Read On! Protection of Refugees and Migrants against Xenophobia

In response to the terrorist attack against Mexicans and Mexican Americans on August 3, 2019, the UN Secretary General stressed “the need for all to work together to counter violence rooted in hatred, racism, xenophobia and all forms of discrimination.”[3] The transnational evolution of xenophobia requires a committed response by the international community. My article in the latest edition of the Brazilian Yearbook of International Law discusess the rise of nativism, populism, and authoritarianism in the world and the situation of foreigners and persons perceived to foreigners, including refugees and IDPs. There are currently three scenarios faced by refugees and IDPs: protracted camps/warehousing, urbanization, and detention. This article outlines the range of human rights violations and accountability gaps in each of the three scenarios faced by refugees, arguing that these are examples of structural xenophobia. It discusses normative gaps within international law and analyzes the role of compliance mechanisms in the UN Human Rights Treaty Body Regime and regional human rights bodies. The article underscores the risk of inaction by the international community in the face of discrimination against refugees, using the case study of Norway.  The conclusion suggests a way forward by supporting the proposal for a new Protocol to the UN Convention on the Elimination of Racial Discrimination addressing xenophobia.  The Yearbook is available here


[1] See UN General Assembly Resolution 73/262, A Global Call for Concrete Action for the Total Elimination of Racism, Racial Discrimination, Xenophobia and Related Intolerance, A/Res/73/262 (15 January 2019).

[2] https://www.theguardian.com/us-news/2019/aug/04/mexico-legal-action-us-terrorism-amlo

[3] SG/SM/19689 5 August 2019

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The Death of ‘Brother No. 2’, the Impact of the Death of an Appellant and the Risks of Justice Delayed

On the 4th August 2019, one of the former senior leaders of the Khmer Rouge, Nuon Chea, passed away at the Khmer Soviet Friendship Hospital. The third to die of five individuals accused of international crimes by the Extraordinary Chambers in the Courts of Cambodia (ECCC), his death raises important questions about the implications of the death of an appellant, as well as drawing attention to the threat of justice delayed becoming justice denied for victims of mass atrocities.

Nuon Chea, or ‘Brother No. 2’, was second in command after Pol Pot in leading the Khmer Rouge, a regime which held power in Cambodia from 1975-1979. Nuon Chea was considered a significant ideological driver of the regime, and one of those primarily responsible for the forcible restructuring of Cambodia in pursuit of an agrarian revolution.  These policies led to the deaths of an estimated 1.7 million people, through starvation, disease and overwork, as well as through the deliberate execution of anyone considered a threat to the regime.

The regime was followed by continued conflict, a period of amnesties and a policy of ‘burying the past‘ for many years. However, after several further years of negotiations between the UN and the Royal Government of Cambodia, an agreement was reached enabling the creation of the ECCC, established in 2006 to prosecute crimes perpetrated by senior leaders and those most responsible for crimes perpetrated during the regime.

Nuon Chea was arrested on 19 September 2007. Alongside Ieng Sary, Ieng Thirith and Khieu Samphan, he faced charges of crimes against humanity, grave breaches of the Geneva Conventions of 1949, and genocide. The case, known as Case 002, had been called “the most important case in the international legal history since Nuremberg” as it indicted all the four surviving senior leaders of Democratic Kampuchea.

Given the complexity of the trial, and concerns over the advanced age of the defendants, this trial was split into a series of sub-trials, and the first judgment was delivered on 7 August 2014, nearly forty years after the Khmer Rouge came to power. By this point, the number of defendants had already been halved, following the death of Ieng Sary in 2013 and the staying of proceedings against Ieng Thirith as a result of her degenerative mental health.  The remaining defendants received convictions and life sentences for crimes against humanity relating to forced transfers and the killing of the former regime’s soldiers.  On 23 November 2016, the Supreme Court Chamber quashed part of the convictions but affirmed their life imprisonment. 

The Case 002/02 judgment, significantly broader in scope, was delivered on 16 November 2018, convicting Nuon Chea and Khieu Samphan of grave breaches of the Geneva Conventions, a range of crimes against humanity (notably including the regulation of marriage), and the genocide of the ethnic-Vietnamese and (in the case of Nuon Chea) the Cham Islamic minority group.

