Rights Wire

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


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La linea, #justiciaya and new challenges to corruption in Guatemala

By Hannah Jane Ahern

The political landscape in Guatemala, which signed internal peace accords less than two decades ago between the government and the Guatemalan National Revolutionary Unity party, an umbrella of leftist guerilla groups that is now a political party, has shifted dramatically in the past six months. Following the exposure of a major customs tax fraud scheme implicating officials at the highest levels of government, an unprecedented grassroots social movement, which grew out of social media activism, has taken shape to demand justice and end corruption in Guatemala.

BACKGROUND

The past 500 years in Guatemala, a country of roughly 15 million people, have been marked by colonial rule, military dictatorships, and a 36-year long bloody internal conflict between the Guatemalan government and leftist guerrilla groups. That conflict lasted from 1960 to 1996, and it resulted in the genocide of indigenous Mayan people who the government claimed were guerrilla sympathizers. Roughly 200,000 Guatemalans, the vast majority of whom were indigenous Mayans, were murdered or disappeared at the hands of the military, police, paramilitary and intelligence forces, according to the Commission for Historical Clarification, the United Nations-supported truth commission established after the conflict.

The Commission determined that 93 percent of the human rights abuses that took place during the conflict were perpetrated by the government. These abuses included rape, torture, forced disappearances, and arbitrary executions. Stunningly, not a single government official or member of Guatemalan security forces was brought to justice in Guatemala until 2009, when an ex-military commissioner was convicted of forcibly disappearing Guatemalan citizens during the genocide. Guatemala has been found responsible in human rights violations in numerous cases by both the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights, but they have yet to comply with all of the measures ordered by the Court in 19 of those cases.

In 2013, Efraín Ríos Montt, the de facto dictator of Guatemala from 1982-1983 who was directly responsible for at least one massacre of over a thousand indigenous Ixel people, was found guilty of genocide and crimes against humanity and sentenced to 80 years in prison. Former President Otto Pérez Molina has also been accused of involvement in the Ixel massacre, and possible other acts related to the genocide, while he was in the army and stationed in that region. Ríos Montt’s sentence was annulled on a legal technicality shortly after it was issued; since then he has tried to avoid retrial by claiming that he suffers from dementia. Although the judgment was overturned, his conviction reopened public debate around the need for justice in a country where impunity has long been the norm. The hashtag #SiHuboGenocidio (“Yes there was genocide”) has remained constant on social media since 2013, and the case continues to be in the news.

LA LINEA: THE SCANDAL THAT SPARKED A MOVEMENT

La Comisión Internacional Contra La Impunidad en Guatemala (“The International Commission Against Impunity in Guatemala”), known as CICIG, began investigating corruption in Guatemala in 2007. Last year CICIG and the Guatemalan prosecutor’s office discovered an extensive customs fraud scheme, now known as La Linea. Government officials were accepting bribes in exchange for non-payment of import taxes by certain companies, so that money designated for schools and hospitals ended up lining their pockets instead. In April of this year investigations revealed that then-Vice President Roxana Baldetti’s personal secretary was the ringleader of La Linea; soon after, evidence against Baldetti herself began to mount. No one knew it at the time, but La Linea and the social movement it catalyzed would lead to the unraveling of Pérez Molina’s presidency.

Having traveled and lived in Guatemala for a number of years, I have many personal ties to this small Central American country and consider it my second home. Historically, corruption has been so deeply entrenched in government that everyone I know has always taken it for granted. However, after Baldetti’s connection to La Linea was publicized last spring, something changed. I noticed a new slogan on social media: #JusticiaYa. (Justice Now.) That slogan was followed by a more specific demand, leveled at Baldetti but with a clear message for all corrupt officials: #RenunciaYa. (Resign Now.)

The first protest, organized over social media, took place on April 25. It caught everyone off guard when over 10,000 people mobilized to demand Baldetti’s resignation. Since April, there have been peaceful demonstrations nearly every week to demand that corrupt officials be brought to justice, and following the first wave of protests Baldetti was forced to resign in May. In August, she was arrested for her role in La Linea, and on Aug. 25 a judge ordered her to stand trial on charges of bribery, conspiracy and customs fraud. That same day, a court ruled that Ríos Montt would have to stand trial again, for genocide, although he will not be sentenced to prison because of his health. The #JusticiaYa movement began because of public outrage against La Linea, but its impact has gone far beyond the customs fraud scandal. The movement has sent a clear message that the Guatemalan people will no longer tolerate the impunity of the ruling class.

#27A: PARTICIPATING IN HISTORY

On August 27th my boyfriend, who is from Guatemala, and I participated in the demonstrations in Parque Central in Quetzaltenango, Guatemala’s second-largest city. Six days earlier, the prosecutor’s office announced that they had evidence implicating Pérez Molina as a leader of La Linea; in the wake of this news Guatemalans began repudiating his authority. In the days leading up to the protest, there was a new hashtag painted on signs and cars and posted on social media: #YoNoTengoPresidente. (I have no President.) We didn’t know it then, but the protest occurring simultaneously in Guatemala City that day would turn out to be the largest in Guatemalan history. It would become known simply as “#27A.”

