Rights Wire

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


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Human rights of transgender individuals and finding hope in California’s policy for inmates to receive sex reassignment surgery

By Amaury A. Reyes-Torres

The LGBT movements in the U.S. and in Europe have taken significant steps towards legal equality and political change. However, much still remains to be done to ensure transgender rights. Many still face challenges related to their gender identity and its intersection with race, employment, equal access to accommodations and health. One such population is transgender inmates whose medical needs are often disregarded.

THE PROBLEM: MEDICAL TREATMENT FOR TRANSGENDER INMATES

Trans individuals are a vulnerable population in prisons. According to the National Center for Transgender Equality, almost one of every six trans individuals have been incarcerated at some point in their lives, and this ratio tends to increase dramatically when discussing trans black inmates. These inmates face a variety of challenges, including abuse from other prisoners and lack of adequate healthcare.

In particular, trans prisoners often lack the necessary facilities and healthcare options to make the transition to their chosen gender. Many trans people are not afforded hormone treatment or surgical procedures while incarcerated, consequently leading to or aggravating gender dysphoria, a serious medical condition often affecting trans individuals.

Gender dysphoria is “[t]he distress that may accompany the incongruence between one’s experienced or expressed gender and one’s assigned gender,” according to the American Psychiatric Association. It is “characterized by a persistent and intense distress about assigned sex, together with a desire to be, or insistence that one is, of the other sex,” according to the World Health Organization. Gender dysphoria severely affects individual well-being, and may lead to depression and even death. Appropriate treatment of this condition includes hormone treatment and sex reassignment surgery.

Many prison rules are not conducive to beginning or continuing medical treatment for gender dysphoria. Despite their medical needs, transgender inmates are often denied necessary medical services on a daily basis. Freeze frame rules, which many prisons across the country still adhere to, only allows prisoners to receive hormone therapy if they had been receiving treatment prior to incarceration. Since many trans individuals buy hormones on the black market, they are not allowed to continue their hormone therapy due to a lack of medical documentation. This leads to a physical reversal of previous therapy and exacerbation of gender dysphoria. Trans individuals are also often denied beginning hormone therapy or undergoing sex reassignment surgery while in prison.

TRANSGENDER RIGHTS AND ADEQUATE MEDICAL TREATMENT AS A RIGHT

Under international human rights law, the lack of proper medical treatment for inmates is deemed cruel, inhuman or degrading treatment. The European Court of Human Rights has held that prisoners must be detained in a condition compatible with his or her human dignity, meaning that prison conditions must ensure prisoners’ health and well-being. There must be, according to the court, compatibility between the standard of treatment and the illness faced by the prisoner. By the same token, the Inter-American Court of Human Right has held that the government is a guarantor of the health of the inmates, and must provide inmates with necessary and adequate medical treatment when it is required. According to the United Nations Standard Minimum Rules for the Treatment of Prisoners, medical services shall be provided for the sake of the physical and mental health of the inmate.

This practice clarifies the scope of article 7 of the International Covenant on Civil and Political Rights (ICCPR), which forbids cruel, inhuman or degrading treatments. The ICCPR Human Rights Committee has held that a state party has a positive duty to maintain adequate standard of health for the inmate. A state party violates article 7 of the ICCPR when it does not afford inmates appropriate medical treatment.

These human rights laws can be applied in the context of transgender inmates in the U.S. Although the U.S. is a party to the ICCPR and other relevant international documents that obligate it to protect human rights, the U.S. does not consider itself directly bound by human rights treaties, as they are not self-executing. Nonetheless, the proliferation of references to the importance of providing healthcare to prisoners in international standards as a factor in ensuring human dignity reflects a trend in the development of international law and underscores the respect for prisoner rights and transgender rights. Furthermore, both through its obligation as a state party to the ICCPR and through the eighth amendment of the U.S. Constitution, the U.S. must prohibit cruel and unusual punishment. Therefore, a denial of adequate healthcare to prisoners may violate both the ICCPR and the U.S. Constitution.

In fact, in April 2015, a federal U.S. court ordered the State of California to provide a sex surgery reassignment to Michelle-Lael B. Norsworthy, a trans female prisoner in California. Bringing a claim under Section 1983, a civil rights remedy for constitutional rights violations, Norsworthy argued that the continuous refusal of the state to provide her with appropriate healthcare, including sex reassignment surgery, violated the eighth amendment. The court agreed, and held that the state acted with deliberate indifference to the medical needs and concerns of Norsworthy as an inmate.

Not only have the courts upheld trans rights in prison, but the Department of Justice filed a statement of interest in a similar case arguing that “[f]ailure to provide individualized and appropriate medical care for inmates suffering from gender dysphoria violates the Eighth Amendment’s prohibition on cruel and unusual punishment.” The United States considers gender dysphoria to be “a serious medical need requiring appropriate treatment,” the statement said. Thus, failure to provide adequate medical services to trans prisoners, including hormone therapy and sex reassignment surgery, is a cruel and usual punishment under both the eight amendment and article 7 of the ICCPR.

TRANSGENDER RIGHTS: CALIFORNIA GUIDELINES FOR SEX REASSIGNMENT SURGERY

Despite all the barriers that trans prisoners face in attaining adequate healthcare, there has been significant progress and reason to hope for a better future. Recently, California settled a case in which the state agreed to pay for a trans inmate’s sex reassignment surgery. In the aftermath of this settlement, California Prison Officials announced guidelines under which inmates could opt for sex reassignment surgery. This is a significant breakthrough. California has become the first state to sponsor this kind of measures in favor of trans inmates. Moreover, California has one of the largest inmate populations in the United States, making this decision even more meaningful.

Under the guidelines, an inmate requesting these services will submit an application to a committee (the Headquarters Utilization Management Committee), which will then refer the inmate to a subcommittee (the Sex Reassignment Surgery Review Committee) for evaluations and findings. The subcommittee will decide whether or not there are any medical reasons that justifies withholding the surgery until they are resolved or mitigated. They will also consider whether the treatment that the inmate is currently receiving is effective. Lastly, it will decide whether or not the candidate should receive sex reassignment surgery.

This process is a significant victory for trans rights and human rights overall. Undoubtedly, there will be further questions that will need to be answered, and this system will require oversight to see if this new proceeding is effective and rights-respecting. But this practice could set an example for other U.S. states and other countries facing similar situations in which proper healthcare services are being denied to trans inmates. Most importantly, California has set an example of how it is possible to fulfill human rights obligations using domestic mechanisms.

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: Joseph Kranak/Creative Commons


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Inadequate justice: the case of Jennifer Laude and the call to end unequal military agreements

By Rodrigo Bacus

On Dec. 1, 2015, Joseph Scott Pemberton, a U.S. marine, was found guilty by a Philippine court of homicide in the death of Jennifer Laude, a transgender Filipino citizen. It has been over a year since the beginning of the trial of Pemberton for the murder of Laude. Since that night, her friends, family, and advocates have strongly urged the U.S. and the Philippines to uphold the rule of law and ensure justice. While the conviction was a small, yet incomplete, victory, the greater issue that looms is the uneven power relationship between a country occupied by a foreign military presence, and the unjust arrangements produced as a result. Although the trial brought the case to a close, the justice that advocates sought is still far from achieved.

A DEATH

According to reports, on Oct. 11, 2014, Laude decided to have drinks with her friend Barbie, whose full name on government documents is Mark Clarence Gelviro. While in the bar, Ambyanz Night Life, Laude and Barbie met Pemberton, who was out on leave that night. Engaged to Marc Sueselbeck at the time, Laude had previously engaged in sex work off and on for six years, but had not done so for the past six months. That night, however, she decided to take customers as a way to compete with friends and have fun. After spending some time together, Laude agreed to leave with Pemberton. Laude, Barbie and Pemberton headed together to the Celzone Lodge, a nearby hotel. Barbie left Pemberton’s room to another part of the hotel and left Laude and Pemberton in the room alone. About 30 minutes later, Pemberton left the building. When he returned to his ship, he confessed what happened that night to his roommate, Jairn Rose, who listened as Pemberton told him about the two girls he met. Pemberton said he had noticed that when Laude undressed, she had a penis. Out of rage, he said he choked her from behind and then, when her body stopped moving, dragged her to the bathroom and left. “I think I killed a he-she,” Pemberton said, assuring his friend that he was serious.

Later that night, a hotel employee found Laude naked and dead with her head submerged in the bathroom toilet. Pemberton was the last person seen with Laude that night. Local police arrived at the crime scene, as well as a team from the Naval Criminal Investigative Service, which seemed to have knowledge that the incident involved an American serviceman even before Pemberton confessed to Rose. At this time, local authorities had neither brought Pemberton in for questioning nor requested an affidavit. Soon after, the police released an official report confirming that Laude had died due to asphyxia. Laude’s mom, upon hearing about the incident, took a 24-hour bus to where Jennifer lived and was surprised that the government had not taken any action. Four days later, lacking assurance from the government that they would move forward with a case, Laude’s family filed a murder complaint against Pemberton.

A CASE

As the case began, the Philippine court subpoenaed Pemberton for the preliminary investigation, but he was aboard the USS Peleliu at the time and did not appear. In a statement, Philip Goldberg, American Ambassador to the Philippines, cited the Visiting Forces Agreement (VFA), a bilateral agreement between the Philippines and the United States, as a reason why a U.S. ship held Pemberton in custody instead of a local precinct. Under the VFA, the U.S. can request the ability to retain custody over a suspect until judicial proceedings are completed. The U.S. invoked its ability to do so without a formal request, stating that it is its right under the agreement to exercise this power. The decision sparked outrage and united many activist groups and human rights defenders, some calling the incident a “hate crime.” It took until December 2014 to issue an arrest warrant for Pemberton, though the US had moved Pemberton to a Philippine army camp while still retaining custody of him in late October 2014. Pemberton stayed in a room within the camp and was guarded by US soldiers.

About a year after the incident, Pemberton finally appeared in court for the first time to recite his testimony of events to the public. Pemberton testified that he and Laude had begun to fight once he discovered that Laude had a penis. Pemberton pushed Laude. Laude slapped him. He punched her and then put her in a chokehold until she was no longer moving. Then, he tried to revive her in the bathroom over the toilet and eventually left in a taxi. The defense attorney wrote in an email to the New York Times that Pemberton did not kill Laude and had left her alive in the bathroom. The defense included this testimony to introduce complicating circumstances, including self-defense and the controversial trans panic defense. The trans panic defense attempts to equate the shock of discovering that a person is gay or trans to traditional scenarios where a “sudden quarrel” or the “heat of passion” would make it less likely that a person actually had malicious intent to kill another. Defendants have used the argument to persuade courts and juries to base rulings on unjust and damaging stereotypes about LGBT victims. California banned the trans panic defense in 2014, referring to the discriminatory effects it had on LGBT victims. The Philippine court had the opportunity with Laude’s case to decide that the use of such a defense in the Philippines is equally unacceptable.

