps in human rights for persons with disabilities.

References

Albrecht, general ed. Gary L. Encyclopedia of disability. 2006. Thousand Oaks [u.a.]: SAGE Publ. pp. 1575–1576.

Fleischer, Doris, and Zames, Frieda. The Disability Rights Movement : From Charity to Confrontation (2). Philadelphia: Temple University Press, 2011, 1-23.

Human Rights Watch, “I Needed Help, Instead I Was Punished,” 2017.

Jenny Talbot, “No One Knows: Offenders with learning disabilities and learning difficulties,” International Journal of Prisoner Health, Vol. 5 Issue: 3, 2009, 144.

Johns, Robert. “Of Unsound Mind? Mental Health Social Work and the European Convention on Human Rights.” Practice 16, no. 4 (2004): 249.

Loucks, N., Prisoners with learning difficulties and learning disabilities  review of prevalence and associated needs. London: Prison Reform Trust (2007).

Megan Gabbard Bruyns, “Providing Accommodations for Prisoners in South Africa’s Correctional Centres: A Constitutional Contradiction,” Washington University Global Studies Law Review 16, no. 3 (2017), 462.

Mottram, P.G., HMP Liverpool, Styal and Hindley Study Report. Liverpool: University of Liverpool (2007).

Nowak, Manfred, and Adriana Zarraluqui. “When Detainees Have a Disability: Their Rights and Fundamental Freedoms.” International Journal of Prisoner Health 5, no. 3 (2009): 123.

Peter Blanck, “Disability in Prison,” Southern California Interdisciplinary Law Journal 26, no. 2 (Spring 2017): 315.

Rack, J., The incidence of hidden disabilities in the prison population. Egham, Surrey: Dyslexia Institute (2005).

South African Judicial inspectorate of Correctional Service, 2015-2016 Annual Report 54.

Stephanie Ortoleva, “Inaccessible Justice: Human Rights, Persons with Disabilities and the Legal System,” ILSA Journal of International & Comparative Law 17, no. 2 (Spring 2011): 284.

UN General Assembly, Basic Principles for the Treatment of Prisoners, Resolution 45/11, December 14 1990.

UN General Assembly, Convention on the Rights of Persons with Disabilities, Article 13, Section 1.

UN General Assembly, Convention on the Rights of Persons with Disabilities, Article 25, Section d.

UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, Article 9, Section 4.

UN, International Covenant on Civil and Political Rights, Article 14, Section 3.

UN, International Covenant on Civil and Political Rights, Article 10, Section 1.

United Nations and the Rule of Law, “Access to Justice,” un.org, accessed April 2018.

United Nations General Assembly, Standard Minimum Rules for the Treatment of Prisoners, First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, 1955, Rules 8, 9-16, 27-32, 33-34.

United Nations General Assembly, Standard Minimum Rules for the Treatment of Prisoners, 1955, Rules 14, 15, 18, 20, 22, 23, 26, 31.

Posted by: Posted on by Madeleine Giles

Mar 18 2019

Gendered University Attendance Requirements in India: Is there Hope for the Future?

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By Anupriya Dhonchak

In the last year, Indian women have been speaking out about their experiences of sexual harassment and abuse more than ever before as part of the global #Metoo movement. The movement has highlighted the abject failure of the androcentric ‘neutral’ state and societal institutions, which have long provided men the monopoly over ‘objectivity’. There is growing and predictable male anxiety with the umbrella nature of the movement to not just include experiences of sexual harassment, but all that contributes to it; i.e. a systemic culture of violence inscribed on women’s bodies by mutilating their subjective experiences into a male norm. We have set women up to fail within these institutions by using a male standard as the rigid reference, thereby ‘othering’ the female. Legal feminists, such as Martha Fineman, have cautioned against such gender-neutral models, which confine reforms in their ill-considered attempts to construct a more ideal society based on ‘formal equality’. This is especially pertinent in the Indian context of glaring gender inequality. According to the latest UN Gender Inequality Index, India ranks a dismal 127th out of 160 countries, reflecting inequality between men and women based on reproductive health, empowerment, and labour market participation.

I instantiate this through the male norm of an ideal university student, capable of meeting attendance requirements for his courses. The norm applies uniformly as a formal rule of law in India to women, and prevents them from taking university exams if they fail to fulfil minimum attendance requirements, even if such shortages are due to pregnancy. By contrast, many universities in the United Kingdom, including but not limited to LSE, UCL and University of Leeds, adopt a much more flexible and sensitive approach to ensure that female students are not disadvantaged due to maternity.

Indian University Attendance Requirements stacked against women

In India, the University Grants Commission (UGC) regulations govern attendance in universities established or recognised by the government. The Bar Council of India (BCI) Rules apply specifically to law colleges from among such universities. Minimum attendance requirements in Indian universities providing professional legal courses, to which the BCI rules apply, and non-legal courses governed by internal regulations of different universities in line with the UGC regulations, may prevent women from writing their exams or claiming their degrees. This rigid and androcentric academic framework refuses to accommodate women’s needs and distinct burdens.

It was argued by the petitioners in A. Arulin Ajitha Rani v. FTI, Tamil Nadu in 2009, that the denial of maternity leave to students, as distinct from medical leave, offends the provisions of the UN Convention for Elimination of All Forms of Discrimination Against Women (CEDAW) and the Maternity Benefits Act, 1961. The Madras High Court dismissed the arguments holding that educational institutions stand on a different footing from companies. In the UK, similar arguments are precluded by Section 17 of the Equality Act, which expands the prohibition against maternity-based discrimination already existing in the workplace, to also include areas outside of it, including the higher education sector.