This conviction was praised by commentators for its significance for the victims of the regime and for international criminal law more generally. However, both defendants appealed the conviction on multiple grounds, raising important questions with regards to whether Nuon Chea’s appeal can continue and the status of his conviction if it cannot.

The Court may find that without an appellant, the appeal cannot continue.  Such an approach would be in keeping with that of the International Tribunal for the Former Yugoslavia, where the Appeal Chamber in the Delic case found that as there was no appellant, no appeal could be made, and the trial judgment would therefore stand.

However, the ECCC Internal Rules specify that ‘The convicted person or, after his or her death, the spouse, children, parents, or any person alive at the time of the person’s death who has been given express written instructions from the convicted person to bring such a claim…may apply to the Chamber to revise the final judgment” on certain limited grounds, relating to the discovery of new evidence or serious misconduct on the part of a judge. While relatively narrow, this may suggest that at the ECCC, the death of an accused does not preclude the continuance of an appeal.

Domestic case law is also varied on this point, and it could be argued that allowing the appeal to continue would constitute a valuable way of protecting the rights of a defendant to clear his name, enhancing the legitimacy of the judgment, and potentially facilitating the ‘truth-telling’ goals of the tribunal by allowing findings to be tested further. These latter arguments are particularly pertinent given the wide-ranging grounds of appeal submitted by his defence team, some of which challenge the impartiality and legitimacy of the Trial Chamber itself, and which differ significantly from those put forward by Khieu Samphan’s team.

If the appeal does not continue, then the status of Nuon Chea’s conviction is unclear. Under Article 35 new of the Law on the ECCC, the accused shall be presumed innocent as long as the court has not given its definitive judgment. If the trial judgment is considered the definitive judgment, then Nuon Chea’s conviction may stand. However, if the definitive judgment is considered the final appeal judgment, then it may be that the trial judgment is unable to be considered legally sound, meaning Nuon Chea may be presumed innocent until/unless his appeal is heard. In such a scenario, the ECCC’s legal recognition of the genocide perpetrated against the Cham community, and the role of Nuon Chea in a range of additional mass atrocities, would lose its legal force.

Regardless of the outcome, the death of Nuon Chea prior to his appeal being completed draws attention to the risks for the rights of both defendants and victims in delaying the delivery of justice. The ECCC has continued to be subjected to sustained critiques for the time it had taken to complete its cases, resulting in many victims, as well as defendants, dying before judgments were delivered. During my research into the perspectives held about the Court amongst survivors of the regime, the issue of expediency and a wish for closure was raised time and again. I was repeatedly asked when the Court would finish its work, and attention was drawn to the advanced ages of the accused. The depletion of the number of defendants was often attributed to the Court’s slow progress, and many respondents voiced their frustration at having had to wait so long, and their fear that the other defendants would also die, meaning that the Court ‘will have been a failure’. Such views are natural given the several decades that have passed since the Khmer Rouge inflicted years of hardship and suffering on Cambodian society, and highlight the profound importance of delivering timely responses to mass atrocity. 

 

 

 

 

 

Work On! LL.M. in Human Rights and Humanitarian Law at American University Washington College of Law

Work On! is an occasional item about workshops, roundtables, and other fora that do not necessarily include publication:

The LL.M. in Human Rights and Humanitarian Law is proud to announce that starting this fall they will be offering the LL.M. in residence program. The program is designed to provide both solid doctrinal theoretical studies and practical skills. Students will benefit from a curriculum focused on over 50 human rights doctrinal courses offered every year and taught by expert faculty. In addition, American University Washington College of Law offers a curriculum based on experiential education that allows students to acquire hands-on experience through externships, internships and research opportunities with human rights faculty and other experts. Deadline to apply is October 1st, classes start January 2020.