INADEQUATE JUSTICE

On Dec. 1st 2015, the court found Pemberton guilty of the lower charge of homicide, which has a sentence of between six to 12 years. The court found that evidence supported the fact that Pemberton had killed Laude. However, it lowered the conviction from murder to homicide. The court was convinced that Pemberton should be considered less blameworthy for Laude’s death because Laude had kept the fact that she is a trans woman from Pemberton. Activists and supporters of Laude criticized the court’s consideration of this fact to lower the charge. By its finding, the court has tacitly admitted that the trans panic defense is a valid way to get away with murder.

In addition to their criticism of the validation of the trans panic defense, supporters of Laude have also criticized the actual enforcement of justice in this case. As soon as the court rendered the guilty judgment, U.S. troops in Camp Aguinaldo, where Pemberton is held, moved to block attempts by police to take Pemberton to custody. Because of the VFA, the U.S. has power to influence the determination of where Pemberton can serve his sentence. The agreement does not give the Philippine government the same power if the roles were reversed. Activists criticized the agreement and its practical effects in this case as yet another intrusion into Philippine sovereignty and another impediment to achieving justice.

For activists, Laude’s case is yet another reminder of how unequal agreements can allow one side to commit crimes with impunity. For instance, without active intervention by supporters of Laude, Pemberton’s case may have never been filed or given any attention in the first place. Moreover, activists had to ensure that Pemberton was not removed from the country. Finally, even at the point of judgment, Pemberton was given a lesser sentence for using a highly controversial defense, and has not yet been taken into custody.

BEYOND THE CASE: UNJUST TREATIES

Beyond Laude’s case, activists see unequal and unjust defense treaties as the overarching issue. Human rights group, KARAPATAN, actively condemns bilateral defense agreements such as the VFA and supports their cancellation. In its statement, KARAPATAN underscores that the death of Laude is not just a marker of the violence that trans people face globally, but also of the impunity by which American soldiers can conduct themselves due to the unequal agreements that protect them while failing to protect the rights of certain communities in the Philippines. KARAPATAN has documented five other cases in which Filipinos died as a result of actions by or in service of U.S. military troops, without any justice or accountability for those deaths.

In regions of the Philippines where the U.S. military has a strong presence, complicated relationships between communities also arise. For example, most people in region where Laude died value the business of American soldiers, and some even blamed Laude for the recent drop in business. However, trans and LGBT people, among others, face beatings, discrimination and other abuse from American soldiers, who do not fear punishment or accountability. They are increasingly frustrated by continuing abuses and injustice.

Meanwhile, the Philippine government recently signed a tighter supplemental agreement to the VFA with the United States, the Enhanced Defense Cooperation Agreement (EDCA). With EDCA, U.S. soldiers no longer have to stay temporarily as “visitors,” and the U.S. can deploy them to any agreed upon location in the Philippines. KARAPATAN predicts a surge in human rights violations and further erosion of Philippine sovereignty, which were the very reasons U.S. naval bases in the Philippines were closed in 1991. Furthermore, increased funding from the U.S. based on EDCA has strengthened the current regime’s counterinsurgency military campaign, Oplan Bayanihan, which has spurred human rights violations in Southern Philippines where 50 percent of Philippine forces are located.

In the face of this, human rights defenders are calling for justice for Filipinos who have experienced human rights abuses at the hands of the U.S. military. They are urging the Philippine government to revoke unequal bilateral defense agreements such as the VFA and EDCA. Most importantly, they are seeking solidarity in bringing to light the violence faced by the LGBT community and in securing LGBT rights as guaranteed under international human rights law.

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: U.S. Pacific Fleet/Creative Commons


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The war against the “investor”: investor-state dispute resolution and ambiguity in international law

By Meric Sar

Investor-state dispute resolution (ISDR)—an international procedure that allows an investor to enter into arbitration with a foreign government for violations of their property rights—is at a difficult crossroads. Enacted through international treaties, ISDR is facing a legitimacy crisis and skepticism from all ends of the political spectrum, from developing and developed countries alike. Many critics argue that ISDR undermines human rights and states’ regulatory powers.

While ISDR is far from being flawless as a dispute resolution mechanism, many such critiques only undermine the legitimacy of a very important judicial forum that is—and has been—essential for the development of modern international law. The real risk that we are facing today is not the occasional unjust decision by an ISDR tribunal, but the systemic persistence of states in restricting the capacity of international tribunals to develop and fine-tune the substance of international law. ISDR and international investment treaties are vehicles that, if used effectively, can bridge enormous gaps between theory and advocacy at the intersection of human rights and sovereign responsibility.

HISTORY AND CONTEXT

Throughout its history, international investment law faced constant political resistance from developing countries. The legal norms developed in this field rely on a delicate political equilibrium achieved after a centuries-long, painful—and often bloody—struggle between western states and developing nations seeking to find a way to de-politicize investment disputes (see Gunboat politics). At the same time, they wanted to ensure the rule of law in nascent political systems. Especially, the notion of holding a sovereign state liable for its treatment of a foreign merchant based on an “international” law standard stood at the core of academic disputes, especially in the legal traditions of the post-colonial countries.

As the current negotiations for the Trans Pacific Partnership treaty (TPP) and Transatlantic Trade and Investment Partnership (TTIP) continue—both of which include an investor-state dispute resolution clause—the western world has strongly criticized treaty arbitration for the first time. Today, investor-state arbitration’s opponents include Joseph Stiglitz, a renowned Nobel laureate and development economist. He says, “[ISDR] is about rewriting the rules of how our economy works, tipping the balance of power in favor of big businesses at the expense of workers and the public here and in partner countries.” Yet, these concerns often tend to reflect a very narrow understanding of ISDR, which fails to grasp its essential function in the realm of international law.

Most critics argue that ISDR is inherently biased in favor of wealthy investors. However, in reality, small and mid-sized businesses and individuals have accounted for about half of all cases brought to investment treaty arbitration. Another popular argument argues ISDR as an adjudicative process constitutes an undemocratic and “arbitrary” interference with the powers of sovereign states. But, this argument represents a simplistic fallacy as well, and it ignores the foundational tenets of state responsibility under international law. An essential attribute of state sovereignty is the ability to enter into international treaties and thereby restrict a state’s own sovereign powers. On the flip side, within the same treaty, a state can empower a neutral tribunal to adjudicate any claims to be brought against itself by third parties for alleged breaches of any such treaty. The vast majority of bilateral investment treaties (BITs) executed by states (even the treaties executed between two developing countries) are almost identical in terms of their substantive provisions, often merely reflecting the minimum standards of treatment recognized under customary international law. Likewise, the “arbitrariness” claim blatantly overlooks the complexity of ISDR as a legal field. In reality, ISDR is a sophisticated system with a variety of procedural and substantive checks and balances to answer most of the concerns raised by the general public.

THE TABLES TURNING

The skepticism of ISDR in the western world particularly intensified after two controversial cases, which are currently pending before arbitral tribunals. Brought against the governments of Australia and Germany, the cases have a common theme. In both lawsuits, investors seek just compensation for the monetary effects of certain regulations on their investments. These recent regulations were adopted by both governments in the public interest to address legitimate health and environmental concerns. More interestingly, in both cases, countries that are traditionally perceived to have developed democratic institutions and judicial systems find themselves as defendants.

The fact that the plaintiffs in the cases were tobacco and nuclear power companies only amplified the public’s outrage. Why was a commercial company allowed to circumvent domestic legal systems and undermine the “democratic process” of regulatory rulemaking? How could a three-person tribunal consisting of non-judicial legal experts with no political liability be granted so much power over the policies of a democratically-elected government?

NO COUNTRY FOR ARBITRATORS

Following these cases, the Australian government became the first developed country declaring that it will stop including ISDR clauses in its future BITs. Germany and France voiced strong opposition against the inclusion of an ISDR clause in the U.S.-European trade agreement that is currently being negotiated. Likewise, the U.S. revised its model BIT by delineating greater exceptions for labor, health and environment related regulations.

The current events come after a steady trend of withdrawals, beginning in the mid-2000s, from the International Centre for Settlement of Investment Disputes (ICSID) Convention by countries such as Venezuela, Bolivia, Ecuador, and Venezuela, all of which have questionable democratic accountability records. Likewise, in 2009, Russia withdrew from Energy Charter Treaty, which envisaged an ISDR mechanism to handle the disputes arising from the treaty’s application. The future of ISDR looks even bleaker, when the recent wave of skepticism in western society about ISDR is read together with this greater picture.

This concerted effort of western states in restricting the adjudicative powers of ISDR tribunals intends to protect states’ regulatory “police powers against potential legal challenges that can be brought via ISDR. However, although the legal theory of regulatory taking argued in the aforementioned cases may sound over-the-top for the laymen, regulatory taking is a well-established doctrine under the fifth amendment of U.S. Constitution and various other national legal systems. Thus, if the regulatory taking concept—providing compensation to an investor for being unfairly singled out in bearing the burdens resulting from the adoption of a regulation—is not an alien concept to the Western legal system, then should we not expect western states to advocate for the development of similar standards under international law so that it can serve to hold undemocratic regimes responsible? More importantly, what message about the health of international law is conveyed to the rest of the world when a developed state chooses to question the legitimacy of an international dispute-resolution mechanism to which it has given binding power, rather than first honoring the remedies and raising the legal defenses made available by such a venue?

AMBIGUITY AND ARBITRARINESS IN INTERNATIONAL LAW: A STATUS-QUO PLAYING TO THE HANDS OF STATES?

In his controversial article on the current predicament of the human rights and international law, titled “The case against human rights”), Eric Posner, a professor at the University of Chicago Law School, argues that ambiguity and lack of proper interpretation mechanisms are the greatest problems facing human rights and international law.