When we arrived at the protest we wound our way through the sea of blue and white Guatemalan flags and found a cluster of family and friends standing together under the trees. We listened as student leaders enumerated the complaints and hopes of people across Guatemala. Local artists shared songs, raps and poems indicting Pérez Molina and the government for failing the Guatemalan people. We echoed chants demanding the President’s immediate resignation, even with the next presidential election only ten days away.

When I first heard about the protests last Spring, I (and many of my friends) remained skeptical about the potential to affect real change in a country that has historically been so divided and corrupt. I couldn’t comprehend the transformation that had occurred and the impact the #JusticiaYa movement had had in such a short time until I was standing there with the other protesters. What I found most inspiring was how the protests united Guatemalans from all regions, ages, backgrounds, and socioeconomic classes. As we stood in Parque Central that day among university students, local leaders, rural farmers, members of the urban middle class, Mayans, ladinos, young people, old people, and everyone in between, laughing, shouting, and singing, united peacefully in pursuit of a common goal, there was a feeling that the voice of the people was finally being heard.

A CHANGE IN POWER

In the days prior to and immediately following #27A, Pérez Molina did his best to cling to power. His public statements rejected calls for his resignation, denied involvement with La Linea, and attempted to minimize the magnitude of the movement taking place against him. In a way, though, it didn’t really matter what he said at that point: in most people’s minds he was already gone.

I left Guatemala the day after #27A feeling electrified, inspired and hopeful. On Sept. 1, Guatemalan Congress voted unanimously to strip Pérez Molina of his Presidential immunity, opening him up to prosecution. The next day—just four days before the first round of elections—a judge issued a detention order for him, and just before midnight, Pérez Molina tendered his resignation. Baldetti and Pérez Molina, once untouchable, were now both in jail, where they remain today awaiting trial.

On Sept. 6 Guatemalans went to the polls. In a surprising upset, the wealthy businessman considered to be the front-runner, Manuel Baldizon of the Lider Party, came in third place. Baldizon, the runner up in the 2011 elections, is known for his connections to narco-traffickers and for his illegal and corrupt campaign tactics. Among my friends in Guatemala, he is a symbol of everything that is wrong with Guatemala: how the ruling class profits off the desperation of the poor, and of how you can get away with anything, no matter how corrupt or illegal, if you have enough money. The message in the fact that Baldizon didn’t win (and that Jimmy Morales, a comedian with no prior government experience, came in first place) was clear. Jimmy Morales, who promised to tackle corruption in politics, went on to win the Presidential election by a landslide over the former first lady, Sandra Torres, on Oct. 25. This further echoes the message Guatemalans have been sending since the first protest in April: We will no longer tolerate corruption and impunity. We won’t be taken advantage of. And we will no longer be silent.

LOOKING FORWARD

So many questions remain for Guatemalans about the future of Guatemala. Will Pérez Molina be found guilty, or will he escape justice on a technicality? Will the new president of Guatemala actually crack down on corruption? What effect will the new government’s policies have for the Guatemalan people? Will the vast majority of Guatemalans who live in poverty—75 percent of the population according to the World Bank—and without steady access to education, food, medical care or social services, see any real change in their quality of life any time soon?

In the realm of justice for rights abuses, even if he is found guilty again of genocide and crimes against humanity, Efraín Ríos Montt will never serve a day in prison in his lifetime. It is unclear who else will be brought to justice for acts of genocide committed by the government against its own people. Even if Pérez Molina goes to prison for his role in La Linea, will we ever know the full story of his connection to the massacres in the Ixil region while he was an officer in the army, and will he ever be held to account? Will the new government comply with the orders of the Inter-American Court of Human Rights, to give some small amount of justice to victims of rights violations and ensure that those violations aren’t repeated? Moreover, will the international community continue to stand with Guatemalans as they demand justice and accountability, or will we go back to business as usual, and only put Guatemala on the map when there is gang violence or a natural disaster?

There is no question that Guatemala will face enormous challenges as it continues to grapple with the consequences of genocide, human rights abuses, political corruption, racism, poverty, weak infrastructure, structural inequalities and decades of devastating U.S. policies in the region. No one, least of all the Guatemalan people, has any illusion that inequities going back 500 years will somehow disappear, or that anything can remedy decades of violence, genocide and impunity. But one thing is certain: a momentous shift has taken place. Peoples’ fears of speaking out against their government, of standing up against injustice, and of joining forces with those who are different from them are gone.

When I returned to New York at the end of August, there were two new slogans on everyone’s lips. They continue to circulate everywhere on social media, and are forever etched in the digital history books in hashtag form: #GuatemalaDespertó. (Guatemala Awoke.) And: #EstoApenasEmpieza. (This is just beginning.)

Hannah Jane Ahern was a 2015 Leitner Center Summer Fellow. She interned at the Inter-American Court of Human Rights, and spent part of her summer in Guatemala during the protests and change in government.

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 courtesy of Hannah Jane Ahern.


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Russia’s undesirable organizations law: the next step in the assault on foreign aid and influence

By Thomas M. Callahan

Earlier this year, as the Russian parliament was discussing a draft law restricting the operations on Russian territory of so-called “undesirable organizations,” I speculated that the bill would probably not pass the legislature in my Note for the Fordham International Law Journal, which focused on legislative restraints to foreign influence in Russia. In a section on provisions under review in Parliament, I included a brief discussion of the bill to illustrate some of the kookier ideas being debated in the Russian legislature.