In India, a Delhi High Court decision in the 2010 case of Vandana Kandari vs. University of Delhi granted exception to two students who could not fulfil the BCI requirement of 66% attendance due to being in the advanced stages of pregnancy. However, the case was overturned by a Division Bench of the Court in 2011. The Bench held that such leniency could not be exercised in any case whatsoever. This position of the Delhi High Court has come to be regarded as settled law in subsequent decisions. The Delhi High Court in 2011 in Fahad Hassan vs Jamia Milia Islamia University, chided such women as ‘incorrigible students’ while holding that pregnancy could not entitle them any leniency in attendance requirements as it is not an unexpected medical condition based on the Division Bench decision in Vandana Kandari. The Kerala High Court in Jasmine VG v. Kannur University in 2016 prohibited a pregnant woman from writing her B.Ed. examination as she fell short of the minimum 75% attendance requirement as per course regulation. Similarly, the Delhi High Court in  Ankita Meena v. University of Delhi in 2018 barred a second year law student from writing her semester examination for falling short of the minimum 70% attendance requirement, despite the fact that she could not attend most classes as she delivered a child during that semester.

No Reproductive Autonomy: The Production of the ‘Mother’

The judicial construction of pregnancy as a free and informed choice is completely divorced from Indian social reality. Indian women exercise little autonomy over reproductive decision-making and have limited access to contraceptives. At least 50% of Indian women are married before the age of 18 despite the Child Marriage Act, 2006 and only 8% of married adolescents currently use contraception. Marriage, as an exception to statutory rape in India, completely negates the sexual autonomy of married women in refusing to engage in sexual intercourse with their husbands. Furthermore, in patriarchal societies, there is a production of the ‘mother’ immediately when a female is born. This is because of tremendous social pressure on women to bear children in such societies, which define “woman’s nature” based on the ideals of marriage, dutifulness, subservience and nurturing. Any transgression is regarded as deviance, warranting social wrath and course correction to align with the male perspective of female nature and permissible behaviour.

Disparate Impact

Disparate impact as opposed to disparate treatment is a result of ‘unintentional’, ‘indirect’ or ‘negligent’ discrimination due to a seemingly neutral law that disproportionately impacts a protected group. Article 15 of the Indian Constitution prohibits discrimination based on sex inter alia other grounds. Legal feminists have argued for critical contextual engagement beyond the confines of rigid textualism to recognise women’s right against indirect sex discrimination under Article 15(1). Recently, the Supreme Court in four concurring opinions in Navtej Johar, decriminalised consensual same-sex relations in India by reinterpreting sex discrimination after decades of what Kannibaran calls, “judicial meanderings in patriarchal thickets. Justice Chandrachud reasoned that what was important was the effect of the law upon those who were subject to it and not the intention of the legislature to preclude not just formal but also substantive sex discrimination, which may be based on a ground derived from sex.

Facially-neutral laws disciplining pregnancy penalise women for decisions they have little control over, as was argued by the petitioners in Javed vs. State of Haryana. The provision prohibiting anyone from holding public offices in Panchayats in Haryana if he/she bore more than two living children was challenged in this case for its disparate impact on women because of their lack of reproductive autonomy. Similarly, in the case of Rajbala, women without certain educational qualifications were barred from contesting Panchayat elections in Haryana. The goal to incentivize education in that case was commendable, just as increasing academic discipline is for the present argument. However, its effect was to disproportionately deprive women of the opportunity to empower themselves through decision-making in local self-government based on their lack of access to educational opportunities. The Supreme Court’s refusal to accept the arguments in Javed and Rajbala, effectively disenfranchised women, an already marginalised group.

Rhe Supreme Court and Delhi High Court have recognised pregnancy as a matter of fundamental choice, part of personal liberty under Art.21 in Suchita Srivastava and Inspector Ravina vs. UoI respectively. Education is a significant leveller of structural inequalities and the Supreme Court has recognised the right to education as a part of the right to life under Art.21 of the Constitution through a range of judgments. The gender agnostic basis of attendance requirements fails to account for both the right to motherhood and the right to education. It imposes an unconstitutional condition upon women compelling them to forego one fundamental right for another. Pregnancy is a choice that involves at least two persons but the burden of it disproportionately falls upon women solely because of their sex. By failing to classify men differently from women, who may not be able to meet the gender-neutral attendance requirements due to pregnancy, the rules for minimum attendance treat unequal cases equally, thereby violating Article 14 of the Indian Constitution, which guarantees the right to equality.

Compassion and Sympathy

Indian legal feminist Usha Ramanathan argues based on a series of judgements that the Indian judiciary’s compassion and sympathy lie with its expectations of what a ‘Reasonable Man’ would do. Indian Courts have observed that they cannot jeopardise the rule of law out of compassion and sympathy for litigants who would have to repeat another year due to marginal shortages in attendance. However, even the lip service of compassion and sympathy in such cases is based on the shortages being marginal and not the gendered reason for such shortages in case of pregnant women.

As Prof. Dhanda notes, “pregnancy affects women in different ways and must be accommodated in an academic session if the student wants.” Failure to do so is not to deprive women of the privilege of compassion or sympathy but their fundamental right against sex discrimination under Art.15(1) of the Indian Constitution. Following from the ambitious and long overdue promise of Johar, it is pertinent to ensure that pregnant women have a right to exemption from androcentric attendance requirements that disproportionately impact them because such attendance shortages are based on maternity, a factor directly derived from their sex. Penalising women for falling short of these requirements due to maternity constitutes sex discrimination, violates the right to equality and reduces Johar to a parchment decree.

 

Posted by: Posted on by Shakila Khan

Mar 11 2019

A Surveillance State? : A Look At India’s Surveillance Notification

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Written by Amlan Mishra

In December 2018, India’s Home Ministry released a notification which was condemned by the civil society as establishing a ‘surveillance state’.  It empowers ten government agencies to intercept, monitor or decrypt any information generated, transmitted, received or stored in any computer resource, such as social media. The authorisation for such surveillance must be given by the Home Secretary, who works directly under the politically elected government. This has sparked a debate about Indian privacy regime and its discontents. This article will seek to identify the problems of this surveillance regime and situate them in the international context. This contribution argues in favour of a ‘comprehensive privacy law’ drafted by Indian privacy activists.