The first problem is the ambiguity in defining human rights and international norms, which allows governments to rationalize almost anything they do. The vast quantity and diversity of rights often fall short of providing clear guidance to governments. Quite often, protection of a certain right conflicts with securing another. For example, governments often legitimize torture by claiming that torture is a necessary to ensure their citizens’ right to security. Likewise, governments use the right to self‑determination often as a defense for alleged violations of international law. The same dichotomy is valid for freedom of expression and the right to not to be discriminated. Benefiting from institutional reputation and constitutional legitimacy, domestic courts provide a permanent seat to reconcile such normative conflicts in domestic legal systems. However, the jurisdiction of international courts are often established in an ad hoc fashion, and there is not an all-encompassing international court which can serve a function in developing such norms under international law in a way similar to the one of domestic courts.

Posner points out that the lack of institutionalization as the second core problem. The lack of a consensus among states about the scope of certain rights and international norms makes it difficult to establish a hierarchical system for interpreting and enforcing norms of international law. This leaves governments with almost complete discretion on how to interpret international law and enforce their policies as they see fit. In some ways, it is a race to the bottom. In order to avoid being held liable by an international institution, states inherently hesitate to give any binding authority to any international institution at all. This causes international law to function only to the extent when there is a clear and short term benefit for a government to do so.

FINE-TUNING INTERNATIONAL LAW

Given these issues, ISDR may actually have a role to play in strengthening international law and human rights. The general skepticism of states towards international law and adjudication renders those few institutions that we have at our hands ever more valuable. And interestingly, investor-state dispute resolution turned out to be one of the few judicial venues of international law that witnessed a steady rise in the last decades in adjudicating certain claims against sovereign states. Despite the popular skepticism towards ISDR, it may prove to address the ambiguity and institutionalization problems of international law as pointed out by Posner. The problem is: how can we expect the proper development of international law without providing authority to an international tribunal to adjudicate claims addressing such problems?

Indeed, the ISDR system is not perfect. An ordinary case may take years to reach a conclusion. The legal costs associated with filing and advocating a claim may easily amount to millions of dollars. Some claims brought via ISDR amount to billions of dollars may create a heavy burden on any country’s budget, let alone for one at an especially fragile situation economically. Likewise, the dual activities of some practitioners, acting both as a lawyer and an arbitrator in different cases, pose professional and ethical problems.

But despite its inadequacies and shortcomings, ISDR represents an important evolutionary step in the development of international law. It is revolutionary in the way that it provides individuals (at least those who qualify as an “investor”) a direct standing in the interpretation and shaping of international law. By offering a venue to private advocacy, ISDR enriches the landscape of international law. Generating valuable case-law, jurisprudence of ISDR offers guidance to states and fine-tunes various norms of international law. Often acting as a venue of transnational administrative law, ISDR tribunals deal with disputes involving competing interests of individuals and governments. At the very intersection of states’ prerogative powers and their obligations under international law, the tribunals consistently try to figure out ways to reconcile the tension between international law and domestic legal systems, between democratic governance and corporate risk-taking, and between human rights and sustainable development.

Contrary to popular belief, ISDR tribunals do not adjudicate in a vacuum. An ordinary ISDR tribunal consists of reputable experts of international law, often with distinguished academic backgrounds. Different than judges who often benefit from special immunities affording them life-long job protection, arbitrators have strong incentives to preserve their reputations as fair and competent adjudicators. Theoretical predispositions of prominent arbitrators on issues of state responsibility tend to differ from each other quite often, which naturally balances out overly liberal interpretations of international law. ICSID tribunals especially work to maintain transparency and often accept amicus curiae from stakeholders in the community. Furthermore, ISDR has sophisticated procedural rules, which allow for a quasi-appellate review to ensure the fairness of awards under well-established principles.

Current criticism of ISDR fails to take into account the very important function of ISDR in fine-tuning the interpretation of international law when it meets real life conflicts. As a venue, ISDR provides us a tremendous opportunity to give meaning to what we care the most.

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: Marc Treble/Creative Commons

 


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U.S. failure in Kunduz: a mistake that violates international humanitarian law?

By Amaury A. Reyes-Torres

War is neither fair nor pretty. But it does not mean that there are not rules that govern the conduct of those involved in conflict. The primary aim of these rules, embodied mainly in the Geneva Conventions and in customary international law, is to protect civilians, the sick, the wounded or those who no longer fight. These rules extend to objects and buildings, such as medical units, that deserve special protection because of the purpose they serve.

In October 2015, U.S. forces mistakenly bombed a Médecins Sans Frontières (MSF) hospital in Kunduz, Afghanistan, likely in violation of international law. Despite several separate investigations, the details of what exactly happened are still unclear, revealing how the U.S.’ response to this tragedy lacks transparency. As survivors, families of the victims and MSF seek answers, transparency and accountability should be paramount.

THE PROBLEM: ATTACK ON A MEDICAL UNIT

Kunduz has been the location of intense fighting against the Taliban, and was especially so during the first two weeks of October when the Taliban gained control of the city. On Oct. 3, the U.S. military forces conducted a military operation against the Taliban, which consisted of bombing specific targets in Kunduz. But the military operation did not go as expected.

The offensive, carried out by a US AC-130, did not hit a military object, but rather a medical facility operated by MSF, known as Doctors Without Borders in English, despite the fact that MSF had shared their GPS coordinates with all sides of the conflict. The medical facility was occupied by doctors, patients and other staff members during the time of the air strikes, and the attack killed 30 people, including staff and patients, and injured over 27 others. MSF staff described horrible scenes of confusion and suffering, where patients burned in their beds and close colleagues had to operate on one another. The bombing lasted over 30 minutes, despite repeated calls to U.S. and Afghan officials at the beginning of the attack stating that they were hitting a hospital. The personnel in the facility had no opportunity to evacuate.

The U.S. responded with conflicting reports in the four days the followed. The U.S., at first, described the event as an incident where a nearby medical facility could have sustained collateral damage. Later, the U.S. stated that its forces were supporting Afghan forces that were being attacked by the Taliban, and several civilians were struck by accident. Then, the leader of U.S. forces in Afghanistan testified that the airstrikes were ordered by the U.S. and that a hospital has been mistakenly struck. The question is: did this action by the U.S. violate international humanitarian law?

PROTECTION OF MEDICAL UNITS UNDER INTERNATIONAL HUMANITARIAN LAW

The conduct of hostilities in international law is regulated by four major principles: the principles of distinction, proportionality, necessity and the prohibition against unnecessary cruelty. Each of these principles play an important role in how the parties to any armed conflict (international or non-international in character) should formulate military objectives and prioritize the protection of civilians or protected objects.

The principle of distinction has two important components. First, the parties in the hostilities must be able to distinguish between civilians and combatants, or persons who directly participate in hostilities. The same applies with respect to wounded combatants who are considered hors combat, or people who are no longer engaging in conflict. This principle reflects customary international law, and it is included in the U.S Commander’s Handbook.

According to Sandesh Sivakumaran, a professor of public international law at the University of Nottingham, there are certain objects that are entitled to special protection. Although it can be argued that they are, after all, civilian objects because of their purpose, medical units have special protection during the conduct of hostilities. Under this rule, medical units should be respected and protected under all circumstances, unless they are being used outside of a humanitarian function. This includes when no one is receiving care.

This obligation to respect and protect medical units derives from Additional Protocols I (AP I) and II (AP II) to the Geneva Conventions, as well as from article 19 of the First Geneva Convention I, a treaty ratified by the United States. Also, article 18 of the Fourth Geneva Convention (also ratified by the United States) extends these protections to civilian hospitals, which are not necessarily formal hospitals, a category in which the facilities of MSF may fall. Moreover, even countries like the United States, which has not ratified Protocols I and II to the Geneva Conventions, must respect the prohibition against attacks on medical units and transportation bound for medical facilities because these rules are a part of customary international law.

Because an object like a medical unit is entitled to protection, several steps must be taken by all parties in engaged in hostilities. First, all parties must distinguish between a military object, which can be subject to a lawful attack, and a civilian or medical object against which a direct and purposeful attack is forbidden.

Second, under international customary law, all parties must take precautions – especially when it comes to air warfare – to protect civilians and civilian objects in good faith and with due diligence. Under AP I, all parties must: 1) do everything possible to verify the nature of an object; 2) take all necessary precautions, including in the means and methods of attack, to avoid or minimize collateral damages to civilians and civilian objects; and 3) be aware that certain actions could entail a violation of the principle of proportionality.

The amount of information available at the time of an attack is a large determinant of how lawful an attack is. The information available must be reliable, up-to-date and properly interpreted by decision-makers at the time of the action. In this respect, the timing of an attack may be extremely important, as civilian losses can be avoided at certain times of day.

More importantly, parties are obligated to give effective warnings prior to attacks, which is a well-settled rule of international law, according to Yoram Dinstein, an international law scholar. The warnings should alert civilians and civilian facilities that an attack is imminent.

KUNDUZ BOMBING: DISREGARD OF INTERNATIONAL LAW

In the Kunduz bombing, the U.S. military launched an attack on a medical facility, an object that is protected against direct and/or purposeful attack under international humanitarian law. The commander of the U.S. forces in Afghanistan testified that the attack was a mistake. It is clear that the U.S. forces did not properly distinguish a protected object from a lawful military target, and that they did not take precautions to avoid civilian causalities.

According to the Associated Press, American special operations analysts knew that the place of attack was a medical facility. In fact, according to The Guardian, MSF had communicated its coordinates to both U.S. and Afghan authorities as recently as Sept. 29, but apparently this was disregarded.

MSF also said that they were not warned of the attack, as is required under international law as well as the Department of Defense’s law of war manual. Therefore, there are strong indications that the attack was unlawful under the laws of armed conflict. MSF may be justified in calling this a war crime, according to Professor Mary Ellen O’Connell from the University of Notre Dame.

Although President Barack Obama did apologize to MSF, and launched investigations into the events, it is unclear whether the U.S. government will hold accountable the individuals responsible for the ultimate decision to bomb the hospital. Not only do the victims have a right know what happened, but it is also imperative for the U.S. to be as transparent as possible so that humanitarian organizations that do dangerous but necessary work feel reassured to continue or restart their operations.

THE NEED FOR TRANSPARENCY

This tragedy shows us that in the wake of unlawful attacks there is a need for transparency. There are two main questions that require answers: (1) what led the U.S. to believe the target was legitimate at the time of the attack?; and (2) if U.S. knew this building was a hospital, what led them to believe the medical unit had been stripped of its protection under international law?

MSF has called on the U.S. to consent to an independent fact-finding commission, arguing that the U.S., NATO and Afghanistan cannot be relied on to conduct neutral and transparent investigations. This request has unfortunately fallen on deaf ears.

