Rights Wire

The Human Rights Blog of the Leitner Center for International Law and Justice

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Collective punishment: home demolition in Israel and Occupied Palestine

By Meredith McBride

On June 8, two Palestinian men from Yatta, a small town near Hebron in the occupied West Bank, opened fire on a café in Tel Aviv, killing four Israelis. On June 9, the Times of Israel reported that the homes of the men’s  families were marked for demolition by the Israeli Defense Forces  (IDF).

Khaled Mahamra, one of the alleged shooters, was in third grade in 2002 when the IDF destroyed his family’s house. According to Israeli newspaper Haaretz, the IDF demolished the home where Khaled Mahamra’s extended family lived in response to accusations that his uncle, Taleb Mahamra, had killed Israelis. In October 2002, as family members looked on, the IDF launched a missile at the three-and-a-half story house while Taleb Mahamra was trapped inside by bulldozers.

The IDF completed the demolition of the Mahamra home in 2003. Mohammad Mahamra, Khaled Mahamra’s cousin who was also detained for the attack in Tel Aviv, watched on as the IDF arrived at 1:00 a.m., surrounded the home with tanks, and ordered the family out, not allowing them to remove their personal belongings before demolishing the home. The explosion destroyed documents, clothing and schoolbooks, and left the family homeless.

The Mahamras’ story raises questions about the punitive nature of home demolitions and whether they comply with local and international law.

This year is the 50th year that Palestinians have been living under Israel’s military occupation. Israeli Military Order 378  grants the military courts broad jurisdiction to apply military law to both occupants and non-occupants of the Occupied Palestinian Territories, regardless of where an alleged offense took place.  In practice, however, outside of IDF disciplinary proceedings, military law is applied only to persons of Palestinian origin. Occupants of Israel’s more than 100 settlements within the Occupied Territories are governed by Israeli civil and criminal law rather than military law.

In the Yale Journal of International Law, Dan Simon wrote that home demolitions can be divided into three categories: administrative, military-need, and punitive. Administrative demolitions are granted by Articles 43 and 55 of the Hague Regulations to restore and maintain “public order and safety” while Article 53 of Geneva Convention IV grants that a demolition can be used to secure an area in an operation that requires the use of military force.

A third type of demolition, the one used by the IDF, is a punitive measure taken against the family members of Palestinians who have allegedly committed crimes. Israel’s use of home demolitions against innocent persons in the Palestinian Territories, East Jerusalem and the Gaza Strip has been documented and discussed extensively by academics, NGOs, and the press, and even prompted the creation of NGOs such as Israeli Committee Against House Demolitions (ICAHD).

According to the ICAHD, such demolitions do not narrowly target suspects, but rather are a form of collective punishment. One report documents an instance when a suspect’s rented home was demolished, which suggests that demolitions are not limited to homes owned by the suspect. The report also notes one demolition of a suspect’s father’s home, which displaced dozens of extended family members, including young children, who were left homeless as a result of the demolition. After a home is destroyed, the IDF confiscates the land, and prevents the family from rebuilding on it. ICAHD estimates that since 1967, total of around 48,038 Palestinian structures have been demolished in East Jerusalem, the West Bank and Gaza Strip, using a variety of justifications.

LEGISLATIVE PRECEDENT

Israel justifies its use of home demolitions under military law, a colonial holdover from the British mandate, which governed Palestine from 1923 to 1948 and authorized punitive demolitions of Arab homes in the 1936-39 Arab Rebellion. According to Israel, regulation 119 of Britain’s Defense (Emergency Regulations), which granted Britain the authority to demolish structures, was never repealed when the territory came under Israeli power, and now applies to the whole of the West Bank. The United Kingdom says that it repealed the Regulation.

Many human rights bodies and organizations have expressed that Israel’s policy of home demolitions is illegal under international human rights mechanisms to which Israel is a signatory. Examples include violations under Articles 12 and 17 of the International Covenant on Civil and Political Rights protecting freedom of movement and the family, respectively.  Freedom from all forms of violence and right to health and welfare listed in numerous Articles in the Convention on the Rights of the Child and in Article 11 of the International Covenant on Economic, Social and Cultural Rights, protecting the right to adequate housing and living conditions.

Protection from arbitrary deprivation of property is protected by the Universal Declaration of Human Rights, which some argue has the status of binding customary law. The UN Committee against Torture also expressed regret over Israel’s resumption of “punitive” house demolitions in the Gaza Strip and East Jerusalem when it reviewed Israel’s policy in 2009 and stated that Israel should stop these violations of international law. The Committee also noted in its 2016 review that Israel’s policy violated Article 16 of the Convention Against Torture, which expressly prohibits cruel and unusual punishment.

Citing international humanitarian law, Human Rights Watch has called house demolitions “a war crime” that collectively punishes innocent families, often women, children, and the elderly that rely on the family home. The Hague Regulations of 1899 in Article 50 expressly prohibit general penalty, pecuniary or otherwise from being inflicted upon “the population on account of the acts of individuals for which it cannot be regarded as collectively responsible.” Collective punishment is also prohibited in Israel’s Manual on the Laws of War.

Israel has not ratified the Rome Statute of the International Criminal Court (ICC) , which in article 8(2)(a)(IV) prohibits extensive destruction of property, defining it as a war crime.  In April 2015, Palestine became a party to the ICC, and  lodged a complaint  against alleged crimes committed “in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014.” These crimes include home demolitions.

Geneva Convention IV also provides protections for persons who “find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.”  Though Israel had intended to apply Geneva Convention IV to the Palestinian Territories after the beginning of its occupation in 1967, political influence encouraged an ideology that the West Bank was rightfully part of Israel, and was ‘liberated’ rather than ‘occupied.’  Thus, the order enacted for governing the territories had no reference to the Convention, meaning that Israeli law continues to trump customary international law in these circumstances.

JUDICIAL PRECEDENT

The Israeli military suspended most punitive demolitions in 2005, based on a report which found that demolitions did not prevent attacks or serve as a deterrent. The report was conducted by a military commission under Maj. Gen. Udi Shani, whom was appointed by then Chief-of Staff Moshe Ya’alon. Despite this, Israel recommenced demolitions in 2014 after the abduction and murder of three Israeli students in East Jerusalem, and the High Court of Justice has since then refused to prohibit the practice. The Court has also continued to uphold the legitimacy of Rule 119, despite arguments that it contravenes Israel’s obligations under international law.