It passed, though, and was signed into law by Russian President Vladimir V. Putin just as my Note went to publication at the end of May. By the end of this summer, I had met and spoken with enough lawyers and other human rights workers in Moscow and across Russia to know that the law is having serious consequences: many reputable Russian human rights attorneys at a range of organizations, both international and domestic, told me that, essentially, the jig is up, and they’re on the market for private sector work. In recent weeks, I’ve started seeing more posts on Facebook than usual about fleeing the country.

SETTING THE GROUDWORK

Technically, the Law on Undesirable Organizations is doing exactly what it’s supposed to. But it didn’t come out of nowhere: in summer 2012, Russia had adopted the Law on Foreign Agents, a similar set of provisions dealing exclusively with domestic organizations. The Law on Foreign Agents, among other things, required some non-profits receiving operational funding from outside Russia – as human rights organizations there nearly universally do – to register with the federal government and advertise their status as “foreign agents.” In colloquial Russian, the term “foreign agent” is equivalent with “spy.” These groups are also subject to random audits that often function as raids on records and also equipment like computers.

The organizations that are required to register are those engaged in “political activity,” a term whose definition Russian courts have yet to categorically decide. But, generally, any project with an element of advocacy for policy change can constitute “political activity.” And if the advocacy is for a change to Russia’s policy on Crimea, it could constitute a “threat to the territorial integrity of the Russian Federation,” an extremist crime. Many small, politically inconsequential human rights groups, who are doing extremely brave and crucial work, are now listed as “foreign agents.” These groups must now disclose that they are a “foreign agent” on the front page of their website and any of their publications. The Law on Foreign Agents is a great facilitator of self censorship: the heads of multiple Russian human rights organizations have told me that they would prefer to fold their organization instead of paying the massive fines that come with continued operation of an unregistered “foreign agent” group, or the legal fees of appealing the determination. By February of 2015, numerous groups had chosen to shut down instead of continuing to operate with a “foreign agent” status. Furthermore, there is no due process in how organizations are identified or registered as “foreign agents.” The Ministry of Justice can add an organization to the register of “foreign agent” groups, technically, without having to actually notify the organization.

While the Law on Foreign Agents creates a more hostile environment for Russian human rights workers, it has very little practical impact, other than making Russian human rights workers a little more uncomfortable in an already inhospitable environment. More importantly, it does not cut off funding. This is where the Law on Undesirable Organizations comes in.

A STRANGLEHOLD ON CIVIL SOCIETY

The Law on Undesirable Organizations is actually a set of amendments to various Russian laws, including Russia’s Criminal, Criminal Procedural, and Administrative Codes; the Law on Procedure for Exit from and Entry to the Russian Federation; and the Law on Measures Against Persons Involved in Violations of the Fundamental Human Rights and Freedoms of Citizens of the Russian Federation (usually called the Rights and Freedoms Law). .

The main feature of the Law is that it gives officials the power to deem certain non-Russian and international organizations “undesirable.” These organizations will then have their activities limited or banned in Russia, and their assets can be frozen. It was hotly discussed in the months leading up to its passage, primarily in Russia’s community of human rights workers, which I joined in 2010. The law establishes that the activities of non-Russian or international non-governmental organization that represent a “threat to the foundations of the constitutional order of the Russian Federation, the country’s defense, or the security of the State,” may be kicked out of the country.

Thus far, only the National Endowment for Democracy (NED), an American grant making organization working for “democracy promotion,” has been labeled as an undesirable organization. Since NED’s funding supported a variety of Russian civil society and human rights groups, this ban from operating in Russia could have serious consequences.

Under the new law, “undesirable” organizations in Russia are subjected to the following:

  • A ban on opening new offices in Russia
  • A ban on the dissemination of information by publication, including through the media, or Internet, and on the production or storage of such publications with the intent to disseminate.
  • Placement on a financial blacklist, after which Russian financial and credit institutions are barred from transacting with the organization
  • A bar on entry to the Russian Federation for non-nationals who “participate” in the activities of “undesirable” organizations

LEGAL IMPLICATIONS

Unfortunately, from an international legal perspective, the Law on Undesirable Organizations is probably perfectly legal on its face. What government should be barred from restricting the operations of foreign groups working to change the political and social contours of its society? The law itself invokes state security and threats to social order and public health as impetuses for its creation. But in practice, the law is just another blunt weapon for use in the Russian government’s assault on civil society in general and human rights in particular.

In its March 2015 review of Russia’s compliance with the International Covenant on Civil and Political Rights, the United Nations Human Rights Committee was clear about the potential for misuse and abuse in the Law on Foreign Agents. It called on Russia to amend the law to clarify its language, and recommended removal of the term “foreign agent” entirely. The Committee and other international organizations and advocates must similarly criticize the Law on Undesirable Organizations, which invokes a cynical and twisted version of sovereignty in a bid to intimidate, starve, and ultimately banish the groups that bravely report on the various human rights violations that have become a standard feature of life in Russia today.