The International Humanitarian Fact-Finding Commission has a mandate to investigate violations against international humanitarian law like the attack in Kunduz. It was created by article 90 of the AP I, and its president has declared that the commission is ready to investigate the attack in Kunduz. Although United States is not a party to AP I, it can still consent to investigation by the commission. Afghanistan can consent as well to its ad hoc jurisdiction.

One potential pitfall of the commission is that it was created by an international document pertaining to international armed conflicts, and not internal armed conflicts like the one taking place in Afghanistan. But, a broad reading of the ad hoc jurisdiction text in article 90(2) AP I could include non-international armed conflicts, which would allow for accountability and transparency in the wake of this tragic incident.

Recently, President Obama announced that U.S. forces will remain in Afghanistan soil until at least 2017. Now, more than ever, the U.S. must meet its obligations under international humanitarian law. In the case of Kunduz, the U.S. must consent to an independent investigation for the sake of the victims who deserve to know the truth. By doing this, the U.S. will show that it is committed to the rule of law, and that it believes that independent investigations are good policy.

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: Annette Dubois/Creative Commons


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United States drone strikes: legal mechanisms and controversy

By Sarah Ben-Moussa

As the nature of warfare and military endeavors continues to evolve, one of the most controversial topics continues to be unmanned aerial vehicles (UAVs) and remotely piloted aerial systems (RPAS), more commonly known as drones. They have been mostly used in situations where manned flight is considered to be too dangerous or difficult, in an effort to prevent intrusive military operations. Their use began under the administration of President George W. Bush, and has since increased under President Barack Obama’s administration, becoming a favored military strategy in recent years, despite international and domestic criticism. There is has been a growing and widespread concern for civilian casualties as a result of the use of drones, especially after January of this year, when President Obama faced public backlash over the drone strike that killed Warren Weinstein, a 73-year-old American aid worker, and the Italian hostage, Giovanni Lo Porto, 37.

In a 2013 statement to the National Defense University, President Obama defended the legality of the drone program, stating, “America’s actions are legal. We were attacked on 9/11. Within a week, Congress overwhelmingly authorized the use of force. Under domestic law, and international law, the United States is at war with al Qaeda, the Taliban, and their associated forces.” However, are drone strikes legal under domestic and international law? And what are their human rights implications?

DOMESTIC LAW AND THE AUTHORIZATION FOR THE USE OF MILITARY FORCE

Domestically, the justification for drone strikes has largely come from the Authorization for the Use of Military Force (AUMF), a congressional act passed in 2001, shortly after the Sept. 11 attacks. The original text of the act authorizes the President of United States “to use all necessary and appropriate force” against those they determine to be involved in the terrorist attacks that occurred on September 11, 2001.

The Act, which has not been revised since its passage in 2001, remains the principle justification for military force against Al-Qaeda and its associates, including the use of drone strikes. Only 60 words in length, it does not speak specifically to the use of drones, nor does it address the subsidiary groups and evolutions of Al-Qaeda that have risen in the last fourteen years. But the language “all necessary and appropriate force” has allowed presidential administrations to interpret the authorizations broadly, allowing for continued and growing targeted killing operations in Afghanistan, Yemen, Pakistan and Somalia.

There have been many critics of the continued use of the AUMF, both from Democrats and Republicans, asserting that the original purpose of the statute does not conform with the changing nature of war. As terrorist groups continue to grow and evolve, the AUMF is used as a blank check for the U.S. to engage in a sort of “forever war,” without seeking Congressional reauthorization for involvement in new conflicts. Moreover, legal scholars have argued that the law may not authorize the targeted killings of those who are indirectly or loosely associated with Al-Qaeda. Critics have expressed concern over the United States’ legal ability to use drones on Americans. Some have also said that the current drone program, which targets individuals in Yemen or Somalia without establishing clear ties between them and Al-Qaeda, is based on an overly-broad interpretation of the AUMF.

Many have called for a revision of the law, which continues to allow such broad presidential powers. These revisions are becoming more pertinent as questions arise about if the AUMF can extend in legal scope to justify military force against the Islamic State in Syria (ISIS), which did not exist at the time of the Sept. 11 attacks, and thus, does not fall under the original parameters of the AUMF.

There are currently two proposed amendments to the law that seek to approve military force in Iraq and Syria. The White House proposed a version that would allow the President to use the armed forces as he determines necessary against ISIS and associated groups, subject to a reauthorization of the act every three years. Despite the administration’s insistence that the proposed bill would not authorize long-term, large-scale ground operations, many criticized the text of the statute as too broad, leaving wide discretionary use of power to use the armed forces. A subsequent revised proposal made by members of Congress sought to confine the authorization of military force to only ISIS, and decrease the scope of presidential discretion. Both proposed versions would limit their reauthorization to three years.

Despite their differences, the language of both bills does not address or regulate the use of drones. The nature of warfare is changing in a way that the world has not seen before. Thus, it is imperative that our laws and authorizations to use military force address the changing nature of war, including the use and regulation of drones.

INTERNATIONAL LEGAL CONCERNS

The predominant concern in assessing the legality of drone strikes under international law is the risk to civilian life. In their May 2010 report, the U.N. Human Rights Council (HRC) took up the issue of “targeted killings,” a term not previously defined in international law. While the term has been used in a variety of contexts, including the use of drones, the HRC has interpreted it to encompass times when lethal force is intentionally and deliberately used, with a degree of pre-meditation, against an individual or individuals specifically identified in advance. The United States has adapted the military tactic of targeted killings in other countries since the attacks on Sept. 11, 2001, causing concern in the international legal community.

The international legal argument on drones involves three principal considerations. Under international humanitarian law, targeted killing is only lawful in times of armed conflict when a target in question is a “combatant” or “fighter.” In the case of a civilian, it is only lawful during the time a person “directly participates in hostilities.” Given the changing landscape of warfare, the exact definition of these terms continues to be the subject of an ongoing legal debate.

Under human rights law, a killing by a state is only legal if it is required to protect life and there are no other means, of preventing that threat to life. In the case of targeted killings across state borders, the HRC clarified that targeted killings conducted outside of the territory of a country’s borders does not violate sovereignty if the other state consents. Furthermore, it is legal if the country conducting the killing is doing so in self-defense under Article 51 of the UN Charter because the other country is unwilling or unable to stop armed attacks launched from its territory. International law permits the use of lethal force in self-defense in response to an “armed attack” as long as that force is necessary and proportionate.

The United States argues that its actions are in compliance with international law because the U.S. is in an armed conflict with Al Qaeda, as well as the Taliban and associated forces. The U.S. further asserts that the targeted killings they conduct fall within the scope of the self-defense as defined under the Article 51 of the UN Charter. Thus, in the case of Syria and ISIS, it is imperative for the U.S. to reauthorize the AUMF in order to meet the definition of “armed conflict.”

However, despite this defense, the HRC pointed to a number of concerns with the U.S. legal justification, including: “the scope of the armed conflict in which the US asserts it is engaged, the criteria for individuals who may be targeted and killed, the existence of any substantive or procedural safeguards to ensure the legality and accuracy of killings, and the existence of accountability mechanisms.” The U.S. may continue to encounter similar international scrutiny in Syria as in the conflicts in Afghanistan, Pakistan, and Somalia.

CONTROVERSIES OF THE DRONE PROGRAM

The U.S. continues to face backlash over its drone program, especially in Pakistan. The Pakistani government has called for the immediate cessation of the drone program. Even so, it doesn’t seem as though future development of the drone program will halt. The administration has defended its reliance on drones as a way to decrease the effectiveness of terrorists groups, such as Al-Qaeda, who operate in remote areas. Obama has also argued that this program achieves its military objectives while avoiding civilian causalities with “near certainty.”

Despite recent controversy, and many doubting the effectiveness of drones in reducing civilian causalities, research has shown that the civilian causality rate under the drone program has actually been dropping since 2008. The number of civilians and unknowns (persons who cannot be identified) reported killed by drones in Pakistan from the beginning of President Obama’s tenure to 2011 represented 11 percent of fatalities, and in 2012 went down to 2 percent (as compared to 33 percent in the previous administration). Additionally, since 2004, the drone campaign has killed at least 49 militant leaders.

It may be the case that the United States’ reliance on drones in conducting warfare is beneficial in the long term. Proponents of the program have strong arguments for its use as opposed to traditional methods of warfare, especially in the light of evolving terrorists’ threats against the U.S. and other states. The legality of the drone program continues to be debatable, depending on whose interpretation you are relying on. But one thing remains certain: there can be no denying the tragic sense of loss faced by those who are affected by civilian causalities. Our analysis cannot be rooted in a simple cost-benefit inquiry, nor an understanding of legal mechanisms, but must instead look at the issue from a humanitarian perspective. It is imperative for the United States to increase its transparency and administrative regulation when it comes to its drone program, while also balancing prevailing national security interests. The U.S. must institute national review mechanisms of the drone program and ensure continued research into increasing technological effectiveness and accountability. Above all, the U.S. must demonstrate the utmost commitment to the sanctity of civilian life.

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: U.S. Air Force photo/Staff Sgt. Brian Ferguson/Creative Commons


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Reflecting on Japan’s pacifism and the 70th anniversary of the atomic bombings

By Carolina van der Mensbrugghe

On Sept. 17, Japanese Prime Minister Shinzo Abe’s controversial security bill passed, marking the biggest shift in Japan’s defense policy in half a century, despite months of protest nationwide. These protests have distressed many within the country who are despondent at the divisive polarization of opinions on whether Japan should be able to intervene militarily overseas to aid allies. Mass scale protests themselves are generally uncharacteristic for Japan, however, this issue has inspired aggressive opposition for the security bill within parliament itself. Scenes from the night of the vote were broadcast on national television, including opposition politicians piled on top of the committee chairman, wrestling away his microphone to prevent the voting process. Meanwhile, lawmakers from Prime Minister Abe’s party pulled them away and formed a physical barricade around the podium.

The debate surrounding the constitutionality of affording Japan’s defense forces a larger role overseas continues to obscure the larger underlying question: how will this symbolic shift play out practically? Japan’s self defense force has already been recognized as one of the strongest military forces in the world, with technologically advance air, sea and land capabilities. The extent to which Japan will change practically has yet to be seen, but the public response to the bills’ passing alone has been substantial.