In 2006, in Awawdeh et al v. Military Commander of the West Bank Area, the Court acknowledged that it would be impossible to conduct a scientific study to prove the effectiveness of the home demolition policy in preventing terror. The resulting stalemate in the efficacy of home demolitions as a means to prevent crime indicates that such considerations should be left out of the debate altogether, focusing instead on the relevant law and principles of equal justice and human dignity.

Despite recognizing the difficulty in proving any efficacy of the policy of house demolitions, the Court stated in 2014 “that the terrorist is expected to be punished in a criminal proceeding does not prevent the exercise of the authority” [to demolish the home]. The Court’s frequent reference to suspects as ‘terrorists’ is problematic as it often predicts the outcome of a criminal trial that has yet to finish. The Court additionally stated that the exercise of the authority to demolish is not conditional on the court finding the person guilty of the offense. Rather, the IDF can rely on their own evidence and independently determine whether or not there was sufficient reason to proceed with the demolition outside of the criminal justice system.

Justice Turkel in Sa’ada v. GOC Home Front Command, heard in 2003, stated in a frequently cited opinion:

“The idea that the terrorists’ family members, that as far known did not help him nor were aware of his actions are to bear his sin, is morally burdensome… However, the prospect that the demolition or sealing of a house shall prevent future bloodshed compels us to harden the heart and have mercy on the living, who may be victims of terrorists’ heinous acts, more than it is appropriate to spare the people dwelling in the house. There is no other way.”

In this opinion, Justice Turkel expresses clearly to value the security of Israeli citizens, whom are often seen as the victims of attacks, more than the lives and security of Palestinians who have no role in the violence.

RENEWED CALLS TO END HOME DEMOLITIONS

Since an upsurge in violence began in October 2015, Israeli human rights NGO B’Tselem estimates that the Israeli authorities’ policy of home demolitions has displaced 149 people, of which 65 are minors. Ten more families await rulings on their petitions to stop demolitions of their homes from Israel’s High Court of Justice.

As recently as June 12, 2016, the Israeli High Court approved the demolition  of the homes of family members of two 21-year-old men who carried out a knife attack in Jerusalem in December 2015, despite the attackers themselves dying from gun wounds shortly after the attack. The Court denied an appeal by the family who argued that the policy was discriminatory against Arabs. The appellants pointed out that home demolitions are almost exclusively used against Arabs, and that the attackers could no longer be punished as they were deceased.

Israel’s justification for its policy of punitive home demolitions is that it deters others in the community from committing crimes against Israel by making a suspect’s family homeless and robbing them of the value of their land  (though Israel also has a parallel policy of demolishing Palestinian homes to make way for Israeli settlements and even forests). But in a case brought by HaMoked Center for the Defense of the Individual and seven other human rights organizations, Justice Sohlberg acknowledged that the goal of the program was collective punishment: “…the demolition of terrorists’ houses will add to the cost-benefit calculation conducted by a potential terrorist the knowledge that his family members will pay the price for his actions.”

Despite the questionable foundation of international and domestic law seeking to justify the legality of home demolitions, Israel’s own justification for this policy is all the more problematic in light of the aforementioned 2005 study undertaken by the Israeli military that home demolitions are not effective deterrents. This is exacerbated by the fact that home demolitions are almost exclusively used against Palestinians, not Israelis who have committed similar attacks.

In addition, the Courts’ complicity with the IDF to condone the policy of home demolitions against Palestinians shows a clear disregard for the dignity and worth of individuals by seeking to punish them outside of the criminal justice system. The June attacks on civilians in Tel Aviv cannot be condoned, but neither can the collective punishment of innocent Palestinians through the wanton destruction of family homes.

Meredith McBride is a 2016 Leitner Center Summer Fellow.

The views expressed in this post remain those of the individual author and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School, Fordham University or any other organization.

Photo credit:Creative Commons/michael loadenthal

 


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Witnessing occupation, apartheid and resistance in Palestine/Israel

By Urooj Rahman

On a recent trip to the West Bank, I struck up a conversation with a member of the Waqf—the Jerusalem Islamic Trust, which manages the edifices of the Al-Aqsa Mosque compound—while waiting by the entrance of the mosque. “Here we have no haquqal-insan [Arabic for human rights],” he said. His truthful and cynical remark was a response to my statement on what I was doing there in Palestine/Israel. I knew, even as I told him that I was there to do human rights work, he would find it amusing, though he still thanked me so as not to be rude. And who can blame him for finding human rights work in Palestine inconsequential? My fieldwork confirmed for me that the lives of Palestinians in the occupied Palestinian territories as well as inside Israel are seen as expendable and less valued by the Israeli government. The systematic oppression they face is viewed as a necessary consequence to keep the Israeli military state in power and to assert dominance over the indigenous Palestinian population.

I witnessed this oppression quite vividly on my initial visit to the West Bank. I was greeted by heavily armed Israel Defense Force soldiers (aka the Israeli Occupational Force) ushering people through Qalandia Checkpoint, one of the main points of entry into Ramallah in the West Bank from Jerusalem and a potent symbol of Israeli occupation. While taking part in one of the largest protests in the West Bank since the second intifadah this past July, I saw how peaceful protests at Qalandia (and other places) can turn into violent clashes when IDF soldiers provoke violence using tear gas, stun grenades, rubber-coated steel bullets and, often, live ammunition at civilians exercising their free speech. Over 40,000 strong, this protest was composed of youth, families, women, men, children and grandparents, all of whom marched together from the center of Ramallah to Qalandia checkpoint on the road to Jerusalem. What started out as a peaceful demonstration of resistance to the occupation and in solidarity with fellow Palestinians in Gaza—who were at this time facing aerial bombardment while under an occupational blockade with nowhere to escape—turned into an all-out clash. Young Palestinians were forced to resort to throwing rocks, their only form of self-defense, as IDF soldiers fired tear gas and skin-penetrating bullets into a peaceful crowd.

With the reelection of Israeli Prime Minister Benjamin Netanyahu, who promised that no Palestinian state would form under his leadership, and the continuing brutality faced by Palestinians living under an illegal occupation, it is more important than ever to reexamine the situation of human rights in occupied Palestine.

