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


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Hindustan Zindabad: stifling freedom of expression in the world’s largest democracy

By Jennifer Li

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Student members of the left-wing All India Students’ Association (AISA) shouting the slogan “Inquilab Zindabad,” or “long live the revolution.”

“Hindustan Zindabad!” Long live India! I first heard this Hindi phrase as I sat among thousands of Indians under the long shadow of Delhi’s historic Red Fort last August, listening to Prime Minister Narendra Modi deliver his annual Independence Day speech. I have also heard these words chanted at kabbadi tournaments by Indians who seemingly cheered on no particular team and yet every team, impassioned but neutral spectators to the ancient Indian contact sport which, to the untrained eye, demands equal skill in holding one’s breath and playing a more aggressive version of Red Rover. Most recently, I have heard this slogan shouted by students and professors who marched down the streets of central Delhi, condemning the government of a nation in which they have conveyed, in just two words, not merely great pride, but also tremendous expectation.

On Feb. 12, 2016, the president of the student union at Delhi’s Jawaharlal Nehru University (JNU), Kanhaiya Kumar, was arrested and charged with sedition under Indian Penal Code (IPC) Section 124A, a colonial-era law originally used by the British government to quell Indian nationalism – and try Gandhi – and IPC Section 120B, a criminal conspiracy statute. The charges were based on anti-national speeches that Kumar had allegedly made during a student event on campus marking the controversial 2013 execution of Afzal Guru, a Kashmiri separatist convicted of plotting a deadly 2001 attack on India’s parliament.

The government’s reaction to the arrest has done little to quell accusations that the arrests of Kumar and a former Delhi University professor, S.A.R. Geelani, were politically motivated. The day before Kumar’s arrest, India’s Minister of Home Affairs, Rajnath Singh, warned via Twitter, “If anyone shouts anti India slogan & challenges nation’s sovereignty & integrity while living in India, they will not be tolerated or spared.” Days later, as Kumar was escorted to his first court appearance, a member of the Delhi state legislature and the Bharatiya Janata Party (BJP), OP Sharma, along with some forty lawyers attired in the telltale black and white, were filmed kicking and punching not just Kumar, but also journalists, students and professors. BJP party spokesman Sudhanshu Trivedi has condoned Sharma’s statement that “there is nothing wrong in beating up or even killing someone shouting slogans in favor of Pakistan.”

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Members of the National Federation of Indian Women (NFIW) joined student protestors in the two kilometer march from Mandi House to Jantar Mantar in central Delhi on February 18, 2016.

To many, the most recent arrests represent just one more example of an alarming trend of government-sanctioned crackdowns on academic freedom and freedom of expression and dissent. Universities, in particular, have been in the crosshairs of the BJP, Modi’s right-wing, Hindu nationalist party. Kumar’s arrest came just weeks after the suicide of Rohith Vemula, a Ph.D. student at the University of Hyderabad (HCU) who hanged himself from a ceiling fan after being discriminated against for his status as a Dalit, one of the lowest castes in Hindu society. As with Kumar’s arrest, Vemula’s death was well-publicized and sparked public outrage at the government and the educational institutions that have become puppets of the political machinations of the current administration.

In the months leading up to Vemula’s suicide, the university had revoked his stipend and housing after he condemned members of Akhil Bharatiya Vidyarthi Parishad (ABVP), a right-wing student organization, which, like most student unions in India, is affiliated with a powerful political party – in this case, the Rashtriya Swayamsevak Sangh (RSS). The RSS is the Hindu nationalist, paramilitary arm of the BJP; together, the two groups have helped align the definition of Hindu nationalism with that of Hindu fundamentalism. In what seemed to be a further demonstration of the BJP’s growing influence on universities, the Vice-Chancellor of HCU, P. Appa Rao, reportedly suspended Vemula and four other students after BJP government officials forwarded him a letter by members of the ABVP, accusing Vemula and others of engaging in “castiest, extremist and anti-national” activities. India’s National Human Rights Commission is now investigating “emergency-like” events at the university during the week of March 21, when student protestors allegedly vandalized Rao’s office upon his return from personal leave. The university administration reportedly responded by shutting down access to food, water and the Internet, and closing campus to journalists and politicians. Meanwhile, university officials allowed the police to raid campus and arrest dozens of students and professors. Video has since emerged online of instances of police brutality against student protestors.