Click the following link to apply: https://bit.ly/2OJo33B

Yesterday’s Ntaganda Judgment and Sexual and Gender-based Violence Committed against Men and Boys

 

  1. Introduction

In recent years, blogs and law journal articles have focused increasingly on the issue of sexual and gender-based violence (“SGBV”) committed against men and boys during conflict. In earlier years, this issue received much less attention and judicial scrutiny in international criminal tribunals. Yesterday’s judgment in the Ntaganda case (“Ntaganda judgment”, “the Judgment”) contains evidence that SGBV committed against men and boys is receiving increased attention at the International Criminal Court. In the judgment, Trial Chamber VI (“TC”) explicitly describes some acts of SGBV committed against men and boys and labels them as “rape”, the severest criminal label that can be affixed to sexual crimes, which shows that progress has been made on this issue. The issue of gender was covered more broadly here in yesterday’s excellent blog post.

  1. Recap – the ICC’s Policy Paper on Sexual and Gender-Based Crimes

The June 2014 Policy Paper on Sexual and Gender-Based Crimes (“Policy Paper”) defines gender-based crimes as “those committed against persons, whether male or female, because of their sex and/or socially constructed gender roles. Gender-based crimes are not always manifested as a form of sexual violence. They may include non-sexual attacks on women and girls, and men and boys, because of their gender.” (Policy Paper, p. 3, also see p. 4) The definition’s syntax leaves something unclear: whether gender-based crimes against women and girls are farther up in the hierarchy than those committed against men and boys. The lack of clarity derives from the following phrasing: “women and girls, and men and boys, because of their gender.” Perhaps rephrasing in order to give the impression of full inclusivity would be beneficial.

  1. The Ntaganda Judgment

The Ntaganda Judgment’s explicit description of acts of SGBV committed against men and boys is a positive indicator that ICC practice is increasing its focus to include acts committed against men and boys. The Judgment includes witness testimony describing such acts. A witness recalled: “UPC/FPLC soldiers anally penetrate men with their penises or by using ‘bits of wood’. Following the rapes, the men ‘suffered a great deal’ and then they died.” (para. 623) Explicit description of SGBV acts committed against men and boys is not only important for holding alleged perpetrators publicly accountable, but hopefully a consequence of shifting the discussion to including men and boys will be to reduce (and eventually to eliminate) the stigma attached to sexual victimization. For example, in the Bemba Trial Judgment, witness P23 described himself as a “‘dead man’” after three perpetrators “penetrat[ed] his anus with their penises.” (para. 494)

Of note is the Trial Judgment’s language in describing sexual violence. In the same paragraph in which a witness described seeing soldiers anally penetrate men, the Trial Judgment describes the witness’ recollection of “s[eeing] other women being raped inside and outside the house, including with sticks.” (para. 623) However, in its description of sexual acts committed by soldiers against men, the Trial Judgment does not use the word “rape” in the same sentence as “anally penetrate”, though it then states that “Following the rapes, the men ‘suffered a great deal’ and then they died.” (para. 623) Later in the judgment, it states: “in Kobu, UPC/FPLC soldiers raped detained women and girls; and also anally penetrated men with their penises or by using ‘bits of wood’’. (para. 940) It is inexplicable why anal penetration – whether committed with a penis or a ‘bit of wood’ – is not described as rape. Furthermore, noting the structure of this section of the Judgment, this finding comes under the sub-heading “Rape as a crime against humanity and as a war crime (Counts 4 and 5)”, and it is firmly situated between several statements describing acts of rape against women. (see also paras. 873, 942)

However, despite the use of language described, the Trial Chamber did find that these acts satisfied the material elements regarding rape as a crime against humanity and as a war crime. (paras. 941-948) This is important, as it affirms that the acts of SGBV constitute acts of rape and should not be categorized as falling under labels of lesser severity. Recalling Tadić, in which horrifying acts of SGBV were described, continuing to hold individuals responsible for acts of sexual violence, and using the strongest language in cases of the most shocking acts of depravity and criminality, is of the highest priority.

  1. Conclusion

It appears that there is some progress being made at the international level in confronting sexual violations of the bodily integrity of victims, a group comprised of women and girls and men and boys. Though there is still not enough focus on and analysis of crimes committed against men and boys, the Ntaganda judgment makes some incremental improvement in addressing these acts, and it is important for international justice to continue to make inroads in this direction.