BACKGROUND

Palestinians are the indigenous people of the land between the Jordan River and the Mediterranean what is now present-day Israel, the West Bank and Gaza Strip. At the time of the creation of the state of Israel between 1947 and 1948, also known as the Nakba [Arabic for catastrophe, signifying the loss, theft and ethnic cleansing of Palestinian land], many Palestinians were forcibly removed or were forced to flee historic Palestine—present-day colonial Israel—out of fear of persecution from the invading Zionist forces. Many became either internally displaced within present-day Israel or refugees in the West Bank, Gaza, East Jerusalem, Lebanon, Syria, Jordan and many other countries throughout the world. Today, approximately five million Palestinians remain refugees in Jordan, Lebanon, Syria and elsewhere, unable to return to their former homes and land in present-day Israel, even though the right of return for refugees is enshrined in the Universal Declaration of Human Rights and under U.N. Resolution 194.

Approximately four million Palestinians live in the occupied territories collectively, including the West Bank, Gaza and East Jerusalem. They have their lives and daily movements controlled by a government they did not vote for while living under a military occupation that oppresses and dehumanizes them. In addition to controlling the land, borders, air space, water, housing, electricity and other crucial aspects of life under occupation, Israel solely controls how identity cards, which hold the key to freedom of movement and right to work, are issued. The human rights abuses faced by Palestinians living under Israeli occupation include daily and nightly raids of refugee camps, housing demolitions, arbitrary and indefinite detention (increasingly of children), torture, collective punishment, restrictions on freedom of movement and the violent stifling of protest or dissent. This is in addition to the killings of and attacks on Palestinians on nearly a weekly basis in the West Bank and the aerial bombardments of Gaza every few years. Palestinians have almost every aspect of their lives controlled by the Israeli occupying forces with very little power or political clout to resist the occupation and oppression they face.

APARTHEID

According to the International Convention on the Suppression and Punishment of the Crime of Apartheid, apartheid is defined as “inhuman acts committed for the purpose of establishing and maintaining domination by one racial group of persons over any other racial group of persons and systematically oppressing them.” This definition is consistent with what I witnessed for Palestinians in the occupied West Bank, with separate and segregated roads, buses, schools and infrastructure—one set for use by Palestinians and another for Israeli colonial-settlers. Palestinians are also often deprived of their rights to life, liberty, freedom of movement and non-discrimination. Even more evident is the intentional use of the law and the application of two different and unequal legal standards to subjugate and dominate Palestinians with ease. Israeli military law is applied to Palestinians in the West Bank, while Israeli civil law is applied to Israeli settlers. This dual legal system allows for harsher penalties and less due process for a Palestinian, in comparison to their Israeli peers. Moreover, the unequal treatment of residents on an ethnic-national basis has led to systemic discrimination that affects almost all aspects of Palestinians’ lives. Much legal scholarship, including a report from South Africa, has documented apartheid in Israel and occupied Palestine. This segregation is not only unjust, but it also exacts a heavy toll on Palestinian residents.

One of the most grueling reminders of apartheid is the separation wall dividing the West Bank from Jerusalem and Israel along the Green Line, which demarcates the 1967 armistice line between Israel and the Palestinian territories. The building of the wall was seen by many as an illegal act under international law and received condemnations from the International Court of Justice. Further highlighting the illegality of the wall is how the Israeli government has built the wall several feet off of the actual Green Line in an attempt to grab more land, on top of the illegal, unilateral annexation of East Jerusalem in 1967.

CONTINUING VIOLENCE

Aside from many forms of non-physical violence, Israel continues to wage a campaign of relentless physical violence against Palestinians. Prior to the aerial bombardment and ground offensive on Gaza in July of 2014, the Israeli government and the IDF conducted an indiscriminate, all-out raid in the West Bank while searching for three kidnapped Israeli settler youths near the city of Hebron, though it was believed that Israel already knew of their fates before conducting the raids. During the search, the Israeli government rounded up and arbitrarily detained many innocent civilians for indefinite periods of time and killed at least 19 Palestinians during the months of June and July as a form of collective punishment.

Later in July, the IDF engaged in an aerial bombardment and ground offensive that disproportionately targeted civilians in Gaza. Israel engaged inter alia in the indiscriminate bombing of residential neighborhoods, killing over 2,200 Palestinian civilians, including nearly 500 children as well as first responders, according to the U.N. Additionally, the IDF targeted civilian infrastructure, including hospitals, power plants and UNRWA schools, in violation of international humanitarian law. Some of these structures were serving as U.N. designated shelters for those displaced by violence.

As an occupying power engaged in hostilities, Israel must abide by its obligations under international humanitarian law, which are set out primarily in the Regulations Annexed to the 1907 Hague Convention respecting the Laws and Customs of War on Land and the Fourth Geneva Convention of 1949. This includes ensuring the safety and welfare of civilians living in occupied territory. However, the actions taken by the IDF in the months of June and July of 2014 run counter to these obligations and are expressly prohibited under humanitarian and human rights law. A new report by the U.N. Independent Commission of Inquiry on the 2014 Gaza conflict found evidence that Israel (and Palestinian armed groups) committed war crimes during the 2014 conflict. Nonetheless, impunity continues to be the norm, as noted by the U.N.

EXPANSION OF ILLEGAL SETTLEMENTS

Another major point of provocation is the constant expansion of illegal settlements throughout occupied East Jerusalem and the West Bank, as well as the often-accompanied housing demolitions of Palestinian homes. The prohibition on deporting or transferring parts of a State’s own civilian population into the territory it occupies is set forth in the Fourth Geneva Convention and its Additional Protocol I. Under the Statute of the International Criminal Court, “the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies” constitutes a war crime in international armed conflicts. During a six month period in 2014 alone, 7,500 new Israeli settlers moved into the occupied West Bank, alongside the 382,031 Israeli settlers who already reside in illegal settlements that surround various Palestinian towns and villages, effectively making the Palestinian-controlled West Bank an archipelago of small land islands. As the new settlers continue to slowly take over the small parcels of land left for Palestinians, there are rising reports of violent attacks on Palestinian civilians, including kidnapping, torture and murder of Palestinian youth, and the destruction of olive trees that have been planted by Palestinian farmers.