Thomas Callahan was a 2015 Leitner Center Summer Fellow. He interned with an international human rights organization in Russia.

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: jaime.silva/Creative Commons


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Taking human rights back to the streets: Bell v. City of Boise and homelessness

By Amaury A. Reyes-Torres

According to the National Alliance to End Homelessness, around 578,400 people in the United States experienced homelessness in a single night in January 2014. Over the past year and a half, this number may have increased due to job insecurity, extreme poverty and inadequate access to mental health services, among other reasons.

Many states are currently experiencing a real deficit of available space to house homeless individuals, resulting in numerous people not being able to stay at shelters. These individuals have no other choice but to sleep on sidewalks, in parks or under highways. Laws passed to criminalize this conduct and homelessness itself has serious human rights implications and raises inequality concerns.

HOMELESSNESS AND CITY ORDINANCES: CRIMINALIZED WITHOUT A CHOICE

According to the National Law Center on Homelessness and Poverty, a growing number of local governments across the country have passed ordinances that criminalize sleeping on the streets, camping, panhandling and other public conduct that many homeless individuals engage in to survive. There are two fundamental problems with these types of ordinances. First, many cities lack sufficient space to otherwise provide adequate accommodations for the homeless. Second, cities that pass ordinances like these fail to consider that the presence of the homeless in public places is not a matter of choice. Many homeless individuals are forced to live on the streets due to circumstances beyond their control, such as a lack of shelter space. They have no place to go, and because of this, they are punished.

A recent case in Idaho is challenging these types of ordinances, with vast implications for ensuring human rights protections under domestic U.S. law. The case, Bell v. City of Boise, was brought by homeless individuals convicted for camping and sleeping in public places. They claim the ordinances passed by the city of Boise that criminalize certain public activities violate their constitutional rights because these laws impose a punishment when there is not adequate and available space to shelter.

In a recent statement of interest for the case, the Obama Administration argued that the court should consider the enforcement of these ordinances as Eighth Amendment violations when there is no available shelter space. According the administration, these ordinances are doing nothing but criminalizing the homeless who have no other choice but to sleep in the streets. Under these circumstances, the mere fact of being homeless, rather than any conduct, is being punished.

The Supreme Court has ruled that laws that punish status instead of conduct are unconstitutional. In the view of the Obama Administration, this is exactly what is happening with the homeless because “…the conduct of sleeping in a public place is indistinguishable from the status of homelessness” when there is no space available to perform a fundamental human activity like sleeping. When there are shelters available to accommodate the homeless, sleep is possible. But when no accommodation is possible due to the lack of shelter space, the homeless resort to public places to secure a place where an unavoidable need can be satisfied. Criminalizing this action is a punishment not for the conduct of sleeping in public places, but for homelessness itself. Therefore, such ordinances violate the Eighth Amendment right to be free from cruel and unusual punishment .

There is nothing new about this proposition. In Jones v. City of Los Angeles, the Ninth Circuit Court of Appeals ruled that the enforcement of ordinances prohibiting sleeping, sitting or sleeping in public as unconstitutional under the Eighth Amendment. Following this persuasive precedent, the current administration is asking the court to hold that punishing homeless people for sleeping in the streets when they have no other place to go is a cruel and usual punishment. Although Jones was vacated as result of a settlement, its reasoning is still important, and the court should use this legal framework when considering the constitutionality of the law in question.

The Obama Administration is also concerned with the consequences of these measures. It can be reasonably inferred from the submitted brief that there is a relationship between the cycle of poverty and criminalization. In fact, criminalization of homelessness neither increases society’s well-being nor attacks the causes of homelessness. As a result of this bad policy, the government fails to both reduce homelessness and to meaningfully include the homeless in civil and political life due to the stigma created by a criminal record for sleeping in the streets.

HOMELESSNES AND HUMAN RIGHTS

The criminalization of homeless is not just illegal under the Eighth Amendment, but also under Article 7 of the International Convent of Civil and Political Rights (ICCPR), to which the United States is a party. The United States understands Article 7’s prohibition of cruel and degrading punishment as cruel and unusual punishment under the Eighth Amendment. And if by criminalizing the homeless for not having a place to go to sleep violates the Eighth Amendment, then it also violates Article 7 of the ICCPR.

In 2014, the U.N. Human Rights Committee expressed its concerns regarding the criminalization of the homelessness in certain areas, despite efforts made by the U.S. Moreover, the committee not only said this situation raises concerns about cruel, inhuman or degrading treatment, but also of discrimination. Raquel Rolnik, the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living and on the right to non-discrimination in this context, also noted in his 2010 country visit report that the rise of local ordinances in the U.S. prohibiting various activities in public simply serve to punish homeless individuals, rather than addressing the lack of affordable housing, a root cause of homelessness. When adequate shelter space is unavailable, “homeless persons should be allowed to shelter themselves in public areas,” the Special Rapporteur said. After his visit, the U.S. Interagency Council on Homelessness and Department of Justice released a report in 2012 stating that these criminalization policies are not only illegal under domestic U.S. law, but may also violate the ICCPR and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), of which the U.S. is a state party.