Proportionality Test

The celebrated General Data Protection Regulation (GDPR) provides a list of reasons, such as national security, for which states can curtail privacy. However, the restrictions must be ‘necessary and proportionate’. This proportionality test warrants that the act which infringes privacy must have a legitimate aim and must be the least restrictive way of achieving that aim. Indian courts have paid lip service to this test. In contrast, US courts’ standard of ‘reasonable expectation of privacy’, protects only a socially accepted standard of privacy. Daniel J. Solove, in his book ‘Understanding Privacy’, argues that reasonable expectations of privacy if based on society’s expectation will be problematic, as most people in the society do not understand the full consequences of the breach of their personal information. Indeed, governments may condition people overtime to accept a huge infringement of their privacy as ‘reasonable’. Solove suggests that a better test is to look at not just how much infringement is reasonable (an empirical test), but how much should be considered reasonable or proportionate (a normative test). The proportionality test meets this higher threshold by allowing only the least possible infringement.  In India,  though courts have accepted the proportionality test, they have occasionally entered into the question of ‘empirical reasonable expectation by society’ (a vestige of the reasonable expectations of privacy test), thus wrongly applying proportionality test and thereby creating uncertainty.

Under the present law, the authorising agency for surveillance is the Home Secretary (both at the centre and the state) who also supervises all law enforcement agencies. The Secretary cannot be expected to apply an impartial judicial mind. In the recently concluded Aadhaar case on the constitutionality of India’s biometric database, the court read down the ‘national sec­urity’ exception which provided access to the biometric database to the investigative agencies on authorisation by the joint secretary. In holding that the joint secretary – a bureaucrat under the government of the day – is not the proper authority to decide whether such access should be given, the court hinted that instead a judicial officer should be consulted. Data collection without effective judicial checks, with only minimal executive oversight falls foul of the proportionality test.

Illegal search and seizure

In India, the right to privacy is recognised as a facet of personal liberty. Yet, courts have held that documents emanating from privacy violations (like illegal surveillance or search and seizure) can be admissible in trial if they are relevant to the case. This dichotomy incentivises investigative agencies to carry out illegal surveillance. In contrary examples, such as the US, if privacy violation is shown, the evidence becomes non-admissible and the trial becomes illegal for violating the fourth amendment. Thus in India, illegal surveillance has a direct impact on the criminal justice system.

Curiously, in India, the courts have imagined privacy as belonging to ‘people’ and not ‘places’ and have held that collection of personal information amounts to a privacy violation irrespective of the location (private or public) of such information (District Registrar v. Canara Bank). This is the opposite of the third-party doctrine prevalent in the US, which does not consider information about a person collected from a third party or public place, a Fourth Amendment violation. Such an approach is wrong because it conceives privacy as confined to four walls of one’s house, without recognising that we may still expect privacy in public or once we have made something known to a select group of people. For instance, a person in a public place may feel his right to privacy violated upon being stared at continuously or overheard. Individuals, not just places are the repository of privacy rights. Thus while the Indian Courts’ privacy jurisprudence is more perceptive, its application is yet to be extended to the criminal justice system or to the cyber laws.

Use Restriction

Indian laws remain scant with reference to the use of collected data. The rule of destroying collected information within nine months is subject to vague exceptions like ‘functional necessity’ and ‘ongoing investigation’. Investigations sometimes run into years with little stopping investigative agencies from information storing and processing by creating digital dossiers or databases on vague pretexts. In September 2018, the ECHR held that the UK’s surveillance database violated privacy as it could reveal ‘an intimate picture’ of individuals by using and processing data that was collected and stored overtime. The Aadhaar case in India, similarly found storage of biometric information by agencies for seven years disproportionate, recognising the problem of unregulated data storing. A group of privacy activists have drafted a comprehensive privacy law for India, which addresses the above mentioned deficits. It stresses independent commissions, judicial and legislative oversight and data use restrictions to uphold privacy. Despite this development, lack of political will has stalled the process of its adoption.

Posted by: Posted on by Shakila Khan

Feb 22 2019

The Real Crisis at America’s Southern Border

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Written by: Elan Schwartz

The Background

On October 13th, a caravan comprised of some 150 migrants from Central America departed from the Honduras with the hope of claiming asylum in the United States. Since its departure, the caravan has gathered nearly 8000 migrants, fleeing persecution, poverty and political instability, to join on its mission. The migrants banded together for protection, hoping that there would be safety in numbers. In reality, the opposite was the case; large numbers created the optics of an ambush on American people, and American sovereignty. Unfortunately for this group, the caravan’s journey coincided with the heat of the 2018 midterm campaigns. It was used as a political pawn by campaigners, most notably President Donald Trump. Known for his hard line on migration, especially illegal migration from the south, Trump strongly emphasized the perceived threat of a ‘migrant invasion’ from South America. Former-President Barack Obama was among commentators who argued that the caravan was being treated as a ‘political stunt’ by Trump in order to instill fear in Americans and rally his voter-base in anticipation of the midterm elections.

President Trump has routinely disregarded the fact that the migrant caravan, which was composed of mainly women and children, travelled to America for the purpose of seeking asylum. Rather, he has used shocking and racist language, framing the group as criminals, economic burdens, traffickers, and rapists. He has led an aggressive, fear-mongering, ‘us vs. them’ crusade, claiming that the caravan threatens the integrity, economy and safety of American people. Trump has made it clear, not only through his inflammatory speech but also through his actions, that he will do everything in his power as President to stop the caravan’s arrival onto US soil. The President even went so far as to dispatch 6000 troops to ‘protect’ the southern border, an act that Senators Ron Wyden and Jeff Merkley, condemned as a “politically motivated mission”.

After losing the Republican majority in the midterm elections, the Trump administration used fears of the migrant caravan in a new way to further his fight for the border wall. The supposed ‘migration crisis’ has been used to first shut down the government for five weeks – the longest in US history – and then more recently to justify calling a ‘national emergency’ so that President Trump can build his wall.