The passage of the security bill effectively reinterprets Article 9 of Japan’s constitution, a pacifist provision stating that Japan “forever renounce[s] war as a sovereign right of the nation.” At the very least, it represents a symbolic shift towards a more hawkish Japan. Domestic opinions on this bill are often polarized, including some people favoring Japan becoming a “normal nation,” while others fear that this change will enable Japan to help the United State wage “an illegal war” in the Middle East.

Much of my work towards the end of this summer focused on speaking with individuals, in both Nagasaki and Tokyo, about their reaction to these historic changes during the 70th anniversary memorial ceremony for the atomic bombing and end of the Pacific War. Japan’s defense policy is inextricably linked to collective war memory, which has added fuel to public polarization on the topic and entrenched the media in a partisan framework.

Both Nagasaki and Tokyo’s memorial ceremonies are rooted in commemorating the past, and both used the same history to advocate for or against increased defense forces, ultimately cautioning against repeating the mistakes of the past. Whereas Nagasaki’s pacifist message for peace has usually focused on the abolition of nuclear weapons in order to ensure a peaceful future, this year marked a shift towards eliminating all forms of war, including even the potential for war. Prior to the security bill controversy, much of the protests in Tokyo focused on decommissioning Japan’s nuclear power plants and speaking out against the human rights problems in Fukushima, following the historic Great East Japan Earthquake in March of 2011. Tokyo’s memorial ceremony was not known for massive protest turnouts, but the introduction of the security bill set the stage for pacifists and hawkish nationalists to have something to rally around or against.

Some American press omitted exploring the relevance of these important memorials in contemporary politics. The New York Times described Hiroshima’s ceremony in detail, briefly touching on the city’s skepticism towards the authenticity of Prime Minister Abe’s declaration for peace. Conversely, for Nagasaki’s memorial, the Times opted to leave out any discussion of the ceremony altogether in favor of reopening the tired debate of whether it was right or not to have used the atomic bomb.

To address the deficit in content covering the nationwide protests, I’ve included below two videos that capture the concern and energy of the protests on both sides of the debate in two cities that represent its extremes, Nagasaki and Tokyo. Although the security bill has passed, the diversity in emotional response has not, and thus, a reflection on public reaction remains relevant. I intentionally left both clips as raw as possible to invite reflection, not political imposition, on viewers to experience viscerally the unfolding historic political protests within Japanese society. What is lacking in domestic debate and discussion is a safe space and public forum for compromise and discussion between both sides. Many historians and political theorists have debated the pros and cons of Japan’s militarization, as well as the relevant implications. In order for Japan to move forward in a rights-respecting way, all of these considerations should be publicly aired.

Nagasaki City, Japan (August 2-9, 2015)

Compared to five years ago, Nagasaki City’s peace events felt different. The city’s rhetoric and messages during the official peace ceremony subtly shifted away from nuclear weapons and towards war as the primary anathema. The city’s Peace Park, always decorated in symbolic crane offerings for peace, included illustrations and posters villainizing the security bill. Many communities from around Japan, including Prime Minister Shinzo Abe’s hometown, travelled to the city to distribute flyers in protest of the security bill and in solidarity with Nagasaki, one of two cities martyred in collective Pacifist memory as a symbol for eternal peace.

The city also seemed less concerned with international response. Whereas five years ago, I was chased down by Japanese journalists for interviews on my thoughts on the lack of American diplomatic presence at the peace ceremony, this year, the media and public shifted focus towards domestic targets and, arguably, persona non grata, Prime Minister Abe.

Nagasaki City Hall commemorated the 70th anniversary of the atomic bombing by inviting hundreds of international boy and girl scouts from over ninety countries to an International Youth Peace Conference. At the conference, a boy scout from Okinawa, a city rife with controversy over the American military presence, asked the keynote speaker, an atomic bomb survivor, what his views were on the security bill. This was not the typical nuclear weapons-related fare. His response was that only two good things that came out of the war: (1) he appreciated his family infinitely more, and (2) Japan adopted Article 9 of the Constitution as a commitment to never wage war again. In addition to participation at the conference, British, French, and even Iraqi global citizens roamed the peace park and city in observance of this special anniversary and its significance in a greater collective wish for peace.

The Peace Ceremony itself was split along partisan lines, and the audience was not afraid to chime with applause and verbal attacks depending on the speaker. Despite the unbearable heat, seating was filled to maximum capacity one hour prior to the opening remarks. Prime Minister Abe remained silent on general security matters, but restated Japan’s commitment to uphold the “Three Non-Nuclear Principles,” and to continue to provide support for aging atomic bomb survivors through the 20-year-old Atomic Bomb Survivors Relief Law. An angry voice in the audience yelled out during the Prime Minister’s speech, but was overpowered by the consistent wave of cicadas chiming before he was pulled away by security. When Sumiteru Taniguchi spoke on behalf of Nagasaki’s atomic bomb survivors, he described the security bill as “a return to wartime era” and that it “will lead to war.” He further described it as “an attempt to overturn the nuclear abolition activities and wishes held and carried out by the hibakusha and those multitudes of people who desire peace,” which drew a round of applause. Nagasaki Mayor Tomihisa Taue directed his speech towards the Prime Minister and Diet, urging them to listen to the voices of unease and concern regarding the destruction of the pacifist ideology “engraved in our hearts 70 years ago.” More applause from the crowd ensued, changing the tone of the ceremony from memorial to impassioned debate forum.

Tokyo, Chiyoda Ward, Japan (August 15, 2015)

Every year on Aug. 15, the anniversary of the end of the Pacific War, the Japanese Emperor and Prime Minister deliver memorial speeches from central Tokyo (Chiyoda Ward) to the nation, amongst invitation-only members of government and surviving family of wartime victims. Near Nihon Budokkan, the indoor arena typically used for this official speech, is the controversial Yasukini Shrine, which has been internationally and “indelibly associated with unrepentant historical revisionism, and a resurgent ethnic nationalism,” according to Christopher Pokarier, a professor of business and governance at Waseda University in Tokyo. In plain terms, it is a shrine to commemorate soldiers and other military officials fallen in war. It is central to the way many honor those who have passed in service, sometimes family, during the Pacific War. Pokarier, writing for Australia’s The Independent, notes that “right-wing groups, militaria aficionados and very many ‘ordinary’ Japanese, visit the shrine. Their motives are as diverse as their social identities, and belie simple generalizations about the meaning of Yasukuni.”

While this memorial has always been normatively divisive, this year, people in favor or against a militarily stronger Japan were faced with contemplating how society may soon be affected. One woman expressed support for the security bill on paper, but was concerned about its execution, specifically the potential for future political abuse, which could result in the unnecessary deaths of many Japanese citizens.

While it is typical to see a diverse crowd of nationalists, military-garbed hawks, ordinary citizens and fringe minority groups around Chiyoda during the commemoration ceremony, the main drag turned into ground zero for marches in support of the security bill by late afternoon this past year. Once more, the heated debate was taken to the streets, literally, as thousands of citizens marched with Japanese flags shouting “頑張ろう日本” or “Try your best/you can do it Japan.” Some citizens stood on street corners with microphones imploring passersby to “get worried” and “to think of the children because China is coming.”As I found myself on the corner of the main intersection, I filmed and watched for about two hours as thousands of people passed by, repeating these messages as others applauded.

Eventually, at least fifty police, in full body armor and helmets, blocked off the street, set up barricades right in front of where I was standing and proceeded to stop traffic by driving their squad buses into the center of the street. While at first it was unclear to me who needed protecting, the group around me suddenly turned sour and began angrily yelling at a group marching through the center of the street. It turned out to be pacifists making their way through the area, sharing their own views on the security bill.

Carolina van der Mensbrugghe was a 2015 Leitner Center Summer Fellow. She conducted an independent project documenting the stories of atomic bomb survivors in Nagasaki, Japan with help from the Nagasaki Foundation for the Promotion of Peace and Nagasaki City Hall.

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.

Video and Photo credits: Carolina van der Mensbrugghe


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The case of Andrea Rosal: political prisoners and detention conditions in the Philippines

By Rodrigo Bacus

Andrea Rosal, a political prisoner arrested for her community and human rights activism in the Philippines, was finally released from prison on Sept. 7 when the Regional Trial Court dismissed all the charges brought against her due to lack of probable cause. While in prison, she was subjected to harsh prison conditions and denied medical care. Her arrest and detention were especially problematic since she was seven months pregnant at the time of her arrest and faced two months of sub-standard conditions while carrying a baby. Her arrest and treatment while in state custody highlight the terrible detention conditions and the experiences of political prisoners in the Philippines. Since her release, Rosal has expressed a strong conviction to pursue justice for herself and other political prisoners in the Philippines. The egregiousness of Rosal’s detention exemplifies why human rights activists and defenders continue to decry the Philippine government’s policy of detaining political prisoners.

RED TAGGING OF ACTIVISTS AND HUMAN RIGHTS DEFENDERS

The Philippine police and military arrested Rosal on March 27, 2014 and charged her for kidnapping and murder. News sources suggest that the real reason Rosal was arrested was because the Philippine government tagged her as a member of the New People’s Army (NPA), the armed segment of the Communist Party of the Philippines. Red tagging is the practice of publicly labeling organizations or individual human rights defenders and activists as terrorists, communists or rebels by government actors, for the most part. Rosal is the daughter of the late Gregorio “Ka Roger” Rosal, who was the spokesperson for the Communist Party of the Philippines. Rosal’s mother may have also been a member of the NPA, and left Rosal to be raised by her relatives.

Rosal chose to live a different life from her parents and became a peasant community organizer with the Pagkakaisa at Ugnayan ng mga Magsasaka sa Laguna (PUMALAG, Unity of Farmers in Laguna). PUMALAG asserts the rights of farmers to their land and defends human rights issues of farmers, in general. Laying low was the only option for Rosal, who had been kidnapped by the government when she was just 5 years old in a ploy by the government to lure her father out of hiding. The government continues to tag Rosal because of her parents, and even before her arrest, the military had been surveilling her activities. Rosal herself believes that she was arrested solely on the suspicion that she was a member of the NPA. No charges against Rosal were filed in relation to government’s suspicion of her membership with that group.

Rosal’s arrest is an example of how the Philippine government uses red tagging to target its critics. The labeling is used to justify and legitimize human rights violations against human rights activists and defenders, including abuses like extrajudicial killings and enforced disappearances. In this case, the red tagging of Rosal resulted in her detention for a year, in difficult conditions, and the loss of a life she held dear to her.