Given the government’s growing intolerance of dissent, it is no surprise that the community at JNU, a prestigious public university that is perhaps as well known for its leftist student activism as it is for its superlative academic scholarship, responded quickly and forcefully in asserting not only its support for Kumar, but also academic freedom and freedom of expression. Students organized demonstrations and protest marches. Professors and guest lecturers held teach-ins to packed audiences, lecturing on the meaning of nationalism, the importance of freedom of expression and the power of dissent. The arrests have also triggered condemnation from international scholars, including Noam Chomsky and Judith Butler, who have expressed their solidarity with JNU students. And at a recent academic conference, I sat frustrated with dozens of other American researchers and scholars as we struggled to find a way to express our support for the students’ fundamental rights to freedom of expression without jeopardizing our own presence in our host country. These fears are perhaps not unfounded. Last week, as she applied to extend her visa, a friend who teaches English to middle school students in Delhi was asked by the Foreigner Regional Registration Office if she had any affiliations with JNU.

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Students expressed support for Umar Khalid, a JNU student who surrendered himself to arrest days later on February 24, 2016, and charged with sedition alongside JNU Student Union President Kanhaiya Kumar.

Reactions from those outside India’s academic circles have been more restrained. “They shouldn’t support terrorism and be against India. It’s their own fault,” one young woman told me when I asked how she felt about Mr. Kumar’s arrest. A friend’s landlord also expressed frustration at the protests, albeit for different reasons. “We [the taxpayers] pay for them to go to school. And this is how they thank us?” he complained, apparently objecting not to the substance of the protests, but to the very fact of the students’ right to protest.

What is clear is that Kumar’s arrest has renewed debate about the preservation of the sedition law, which some argue, in its current form, leaves room for excessive checks on freedom of expression. Even so, India’s Supreme Court has ruled that seditious speech may be punished only if there is an “incitement” to – as distinct from mere advocacy of – violence or public disorder. Incitement to violence or “imminent lawless action” is a necessary element to seditious speech, and, as Lawrence Liang, co-founder of India’s Alternative Law Forum, explained, “[m]ere words and phrases by themselves, no matter how distasteful, do not amount to a criminal offence unless this condition is met.” Given Kumar’s political, rather than incendiary, speech, the charges are construed by many to be without merit.  On March 2, 20 days after his arrest, Kanhaiya Kumar was granted bail by the Delhi High Court, but not before his alleged offense was analogized as an “infected limb.” Of the student activism that give rise to the alleged offenses, Justice Pratibha Rani observed, “I consider this as a kind of infection … which needs to be controlled/cured before it becomes an epidemic. Whenever some infection is spread in a limb, effort is made to cure the same by giving antibiotics orally … [s]ometimes it may require surgical intervention also. However, if the infection results in infecting the limb to the extent that it becomes gangrene, amputation is the only treatment.”

Weeks earlier, shortly after he was kicked and punched outside the courthouse by lawyers and lawmakers, Kumar had said in a statement, “I am an Indian. I have full faith in the Constitution as well as the judiciary of the country.”

Hindustan Zindabad.

 

Above is a short compilation of raw video taken at a protest march in New Delhi on February 18, 2016. The march was attended by thousands of students, professors and other supporters across India protesting the arrest of JNU student Kanhaiya Kumar.

Jennifer Li is a 2015 alumnae of Fordham Law School. She is currently a Fulbright Scholar in India.