 

Securitization of migrants

The migrant caravan fits into a larger discourse on the securitization of migrants. The securitization theory, which was developed by the scholars of the Copenhagen School, describes the process by which an issue becomes the subject of emergency or crisis. Central to the process of securitization is the securitizing actor, who is usually part of a political elite, and who securitizes an issue by articulating the existence of a threat to the survival of some referent object. In this case, what is conceived as the existential threat is the migrant caravan, and importantly also, what it symbolizes; illegal immigration into the US from the southern border. The referent object is the entity, whose very existence is under threat, in this case; the American public. What Trump determines as ostensibly threatened by the caravan’s arrival is the safety, culture, and economy of the American people. By positioning the migrant caravan as a potential security threat, Trump is able to shift the political space from the normal state of affairs to the realm of ‘emergency politics’. This shift creates impetus for extraordinary political measures and policies to flourish, such as the construction of a $5.7 billion border wall.

It is important to note that for securitization theorists, a security problem does not rely on an underlying objective threat. What Trump is doing is socially constructing a threat, which is not supported by evidence. A report from the Pew Research Centre shows that illegal immigration has been decreasing in America for years, reaching a 12-year low in 2016. The report further claims that the largest source of illegal immigration is not the result of illegal entering, but is rather the result of visa overstays. A 2017 study from the Department of Homeland Security recorded that the border wall was at its most secure stage in history. Not only are there fewer illegal entries into the US, studies have also shown that illegal and legal immigrants commit fewer crimes than native born Americans, and are not prone to terrorist activity. The Drug Enforcement Administration has denounced the theory that a wall will protect America from drug trafficking, reporting that illegal drugs predominately arrive into America through legal ports of entry via plane, boat, or vehicle. Considering all of this, there is little merit to Trump’s claim of a “crisis” caused by either legal or illegal immigration.

 

The real crisis is a humanitarian crisis

Trump’s mischaracterization of the crisis has real humanitarian consequences. The real danger of Trump’s crisis rhetoric is that his Administration’s policies become focused only on deterrents, as opposed to protection. The Trump administration has intensified the use an Obama-era policy known as “metering,” which limits the number of asylum seekers allowed to enter the US each day. The consequence of this policy is that migrants, many of whom have travelled for months, have been stopped short of the legal entry port and forced to wait in Mexico. Some migrants can wait for months in this limbo, unable to claim their legal asylum right by virtue of not being permitted onto US ground. The policy is also encouraging the smuggling of those who are most desperate to seek safety in the US.

Furthermore, there is also a lack of funding going toward the proper housing of asylum-seekers and migrants once they have arrived within America’s borders. Two Guatemalan children, 7 and 8 years of age, have died while being detained by US border custody in the same month. A potential reason for their deaths can be attributed to a study by the Centre for Migration Studies, which has reported that immigration officials systematically deny medical assistance to migrants who speak indigenous languages. Arguably the most despicable migration policy to date, is the ‘zero tolerance policy’ that operated last summer. Before the policy was reversed in late June after massive public outcry, 3000 children were forcibly separated from their parents while attempting to migrate into the US.

The youngest women to serve in Congress, Alexandria Ocasio-Cortez, has called out Trump for failing to hold up Article 14 of the Universal Declaration of Human Rights; the right to asylum. Speaking on The Rachel Maddow Show, Cortez stated, “The President should not be asking for more money to an agency that has systematically violated human rights; the President should be really defending why we are funding such an agency at all.” President Trump is correct; there is a crisis at the US border, but it is not a crisis of national security. This is a humanitarian crisis; one that has been amplified by the Trump Administration’s policies. Family separation, the metering policy, tear-gas attacks, children dying in border custody, squalor conditions in both American detention centers and in the waiting zone of Mexico, and of course, the systematic violation of the right to asylum are the issues at stake. A border wall does not solve any of these issues, so why should the Democrats give into Trump’s plea?

Asylum seeking is not a crime; it is a human right protected under national and international law. Yes, border security is a sovereign right, but it should not be at the expense of the right to asylum, nor should these issues be conflated. There is no doubt that the increased numbers of asylum-seekers make it more difficult for the Administration to assess the legitimacy and validity of the claims. Better technology and human resources may make the process of vetting more precise and efficient, but debates over a border wall do nothing but distract from the real situation at hand. Speaking at a lecture hosted by the LSE’s European Institute, Dimitris Avramopoulos, European Commissioner for Migration, Home Affairs and Citizenship, stated, “it is not by building walls that we become safer; we only become more isolated.” The American government needs to invest in more efficient, just and humane measures to house and treat migrants as they wait for their claims to be processed. We must not be isolated from nor blind to the real crisis that is at stake.

 

References:

Balzacq, T. & Guzzini, S., 2015. Introduction: ‘What kind of theory – if any – is

securitization?’ International Relations, 29(1), pp.97–102.

Huysmans, Jef ,1995. ‘Migrants as a Security Problem: Dangers of “Securitizing” Societal

Issues’, in Robert Miles & Dietrich Thranhardt, eds, Migration and European

Integration: Dynamics of Inclusion and Exclusion . London: Pinter (53–72).

Waever, O. (2011) ‘Politics, security, theory’, Security Dialogue, 42(4-5) pp. 465-480.

Posted by: Posted on by Shakila Khan

Feb 11 2019

‘America First’ and ‘Human Rights with Chinese Characteristics’: 2019’s Biggest Ideological Challengers to the International Human Rights Framework

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Written by Johnny Patterson

Reuters

Since the fall of the Berlin Wall, human rights and liberal democratic values have had a position which verges on hegemony in global institutions such as the United Nations and the International Criminal Court. By the turn of the century, a few pariah states had rejected this consensus, but optimistic commentators perceived progress towards a flourishing world of liberal democrat states, whose order was maintained by its major patron: the USA.