ARREST AND INHUMANE DETENTION CONDITIONS

At the time of her arrest, Rosal was seven months pregnant. She was first detained in a small and hot cell run by the National Bureau of Investigation, the police sub-unit that had arrested her. While in jail, she complained of abdominal cramps, but was just told to fill out medical forms. She was only able to see her doctor two days later, and was prescribed hospital detention along with other procedures. Her request to be transferred to hospital detention was ignored, and she was transferred to a shared cell with 24 other female detainees. The cell was about 16 by 32 feet in size, with a window that did not allow enough fresh air or sunlight to stream in. Since Rosal’s arrest was so sudden, she was not able to bring any supplements relating to her pregnancy and had to eat prison rations that consisted of rice and a boiled fish or vegetable. Although Rosal is allergic to fish, she was neither allowed to cook her own food nor provided with alternate dining options. She also had to sleep on the floor because the bunk assigned to her was too high.

Article 10(1) of the International Covenant on Civil and Political Rights guarantees that persons arrested or detained must be treated with dignity. Article 12 of the International Covenant on Economic and Social Rights protects the right to the highest standard of physical and mental health. Since the Philippines is a state party to both these conventions, the Filipino human rights group, KARAPATAN, suggests that the treatment of prisoners in general in the Philippines implicates these two provisions. In particular, the overemphasis in Philippine prisons on punitive punishment makes detainees vulnerable to inhumane treatment and conditions. The U.N. Basic Principles for the Treatment of Prisoners and the U.N. Standard Minimum Rules for the Treatment of Prisoners both detail the rights of prisoners and how prison conditions can meet acceptable international standards. The Philippines should incorporate this guidance to ensure prisoners’ rights.

For pregnant women in detention such as Rosal, the World Health Organization (WHO) suggests that even more careful treatment needs to be contemplated. The WHO recommends that women should be imprisoned only when other alternatives are unavailable, particularly in the case of pregnant women. They also recommend that prison staff undergo gender-sensitivity training on various issues, including on adequate nutrition for pregnant detainees, breastfeeding and other types of care. Finally, the WHO emphasizes the importance of individualized health care for women. The detention conditions Rosal faced run counter to such recommendations and effectively punished her as a person held in pre-trial detention.

DEATH OF A CHILD AND A MOTHER’S GRIEF

Rosal’s experiences in detention would lead to even more tragic consequences as her case dragged on and her detention continued. On May 15, 2014, the Regional Trial Court granted Rosal’s request for hospitalization so that Rosal could deliver her baby. This request had been pending since Rosal’s doctor prescribed hospital detention two days after she was arrested. While Rosal was undergoing labor contractions, the police brought Rosal back and forth between the prison and the hospital in Manila. The police claimed that there was no available room for her. The distance Rosal traveled each time was around nine miles. She was not admitted to the hospital until May 16, 2014, a day after the court granted her request. On May 17, 2014, Rosal gave birth to her daughter, Diona Andrea Rosal. The very next day, on May 18, 2014, baby Diona died due to oxygen deficiency as a result of a lung infection (pneumonia) that had caused injury to her brain while on an artificial breathing machine. Rosal held her baby for the first time after she had already died

Dr. Beng Rivera-Reyes of the Health Alliance for Democracy suggests that prison conditions and failure to provide regular pre-natal checkups may have contributed to the baby’s health condition. In a statement to the press, KARAPATAN secretary general, Cristina Palabay said that “[The Philippine government’s] blatant disregard of the rights of Andrea, including her right to receive immediate medical care and be in an environment conducive for conceiving and delivering a healthy child, are apparent in this case.”

After the tragic death of her daughter, Rosal’s request to be temporarily released to bury her child was denied due to security reasons. Baby Diona was buried without the presence of her mother.

CONTEMPLATING CHANGE IN THE PHILIPPINE JUSTICE SYSTEM

In the shadow of Rosal’s arrest and the death of her child, criticism of the Philippine jail and justice system has been mounting. Yet these abuses continue. Another woman, Maria Miradel Torres, was red tagged and arrested while she was sick and four months pregnant. A spokesman for the Bureau of Jail Management and Penology said, “Well, the BJMP facility is really not fit for pregnant women. But we are giving them the most comfortable accommodation and we send them to nearby government hospital if necessary.” Given the experience of Andrea Rosal, human rights organizations were skeptical. Similarly, Torres was sent to a female dormitory in a city jail even though a court ordered to transfer her to a hospital. She was able to deliver her baby in the past year without complications, but is now in danger of being separated from her child.

Although she had chosen a life of quiet activism, it is no surprise then that Rosal’s recent release only strengthened her conviction to continue fighting for the rights of prisoners and political prisoners in particular. Although acquitted of all charges, Rosal’s experiences in detention and the loss she had experienced amount to unjust punishments without a conviction, which is especially problematic for a person who had the right to be presumed innocent. Moreover, the Philippines continues to detain 527 political prisoners on trumped up charges. Political prisoners are targeted by the government and robbed of their right to speak out against the government and defend human rights. Other political prisoners facing the same detention conditions risk consequences similar to those of Rosal. Activists continue to call on the Philippine government to end red-tagging and counterinsurgency campaign as a tactic to undermine critical voices. They also call on the government to observe human rights laws, particularly those standards in treaties to which the Philippines is a state party, with respect to prison conditions and the treatment of female and pregnant prisoners.

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:  Aapo Haapanen/Creative Commons


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Colombia-FARC peace talks: evaluating the transitional justice agreement

By Amaury A. Reyes-Torres

After years of conflict and failed attempts to reach a peace agreement, there was a significant breakthrough in the latest round of negotiations, which began in 2010, between the Government of Colombia and the Revolutionary Armed Forces of Colombia (FARC), the country’s largest rebel group.

On Sept. 23, Juan Manuel Santos, the President of Colombia, and Rodrigo Londoño Echeveri, FARC’s high commander who is also known as “Timochenko,” released a joint declaration outlining an agreement on transitional justice, victims’ rights and reparations, the most contentious negotiation point of the ongoing peace process. This step brings Colombia closer to a comprehensive peace agreement, which would mean the end of one of the longest-lasting conflicts in the region.

Despite this significant progress, there have been mixed feelings about transitional justice agreement reached between the government of Colombia and FARC. On one side, people are supportive and hopeful about what a peace deal may actually bring to Colombia; but on the other side, critics of the agreement have been skeptical about the content and practical challenges of the transitional justice deal. Nonetheless, the outline is a step towards legal accountability, reparations and reconciliation. But two questions remain unanswered: will FARC comply with the final peace agreement? And will this recent breakthrough truly serve the principles of transitional justice?

TRANSITIONAL JUSTICE: TRUTH, JUSTICE, REPARATION AND NON-RECURRENCE

According to the United Nations Guidelines on Transitional Justice, transitional justice is a conglomerate of judicial and extrajudicial mechanisms that help societies come to terms with widespread rights violations. These tools serve to facilitate the prevention of future conflicts or repressive rule through the promotion peace, reconciliation and rule of law. Transitional justice seeks to understand the roots of conflict, to adopt the necessary measures to prevent new ones and to pursue accountability.

Any process of transitional justice should be carried out in accordance with the principles of truth, justice and reparation, including institutional reforms, effectively addressing the need of the victims and the reconstruction of a country’s social fabric. Furthermore, the victim’s right to know the truth should carry great weight in this process. According to the Inter-American Court of Human Rights, states have an obligation under the American Convention on Human Rights to guarantee the right to know the truth. This may entail the creation of a truth commission to preserve historical memory and ensure accountability. After all, justice can only be served and due reparations awarded if the truth is uncovered.

Recently, a new principle has emerged that was arguably already implicit in the other three principles: the principle of non-recurrence. According to the United Nations Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, a “general commitment to adhere to a right involves making efforts to ensure that its violation ceases and is not repeated.” Thus, ensuring non-recurrence should be part of a comprehensive transitional justice strategy. This may require substantial institutional transformations to prevent new recurrence of future conflicts and with them, new human rights violations. While truth, justice and reparations serve a contributive function, the guarantee of non-recurrence serves a preventive function.

Transitions take quite some time and the peace process in Colombia is a good example of this. The Colombian conflict has been ongoing for more than 60 years. Although there have been several failed attempts to reach a peace agreement, it has only been in the last few years that substantial progress has been made, and peace may finally be a reality.

THE JOINT DECLARATION ON TRANSITIONAL JUSTICE

The latest agreement on transitional justice places victims at the forefront of the peace agreement. Both parties believe that the victims should be compensated and by no means left out of the peace deal that is being negotiated. The agreement would establish a special jurisdiction for peace within Colombia’s justice system. Adopting the form of an international mixed tribunal, the jurisdiction will be integrated with Colombian and international judges in order to ensure its independence and impartiality. It will serve three main functions: 1) to end impunity for crimes committed during the conflict or in connection with the conflict; 2) to uncover the truth; and 3) to investigate, judge and sanction those responsible for the gravest crimes committed during the conflict, including those who participated directly and indirectly in the commission of gross human rights violations, regardless of whether they are FARC combatants or state agents. The sanctions system must satisfy the rights of victims, help consolidate peace and have an effective reparative and restorative effect

The special jurisdiction for peace will follow two different procedures depending on who will be tried within it. One procedure will apply to those who recognize and admit to their actions. The other procedure will apply to those individuals who would claim that they have not perpetrated any crimes, and will be subject to a full trial before the tribunal. The legal consequences will vary as well. Those who recognized and admit their actions will face a sentence between five and eight years in “special conditions” that restrict their liberty, but will not be sent to regular jail. However, those who deny their responsibility, but are found guilty, will face a sentence up to 20 years in prison.

Furthermore, amnesty will be granted for political and other related crimes. However, genocide, crimes against humanity, war crimes and other related crimes, as defined under Colombia’s national law, are not eligible for amnesty. The tribunals created under the special jurisdiction for peace will hear these cases.

Another interesting point in the joint declaration is how special treatment within the special jurisdiction for peace is regulated. Any special treatment will be afforded as long as the offender tells the truth, compensates the victims and guarantees non-recurrence.

Finally, the agreement imposes an obligation on FARC. If they want to pursue any political aim of their own in Colombia, they must lay down their arms as soon as the peace agreement is signed. If they adhere to this, FARC will be transformed into a political movement that the government will support.

CRITICISM, PROBLEMS AND CHALLENGES

Though the transitional justice agreement is a monumental step forward for peace negotiations, it is not without its own set of issues. For instance, only a 10 point outline of the agreement was publicly released. The formal agreement covering all the aspects of the new special jurisdiction, are undisclosed, unknown to the Colombian people.