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.

Photos and videos courtesy of Jennifer Li.

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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


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Russia’s legislature, prosecutors tighten the screws on online expression

By Thomas Callahan

With a Constitution that codifies restrictions on certain types of expression, and a storied history of targeting alternative political voices, it is unsurprising that Russia is currently in the midst of a campaign to silence inconvenient speech on the Internet.

This summer, I returned to Moscow to conduct legal research and reporting with a large international human rights organization (which I will not name due to the organization’s security concerns) as a Leitner Center Summer Fellow. I was tasked with researching and writing a report documenting this recent free speech crackdown in Russian legislation. This included reading Russian laws, tracking down copies of bills, and interviewing targeted activists across the country.

INCREASING SPEECH RESTRICTIONS

Having worked in Russia for years, and having been here when members of Pussy Riot were thrown in remote prisons on “extremist hooliganism” charges, I find no limits on freedom of expression really shocking anymore. But practically speaking, the sheer number of recent legislative restrictions to online speech means that human rights and free speech advocates in Russia are increasingly unsure about what could bankrupt an organization via administrative fine, or land people in jail. Although some of these restrictions identify concepts like “separatism” and “extremism” as general considerations, in practice, prosecutors increasingly conflate criticism of Kremlin policy in Ukraine, for example, with “threats to the territorial integrity” of the Russian Federation. These laws can also allow Facebook invitations to civil society events to be taken as incitement to rioting. Application of these laws is used mostly to harass political activists.

With many more such legislative proposals in the pipeline, it’s no wonder the old Soviet saying about living on top of a volcano – essentially, waiting for a governmental or societal eruption at any moment – has come back into vogue. The situation is so dire that since March 2014, Russia has been included in a group of only 19 governments in the world to be classified as “Enemies of the Internet” by Reporters Without Borders.

And while the main threat to freedom of expression comes from censorship laws, Russia’s legislature has been hard at work creating various other kinds of new rules for the Internet. These include – but are definitely not limited to – a new provision passed in May 2014 to Russia’s Law On Information that regulates blogs. Dubbed the “Bloggers Law,” it subjects any blog that gets 3,000 or more unique hits in a 24-hour period to many of the same federal regulations as national media conglomerates. The United Nations Human Rights Committee called this law both “vague” and “burdensome.” Indeed, it not only increases legal scrutiny, but also liability for charges like “incitement to rioting,” which is how prosecutors often refer to invitations to “unsanctioned” demonstrations. For these “mass media bloggers,” some types of speech carry a fine totaling 500,000 rubles – about 60 percent of the average annual income in Russia. In other cases, liability may reach one million rubles. With about 65 percent of Russians using the Internet regularly, these laws have real implications on the ability to access information.

Meanwhile, Russia’s prosecutors have been relying on the same, troubling old “extremism” sections of the Criminal Code to harass activists for what they say, or even share, online. In a country compliance review for the International Covenant on Civil and Political Rights (ICCPR), the Human Rights Committee warned that the “extremism” sections of Russian criminal law could be used “silence individuals critical of the State party’s foreign policy[.]” One of the higher-profile cases this summer centered on exactly that fact set. Recent use of one “anti-extremism” provision that threatens speech online has included the conflation of harmless criticism of Russia’s annexation of Crimea with a “threat to the territorial integrity” of the Russian Federation.

It is generally accepted that governments can restrict certain types of harmful speech, such as hate speech. But Russia’s restrictions on online expression are blatantly used to silence unorthodox political voices, which is illegal under international human rights law. While case-by-case restrictions on free speech in specific instances, such as tangible threats to public or individual safety, could be legal, such a process is rarely used in Russia.