In Hebron, for example, local Hebronites are faced with abuse, assaults and harassment from both Israeli settlers and the IDF. There are multiple internal checkpoints within the city restricting the movement of Palestinian residents, while Israeli colonial-settlers who have moved into Palestinian homes in Hebron are allowed to attack Palestinians and their businesses with impunity. The settlers often throw stones at the Palestinian Hebronites, insult them, throw garbage down on their shops, assault or intimidate them, all while the IDF soldiers sit idly by, making the city an occupied territory within an occupied territory.

IN SEARCH OF JUSTICE

This all comes at a time where the Palestinian Authority (PA) has acceded to the Rome Statute, thereby giving the International Criminal Court (ICC) jurisdiction to investigate possible war crimes and violations of international humanitarian law committed by all parties. This step was not taken lightly, as the PA knew the backlash it would receive from the Israeli government.

While the many nations of the world—including our own, which provides nearly $8 million a day in military aid to Israel—allow this oppression to go on, Palestinians have now joined the ICC as its 123rd member. We will wait to see if any justice, or at least recognition of Palestinian suffering, will at all be achieved from this move.

 

The views expressed in this post remain those of the individual author and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School, Fordham University or any other organization.

Urooj Rahman is a Staff Writer for Rights Wire. She was also a 2014 Leitner Center Summer Fellow, who spent her summer interning with Mada Al-Carmel and Palestine Works in Israel/Palestine, where she conducted research, fact-finding and advocacy work on political, social, economic and legal issues affecting Palestinian citizens of Israel.

This post was originally published on June 23, 2015.

 

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Developing strategies for advancing women’s rights using international law (part 2 of 2)

By  Carolina van der Mensbrugghe

“Why are you interested in learning more about women’s rights?” This icebreaker kicked off our training on women’s rights advocacy in Myanmar, and in response, one participant turned to me and said, “I used to love listening to a Burmese pop artist’s music until he came out with a song that compared women to pigs—lyrics noted that women would eat anything and everything if they didn’t have noses.” After noting the inherent misogyny in this Burmese “Blurred Lines,” she continued, “My brothers didn’t believe me when I told them our society isn’t equal, until I reminded them that they never have to ask permission to leave our house unaccompanied, never have to wash the dishes or do laundry. They agree with me now. These are moments I realized how important women’s rights are, and this is why I am here.”

On May 21, the Leitner Center helped to facilitate a dialogue on the international human rights legal framework with women’s rights activists in Myanmar. Our presentations were aimed at providing participants with ways to compliment international advocacy with the multi-pronged domestic strategies. As my fellow Crowley Scholar, Zahava Moerdler, discussed in part one of this two-part series on the Leitner Center’s recent training, we sought to empower and collaborate with women’s rights activists in Myanmar during our time there. As Myanmar undergoes its transition towards democratization, our capacity-building dialogue took advantage of a newfound space for dialogue on the nature and potential of human rights advocacy.

Our training also coincided with build up to the Committee on the Elimination of Discrimination’s Against Women’s (CEDAW Committee) review of Myanmar’s implementation of its international gender equality obligations, took place on July 6 .  This UN mechanism is a crucial international legal tool for advancing women’s rights due to the obligations it places on governments to enforce the treaty mandate, which enshrines the commitment to end gender-based discrimination in all sectors of society at the hands of both public and private actors. One of the civil society NGO participants, The Women’s League of Burma (WLB),  had recently submitted its shadow report  to the CEDAW Committee detailing gender rights violations, in particular the ongoing impunity for acts of sexual violence in ethnic conflict areas. WLB was notably eager to discuss strategies that representatives would present in Geneva at the CEDAW Committee review to stop these grave international crimes from continuing.

After a brief overview of the international legal framework, the focus of the May 21 dialogue narrowed to address how this framework protects gender equality. The discussion opened by asking the participants, “Do we need women’s rights when we already have human rights?” This question set the groundwork for an extended discussion on how certain laws and patriarchal values within Burma’s society have a disproportionately negative impact on women, including when intersectional social identities, including LGTI, rural and ethnic minorities, overlap.

A participant from Akhaya,  an organization dedicated to sexual health education, spoke of the detrimental impact the withholding of reproductive health has had on women in local communities. While health education is afforded to all, women are at best not taught about changes occurring during puberty and, at worst, are told that their menstrual cycles render them impure, with the ability to steal the hpoun (more of less, a concept of “masculine power”) of men.  While rural areas overall experience a greater impact, the participant noted that these views were pervasive and common in urban areas and all socio-economic backgrounds. This anecdote, among others, reinforced CEDAW’s importance in articulating a state’s obligation to not only enforce, but also to fully implement measures that eliminate practices entrenching gender equality.

The remainder of the dialogue consisted of unpacking how international law defines and protects against sexual violence in conflict, domestic violence, sexual harassment and damaging cultural norms and traditions that violate women’s right to marriage and family planning. When discussing international legal protections against domestic violence and sexual harassment, many participants expressed frustration towards government inaction on these issues. The government’s unwillingness to “interfere” in domestic partnerships or deal with “harmless” sexual remarks led participants to believe these were issues that place no imperative on action in the domestic civic space, let alone international spheres.

The solidarity among all the women as they shared of anecdotes addressing frustrations towards rights violations was palpable and, at times, infused with plucky and insightful humor. While discussing the substantial impact sexual harassment has on women’s career prospects and work life, one participant asked whether “mansplaining” is included as a violation under the law.

Participants were empowered by the knowledge that international law obligates the government of Myanmar to end impunity for all acts of gender discrimination—including those that occur in the bedroom or the workplace, spaces often deemed outside government oversight. The international legal framework by no means provided the solution, but rather supported and strengthened the strategies devised to develop meaningful policy reform in these ill-attended areas.

The conversation subsequently shifted towards connecting interaction with UN with domestic advocacy. Participants cited the current climate of cultural norms and traditions, as the major impediment to gaining traction with local officials and society at large—women’s initiatives and activists are often de-prioritized and segregated from overall peace process, investment projects and development deals shaping the country’s future.

Change in this respect, must come from within, and by one mind at a time. However, by the end of the training, the participants discovered renewed excitement and newfound tools to engage with and apply pressure in solidarity with the international community.