The criminalization of homelessness also raises important economic, social and cultural rights concerns. The United States Constitution does not protect economic, social and cultural rights explicitly, nor is it a state party to the International Covenant on Economic, Social and Cultural Rights (ICESCR). The U.S. is a signatory to the ICESCR, and as such it has the obligation not to violate the object and purpose of that treaty. It is also important to remember that all rights are interconnected and each right has economic, social, cultural, civil or political rights implications. A violation of a civil right like that protected under the Eighth Amendment may have social and economic consequences. In fact, the principle of interdependence is one of the core principles of human rights, meaning that civil and political rights are inextricably tied to social, economic, cultural rights. According to the 1993 Vienna Declaration and Programme of Action, “[a]ll human rights are universal, indivisible and interdependent and interrelated,” and states must work to ensure all fundamental freedoms. The Inter-American Human Rights Court has further interpreted this concept to mean that there is an “…interdependence that exists between civil and political rights and economic, social and cultural rights, since they should be fully understood as human rights, without any rank and enforceable in all the cases before competent authorities.” The European Court of Human Rights reached a similar conclusion in its landmark judgment in Airy v. Ireland.

Under the U.S. Bill of Rights, the state does not have legal duty to provide shelter. However, the New York Constitution protects the “right to shelter” in article XVII. Moreover, cities, states and the federal government have a duty to refrain from violating federal constitutional rights, which mirror basic human rights. Fulfilling this obligation may even lead to the protection of social and economic rights through the provision of adequate shelters or other social welfare measures. As the Special Rapporteur on the Right to Adequate Housing noted in his 2010 report, the government should create constructive alternatives to the criminalization of homelessness, and may even need to increase housing stocks or assistance to ensure that rights are not violated.

INTERSECTIONALITY AND EQUAL PROTECTION

Not only do these ordinances violate the Eighth Amendment and the ICCPR, but they are also discriminatory in nature. According to the Substance Abuse and Mental Health Services Administration, a large number of the homeless population is composed of ethnic, sexual and other minorities. A report by the Office of Community Planning and Development reveals that almost 60 percent of the people who are currently homeless are non-white. And, a study led by researchers at Seattle University School of Law, found that of the homeless population, almost 42 percent are African Americans; 20 percent are Hispanics, 4 percent are Native American; and 2 percent are Asian. Also, 20 to 40 percent of homeless youth identify themselves as LGBTQ. This alarming data shows that certain groups are disproportionately affected by laws that criminalize homelessness, potentially in violation of protections under the ICCPR and the International Convention on the Elimination of All Forms of Discrimination (ICERD).

Indeed, a report by the U.N. Committee on the Elimination of All Forms of Racial Discrimination against Racial Discrimination on the U.S. said the Committee was “concerned at the high number of homeless persons, who are disproportionately from racial and ethnic minorities, Particularly African Americans, Hispanic/Latino Americans and Native Americans, and at the criminalization of homelessness through laws that prohibit activities such as loitering, camping, begging and lying down in public spaces (arts. 2 and 5 (e) [of ICERD])”.

The problem is not only how homelessness affects these minority groups, but also how historically marginalized and vulnerable groups are far from being equal under the law. The social discrimination suffered by homeless individuals is the product of multiple, intersecting factors, such as race, gender, sexual orientation and socioeconomic class. The homeless thus not only have to put up with the burden of living in the streets and having no place to go, but also face a particular form of intersectional discrimination. The aggregated effect of this discrimination does nothing more than perpetuate the exclusion of the homeless from civil, social and political life.

CONCLUSION

As cities across the nation are enforcing ordinances that punish camping or sleeping in public places, it is important to remember that criminalization is a last resort in democratic societies. When laws begin to punish victims instead of fighting the causes of homelessness, they perpetuate the cycle of poverty, injustice and inequality. It is never too late for the United States to live up to its human rights obligations under the ICCPR and the ICERD, as it works to fulfill its domestic constitutional rights and guarantees.

Amaury A. Reyes-Torres is a Staff Writer for Rights Wire

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: Tomas Castelazo/Creative Commons


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Standing in solidarity with indigenous people impacted by human rights violations in Mindanao

By Rodrigo Bacus

Recent killings of indigenous people in the region of Mindanao in the Philippines have shed light on the ongoing human rights violations in the region, leading to international calls for solidarity and demands for justice. In the early morning of Sept. 1, a paramilitary group of the Armed Forces of the Philippines (AFP), the Magahat Bagani Force, also known as the Marcos Bocales Group, shot and killed cousins Dionel Campos and Juvello Sinzo in Mindanao. Both of these men were members of an indigenous people’s rights organization, the Mahalutayong Pakigbisog Alang sa Sumusunod (MAPASU). On the same day, witnesses found the body of Emerito Samarca, Executive Director of Alternative Learning Center for Agricultural and Livelihood Development (ALCADEV), in one of the center’s classrooms. Samarca’s body showed signs of torture before the paramilitary group either shot him to death or left him for dead. The same paramilitary group also set fire to a community cooperative store and part of another indigenous people school, the Tribal Filipino Program of Surigao del Sur (TRIFPSS). These murders and abuses are part of a larger pattern of human rights violations by the AFP and its paramilitaries against indigenous people in Mindanao, who are called the “Lumad,” meaning “people of the earth.”