CONTROLLING THE FLOW OF INFORMATION

Aside from restricting individual voices online, Russia is creating new controls on how online information flows and is accessed. Since November 2012, Roskomnadzor (the federal media and telecom oversight agency) has maintained a list of banned websites. In its March 2015 review of Russia’s compliance with the ICCPR, the U.N. Human Rights Committee noted that the Internet black list is part of “a number of developments that create separately and jointly a substantial chilling effect on freedom of speech and expression of dissenting political opinions.”

Although a searchable database allows users to find out whether a single website has been blocked, the full list is not made public. We do know that, as of this summer, about 30,000 websites are blocked within Russia. Many of these are child pornography sites and online narcotics markets. However, many of them are also websites linked to prominent political activists. With the recent passage of a law restricting the activities of “undesirable organizations,” many international human rights groups could end up blacklisted online in Russia as well. No court order is necessary; if an official in one of a few federal agencies – or a court finds that a website has published some sort of “banned” information – Roskomnadzor will order Internet Service Providers to block access to it within Russia. Prosecutors and other federal authorities will generally point to information that would be subjected to Russia’s notoriously problematic “anti-extremism” laws when attempting to block a website.

One of many examples of unjustified interference with free speech is the Prosecutor General’s targeting this June of OZPP, a consumer protection group, after it published a legal memo advising Russian citizens against traveling to Crimea, which it called an “occupied territory.” In Russia, such an opinion may constitute a “threat to territorial integrity,” which is why the Prosecutor ordered Roskomnadzor to block parts of the organization’s website, and called on federal investigators to begin an inquiry under an “extremist” provision of the Criminal Code. OZPP could be tried under the “separatism” provision, which carries a five-year prison term. In an obvious due process violation, OZPP only learned that a case against it was already underway days later, after clients reported that they were having trouble getting its website to load.

Regulation of well-trafficked websites remains in flux, as legislative discussion opened in June on a set of amendments to the Law On Mass Media. Proposed changes would introduce the concept of “online publisher” to the law, and this is not a good thing. The bill is vague, but it would appear to subject any host website to mass media regulations if any single one of its pages gets three thousand or more unique visitors in one day. News aggregator websites, the websites of political movements and message boards are some of the main targets of this proposal.

WHAT SHOULD RUSSIA DO?

There is no place for such broad and obvious restrictions to political speech in the year 2015, especially in a country like Russia, whose actions at home and abroad have the power to sway a whole cabal of governments in its large sphere of influence. It is also not too attenuated from these developments to note Russian prosecutors’ congenital conflation of unsanctioned civil events with “mass rioting.” This peculiarity of Russian law enforcement’s relationship with society is a metaphor for the general lack of case-by-case investigation and due process broadly in the Russian legal system. Russia must enter the twenty-first century on these issues in addition to the due process questions regarding speech specifically.

Moreover, Russia is party to both the main international regional treaties that codify freedom of expression: the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights. Russia has an obligation to conduct case-by-case examinations of restrictions to speech, and not to create functionally blanket bans on some political questions. These types of restrictions are illegal no matter what. Under the European Convention, if a State party restricts expression, it must establish and disclose a purpose that relies on a security or other concerns commensurate with the degree of censorship. Russia fails to do this all too often, a practice that must end.

Furthermore, Article 29 of the Russian Constitution absolutely bars censorship (though this is incongruous with other sections of the constitution). Article 17 of the country’s Constitution also establishes international treaty obligations as an extrafederal basis for domestic legislative and jurisprudential practice. Under its own laws, Russia must bring its legislative and law enforcement practices into compliance with the international obligations it chose and claims to recognize.

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

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

Photo courtesy of Thomas Callahan.


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Tom, Jerry and the Beijing Five

By Jennifer Li

Sometimes, lawyers are most effective when using cartoon analogies. “The Chinese government is a like cat,” explained Liu Wei, a lawyer from China, on a recent afternoon in New York. “And NGOs in China are like a small mouse. The cat will humor the mouse and sit quietly while watching the mouse play. The cat is not worried about losing control of the mouse. But if that mouse grows too large, the cat will no longer just sit by.”