Carolina van der Mensbrugghe is a 3L at Fordham Law School. She was a 2015-16 Crowley Scholar in International Human Rights.

Photo credit: Carolina van der Mensbrugghe

The views expressed in this post remain those of the individual author and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School, Fordham University or any other organization.

 

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Myanmar’s democratic transition and the role of international groups in promoting human rights (part 1 of 2)

By Zahava Moerdler

Since Myanmar’s transition from military rule to democracy began in November 2010 , there has been increased space for democratic debate and human rights advocacy. This opportunity presents a unique historical moment for those working in human rights to help propel and sustain real change.

In November 2015, Myanmar hosted elections where, for the first time in decades, non-military civilian leaders were voted into power. Unlike past elections, the military allowed the election results to stand and pledged to support a transition in leadership.  The military generals who had controlled the country for over fifty years ceded power to the National League for Democracy (NLD), led by Nobel Peace Prize Laureate Aung San Suu Kyi. Despite the NLD’s victory, the military still retains control over the country through de facto parliamentary veto power authorized by the constitution. The military also has control over all national security matters. Although the military could have suspended or reversed the country’s progress towards democracy, the military chose to accept and back the democratic election outcomes.

A resource-rich country with a population of over 56 million people, Myanmar is the second largest country in mainland Southeast Asia. Sixty-eight percent of the country’s population ethnically identifies as Burman, and there are significant proportions of other ethnicities, including Shan (9% of the population), Karen (7%), Rakhine (4%), Chinese (3%) and Indian (2%).  While the largest religion represented in Myanmar is Buddhism, there are also Muslim and Christian populations. Myanmar became a British colony in 1885 and finally achieved full independence on January 4, 1948. Although Myanmar gained independence, the country was ruled by a dictatorial military junta for over 60 years.

Since coming into power, Aung San Suu Kyi —who cannot be President because of constitutional provisions, but has acceded to a role “above the President”—has demonstrated a number of strong policy stances. She reflects the country’s trend towards democracy, which has helped ease U.S. tensions.  However, clear examples of backsliding, from before the election and after, remain troubling. In 2014, new legislation promoting Buddhism over other religions and instituting state control over inter-faith marriages, polygamy, religious conversion and family planning, was introduced.  Additionally, sexual violence, particularly within conflict zones, remains a rampant issue that is not being addressed either at a local or national level.  There are also concerns over freedom of expression and freedom of press. In 2015, student protesters in Letpadan were arrested for refusing to disperse during a protest.  Finally, Suu Kyi has refused to call the Rohingya, the Muslim minority in Myanmar, by their own name or to address the rampant discrimination and abuses they face.  Under Suu Kyi’s leadership, Rohingya are not only to be called Bengalis, which calls into question their nationality and Burmese citizenship, but they are also denied basic human rights and excluded from the peace process. Additionally, there is not a single Muslim legislator in the country.

Despite many challenges since 2010, including the backsliding on democratic advances, many human rights activists now see an opening to push for concrete and widespread change. While reform must undoubtedly come from within Myanmar, there is still much space for international groups to play a role. Close international attention and sustained action in ensuring small steps by the Burmese government may lead to substantive reforms. International groups must, of course, understand the complex political situation in the country, the informal and formal institutions that abound, and the nuanced conflicts in ethnic minority regions.  As Myanmar sees an increase in funding and capital, international groups should work closely with civil society and grassroots organizations to adhere to their in-country mission, support tailored programs and solutions and promote coalition-building at the local, regional and international level.  They must also center and empower local activists and marginalized groups, such as women and ethnic minorities, to take the lead.

Since gender justice remains an urgent issue in Myanmar, the Leitner Center for International Law and Justice worked with Justice Trust, a U.S. based human rights non-profit working with grassroots lawyers and activists in Myanmar, to conduct a training on women’s rights and gender equality this past May. The training was prepared for local civil society leaders to come together and discuss the issues they are tackling and to plan concrete strategies for the future. During this training, we sought to meet the needs of local activists while presenting nuanced information and facilitating meaningful dialogue.

As part of the Crowley Program in International Human Rights, three other Crowley Scholars and I, under the supervision of Executive Director Elisabeth Wickeri and Senior Fellow Joey Lee, worked to prepare and present a training on international legal mechanisms that can be used in the fight for gender justice. The Crowley Scholars each looked as a specific issue within gender justice: sexual violence in conflict, domestic violence and sexual harassment, participation in politics, and rights to marriage and family planning. The training analyzed the topic of gender justice from both domestic and international law perspectives. On the first day of the training, our partner, Justice Trust, led discussion on legislation pertaining to domestic violence and sexual violence in conflict. They also provided a legal framework for activists to understand their rights so as to work on advocacy campaigns and strategy building for their communities. On the second day, the Leitner Center presented international human rights law framework and delved into the international protections provided for our four focal areas. The goal of the training on the second day was to incorporate the strategies developed for domestic and international advocacy together to create a long-term calendar or campaign of human rights advocacy on these issues.

This was our first introduction to the activists working on women’s rights and gender justice in Myanmar—a brave, proud and energetic group. The women and men in the room represented activists working on many different issues from around the country. It was incredible to be able to hear from them and learn from them. One of the most rewarding parts of the training was when activists were given the opportunity to discuss the issues they face in their work. In Part II of this blog post, my fellow Crowley Scholar, Carolina van der Mensbrugghe will discuss one of the most important conversations we had with local activists (teaser: it was a rich discussion about sexual harassment) and some of the strategies developed at the training.

Zahava Moerdler is a 3L at Fordham Law School. She was a 2015-16 Crowley Scholar in International Human Rights. 

Photo credit: Leitner Center

The views expressed in this post remain those of the individual author and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School, Fordham University or any other organization.

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Brexit: A Slightly-Less-United Kingdom?

By Jeremy Hale

On June 23, 2016, the United Kingdom held a referendum on whether to ‘Leave’ the EU or ‘Remain’ a member state. John Oliver offers a quick and hilarious primer on the political discussions surrounding lead up to the Brexit vote.  The vote and its accompanying public discourse reflect increasing xenophobia and racism in the UK, and debates about immigration and refugee relocation were central to the rhetoric employed by politicians to instill fear in the public and bolster the “Leave” campaign.