INCREASING MILITARIZATION, INCREASING VIOLENCE

Human rights activists link the Magahat Bagani Force paramilitary group with the Eastern Mindanao Command of the AFP, and see increased militarization in Mindanao as part of what is spurring the violence. Paramilitary groups in Mindanao are private armies of people recruited from the local community, including “datus,” the honorific title referring to tribal leaders. The AFP and the Philippine government deny direct or indirect involvement with paramilitary groups. However, the AFP’s and the paramilitaries’ harassment, displacement, and extrajudicial killings of the Lumad and human rights defenders in the area is undeniable and was recently highlighted by the United Nations Special Rapporteur on the Human Rights of Internally Displaced Persons. The pattern of human rights violations, according to the special rapporteur, is directly linked to either the militarization of the area or the increasing presence of industrial mining companies, which have been criticized for displacing indigenous people from their land. Moreover, the special rapporteur added that Lumads and their datus have been killed specifically for their activities in protest of mining companies.

For human rights activists and people directly impacted by the Philippine government’s counterinsurgency tactics, officially known as Oplan Bayanihan, the increased militarization to protect the interests of mining companies is very real, and has placed many of them at serious risk of physical harm and other human rights violations. For example, Samarca ran a human rights-based alternative learning center, and was actively involved in activist farmer organizations. Similarly, Sinzo and Campos were members of Lumad rights organizations. The paramilitary groups specifically targeted these three victims because of their association with Lumad organizations and alternative schools. In a process known as “red tagging,” the AFP and its paramilitary groups have historically targeted innocent human rights defenders with threats of death and accusations that they are members of the New People’s Army, a military group in the Philippines waging a protracted people’s war against the government. These red tagging incidents can result in the death or injury of the targeted person. Witnesses have testified that the same red tagging occurred with Samarca, Sinzo and Campos before they were killed by paramilitary group.

SEEKING ACCOUNTABILITY UNDER THE LAW

The three deaths represent deplorable extrajudicial killings that must be condemned. The Human Rights Committee has explicitly identified “arbitrary killings” in the hands of government security forces as a violation of the right to life under Article 6 of the International Convention on Civil and Political Rights (ICCPR), to which the Philippines is a party. Since red tagging identifies someone as a criminal and often results in the death of that person without a proper trial or sentencing by a competent court, these red tagging killings are a violation of Article 9 of the ICCPR, which protects the liberty and security of persons. Moreover, the deaths of Samarca, Sinzo and Campos are only the tip of the iceberg. Human rights violations committed by the Philippine government are rampant in Mindanao, and there must be accountability.

The targeting of Lumad school leaders and activists coupled with the burning of the schools themselves deny the Lumad their right to education and right to cultural life under the International Covenant on Economic, Social, and Cultural Rights (ICESCR), to which the Philippines is a party. ALCADEV, the alternative learning center that Samarca headed, was created to fill a void in educational access for the Lumad who live in rural areas of Mindanao. ALCADEV provides secondary education to Lumad children, and teaches classes on sustainable agriculture, Lumad culture and human rights. ALCADEV was so successful in its curriculum and in reaching students from remote areas that it received an award for its efforts from the Philippine Department of Education. However, the mission of ALCADEV to promote self-determined and sustainable growth and to oppose industrial mining companies is at odds with the Philippine government’s interests in opening up the Philippines to industrial agriculture, logging and mining companies. The targeting of community leaders, human rights activists and schools—including through arson—represents a deliberate act by the Philippine government to retrogress the educational rights of Lumad children. The government is seeking to cut off their ability to learn and to deny their rights to cultural life and to self-determination over development. The Philippines, which is a state party to the ICCPR, the ICESCR and many other human rights treaties, must meet their legal obligations immediately. The Philippine government must ensure that these human rights abuses stop and that the AFP and its associated paramilitary groups are held accountable.

ROLE OF ECONOMIC INCENTIVES

The interests in acquiring the land of the Lumad to monetize its wealth are very strong. The Philippines is one of the largest depositories of gold and has similarly large deposits of nickel and copper. These deposits lie within regions that are home to the Lumad, who regard the flora, fauna and land as part of their heritage and cultural life. The terror spread by the AFP and paramilitary groups have displaced the Lumad from their home, paving the way for industrial mining companies to establish their foothold in these lands, and to disregard the principle of free, prior and informed consent. The deaths of Samarca, Sinzo and Campos as well as the targeting of the schools have resulted in the displacement of 2,000 Lumad who have evacuated the area for fear of their safety. In addition, the attacks on schools in general have kept almost 3,000 children from enjoying their right to education.

All of this highlights the horrifying reality of what some have described as the “ugly face of our current rapacious global material and energy consumption.” As the international community stands with the Lumad and these three recent victims of paramilitary attacks, it must also strive to recognize a broader system of development that promotes participation, and respects and centralizes the fundamental human rights of all, particularly those who are directly impacted.