In the two days preceding International Women’s Day on March 8, 2015, five prominent women’s rights defenders were detained by Chinese authorities in the cities of Guangzhou, Hangzhou and Beijing. These activists – Li Tingting (also known as “Li Maizi”), Wu Rongrong, Zheng Churan (nicknamed “Datu,” or “Big Rabbit”), Wang Man and Wei Tingting – are young, prominent women’s rights activists who, at the time of their detention, were preparing to launch a nationwide campaign on raising awareness about sexual harassment aboard public transportation. According to reports, the activists were initially detained under suspicion of “picking quarrels and provoking troubles” – an oft-cited basis for detaining political dissenters. After failing to secure approval for formal arrest from the prosecutor’s office before the legal limit of 30 days, the police attempted to even further prolong the detention of the women under the charge of “gathering crowds to disrupt order in public places.” On April 13, after 37 days in detention, all five women were granted a “release on guarantee pending further investigation,” a bail-like procedural measure that places constraints upon their freedom of movement and communications, and subjects them to future summons for additional interrogation. All criminal charges against the activists remain.

The unlawful detention of the five women activists garnered widespread attention outside China, drawing calls for their release from foreign governments and officials, including Samantha Power, U.S. Ambassador to the U.N., and Hillary Clinton, former U.S. Secretary of State. Indeed, the circumstances and conditions of their detention were plainly inconsistent with not only international legal norms and standards, but also Chinese domestic law. At the time of their detention, several women were not shown proper warrants; none had access to counsel until nearly a week after they were all transported from their respective cities to Beijing; and at least one of the activists, Wu Rongrong, was not provided immediate access to critical medical care and treatment. These and other actions by the Chinese authorities were in violation of China’s constitution and other domestic laws, including the Criminal Procedure Law and Law on Lawyers. The conditions of the activists’ detention were also inconsistent with international treaty and customary laws on the freedoms of opinion and expression and the treatment of persons in detention, as enshrined in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the UN General Assembly resolution on women’s human rights defenders, among other instruments.

The recent detentions reflect an energized effort by the Chinese government to crack down on perceived political dissent. Liu, who has worked for years on women’s rights and children’s issues in China, describes the activists’ detention as a bellwether of the government’s renewed suppression of civil society in the country. “There will be a before [the Beijing Five],” she predicted, “and an after.” Liu described the three short years between 2010 and 2013 as a period of relative relaxation for NGOs inside China – when the Chinese government was merely mouse-sitting, so to speak. Whether organizations worked on issues relating to labor rights or women’s rights, they operated in a culture of relative stability – or, as the Chinese like to say, crossed the river by feeling the stones (摸着石头过河).

Starting in late 2013, however, the government under President Xi Jingping began to demonstrate an increased vigilance to realizing a “socialism with Chinese characteristics” system of governance, which, according to an August 2013 Chinese Communist Party (CCP) directive, includes a rejection of certain “universal values.” Among the seven-fold perils of universal – but, specifically, “western” – values that the CCP pledged to purge are the promotion of civil society, press independence and “universal values” that take the form of freedom, democracy and human rights.

As Liu explained, the end of 2013 signaled the beginning of some mafan (麻烦) for Chinese NGOs. Mafan is a Chinese term that can be broadly used in several ways, for example as an innocuous noun (“inconvenience”) or as slightly more serious adjective (“troublesome”). It can also be used as a verb (for example, “Would it mafan the Chinese authorities if I asked for my lawyer?”). In the case of NGOs and human rights defenders, that mafan has taken the form of increased censorship, intimidation, harassment and arbitrary detentions, all simultaneous to the diminishing of space to engage in advocacy work. As a further reflection of official hostility toward civil society in China, last December the government introduced a draft law that would greatly restrict the funding and operations of foreign NGOs, as well as domestic NGOs that work with foreign organizations, within China. The draft law claims to be intended to bolster “national security and social stability,” but activists fear it will be used as a tool to further the harassment of NGO workers and place restrictions on their activities, as well as to further the expulsion of foreign NGO workers.