The UK narrowly voted, 52 percent to 48 percent, to separate from the EU – the first time a country would be exiting the EU since its formation in 1993. Did I say that the “UK” narrowly voted to leave? I meant that England and Wales voted to leave, while the London area, Scotland, and Northern Ireland each voted overwhelmingly to remain an EU member state. The sharp divide in voting by region has potentially staggering implications for the future of the possibly-not-so-United Kingdom , especially if the UK follows through on the referendum and exits the EU. Scottish First Minister Nicola Sturgeon wasted no time discussing  a second Scottish Independence Referendum,  and the fate of Northern Ireland and its relations with the Republic of Ireland are now quite uncertain.

REDRAWING BORDERS: IMMIGRATION AND CITIZENSHIP

One immediate consequence of the Brexit vote was an enormous spike in interest among UK citizens in acquiring Irish passports. Google Trends showed a 100 percent spike in searches for Irish Passports in the hours following the vote.  Irish post offices and embassies were overwhelmed with enquiries and applications for Irish passports.  At the Immigrant Council of Ireland there was a sudden surge of calls from UK citizens asking questions relating to Brexit. Ireland could be a particularly appealing option for UK citizens concerned about losing their EU citizenship, as Ireland is an EU member state, and many UK citizens have an easy entitlement to Irish citizenship as long as they have at least 1 Irish citizen parent or grandparent.  It is possible that a significant number of UK citizens will seek Irish citizenship in order to retain their EU treaty rights.

Another possible consequence for the Emerald Isle is that the relationship between Northern Ireland, which voted strongly to remain in the EU, and the Republic of Ireland, as well as between Northern Ireland and the UK, could get more complicated.  Brexit could spark a renewed fervor among those in Northern Ireland who want to reunify with the Republic of Ireland, and could prompt a greater willingness among those who originally fought to stay in the UK to alternatively stay in the EU.

In 2014, Scotland held an independence referendum that resulted in 55 percent of Scots voting in favor of staying in the UK .  On June 23rd, however, Scots voted overwhelmingly, at 62 percent, to remain in the EU, which raises the question of how many votes from 2014 were as much votes to stay in the EU as to stay part of the UK specifically. Considering how much stronger the majority was to stay in the EU this year than it was to stay in the UK in 2014, it is possible that a second Scottish independence referendum could have a different result.

If the UK exits the EU and Scotland does declare independence, a new international border would be drawn between England and Scotland. Depending on a number of other variables, including whether the newly independent Scotland would become an EU member state itself, and depending on the kind of free movement agreements England negotiates with the EU, the border could either be a fluid one, like that between the EU and Switzerland, or a formal border crossing with passport checks, or somewhere in between. It’s hard to speculate how exactly that will shake out, but a new Scottish independence referendum seems likely according to some reports, even if the outcome is uncertain.

Between Brits seeking Irish citizenship, the possibility of Irish reunification, and the possibility of a second referendum on Scottish Independence, the United Kingdom may become a little less United and Great Britain may soon be Adequate Britain.

XENOPHOBIA: RACISM AND REFUGEES

Since its proposal, up until just the day before Brexit went up for vote, many people in the UK thought it was absurd and impossible for the UK to actually vote to leave the EU,   and then to the surprise even of some ‘leave’ voters, it happened.

In the process, the UK, at least temporarily, gave a mandate to the worst, most violent, hateful aspects of the culture .  The referendum is already raising fears that more ultra-right-wing groups will take power across Europe and more violence against immigrants will follow. We see the same phenomenon in the U.S. with the rise of Trump as a candidate.

Immigration was one of the major issues leveraged by the ‘Leave’ campaign to convince voters to support Brexit. Not legitimate immigration policy of course, but rather a message of xenophobia, racism, and scapegoating of refugees, particularly from Syria, under the specter of terrorism and of immigrants, particularly from poorer Eastern EU member states, such as Poland, Latvia, Bulgaria, and Romania, flooding in to take British jobs.  This message was spearheaded by UK Independent Party (UKIP) leader Nigel Farage as well as former London mayor and Britain’s very own pileous disaster, Boris Johnson. Sound familiar, America?

Unless the UK pursues an isolationist policy, the agreement reached with the EU upon separation will probably require some measure of free movement with EU member states if they still want access to the EU single market. So legally and practically, the UK probably won’t be able to prevent immigration of citizens from Eastern EU member states.  If the UK wants to change their policy on accepting refugees, that is already an issue of domestic law and whether they want to remain party to the UNHCR’s 1951 Refugee Convention and its 1967 Protocol.   The Dublin Regulation establishes that asylum seekers in Europe must have their case processed in the first EU member state in which they arrive, so EU member states already handle refugee claims more or less independently, and separating from the EU in and of itself will have little effect on whether refugees attempt to come to the UK.  Ironically, if the UK decides to withdraw from the Dublin Regulation (Norway, Iceland, and Switzerland abide by the Dublin Regulation but are not part of the EU), it could increase the number of asylum seekers in the UK because people who seek asylum elsewhere in Europe, and fail, could then apply separately to the UK – a possibility not available while the UK remains in the EU.

The UK may attempt to negotiate a deal similar to that between the EU and Switzerland or Norway . However, the negotiations will have begun with the UK’s explicit rejection of the EU’s policies and regulations, which might deter the EU from willingly providing the UK with the benefits of access to the EU single market. Nigel Farage, just days after the Brexit result, addressed the EU parliament with an air of condescension and was booed by the MEPs after praising Brexit and insulting his colleagues.  Farage may not be representing the UK in negotiations, but if someone of  his ilk becomes the next British Prime Minister, he may have set the tone.  If so, the UK is unlikely to get anywhere near as good a deal as Norway and Switzerland got at the negotiation table.

IMPLICATIONS FOR THE EU AND BEYOND

The Brexit aftermath may have some silver linings. It may result in a reunified Ireland, an independent Scotland, and a chance for the UK, in whatever form remains, to take a hard look at its own deep seeded issues with racism and xenophobia. But it will be a messy process getting there.

In the meantime, Brits, and citizens of other countries facing groundswells of anti-establishment rhetoric combined dangerously with fear, racism, and xenophobia, need to do more to assure the disenfranchised among us that their underlying concerns – economic hardship, access to education, etc. – are legitimate, but that buying into demagoguery isn’t the only option for disrupting the status quo.