Two ideologies pose a major challenge to the status quo. ‘America First’ treats human rights as a convenient instrument but does not recognise their inherent value. Meanwhile, China’s ‘human rights development path with Chinese characteristics’ is providing increasing cover for dictators who commit atrocity crimes in the international arena. This article looks to unpack how these ideologies might unwind international human rights norms.

Human Rights with Chinese Characteristics

On 6 November 2018, China’s Vice Foreign Minister Le Yucheng took his seat for China’s third Universal Periodic Review by the Human Rights Council. As the leader of China’s UPR delegation, he took the opportunity offered by his speech to promote the Chinese government’s new approach to human rights, its “human rights development path with Chinese characteristics” (Worden, 2018).

The Universal Periodic Review presents an opportunity for every United Nations member state to comment on the human rights situation of other nations, and in China’s cycle the bulk of member states took the opportunity. The most noteworthy development, and a sign of a global diplomatic shift, was the fact that praise for China’s “human rights development path” from sycophantic allies outweighed the critical comments from other observers. This is concerning given the last four years have seen an authoritarian turn in China, an unprecedented crackdown on human rights, the establishment of mass detention camps in Xinjiang, and the erosion of freedom in Hong Kong. In a press conference following the review, Assistant Foreign Minister Zhang Jun claimed that more than 120 countries supported China’s path during the review (Xinhua, 2018).

Perhaps most striking is the response of Organisation of Islamic Cooperation (OIC) countries. The evidence suggests that there are up to 1 million Uighur Muslims in camps for “re-education”. Cast in double-speak by Beijing as “vocational training centres”, these camps use the cover of the threat of terrorism to justify what is close to, if not already, the ethnic cleansing of Uighur Muslims. A 2018 Human Rights Watch report shows evidence of: “mass arbitrary detention, torture, and mistreatment of Turkic Muslims in Xinjiang and details the systemic and increasingly pervasive controls on daily life there. These rampant abuses violate fundamental rights to freedom of expression, religion, and privacy, and protections from torture and unfair trials”.

Where the OIC countries are rightly vocal about the mistreatment of Palestinian and Rohingya Muslims, here we have deafening silence, or obsequious praise. In an advanced question to China before the review, Pakistan asked: “China has made tremendous achievements in implementing the right to development. Could China share relevant experience?” (Worden, 2018)

This support reflects the fact that there is a growing bloc of ‘like-minded’ countries in the United Nations who find Western-led insistence on the universality of human rights wearying and appreciate China’s no-strings-attached approach to diplomacy. Their abundant promises of development loans through the ‘one-belt, one-road’ initiative also greases the wheels, leading world leaders to turn the other way.

Human Rights with Chinese Characteristics might be best seen as a euphemism for ‘live and let live’. Rather than being a serious attempt to embrace the Universal Declaration of Human Rights, it poses a serious threat to the integrity of the international human rights framework. The Human Rights Council is dominated by leaders with a greater affinity to China’s path than the ICCPR, and international leaders increasingly have no shame about flouting international human rights norms. The efficacy of the United Nations and the International Criminal Courts relies on these international norms carrying soft power and shame, thereby acting as a motivator for states to change their actions. If there is not a rear-guard action from proponents of liberal human rights values, it seems probable that in the twenty-first century these norms will become merely a Western value-system, rather than carrying global weight.

 

America First Diplomacy

Photo: Gage Skidmore

At a time when multilateralism and international rights norms are facing arguably their greatest challenge since the fall of the Berlin Wall, the nation which has historically most vocally backed these values is stepping away from the table. America First diplomacy has arrived at the wrong time.

When Donald Trump invited North Korean defector, Ji Seong-ho, to attend the State of the Union Address in January 2018 (Watkins, 2018), and raised concerns about crimes against humanity in his speech, there was hope in the activist community that great power tensions might shine a stronger spotlight on the atrocity crimes of the Pyongyang regime.

By June 2018, it was clear that these hopes were misplaced. With Trump and Kim Jong Un’s bromance blossoming, human rights concerns had been shelved and forgotten by the media and politicians alike. Trump was calling Kim a ‘very smart guy’, ‘a great negotiator’, and when pressed about the actions of the world’s most draconian dictator, he brushed off Kim’s regimes actions by saying ‘lots of people’ have done bad things (White, 2018).

Designed by the Master of the Deal himself, America First diplomacy uses human rights when it suits their national self-interest and ignores them otherwise. So Mike Pompeo invoked human rights to defend US Iran policy (Slavin, 2018). but when Jamal Khashoggi was murdered, the President issued a statement titled “on Standing with Saudi Arabia,” in which he devoted the first two paragraphs to attacking Iran and avoided blaming Mohammad Bin Salman (White House, 2018).

Trump’s administration rightly slammed the Chinese for placing more than 1 million Uighur in re-education camps, but has consciously avoided mentioning North Korea’s far older, more brutal and well-established prison camps when they stopped being instrumentally valuable in achieving American interests. When Trump promised to override the rule of law and intervene in the case of a Huawei executive facing fraud charges in the US, he was saying that trade deals matter more than the rule of law (Baynes, 2018). Evidently, American prosperity matters more than American values.

Although historically their policies have often been hypocritical, with realpolitik triumphing over principle, at least America’s public priority has been the promotion of liberal democratic values for the sake of global prosperity.

America First diplomacy is a departure from this. It involves a new statement of values – that American economic and geopolitical strategic interests justify overriding the rule of law and ignoring the truth. For nations sceptical of human rights, this is confirmation of everything they’ve feared. Furthermore, it is a boon for propaganda which states that human rights are merely a Western imperialist construct designed for the perpetuation of Western power.

America has long been the world’s guarantor of international human rights and the liberal democratic order. This is a position of enormous soft power, which they are in danger of losing if the current ‘America First’ line becomes entrenched. Human rights advocacy could be a casualty of these developments, as a major patron of human rights values is disengaging and in danger of losing credibility.