Indeed, the detention of the women activists seem arbitrary and the activities for which they were detained – to put up posters and join a march to raise awareness about sexual harassment – innocuous. All five activists were affiliated with Yirenping Center, a non-profit that promotes gender equality and provides services to individuals with H.I.V., hepatitis, and physical disabilities. On March 26, security agents raided the Beijing offices of Yirenping, the second time it has raided a Yirenping office in less than a year. Liu speculates that the detention of the activists for their activities – combatting sexual harassment and disease – have been merely a means to an end, the government’s way of going to extreme and disproportionate lengths to silence alleged political agitators.

The increased government measures forcing Chinese civil society underground also coincided with two politically sensitive periods last year – the 25th anniversary of the 1989 Tiananmen Square protests (known inside China as the June Fourth Incident) and the Hong Kong student protests. When asked whether the government’s tightened restrictions on NGOs might have been a response to the Hong Kong protests, Liu expressed skepticism, observing that the protests actually drew little attention from people inside China. By the same token, few in China today are aware of the detention of the women activists. But if more people become aware of their detention, she warned, the government would face significant backlash. “These are educated, Chinese girls in their 20s and 30s who were fighting sexual harassment,” she said. “Can anyone actually say they are not in support of fighting sexual harassment? The Chinese community would no doubt be very sympathetic to theses girls.”

Foreign lawyers and organizations seeking to help alleviate the pressure on Chinese NGOs and human rights defenders may face internal resistance. “The Chinese have always been of the mindset that one must solve one’s own problems,” Liu explained. Regardless, the critical problem remains that Chinese people are not aware of the ways their freedoms have been suppressed, and the concept of human rights can be difficult to understand and internalize when there is little basis for comparison.

But that seed of recognition can take root quickly. Liu offered her mother as an example, “This is my mother’s first time outside of China. She does not speak English and does not socialize with Americans. But after only a year, she has gained enough exposure from day-to-day life here to understand that the Chinese government is oppressive. She was surprised at the way the American authorities were open to criticism after the Ferguson case. The way people protested on the street without any interference from the police officers, who just stood by and let them!”

Jennifer Li is a Staff Writer for Rights Wire.

Photo credit:  Z4nclr4/Creative Commons


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Reconciling freedom of expression and religion after the Charlie Hebdo attacks: France’s struggle for laïcité

By Marie-Cassandre Wavre

On January 11, millions of people throughout France and the world marched in an anti-terror unity rally in honor of the victims of the terrorist attacks against the French magazine Charlie Hebdo, in which 14 people were killed. Yemen’s al-Qaeda claimed responsibility for the deadly assault, saying it was “revenge for the honor of the Prophet.” Charlie Hebdo, a satirical magazine, is known for its controversial caricatures of the Prophet Muhammad, which is blasphemous in Islam. Before the attacks, however, the magazine was not very popular and was constantly sued for slander, libel and defamation. So what led so many people to proclaim, “Je suis Charlie”? It was freedom of expression.

Freedom of expression is one of the most important values in France, dating back to the French revolution of 1789. During the monarchy, the common practice of lettre de cachet—a letter signed by the king and closed with the royal seal that contained an order to arrest—allowed the King to imprison any person at will and without due process. It was usually used against political opponents of the regime who were “too loud,” and was one of the root causes of the revolution. Freedom of speech is now a constitutional right that protects “the pluralistic expression of opinions”