The secrecy surrounding the final draft of the agreement has brought about public opposition. The Colombian Attorney General, Alejandro Ordonez, and the President of the Council of State, Luis Rafael Vergara, have called for the full disclosure of the text. To calm public dissatisfaction, Ivan Marquez, the Chief of the Peace delegation for FARC, recently stated that the agreement is a document of 75 points that includes restorative sanctions. Though this was a step in the right direction, it does not make the peace process fully transparent.

Furthermore, some fear that FARC’s potential transition from guerilla group to political party may foster impunity and social divides. Under the agreement, there will be no extraditions to the U.S., and former fighters will be allowed to run for political office. The former President of Colombia, Alvaro Uribe, now a Senator, worries that Timochenko, the leader of FARC, might be able to run for president, exacerbating social tensions and divides. Similarly, others fear that those who committed crimes may be able to hold political power and sway, an affront to the victims of abuses. According to the Joint Declaration, the possibility that the FARC may be allowed to pursue their goals through the political system will be detailed in the final peace agreement.

Another important question is whether the accountability and amnesty provisions as proposed in the agreement will deepen impunity. José Miguel Vivanco, the Director of the Americas Division at Human Rights Watch, stated that the agreement may allow those most responsible for human rights atrocities to escape accountability. By allowing those who committed human rights abuses to avoid time in prison, this agreement fails to administer proportionate punishments to the perpetrators of human rights abuses. Furthermore, the amnesty provision, which is meant to be broad, will extend to crimes connected to rebelling against the state, potentially including extortion, narco-trafficking and kidnapping. This, too, could contribute impunity and lack of justice.

CONCLUSION

The recent agreement on transitional justice constitutes a breakthrough that might close a complicated chapter in Colombian history. However, how both parties conduct their relations during the rest of the peace process and the implementation of the agreement itself will be crucial for justice to be ensured. Moreover, it remains to be seen if the final peace agreement will put a permanent end to conflict and paramilitary violence in Colombia, or if only FARC will be covered, among all the other paramilitary groups.

Camilo Sánchez, research coordinator of DeJusticia, said that this is not a perfect agreement but it is an agreement that will keep Colombia away from the perfect war. The agreement, however, must be as comprehensive as possible in terms of securing the rights of victims and holding those responsible of gross violation accountable. Only by doing this, Sánchez argues, can the two sides truly guarantee non-recurrence.

Time will tell if both sides are committed to truth, justice, reparations and non-recurrence. It is up to the public to demand a just and transparent peace process. Although peace is a complicated goal to achieve, it is a worthy one. However, peace without justice and accountability means nothing for the reconciliation process in the heart of any transitional justice paradigm.

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: Pedro Szekely/Creative Commons


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Rethinking “the conflict” in Israel/Palestine: only occupation

By Chris Beall

Five years ago, as an undergraduate student studying abroad at the American University of Beirut, I enrolled in a political science course entitled “the Arab-Israeli Conflict.” While this course was my first real engagement with this topic, exploring the issue through the lens of political science came with inherent limitations. All of the century-long tragedies, misunderstandings and bloodshed that comprise “the Arab-Israeli Conflict” were presented in a sort of constantly stale, circumscribed air of game theory and shuttle diplomacy. Barely missed peace breakthroughs were reduced to equations of narrowly expended political capital. Even the real ugly stuff—Sabra and Shatila, for example—took the form of almost inevitable strategic miscalculations and overplayed hands.

Whatever was gained in terms of a basic understanding of “the Arab-Israeli Conflict,” I always felt there was something else missing. Five years later, having just returned from the region, I find this same absence in the way people are talking about Israel/Palestine. Across the entire discourse, “the Conflict” seems to always exist in a sort of phantom academic space, lacking depth or perspective. All the statistics, the body counts, the metrics of daily oppression happen in news columns, human rights reports and policy documents. They happen on paper. That’s it. Khalas.

Paper is important, no doubt. But for anybody even casually engaged with this subject matter, it is often too easy to lose sight of any underlying reference point here, to the extent that “the Conflict” begins to exist only textually, numerically, cartographically, perhaps photographically or in breaking news video feeds. Our thinking of “the Conflict,” and subsequently the solutions we form, no longer correspond to reality. Worse, we pass on and inherit this artificial discourse: we still talk about Israel/Palestine as if it were 1967, as if the State of Israel were still a tiny fledging newcomer in the international community, as if Arab nationalism were still a thing in the region, as if the world were still divvied up in a globe-spanning Cold War. The facts accumulate, the data snowballs, but the narratives framing “the Conflict” remain totally unchanged. The world keeps talking, without ever stopping to think what, exactly, we are talking about.

FACING REALITY

This past summer, as a Leitner Summer Fellow and Legal Fellow with Palestine Works, I interned with the Al-Mustakbal Foundation for Strategic and Policy Studies (AMF) in Ramallah, the de facto capital of the West Bank. AMF is a legal think tank that seeks to pave the way for private sector initiatives to help facilitate peace and justice for Palestinians. My role at AMF was to explore the ways that decades of past fact-finding efforts may be used to design future Israeli-Palestinian reconciliation systems. But during my time in Occupied Palestine, all the nuances and complexities that I’d been taught about the issue became irrelevant, and faded from my understanding of the conflict, to the point that it seems futile to even be talking about some “Israeli-Palestinian Conflict,” even less so, some laughable notion of an “Arab-Israeli Conflict.” The academic construct we know and study—to say nothing of the even more problematic public discourse—simply does not exist. In its place, I’ve been left with something more raw and elemental, more upfront and visceral: basic occupation, through and through.

You see it in the two-hour waits at Qalandia Checkpoint, where thousands of Palestinians (those fortunate enough to have Jerusalem residence status, or those granted rare mobility permits) cross daily from the Occupied West Bank into equally Occupied East Jerusalem. In the way that parents hold their kids up on their shoulders to keep them from being crushed by the swell of humans pushing forward to enter three long and narrow shoulder-width hallway cages, moving like single-file automatons in an industrialized slaughterhouse, all metal and turnstiles and razor wire.

You see it in the streets of Hebron, deep in the West Bank, where the Arabs going about life in their streets erect nets above their shops, to catch the trash that illegal (as ruled by the International Court of Justice and a U.N. panel) Jewish settlers living in the stolen houses above nonchalantly toss out their windows. The same nets that don’t stop the urine or human excrement intentionally splashed onto the Arab streets below. These streets being the new Arab commercial center, after their last ones were deemed Jewish-only and thus inaccessible. In the way the kids get their backpacks checked at the road barricade, every day, to and from school.

You see it in what passes for justice at the Ofer Military Courts (when, for whatever reason, you’re surprisingly granted access to these military detention hearings). In the teenage Palestinian defendant who was shot three times in the leg by Israeli forces as he walked home one night, on account of sparking his lighter. He claims to have been lighting a cigarette, which the IDF presumed to be a molotov cocktail. After a preliminary investigation that produced no evidence at the scene of his shooting, the prosecutor produces a report filed hours after the incident, detailing a molotov cocktail obtained 30 meters away and conveniently destroyed onsite and hence irreproducible before the court. The kid lands an additional 18 month sentence: just long enough to complicate what remains of his high school education, as if the original bullet wounds weren’t enough.

You see it simply in talking to people, in the cafes playing backgammon or in bars drinking beer—Muslim, Christian, atheist, no matter. Your list of quotes grows, a theatre-of-horrors of aphorisms: “I just want to know what the sea feels like” (on life-long movement restrictions); or “Our government cares more about trees than people” (on the demolition of Israeli-Bedouin homes to make room for the expanding Yatir National Forest); or “When God hates a man, he makes him Palestinian” (self-explanatory).

Somehow, the daily realities that I so briefly experienced in my short 11 weeks across the West Bank and Israel get diluted and muddled out in a discourse about land swaps, statistics, political boundaries, negotiating priorities and domestic approval rates. The fallacy of allowing these sorts of issues to stand in for the entirety of “the Conflict” obstruct and deny the vast majority of circumstances that actually comprise what we’re talking about. In reality, what the world treats as a political game actually carries important and tangible human consequences, which should not be ignored.

STATISTICS, FACTS AND TRUTH

None of this is to say that statistics, fact finding, or policy formulation don’t have role to play in all this. Rather, my concern is merely how these tools are employed. Currently, the work being done in the territories remains paralyzed by a stubborn determination to achieve an unrealistic political end goal, which in turn offsets the prospect of peace.

For example, I know from my work that Israel’s separation wall appropriates 9.5 percent of the West Bank’s land area. I know that Israeli military courts in the West Bank have 99.7 percent conviction rates for whatever unfortunate creatures get rounded before them. I know that 85.2 percent of the fertile and mineral-rich Jordan Valley has been declared off-limits to Palestinians. That Israel and its settlers have diverted over 80 percent of available water from West Bank aquifers. These kinds of statistics and figures are everywhere, and I know all of this because it has been researched and documented through the hard labors of lawyers and researchers and human rights advocates, who are not paid nearly enough for the important work that they do. These sorts of numbers add color to what we think of “the Conflict.” They show us what it looks like, what we are dealing with, what kind of stakes we are talking about. But in the absence of a discourse that recognizes the human costs of these findings, the question remains: what are we actually talking about?

The term “facts on the ground” originated in the parlance of Israeli settlers, who in anticipation of Israel being forced into political concessions took it upon themselves to incrementally alter the foundational makeup of Israel/Palestine. Crudely, if you build enough rich and lush illegal Israeli settlements encircling Palestinian East Jerusalem, then the very idea of a Palestinian East Jerusalem becomes starkly unworkable from the standpoint of some final status agreement. And these guys were successful. Since the Oslo Accords, the number of illegal settlers living in the West Bank has more than doubled, from 262,500 to at least 520,000 today. Yet, while these facts on the ground have surely frustrated the peace process, I believe that they have done absolutely nothing to change our discourse about the “Conflict” or what we believe the end goal of talks should be. We envision a solution in the form of two sides willingly coming to the negotiating table, because we envision “the Conflict” as two sides locked in a century of zero-sum politicking and combat.

