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


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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.

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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.