This is seen at the United Nations where the United States vacated their seat at the Human Rights Council on the basis that it is a “cesspool of political bias” that makes a “mockery of human rights” (Borger, 2018). There is no denying that the Human Rights Council could better protect certain rights, and that some of its members hardly have glowing rights records themselves, but American rejection of multilateralism just offers others the chance to dominate international discussion.

Conclusion

The international human rights framework has not faced a greater challenge since the fall of the Berlin Wall. The combination of America First Diplomacy and Human Rights with Chinese Characteristics pose an unprecedented threat to the viability of the international human rights framework. There has therefore never been a more important time for activists to make the case for the human rights framework. In the United States, it is vital that liberals on both sides of the political divide stand-up for American values or else risk seeing the legacy of a century of American soft-power and diplomacy lost. Elsewhere nations need to ally to defend the human rights framework together. More locally, populist economic nationalism in the America First ilk must be warded off or else risk derailing the credibility of nations which have stood for liberal values. It is vital that pro-human rights nations stand for their values. If the ideologies outlined here succeed, the international diplomacy of the twenty-first century will take on a very different tone. The international human rights framework could easily be a casualty.

 

Reference List

Baynes, C. 2018, December 12. “Meng Wenzhou: Trump could intervene to help secure China trade deal.” Independent. https://www.independent.co.uk/news/world/americas/us-politics/meng-wanzhou-huawei-arrest-trump-china-trade-war-deal-iran-sanctions-canada-court-a8679376.html

Borger, J. 2018, June 19. “US quits UN human rights council – ‘a cesspool of political bias’”. The Guardian. https://www.theguardian.com/world/2018/jun/19/us-quits-un-human-rights-council-cesspool-political-bias

Human Rights Watch. 2018. “Eradicating Ideological Viruses: China’s Campaign of Repression Against Xinjiang’s Muslims”. https://www.hrw.org/report/2018/09/09/eradicating-ideological-viruses/chinas-campaign-repression-against-xinjiangs#

Slavin, B. 2018, July 23. “Pompeo invokes human rights to defend administration’s Iran policy.” Axios. https://www.axios.com/pompeo-invokes-human-rights-to-defend-administrations-iran-policy-447ac81b-ccba-4cb5-bd18-a537fca8768a.html

Watkins, E. 2018, January 31. “North Korean defector attends State of the Union.” CNN. https://edition-m.cnn.com/2018/01/30/politics/north-korean-defector-ji-seong-ho-sotu/index.html

White, J. 2018, June 14. “Donald Trump calls Kim Jong-un ‘very smart’ as he plays down North Korean leader’s human record.” Independent.  https://www.independent.co.uk/news/world/americas/us-politics/donald-trump-kim-jong-un-very-smart-human-rights-north-korea-a8397906.html

Worden, A. 2018. “China deals another blow to the International Human Rights Framework at its UN Universal Periodic Review”. China Change. https://chinachange.org/2018/11/25/china-deals-another-blow-to-the-international-human-rights-framework-at-its-un-universal-periodic-review/

White House. 2018, November 20. “Statement from President Donald J. Trump on Standing with Saudi Arabia”. https://www.whitehouse.gov/briefings-statements/statement-president-donald-j-trump-standing-saudi-arabia/

Xinhua. 2018, November 10. “Human Rights Development Path with Chinese Characteristics completely correct: Chinese official.” http://www.china.org.cn/world/Off_the_Wire/2018-11/10/content_71486914.htm

Posted by: Posted on by Shakila Khan

Feb 5 2019

Russia’s new strategy in Georgia: Creeping Occupation

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By Tiko Khatchvani 

Fence dividing South Ossetia from Georgian controlled territory, Photo: Monica Ellena

The past decade’s events in Georgia and then in Ukraine have exposed Russia’s attitude towards independent post-Soviet states. Unfortunately, the western response to Russian aggression in Georgia in 2008 failed to prevent a repeat of the same scenario in Ukraine six years later. In fact, the conflict between Russia and Georgia named as ‘Europe’s forgotten war’ (Harris, 2018) by media was effectively the dress rehearsal for the annexation of Ukraine’s Crimea Peninsula in 2014 (Pasha-Robinson, 2017).

About the conflict

The Russia-Georgian conflict over the regions of Abkhazia and South Ossetia goes back to 1990s, the period of the dissolution of the USSR. At the time, the Russian side actively backed the separatists but still formally recognized the two regions as integral parts of Georgia. In summer of 2008, shortly after the Bucharest summit where Georgia was promised NATO membership (NATO, 2008), the relations between Georgia and Russia became especially tense and resulted in a 5-day war, known as the ‘August war’. The military operations were terminated following the ceasefire agreement initiated by the French President, Nicolas Sarkozy, then holding the rotating European Union presidency.  Following the conflict, reportedly 30, 000 persons faced long-term displacement (UNHCR, July 2009, p. 5)

Ignoring the norms set out by International Humanitarian and Human Rights Law and the provisions of the six-point ceasefire agreement (UN Department of Political Affairs, 2014, p. 142), the Russian side occupied the South Ossetian territory, and recognised the independence of South Ossetia together with another breakaway region of Georgia – Abkhazia. The international community overwhelmingly recognizes the two territories as part of Georgia.

“The Borderisation” of occupied territories

The Russian Federation has used diverse military, political and informational tactics to further their goals in these unsettled conflicts. One of the newest methods used in Georgia is the so-called ‘borderisation’ (Kakachia, 2018) of occupied territories. ‘Creeping occupation’ (IDFI, 2015) became the unstoppable everyday reality, as Georgia with its limited resources is unable to respond to the daily annexation of its territory without aggravating the situation.  The process involved the violation of the human rights of the local population. As Amnesty International in its latest report states ‘Russian forces and de facto authorities in the breakaway regions of Abkhazia and South Ossetia continued to restrict movement across the de facto border, briefly detaining and fining dozens of people for “illegal” border crossing. The increased fencing along the administrative boundary lines continued to adversely affect the rights of local residents, including the rights to work, food and an adequate standard of living, owing to the loss of access to their orchards, pasture and farm land’ (Amnesty International, pp. 172-173). Alongside the arbitrary seizure of properties and kidnapping, the process is accompanied by grave violations include physical assaults and in few cases of killings.