SHOWING SOLIDARITY

Local people demonstrated their overwhelming support of the Lumad school leaders by arriving in the tens of thousands for Samarca’s funeral. I regret being unable to personally pay respects to this dedicated and friendly man, who I had seen co-participating in the International People’s Conference on Mining. Furthermore, under the hashtag #StopLumadKillings, directly impacted people, activists and their solidarity networks have continued to send updates about human rights violations in Mindanao and highlight the abuses of the Armed Forces of the Philippines (AFP) and its paramilitary groups. The international community must continue to call for justice and accountability: the Philippine government must abide by its international human rights obligations and address the killings and abuses perpetrated by the AFP and its paramilitary groups.

Rodrigo Bacus is a Staff Writer for Rights Wire.

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: Keith Bacongco/Creative Commons


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Recent wave of mob attacks in Turkey and the State’s “duty to protect” under the European Convention on Human Rights

By Meric Sar

Since Sept. 8, Turkey has been the scene of an unprecedented wave of mob attacks primarily targeting its citizens of Kurdish origin and their property as well as numerous newspapers and political party offices. According to officials with the People’s Democratic Party (HDP), a left-wing political party in Turkey, their party members and offices were the sole target of more than 400 attacks in the span of just one week. Outraged by attacks by the Kurdistan Workers’ Party (PKK), a militant Kurdish nationalist group, targeting Turkish military and police officers in Turkey’s southeast, the overarching motive of the attacks appears to be to retaliate indiscriminately against those perceived to be representing the “Kurdish” identity in the public. The widespread attacks had varying forms: burning and destruction of property, beatings, public humiliation of individuals and machete attacks. Although most of the assaults did not result in loss of life, there have been also reports of several killings, whose true motives have yet to be confirmed.

It is disturbing that many of the attacks occurred in the presence or immediate proximity of the state police, and on numerous occasions, the size of the angry crowds exceeded hundreds. Yet, Turkish police – who have been known to quickly resort to excessive use of force against peaceful street protests – often abstained from taking appropriate action.

A PREDICTABLE PATTERN

In the face of a severe threat of large-scale violence, government officials did not condemn the events but only asked the crowds to stop their aggression. Meanwhile a week-long curfew was effective in the town of Cizre where the military had an intense confrontation with PKK guerillas. According to some reports, 21 civilians died during the conflict where the army used heavy weapons to indiscriminately bombard civilian districts, which potentially aggravated the unintended casualties.

Most of the mob attacks followed a predictable pattern, and the police had the means to at least minimize the resulting damage, if not wholly prevent it in many instances. Many of these angry groups use social media for coordination and make public calls online for others to join. These communications – which often give away the prospective targets – are open to the view of the public and the security forces.

The hesitation of the security forces and the administration, coupled with President Recep Tayyip Erdogan’s efforts at politically capitalizing from the polarization of the society before the November elections paints a disturbing picture. When such alarming conditions indicate an absolute disregard by a state towards the lives of its own citizens, the state’s potential culpability in the unfolding events, from incompetence to one of simple recklessness or outright complicity in crime, must be investigated.

TURKEY’S DUTY TO PROTECT ITS CITIZENS UNDER THE EUROPEAN CONVENTION ON HUMAN RIGHTS 

Turkey is familiar with this type of situation. During the 1990s, when the conflict between the Turkish state and the PKK was particularly intense, the European Court of Human Rights found on many occasions that Turkey had violated the European Convention on Human Rights (ECHR) in a series of cases concerning the susceptible killings of Turkish citizens of Kurdish origin. Most of these cases related to situations where Turkey had failed to exercise the proper functions of a state in preventing and investigating the relevant killings.

Article 2 of the ECHR defines the “right to life,” one of the most fundamental principles set forth in the Convention, and it requires member states not only to refrain from the unlawful taking of life, but also to protect the lives of its citizens. Thus, a government can be held liable under the ECHR for acts perpetrated by private individuals if the government is found to have neglected its positive obligations to protect the right to life.

In the landmark case of Osman v. U.K., the court ruled for the first time that states have a positive obligation to protect the right to life. This involves both prevention and investigation of the crimes targeting the lives of citizens. Although most of the past cases where Turkey was found to violate the ECHR concerned the state’s failure to investigate the committed crimes, a duty to prevent continues to be equally important for a criminal justice system to serve its function of deterrence.

According to the standard set forth by the court in Osman v. U.K., once it is established that the authorities knew or should have known about the existence of a “real and immediate risk to the life of an identified individual” caused by the potentially criminal acts of private individuals, and failed to take reasonable actions to stop that risk, a state will be deemed in violation of its obligations under the ECHR.

A killing is not necessary to trigger an obligation under the ECHR. States’ positive obligations under ECHR are interpreted in an expansive fashion, and they must work to preserve human dignity in general. A failure to protect citizens against inhuman and degrading treatment by private parties may as well constitute a breach of Article 3, which prohibits “torture or . . . inhuman or degrading treatment or punishment”. For example, in Moldovan and others v. Romania, individuals of Roma origin were lynched by an angry mob following a bar fight, and their houses and property were burned. In this case, the court found that the ECHR required “States to take measures designed to ensure that individuals within their jurisdiction are not subjected to ill-treatment, including ill-treatment administered by private individuals.”