The implementation of this right is closely linked to the French tradition of secularism: laïcité. According to this version of secularism, which is strongly tied to French universalism, the particularities of individuals and groups are subjugated to the larger idea of the “Nation.” Therefore, all citizens are required to respect the neutrality of public space regardless of their religious or cultural background—the practice of religion being allowed only in the private sphere. Contrary to the United States’ communitarian policies and ideals that favor multiculturalism and the recognition of difference, French citizenship is intimately tied to acceptance of universalism. Rather than integration, assimilation is seen as the best way to protect human rights from the “tyranny of the minority.” Indeed, under the Ancien Régime, religion was often used to justify abusive power. For example, King Louis XIV was an absolute monarch because he was “the representative of God on Earth.” The French people believed that true democracy and freedom could only be achieved by completely separating the church from the state. Under the laïcité doctrine, no one can be barred from criticizing a religion or idea. This is why, although Charlie Hebdo was sued around 50 times in 22 years by many religious organizations, it was actually convicted less than ten times.

The controversial part of laïcité is that despite protecting free speech, it bars public displays of religion. In 2010, France passed a law making it illegal for anyone to cover their face in a public place, which de facto prevents Muslim women from wearing the burqa in public. For many, laïcité is seen an excuse to force Muslim immigrants to conform with French culture without regard for religious beliefs or cultural differences. Indeed, Catholicism is not as deeply affected by laïcité because many Christian traditions are part of the French national identity and culture. Nevertheless, in 1990, France adopted a law outlawing Holocaust denial. One might question the constitutionality of the law with regard to the laïcité principle since it obviously favors Judaism. However, French law clearly distinguishes between simple expressions of opinion and hate speech against a particular group. This limitation on free speech is permitted by international human rights law to protect national security. In other words, France protects individual rights and the people, but not their churches, doctrines or ideas. This had a rather confusing consequence when the French humorist Dieudonné was charged with “defending terrorism” after declaring “I feel like Charlie Coulibaly” (from the name of Amedy Coulibaly, who allegedly killed four hostages at a kosher supermarket and a policewoman following one of the Charlie Hebdo attacks).

French law is shaped by its history and traditions, but is still stuck in its past. France has one of the biggest Muslim populations in Europe (7.5 percent in 2010, according to the Pew Research Center), but laïcité laws directly affect their integration and religious rights. Furthermore, France’s Muslim population, which is mostly of North African origin, is deeply disenfranchised socioeconomically, causing resentment and lack of integration. The Kouachi brothers who carried out the Charlie Hebdo attacks were born, raised and marginalized in France. They belonged to a second generation of immigrants who criticize their parents for having denied their Muslim identity, which is sometimes seen as an acceptance of past colonial domination. Their alienation from French society and turn towards violence shows that France suffers from an important identity crisis. Many groups in France are discriminated against because of their race, ethnicity or religion while, at the same time, they have French citizenship and do not share the same history as their parents.

Overall, French Muslims are being more and more marginalized and geographically segregated. Many immigrants live in housing projects of the banlieues, where poverty, unemployment and crime rates are high. In this kind of environment, Islamic fundamentalist recruiters offer an alternative to drugs, marginalization and poverty. This increases social tensions which benefit far-right parties like the National Front, which openly promotes xenophobic policies.

There is an urgent need to promote cross-cultural integration and understanding through education and economic support. France’s laws on laïcité should be more flexible and compatible to allow for religious expression, even in public places. The prohibition of the veil in school, for example, is too aggressive towards Muslims. A first step towards solving the problem is to recognize the nature of the separation between the banlieues and the rest of France. The Kouachi brothers are the result of a society failing at integration and producing alienation. France does not need a law prohibiting caricatures of the Prophet Muhammad because freedom should not yield to extremism. But laïcité and freedom of speech do not mean the same thing. By tying the discussions about Charlie Hebdo with the issue of laïcité, France is evading a tougher debate about how to address the problems of integration. Liberty creates a responsibility to exercise freedom of expression in a more careful manner, respectful of religion and non-offensive, to avoid tearing apart a country that is already broken.

Marie-Cassandre Wavre is a French LL.M. student at Fordham Law School.

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