Rather than surrender to irrational fear and hatred and xenophobia, let’s convince our neighbors, and our neighbors’ neighbors, to try being irrationally open-minded and loving. If they’re going to be irrational anyway, better to love too much than hate too much, better to give too much than to fear too much.

Jeremy Hale is  a 2016 Leitner Center Summer Fellow. He is interning with the Immigration Council of Ireland.

Photo credit: freestocks.org/Creative Commons

The views expressed in this post remain those of the individual author and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School, Fordham University or any other organization.

3 November 2011. Dar El Salaam: UNAMID in collaboration with the North Darfur Committee on Women organizes an open day session on the UN Security Council Resolution 1325 on women, peace and security in Dar El Salaam, North Darfur. The purpose of the activity was to discuss the progress made in the State with regards to women’s issues.
The forum, which was attended by 80 participants including Government representatives, women leaders and UNAMID officials, identified the possible impact of the resolution on daily life and key areas including protection, women’s rights, participation in the peace process, training for midwives and socio-economic empowerment. 
Photo by Albert Gonzalez Farran - UNAMID


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Reinterpreting the Helms Amendment

By Shruti Banerjee

The United States government is the single largest donor of humanitarian aid and reproductive health programs globally,  but this significant contribution comes with strict legal restrictions that ban funding for abortion services and exacerbate the physical and psychological trauma endured by rape victims around the world. Abortion is often the safest option for many victims of rape, and necessary for children raped during war to prevent extended and intensified physical and mental torture caused by dangerous pregnancies and fatal medical complications.

The Global Justice Center (GJC)  has been advocating for the U.S. federal government and U.N. bodies to re-interpret legal restrictions placed on humanitarian aid. As a Legal Intern at GJC this summer, I helped draft a submission to the United Nations Committee against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”) to urge the United States to lift restrictions on humanitarian aid. We argued that U.S. legal restrictions that prevent war rape victims from receiving full medical care and abortion services worldwide, as well as censorship of abortion-related speech, are incompliant with a State’s obligations under CAT, particularly Articles  1, 2, 14 and 16 . By inhibiting rape victims from receiving abortions that may save their lives and prevent prolonged physical and psychological torture, the U.S. is violating the object and purpose of CAT and must reform domestic policy to conform with its international treaty obligations. The CAT Committee will review the United States in November 2016, and hopefully, they will push the U.S. to change their domestic policy to ensure that rape victims are not forced to endure further pain and suffering from dangerous child birth or seeking unsafe abortions. This article will summarize and discuss the issues raised by the Global Justice Center’s most recent submission to CAT.

RAPE AND FORCED IMPREGNATION DURING ARMED CONFLICT

As cited in GJC’s submission to CAT, there are countless examples, including Bosnia , Rwanda, and Boko Haram in Nigeria that prove rape and forced impregnation during armed conflict is a prevalent issue that the international community needs to address immediately. The United Nations Security Council has acknowledged that during armed conflict and wars, sexual  violence is systematically used against civilians to debilitate, control, and even alter the ethnic compositions of entire populations.  The risk of maternal mortality is drastically increased when a woman or girl is raped during conflict and forcibly impregnated, especially when her physical trauma is combined with the testing conditions imposed by war (i.e. malnutrition, anemia, stress, infection and disease).  For children who are raped or gang raped during war, pregnancy is extremely dangerous and can cause fatal injuries,  such as a ruptured uterus or traumatic fistulas. Studies have also found that in certain conditions, childbirth is 14 times more likely to lead to death than a safe abortion.

Preventing war rape victims from obtaining abortions can also result in severe psychological trauma. As cited in GJC’s submission to CAT, forced impregnation caused by rape has been found to “prolong the perpetrator’s intrusion, often causing great anguish and shame to the victim.” Rape victims suffer from extra mental distress and fear from the “pain of unsafe treatment with uncertain outcomes, no proper aftercare and the possibility of being imprisoned if found out” when they are denied access to safe abortion services and are forced to have illegal and unsanitary abortions. In certain societies, war rapes resulting in pregnancies can also carry significant social consequences, particularly in communities where  there is a cultural stigma attached to women who had sex before marriage, even in instances of rape.  Many victims have been stigmatized, shamed and excommunicated from their homes due to being raped and bearing the child of their perpetrator,  causing further mental anguish that could have been prevented if they had access to full medical care and safe abortions.

 

US REGULATIONS THAT PREVENT VICTIMS OF WAR RAPE FROM RECEIVING NECESSARY ABORTIONS

GJC identified the major legal hurdle to providing war rape victims with abortions to be the U.S. government’s overly narrow interpretation of The Helms Amendment. The Helms Amendment to the Foreign Assistance Act of 1961 was enacted by Congress, but it has primarily been interpreted and implemented by U.S. agencies administering foreign aid, including the State Department and United States Agency for International Development (USAID).  The Helms Amendment states that “[n]one of the funds made available to carry this part [Part 1 of the Foreign Assistance Act] may be used to pay for the performance of abortions as a method of family planning or to motivate or coerce any person to practice abortions.” While “abortion as a method of family planning” is customarily interpreted to allow funding for abortions in cases of rape, incest or maternal life endangerment, USAID and the State Department currently interpret these restrictions as a total ban on funding for abortion services, without any exceptions for rape and life endangerment.

U.S. funding restrictions also curtail abortion-related speech and medical information for these victims. Specifically, the term “motivate,” in the Helms Amendment, is interpreted by the U.S. government to prohibit essentially all open discussion about abortion and applies to “information, education, training or communication programs” related to abortion.  Additionally, the use of foreign assistance funding to lobby for or against abortion is prohibited by The Siljander Amendment.  These restrictions on abortion-related speech prevent the beneficiaries of U.S. aid, including war rape victims, from being fully informed of their medical options and have resulted in a complete ban on abortion-related services and proper medical information. These legal restrictions apply to the entirety of U.S. foreign assistance,  including aid given to United Nations projects and for war rape survivors in countries where many victims rely on foreign aid to provide them with health care that is otherwise unavailable.