The ‘demarcation’ process is mainly proceeded with the use of metal-wire fences. According to Georgian allegations, in a number of cases Russia illegally changed the occupation line further into Georgian territory. In July, 2017, they took 10 hectares near the village Bershueti, located in the heart of the country (Agenda.ge, 2017). While the attempts by the Georgian authorities to put this issue on the international agenda and call for action only succeeded in eliciting ineffective declaration of concerns by western partners, the suffering of the local population facing constant insecurity continues to be very problematic.

Human Rights abuses at the borders

Since the initiation of the demarcation process, there have been dozens of cases when Russian border forces detained the local citizens. Last year, the officers detained a high number of local Georgians near the so-called border. Sometimes the victims of arbitrary detentions are minors.  On the 30th of June 2018, the occupying side has detained a 16-year-old boy who was shepherding the cattle in the Village Chvrinisi. There was a similar incident in August when an old man in the search of firewood, was caught as well (Rustavi2, 2018). The official reason in both cases was illegal crossing of the ‘border’.

According to the report of State Security Service of Georgia, in 2017 the number of citizens illegally detained by Russia-controlled border guards at the South Ossetian occupation line was 126 (Agenda.ge (1), 2018).

With the ‘borderisation’ process, large pieces of lands in the ownership of Georgian peasants are taken one after another.  In 2016, the occupying force gave the Chilindrishvili family just five hours to harvest the barley. The permission on that action was obtained with the use of a hotline supported by the EU monitoring mission (EUMM – European Union Monitoring Mission in Georgia, 2016). Russian controlled border officers strictly supervised the harvest process and installed fences afterwards, enclosing the whole cornfield.

However, one of the most discussed cases in Georgia, which led to a period of national mourning, is the murder of Georgian former military officer Archil Tatunashvili.  35-year-old Georgian Tatunashvili died in custody, in occupied South Ossetia on February 23, 2018. His body was returned to his family for burial just a month later. An autopsy revealed that the corpse was missing several internal organs (Agenda.ge, 2018), which made it difficult to clarify the exact reason of death. However, expert judgement shows Tatunashvili sustained over 100 injuries (The Prosecutor’s Office of Georgia, 2018) indicating that he was tortured before his death. Tatunashvili’s case is part of a new inter-state application being lodged by Georgia against Russia before the European Court of Human Rights (ECHR, 2018). While the international community continues to ‘firmly support the sovereignty and territorial integrity of Georgia within its internationally recognised borders’ (Kocijancic, 2018), the above mentioned cases reveal the necessity for the immediate creation of effective international mechanisms.

 

Further Reading:

Amnesty International, Civilians in the aftermath of war; The Georgia-Russia conflict one year on, 2009

References

Agenda.ge (1). (2018, April 4). Security Service: 178 Georgians illegally detained for crossing occupation line in 2017. Retrieved from http://agenda.ge/en/news/2018/750

Agenda.ge. (2017, July 4). Creeping occupation: Russia advances 10 hectares into Georgian territory. Retrieved from http://agenda.ge/en/news/2017/1398

Agenda.ge. (2018, April 17). Lawyer says Tatunashvili’s organs were removed. Retrieved from http://agenda.ge/en/news/2018/832

Amnesty International. (n.d.). Report 2017/2018, The State of the World’s Human Rights: Georgia. Retrieved from https://www.amnesty.org/en/documents/POL10/6700/2018/En/

ECHR. (2018, August 31). Press Release: New inter-State application brought by Georgia against Russia. doi:file:///H:/New%20inter-state%20application%20brought%20by%20Georgia%20against%20Russia%20(1).pdf

EUMM – European Union Monitoring Mission in Georgia. (2016, August 26). Georgian media note successful use of the Hotline. Retrieved from https://www.eumm.eu/en/press_and_public_information/features/5602/?year=2016&month=7&print=yes

Harris, C. (2018, August 8). Europe’s forgotten war: The Georgia-Russia conflict explained a decade on. Retrieved from https://www.euronews.com/2018/08/07/europe-s-forgotten-war-the-georgia-russia-conflict-explained-a-decade-on

Human Rights Watch. (2009). Up in Flames, Humanitarian Law Violations and Civilian VIctims in the Conflict over South Ossetia. Retrieved from https://www.hrw.org/sites/default/files/reports/georgia0109web.pdf

IDFI. (2015, October 26). Creeping Occupation of Georgia Following the 2008 War. Retrieved from https://idfi.ge/en/changed-borders-of-georgia-after-occupation

Kakachia, K. (2018, April). How the West Should Respond to Russia’s “Borderization” in Georgia. Retrieved from http:/www.ponarseurasia.org/sites/default/files/policy-memos-pdf/Pepm523_Kakachia_April2018.pdf

Kocijancic, M. (2018, April 4). Statement by the Spokesperson on the ”A Step to a Better Future” Peace Initiative by the Georgian Government. Retrieved from https://eeas.europa.eu/headquarters/headquarters-homepage_en/42446/Statement%20by%20the%20Spokesperson%20on%20the%20”A20Step%20to%20a%20Better%20Future%22%20Peace%20Initiative%20by%20the%20Georgian%20Government

Larsen, J. (September 2017). Deterring Russia’s Borderization of Georgia. Georgian Institute of Politics. Retrieved from http://gip.ge/uploads/2017/09/Commentary18.pdf

NATO. (2008, April 3). Bucharest Summit Declaration issued by the Heads of State and Government participating in the meeting of the North Atlantic Council in Bucharest on 3 April 2008. Retrieved from https://www.nato.int/cps/us/natohq/official_texts_8443.htm