 

 

 

 

 

 

 

 

 

Gender-based crimes: A monumental day for the ICC

When it comes to prosecuting sexual and gender-based crimes, there have been few days as significant as today in the ICC’s twenty-one-year long history. The day began with a conviction for sexual violence crimes against male and female victims in the Ntaganda case, followed by the first attempt in any international criminal court or tribunal to prosecute gender-based persecution.

Rosemary Grey (University of Sydney) and Indira Rosenthal (University of Tasmania)[1]

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This is how we won a historic victory for women’s and LGBTIQ rights in international law 

The final draft of a new international crimes against humanity treaty has dropped an outdated definition of gender, affirming the rights of all people.

Lisa Davis

LGBT rights rally in Quezon City, Philippines, 2018. George Buid/Zuma Press/PA Images. All rights reserved.

When it comes to the letter of the law, a few words can mean the difference between having your rights protected – or not. This is why human rights advocates are celebrating this month: after a worldwide campaign, and many long meetings and legal arguments, the new draft of the international crimes against humanity treaty has lost an outdated definition of gender that could have been used to limit protections for women and LGBTIQ people in war.

On 7 June, the International Law Commission – a body of experts set up by the UN in 1947, to help develop and interpret international law – formally recommended this draft for adoption by states. Finally this treaty, which heads to the UN General Assembly later this year, holds the promise of justice for all victims of the world’s worst atrocities.

Previous drafts of this treaty included a definition of gender borrowed from the Rome Statute (which governs the International Criminal Court (ICC)) that isn’t clear on who is protected. It says: “the term ‘gender’ refers to the two sexes, male and female, within the context of society” – overlooking trans and gender non-conforming identities and leaving it open to dangerous interpretation.

Law scholars and the ICC’s own Chief Prosecutor do understand this definition to include LGBTIQ people, and more broadly, women and men persecuted for not following oppressive dress codes, or ‘traditional’ gendered roles. However, the new draft crimes against humanity treaty doesn’t come with an international court – it’s left up to states to implement. And some consersvative governments may try to take advantage of the definition’s opacity and ignore conflict-related gender-based crimes.

The story of this treaty, and its language, is long – as was the process of removing this controversial gender definition from the text. It took immensely coordinated campaigning from rights advocates and lawyers. This is a significant legal victory for women’s and LGBTIQ rights – and three groups that came together to push for the definition’s removal: MADRE and CUNY Law School, where I work, and OutRight Action International.  

“Finally this treaty holds the promise of justice for all victims of the world’s worst atrocities”

Under international criminal law, you can’t persecute people based on sexual orientation, gender identity or sex characteristics. But fundamentalists around the world are promulgating fear and justifying discrimination with claims that women and LGBTIQ rights advocates want to impose what they call “gender ideology” – a supposed attack on “natural families”, “feminine values” and the male-or-female binary as the will of God.

At the bottom of these movements is a fear that women will break out of their “traditional roles” as mothers and caretakers, and seek education or employment instead. (As if women can’t do both, and while rigid gender roles also have negative consequences for men). Meanwhile, ultra-conservatives are trying to erase LGBTIQ rights altogether, as their very existence challenges their rigid gender narrative.

This is the context in which we mobilised to challenge the opaque gender definition in the crimes against humanity treaty, which the International Law Commission body of experts opened to comments from the UN, national governments and civil society groups last year. At first, our arguments were met with a chilly response from the treaty’s supporters. 

Their pushback was simple: the more changes there were to the treaty’s language, they feared, the more likely it would be that fewer states adopt it. This reasoning was familiar: thinking like this has consistently meant that women’s and LGBTIQ rights are deprioritised in conflicts, including sexual and reproductive healthcare in humanitarian crises. In peace talks, the rush to get warring parties to the table too often leads to women’s exclusion.

Can human rights advocates working together make a difference?