 

GROWING CONCERN OVER U.S. LEGAL RESTRICTIONS AND THE NEED FOR CHANGE

The United States’ imposition of abortion restrictions on medical care for women and girls raped in war has caused serious concern in many countries.  The European Union passed a budget in 2016 that specified that their humanitarian aid would not be restricted by laws from other donor states. This was in direct response to concerns over U.S. legal restrictions for abortion services on member state aid.  Several countries have recommended that the U.S. change their policy that bans funding for abortion services,  but despite growing international concern,  the U.S. anti-abortion policy remains the dominant medical protocol for victims of rape worldwide.  This makes it exceedingly difficult for rape victims to receive an abortion, even in instances where the pregnancy threatens the life of the mother.

The Democratic Party in the United States has included in its most recent platform to push to repeal the Helms Amendment, or “Global Gag Rule” on abortion. Internal pressure from domestic politicians and pressure from the international community will hopefully result in a reinterpretation of the Helms Amendment, or repealing it entirely, to allow victims of rape to have access to safe and legal abortions.

Shruti Banerjee is a 2016 Leitner Center Summer Fellow. She is interning with the Global Justice Center in New York.

Photo credit: Albert Gonzalez Farran – UNAMID/Creative Commons

The views expressed in this post remain those of the individual author and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School, Fordham University or any other organization.

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Remembering lessons from the Armenian genocide during dangerous times

By Zahava Moerdler

On May 31, the German parliament voted almost unanimously on a resolution that recognized the killing of over 1.5 million Armenians in Turkey in 1915 as a genocide (one MP voted against and one abstained).  The decision makes Germany one of only 26 countries, including Canada, France and Russia, to recognize the events as genocide. Turkey became so incensed with Germany’s decision that it recalled its ambassador to Turkey.  Recep Tayyip Erdoggen, President of Turkey, threatened further action against Germany while Turkish Nationalist protesters gathered outside the Germany embassy in Istanbul in protest.

Germany’s decision is interesting considering that Germany was an Ottoman ally during World War I, and many German officials witnessed the deportations and killings of the Armenian population.   Many of those officials remained silent to the atrocity or were complicit, providing weapons and fighting alongside the Ottomans.  Some have even argued that the Armenian genocide was the model for the Holocaust.  The 2016 resolution acknowledging Germany’s complicity was championed by the co-leader of Germany’s Green Party, Cem Ozdemir, a man with strong Turkish roots, who advocates for Armenian-Turkish reconciliation.

Germany’s decision comes at a particularly tumultuous time in Europe. The United Kingdom’s vote on June 24 to leave the European Union. marks a turning point in the history of the E.U.  Unfortunately, the rhetoric immediately preceding and right after the vote show growing trends of xenophobia, racism and extremism in Europe. In the U.K., hate crimes have increased 57 percent since the vote, including a racist demonstration outside a mosque and racist graffiti on the entrance to a Polish community center. In Hungary, France and Germany, rightwing nationalist groups have called for their own E.U. referendums. Viktor Orban, Prime Minister of Hungary, has even expressly linked the migration crisis in Europe as a direct cause of the Brexit.

Now, more than ever, it is necessary to take lessons from the past so that history is not doomed to repeat itself. As Germany and other nations grapple with the Armenian genocide and their possible complicity in those atrocities, perhaps reflecting on the American genocide can be especially instructive. In 1915, the Young Turk government, a reformist movement against the former Turkish absolutist Sultan Abdul Hamid II, shifted its policy towards the Armenian population within Turkey.  While there had been tensions between the Turks and Armenians for generations, the Young Turk government instituted a policy of deportation and premeditated mass extermination.  The Ottoman government began transferring Armenian soldiers from the Turkish army into labor battalions where they were either killed or worked to death . On April 24, 1915 , 235 Armenian doctors, clergy, lawyers, politicians and teachers were arrested and murdered in Constantinople, leaving the Armenian community leaderless and vulnerable . Approximately 1.5 million people were deported over the course of eight months. One-half to three-quarters of the Armenian population living in the Ottoman Empire were murdered between 1915 and 1923.

The impetus for the genocide was both “Turkifying” the Ottoman Empire, which was fueled by nationalism and the defeats in the Caucuses in 1914 , which the Young Turks blamed on the Armenians in the area.  The Young Turks began a campaign to portray the Armenians as a threat to the state. Although there were Armenian nationalists who had cooperated with the Russians during the conflict, the identification of the entire Armenian population as complicit in the acts of a few created a propaganda campaign that furthered hate and fear.

Dangerous speech is speech that increases the risk of violence targeting certain people because of their membership in a group, such as an ethnic, religious, or racial group. This includes incitement as well as speech that makes incitement possible by conditioning audiences to accept, condone and commit violence against people who belong to a targeted group.   Dangerous speech created the 1915 Turkey, a country primed for genocide. Blaming the Armenians for wartime losses, targeting ethnic minorities as “other” and perpetuating narratives of fear and hate conditioned the Turkish population to act violently and hatefully against a specific group of people. These problematic trends continue today. The refugee crisis has been blamed for the economic instability and terrorism in European countries . As a result, many Europeans have become incensed. In June, the U.K. voted to leave the E.U., a vote that some of posited stems from these frustrations.  This rhetoric has come from within the U.K. and abroad, most notably Prime Minister Orban in Hungary. Minorities continue to be “othered” in the U.K. and elsewhere in Europe, as evidenced by recent racist and xenophobic crimes. Finally, populist nationalist groups use narratives of fear and hate to promote their agendas, like other Leave campaigns throughout Europe, thereby stoking the flames of frustration and agitation.

Europe is once again at a crossroads, with dangerous speech pushing the continent towards violence, hate, racism and xenophobia. Brexit is merely a single case where racist rhetoric, tied to a national crisis, has yielded hate speech and crimes. What remains to be seen is how the U.K., Europe, the U.S. and the world writ large will respond to these increasingly troubling trends. This is not a British problem. It is not a European problem. It is a global problem. Unless dangerous speech is curbed through the promotion of counter-narratives, the lessons of the past will rear their ugly head. Do not forsake the lessons of the Armenian genocide, especially at a time when justice and recognition have made so much headway.

Zahava Moerdler is a 2016 Leitner Center Summer Fellow. She is interning with Human Rights First in Washington, DC.

Photo credit: mrsamisnow/Creative Commons

The views expressed in this post remain those of the individual author and are not reflective of the official position of the Leitner Center for International Law and Justice, Fordham Law School, Fordham University or any other organization.