But such a conception of the Israeli-Palestinian Conflict is a false one. In my time over there, I never once encountered any semblance of it. It’s still by all means a military occupation, and of course there are frictions involved. But while the constantly disproportionate and asymmetrical episodes of violence are always tragic—for all parties involved—they are completely predictable products of a wholly willful and unnecessary occupation: one which implies not some adversarial struggle to be hashed out and negotiated, but rather a systematic assemblage of cruelty, in which, recent flare ups included, the daily and relentless oppression flows almost entirely one way.

CONCLUSION

This was my experience as a Leitner Summer Fellow working from Occupied Palestine: a bizarre package of disillusionment and hope bundled all into one. Until we shift our focus from solving “the Conflict” to blatantly and concretely calling for an end to the occupation, the hard work of our researchers and human rights fact-finders will remain dormant. For now, we’ve acquired a whole vocabulary and lexicon in a language that we do not yet speak. But when the discourse changes, I believe we’ll suddenly find ourselves fluent in a language that promises both action and tangible change. At which point, we’ll ironically unlock the true and horrific impact of the “facts on the ground” on the people of Palestine. I’ve no doubt that lawyers and human rights advocates will play some role in this process, but returning from my summer in Occupied Palestine, more than anything else, I’m left with the realization that this “Conflict” expired a long time ago, and that it’s time for our discussions to follow suit. Whatever we do, the survival of Palestine can no longer hinge on some idealized, long-awaited political solution to all of this. It’s time, instead, for a fresh discourse: the type that’s lessons cannot be learned from a political science course, but instead seeks both guidance and legitimacy in its struggle toward upholding basic and universal human rights.

Chris Beall was a 2015 Leitner Center Summer Fellow. He interned last summer with the Al-Mustakbal Foundation for Strategic and Policy Studies through Palestine Works in the West Bank.

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 Chris Beall.


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“How I learned to stop worrying and love the Stuxnet”: U.S. and China seek common ground in regulating cyberwarfare

By Meric Sar

“Dr. Strangelove: Of course, the whole point of a Doomsday Machine is lost, if you keep it a secret! Why didn’t you tell the world, EH?

Ambassador de Sadesky: It was to be announced at the Party Congress on Monday. As you know, the Premier loves surprises.”

Dr. Strangelove, 1964

Chinese President Xi Jingping’s recent visit to U.S. may be paving the way for the super powers to enter into a mutual arms control agreement in relation to cyberwarfare, the first of its kind. Considering cyberwarfare and its regulation have grave implications for freedom of expression, the right to privacy, net neutrality and security of persons, human rights advocates should keep a close eye on this development.

On Sept. 25, in a press conference, President Barack Obama and President Xi declared their governments’ mutual intent to establish greater cooperation in fighting cybercrime. They vowed to refrain in the future from harboring malicious cyberactivities targeting the other’s information and communication systems. Remarkably, the parties also declared their interest in exploring the prospect for an international code of conduct applicable to states in relation to cyberwarfare.

This comes after the world witnessed the rapid development of cyberwarfare methods in the last decades. The risks posed by cyberwarfare makes its disruptive potential perhaps only comparable to nuclear weapons. Indeed, the dependency on information and communication technologies at all levels of modern life—from the power grid to satellites, banking systems and medical facilities—makes a cyberapocalypse a scary possibility when governments are willing to spend vast resources on malicious technologies to gain the upper-hand in a wartime scenario.

“YOU SHALL NOT HACK YOUR NEIGHBOR!”

Although it is premature to talk about a conclusive agreement, the common agenda of the U.S. and China at the recent talks had three main points: (1) greater executive cooperation in information sharing; (2) a greater commitment in policing domestic perpetrators of cyberattacks and refraining from providing any support to these groups; (3) and developing an international code of conduct for states to follow in relation to the regulation of cyberwarfare.

Both countries are already on the way to creating an executive system for information sharing and mutual assistance in the investigation of cybercrimes concerning malicious activity identified by either side. Furthermore, they will establish a high-level joint dialogue mechanism with the involvement of the intelligence community, which will be charged with the monitoring and reviewing this system.

Moreover, both heads of state also declared their commitment to “making common effort to further identify and promote appropriate norms of state behavior in cyberspace within the international community,” and agreed to create a senior experts group to develop a framework with the July 2015 report of the U.N. Group of Governmental Experts in the Field of Information and Telecommunications in the Context of International security in cyberspace in mind.

The U.N. experts report reflects a multilateral understanding on certain norms, the majority of which were proposed by the U.S. Some of these include that states should not knowingly damage each other’s critical infrastructure using cyberattacks, should not target each other’s cyber-emergency responders in case of an emergency, and should assist other nations investigating cyberattacks and cybercrimes launched from their territories.

THE COSTS OF CYBER-WARFARE

In its simplest form, a cyberattack is conducted for purposes of espionage with an aim to break into someone else’s IT system, most often with an aim to retrieve trade secrets and other confidential information. Although cyber-espionage may seem to be a simpler form of cyberwarfare, its asymmetrical nature makes it particularly troublesome for an economy like that of the U.S., which relies heavily on advanced technological know-how. A single act of cyber-intrusion may result in tremendous losses in the form of leaked trade secrets and intelligence. Often, the financial impact of the attack will greatly outweigh the marginal costs necessary to facilitate such an act, which can be orchestrated by few hackers with modest resources. Furthermore, using moderate technical measures, the source of a cyberespionage attack can easily be cloaked. An important characteristic of the internet in China is that telecommunications infrastructure enabling online access routes are mostly owned by the government. This makes it essential for U.S. to gain access to the monitoring capacities of the Chinese government to be able to investigate and punish cyberattacks by Chinese individuals targeting U.S.

According to the chief of the NSA, General Keith Alexander, the loss of industrial know-how and related intellectual property through cyber-espionage constitutes the “greatest transfer of wealth in history,” as U.S. companies reportedly lose about $250 billion per year through intellectual property theft, and $338 billion due to cybercrime in general. Recently, China was also identified by the F.B.I. as the chief suspect for various cyberattacks, which exposed sensitive personal information of millions of U.S. government employees. The massive scale of the economic loss and national security vulnerability associated with cyber-espionage originating from China makes it an utmost priority for Obama administration to pull China into a fair game.

“ZERO DAY” WARFARE

Although some commentators are skeptical about whether China can be trusted to honor its commitment to refrain from state-sponsored cyber-espionage, an international regime of stability with regards to cyberspace is equally indispensable for a country like China, especially considering its ever-growing reliance on information technology systems to be able to sustain its economic development. This is where “zero day” cyberwarfare, the exploitation of unpatched software vulnerabilities that cannot be defended against, poses disturbing risks for China. Thus, China may greatly benefit from stronger cooperation with U.S. authorities and their unmatched capabilities in cyberwarfare so that it can develop state-of-the-art defense mechanisms.

A “zero day” attack is a form of cyber-sabotage that exploits a previously unknown (or undisclosed) vulnerability in a computer application. Often the developer of the application may not be aware of a “zero day” vulnerability in the software or application that he or she has designed. It is known as a “zero day” vulnerability because once the flaw becomes known and exploited, the developer of the computer application has zero days to mitigate its exploitation.

Normally, when a cybersecurity expert reveals a “zero day” vulnerability in a particular software, he or she should communicate the vulnerability to the software’s developer so that the developer can devise a method to fix the vulnerability and protect its clients from abuse. Avoid doing this, and the unfixed vulnerability will render other computers installed with the same software prone to attack from criminal hackers, corporate spies and foreign intelligence agencies, who may have obtained the knowledge of the vulnerability through other means.

A cyberattack that uses “zero day” vulnerabilities of operating systems could seamlessly take down a whole factory or nuclear plant. The most famous computer virus using “zero day” exploits was discovered in 2010, and was given the name Stuxnet. Stuxnet is believed to originate from a secret collaboration between the U.S. and Israeli governments. It was designed to damage certain nuclear facilities in Iran by infiltrating the targeted computers at the facilities in an effort to curb Iran’s nuclear enrichment activities. The virus relies on previously unknown vulnerabilities of operating systems, and can spread across a computer network without notice, infecting all the computer systems it encounters. The virus stays dormant until it reaches its target computer, at which point it can be activated to disrupt the computer’s system without revealing itself to the victim. Reports claim that the concept for Stuxnet originated from the renowned cyber-strategist General James E. Cartwright, who was the head of the U.S. Strategic Command, the agency responsible for nuclear deterrence, under the Bush Administration.

“DON’T ASK, DON’T TELL!”

Disturbingly, for a long period of time the N.S.A. followed a deliberate “nobody but us” policy restricting its officers from disclosing any “zero day” software vulnerabilities they reveal in the software they are using. Under this policy, when a NSA employee uncovers a “zero day” vulnerability on a piece of software (e.g. in the current version of Microsoft Windows), he or she has to keep the information secret in order to afford U.S. authorities a security hole in the systems of its adversaries that are using similar software. This policy has given U.S. government considerable advantage in “zero day” warfare methods.

Although the U.S.’ “nobody but us” policy may sound like an effective strategy to secure the upper hand for “offensive” purposes, it is far from convincing as a policy for maintaining “security” at home. Instead of encouraging transparency and timely dissemination of information to stakeholders in public and private industries in order to tackle technological vulnerabilities in a coordinated fashion, the NSA’s strategy relies on obscurity and informational asymmetry, rendering the national security itself open to abuse by malicious insiders or hackers.

The advances of the U.S. in “zero day” cyberwarfare do not mean that the U.S. has the sole monopoly over such tools either. In fact, Stuxnet is open source technology—meaning that currently anyone can download the source code and modify it for their own purposes.

A BEHAVIORAL EQUILIBRIUM

The current state of cyber-affairs can be compared to the intense period of nuclear armament that preceded the Limited Nuclear Test Ban Treaty, the signing of which took 18 years following the Hiroshima disaster. Perhaps we are approaching a behavioral equilibrium for super-powers in a way resembling the logic of the Cold War. Considering the mounting current costs and future risks for both China and the U.S. posed by an unregulated cyberspace with irresponsible actors, there is a large incentive for establishing rules that are internationally respected.

Cyber-attacks do not only target governments and corporations. NGOs and activists are also regular targets of such attacks. However, U.S.-China discussions thus far have failed to address such non-commercial civilian concerns. An international treaty on cyberspace may be an important first step. However, without addressing important civil issues such as free speech and net neutrality, international cyberspace law will not go far from merely representing the “policing” concerns of governments and intellectual property corporations. We must be wary of such a scenario as it will likely cause the internet to lose its truly “international” character and result in the fragmentation of internet into “fiefdoms” behind national walls.

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: Chris Robers/Defence Images