AVENUES FOR JUSTICE

For a claim to be admissible before the European Court of Human Rights, the applicant must first exhaust all local remedies available under the domestic law. Indeed, Turkey’s domestic law provides numerous remedies to those who have suffered from these abuses in the form of civil and criminal actions. However, the court may still find an application admissible if it deems the local remedies as ineffective in providing just reparation. The consistent deterioration of the rule of law in Turkey, resulting from the political pressure on the judiciary as reflected in numerous politically motivated prosecutions, is well-documented. Furthermore, the widespread and systemic nature of the government misconduct makes fair and just prosecution of each and every individual involved in these crimes a very distant, if not impossible, prospect. Hence, under well-established jurisprudence, if a case reaches the court, Turkey may very likely to be found to have violated the ECHR for failing to meet its obligations in protecting its citizens during the September 2015 attacks.

Meric Sar is a Staff Writer for Rights Wire.

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: Andrea Giudiceandrea/Creative Commons

Photo credit: Baron Reznik/Creative Commons


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The role of oil in the Syrian refugee crisis

By Sarah Ben-Moussa

The recent influx of refugees into Europe and neighboring states can be traced back to a number of causes—civil unrest, ethnic power dynamics, and the rise of radical Islam in the Middle East to name a few. While the Syrian conflict is both nuanced and complex, a significant aspect of the most recent increase of refugees can be traced to the growth of the Islamic State (IS) in the area.

The IS in Syria is unlike any large-scale terror operation that has come before it. Part of what distinguishes this group from its predecessors is the organizational and financial success the group has achieved. In assessing the factors surrounding the financial foundation of the IS, it is imperative to first look at the role of oil, both in sustaining and advancing the success of the IS.

STATE RESPONSIBILITY IN CURBING TERRORIST FINANCING

In a presidential statement in July 2014, the United Nations Security Council condemned any form of trade with the IS, either directly or indirectly, by member states. Most notably, they reminded states of their obligation to ensure that nationals and those within their territory do not commercially engage with the IS.

The significance of this language by the Council stresses the importance of individual state responsibility in going beyond traditional inter-governmental economic responses, and taking actions against private companies and individuals whose actions directly or indirectly, as the case may be for many private financial institutions, support the IS.

The Council also stressed the importance of member states preventing private donations by nationals and members within their territory to the IS. U.S. officials have criticized Gulf States, such as Saudi Arabia and Kuwait, for their failure to curb private donations to the IS.

TRADE SANCTIONS AND THE RISE OF BLACK MARKET OIL

While the international community has condemned any financial engagement or transaction with the IS, they have not addressed the more nuanced issue of trade sanctions on Syria and how the sanctions affect the oil trade in the region, especially with the IS.

In an Executive Order issued in April 2011, President Obama expanded trade sanctions on Syria in response to documented human rights abuses committed by the Syrian government, with the hopes of weakening the regime of Syrian President Bashar Al-Assad. Later, in December 2014, the U.S. targeted private companies based in Switzerland, the United Arab Emirates (UAE), the Netherlands and Syria found to have trade ties to the Assad regime. The U.S. introduced measures that included issuing financial penalties, barring them from benefiting from American trade and freezing the American assets that the companies held. Although the effect of cutting off oil trade with Assad regime may have aided rebel groups in the short term, it has yielded an unforeseen result: the strengthening of the IS.

The vacuum left by recent trade sanctions has made the import of oil across the Syrian border difficult, causing the Syrian government to rely on alternative sources of fuel. As of Sept. 7 of this year, the last remaining oil field under the control of the Syrian regime fell to IS, further exacerbating the situation. Notably, reports have surfaced that the IS has been selling back barrels of oil seized in the eastern part of Syria to the Syrian regime through third party business intermediaries with close ties to the Assad regime. Some sources have even traced oil from the IS to Turkey, where smugglers sell the oil for roughly $350 a barrel, which is approximately triple the price of local Turkish oil. With such large profit margins, oil is a lucrative illicit industry for the IS.

Engaging in the oil trade with the Assad regime may have the effect of strengthening government forces, allowing for regime to perpetuate violence on its own citizens. However, cutting off ties with the regime opens up trade avenues that may produce much more disastrous results. As highlighted by former oil executives and energy experts in Syria, the IS is able to generate roughly $2 million in oil revenue a day from the sale of crude oil. Reports of recent clashes with rebel groups in the area have led to the IS using fuel as a means of political control, often resulting in disastrous results for citizens who are unable to fuel their homes, clinics unable to treat the wounded, and first responders unable to perform their duties. The ability of the IS to sustain itself through its oil revenue has made them an even more dangerous third party factor in the Syrian conflict.

FINDING SOLUTIONS TO A COMPLEX PROBLEM

The inevitable victims of this catch-22 are the Syrian citizens. With no better alternatives, their only remaining option is to leave their homes. Syria has become a political minefield, caving to the political interest of multiple state parties and private individuals. It is not enough to condemn the financial transaction of states with the IS—that much is evident. It is a complex and nuanced situation, which demands an international response that is catered to its specific set of circumstances. The refugee crisis cannot be addressed from a lens of migration, or counter-terrorism or state responsibility to protect refugees alone. Addressing the source of the conflict requires a solution that is as multi-faceted as the situation on the ground.

Sarah Ben-Moussa is a Staff Writer for Rights Wire.

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: Baron Reznik/Creative Commons