Pasha-Robinson, L. (2017, July 11). Russia quietly moves border hundreds of yards into occupied Georgia. Retrieved from https://www.independent.co.uk/news/world/politics/russia-georgia-border-south-ossetia-move-hundreds-yards-occupied-nato-putin-west-ukraine-a7835756.html

Rustavi2. (2018, August 28). Occupants kidnap another citizen of Georgia. Retrieved from http://web2.rustavi2.ge/en/news/112202

The Prosecutor’s Office of Georgia. (2018, June 6). The Prosecutor’s Office of Georgia has aggravated the qualification of the Archil Tatunashvili’s case. Retrieved from http://pog.gov.ge/eng/news?info_id=1674

UN Department of Political Affairs. (2014). Repertoire of the Practice of the Security Council: Supplement 2008-2009. New York: United Nations. Retrieved from https://www.oecd-ilibrary.org/docserver/865bd7f7-en.pdf?expires=1547922032&id=id&accname=ocid71015720&checksum=7FDC19A5C2C9CD5E8056FF47934E34E8

UNHCR. (July 2009). Protection of Internally Displaced Persons in Georgia: A Gap Analysis.

Posted by: Posted on by Shakila Khan

Feb 6 2018

Racism is at the heart of Europe’s approach to asylum and immigration

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By: Hsiao-Hung Pai*

Modou was shaking with anger when he called me. “Where is humanity?” he said. He was 17, from Gambia, and has been living in a camp in southern Sicily for nearly two years. He was crying for a fellow migrant, Alagiee Bobb, a 19-year-old, also from Gambia, although they’d never met. Alagiee was shot by Carmine Della Gratta, the 43-year-old manager of his camp in Gricignano d’Aversa in Casertano, 15km north of Naples.

The camp hosted 159 asylum seekers back in November and was known to be poorly equipped. There was not even heating in the winter. Alagiee was among those protesting against the living conditions for several days before the shooting, which happened during a confrontation that escalated. “He was shot in the mouth twice,” Modou said, desperately upset.

Although the manager had been arrested for attempted murder, and four migrants had since then run away from the camp, fearing that their lives were in danger, there was barely any news in the mainstream press about the shooting. Modou only heard from a friend that Alagiee had been hospitalised in Naples. The Italian local news emerged in December that Alagiee was discharged from hospital, although he still had a bullet stuck in his throat and could barely swallow fluids. According to doctors at the hospital, “it would be more dangerous for him to remove the bullet than to leave it there.”

Migrants protested in the street showing solidarity for Alagiee. Only after intervention by the police, migrants removed barricades made with rubbish and returned to the camp. But apart from the response from migrants in camps, the outside world didn’t seem to know or care. Imagine a white man being shot by the person responsible for his care not making news headlines.

I’ve found the silence deafening. It makes me think about the European perspective towards “outsiders”, i.e., people who flee wars, conflict, poverty and destruction which are consequences of imperialism and the unequal world in which we live.

Throughout my journey when researching my book Bordered Lives, I have seen, time and time again, the European apathy that stems from a hierarchy of thought where lives are valued differently according to ethnicity and where the suffering of some is seen as very much less worthy of attention.

In the middle-class liberal circles, the “refugee crisis” continues to be the media term by which everyone thinks about displaced people in the world. What underlines the mainstream “refugee crisis” narrative is the White Saviour assumption of “us” and “them”, the displaced people being the “problem” for “us in Europe” to find solutions.

This hierarchy in which lives are valued is a colonial legacy that sees the formerly colonised as the less worthy human beings, who are considered to be less deserving of a decent life. Thus, while white Europeans who migrate and live abroad are described as “expats”, those from the Global South are anything but. To keep out the unwanted, Europe establishes the distinction between “those who flee wars” and “those who want a better life”, i.e. the false distinction between refugees (“the passive, apolitical victims who are forced to move”) and “economic migrants” (who are “able to choose to move”). Both are, in the European policy mindset, alien others. The idea that people’s circumstances can either be categorised politically or economically renders them not quite like “us” (= not quite human). These are precisely the “racial assemblages” phrased by Alexander Wehelyie, a U.S. professor of African American Studies, in which humanity is disciplined and stratified into “humans, not-quite-humans, and non-humans”.

At dinner parties among liberal circles, you may hear expression of such sentiment that somehow certain people’s suffering is not sufficiently terrible to warrant demands of their rights and protection of their wellbeing. When discussing living conditions in reception camps in Europe, I’ve had white liberal friends say to me, “But that’s not really that bad,” “Well, at least they’re not living in a tent,” “But at least they’re fed.” Well, why not try to think whether you or your children could live in those conditions?

If the answer is no, then perhaps the problem is this European attitude that sees some as the undeserving Third World poor, whose suffering is seen as self-inflicted. This approach lies at the centre of Europe’s asylum and immigration policy-making and public discourse. The under-17-year-olds who were trafficked into Libya for labour exploitation and eventually escaped on a boat to Europe; The Gambian and Eritrean boys and girls who have been waiting endlessly for decisions on their future and are wasting away their adolescent years inside the reception shelters of Sicily and all over Italy; The Afghan and Iraqi youths who sleep in the streets of Paris because this capital city of one of the wealthiest countries on earth couldn’t cope with them; the Kurdish boy, and many others before and after him, who died in their attempt to cross the Channel to Britain. Where are they on your humanity ladder?

The sources for this article are based on the author’s fieldwork for her book, Bordered Lives: How Europe Fails Refugees and Migrants, published on 18 January by New Internationalist.

 

Author Bio:

Hsiao-Hung Pai is a journalist and author of Chinese Whispers: The True Story Behind Britain’s Hidden Army of Labour (2008), shortlisted for the Orwell Book Prize 2009; Scattered Sand: The Story of China’s Rural Migrants (2012), winner of the Bread and Roses Award 2013; Invisible (2013), Angry White People (2016) and Bordered Lives: How Europe Fails Refugees and Migrants (2018).

Posted by: Posted on by Heidi Elfriede El-Megrisi Tagged with: , ,