Just ask Ray Acheson, who led a civil society advocacy coalition that secured a legally-binding provision on gender-based violence in the Arms Trade Treaty. Ray recalls: “At the beginning, we were getting questions [from governments] like, ‘What does gender-based violence have to do with the arms trade? I don’t get the connection.’ By the end, we had a hundred states saying that it had to be in the treaty and it had to be legally binding”.

Similarly, we didn’t give up at that initial chilly response. Instead, we organised a worldwide campaign for the outdated gender definition to be removed or revised. Time was against us: we had to rally states, UN agencies and civil society groups to make submissions supporting these arguments, and the treaty was only open for comments for one year. 

“History will remember that all of us working together can make a difference”

We spent the first six months organising meetings with experts to work out our legal arguments and reasoning. We held seven briefings to receive feedback from representatives of the International Law Commission, governments, and civil society from around the world. We also distributed a toolkit in four languages to support broad civil society input on the treaty’s gender language and other key provisions.

CUNY Law School compiled feedback from these workshops, briefings and consultations, for a submission to the commission that offered a holistic legal analysis and recommendations to either remove or revise the gender definition. We also circulated our arguments and recommendations in five languages for other groups to sign on to. 

Ultimately, nearly 600 organisations and academics from more than 100 countries signed our open letter. At least nine other civil society submissions echoed our demands, including from 60 African human rights groups, led by the Southern Africa Litigation Center; 12 transgender rights groups; two intersex rights groups; and Human Rights Watch. 

Moreover, 19 governments affirmed that the rights of women and LGBTIQ people are protected under international criminal law and said this treaty must reflect that. No state spoke against gender rights in the treaty process. An astounding 24 UN special rapporteurs and other experts signed another submission echoing our legal reasoning. 

The result, this month, was a final draft of the crimes against humanity treaty from the International Law Commission that removes the outdated gender definition, citing our arguments. Though our campaign isn’t over. Next, the treaty goes to the UN General Assembly this autumn, where states will again debate its language and decide its fate. 

Whether it becomes law or not, this is clear: history will remember that all of us working together can make a difference, because all of us have rights that must be protected.

The Failure to Protect International Law & Human Rights in the U.S.-China Trade Talks

Recent weeks have featured developments in yet another high-profile international crisis in the White House.  The Trump Administration has continued its negotiations with China in an effort to reach a long-awaited trade deal.  Yet, during round table discussions in May, White House officials willfully ignored the elephant in the room: China’s ongoing mass human rights violations and persecution of minorities.  Despite growing media coverage depicting China’s inhumane treatment of its minority Uighur Muslim population, the U.S. has steadfastly refused to take effective action to leverage its trade position to combat China’s violations of international law.  This simply marks the latest in the U.S.’s retreat from international law, closely following its bullying of the ICC into closing its investigation into Afghanistan.

Recent years have sparked increased persecution of the Uighurs, a largely Turkic-speaking Muslim minority based in Xinjiang, an autonomous region within China. China has targeted the Uighurs through its “Strike Hard Campaign against Violent Terrorism.”  Under the auspices of national security and counter-terrorism, the Chinese government has arbitrarily arrested large numbers of Uighur Muslims throughout Xinjiang, placing many in detention centers and prisons, and forcing others into hundreds of political “re-education” camps.  Many of the detainees are not charged with crimes and have been deprived of due process rights to challenge their detentions.  Pursuant to research by the Council on Foreign Relations, Uighurs detained in the re-education camps are forced to renounce Islam, learn Mandarin, and praise communism. Reports of forced self-criticism, psychological and physical beatings, and torture have also emerged from the camps.

To easily identify and monitor Uighurs, the Chinese government has implemented a mass surveillance system throughout Xinjiang and other Chinese provinces. China’s use of facial recognition software, police checkpoints, and cell phone monitoring has effectively turned Xinjiang into a surveillance state. China uses this surveillance to identify those in violation of restrictive laws against Uighur Muslims, including the banning of long beards and the use of Muslim names for newborn children.

While the exact number of Uighurs detained is unknown, officials within the Trump Administration have estimated that the figure falls between one and three million.  These conditions, disturbingly reminiscent of the concentration camps employed by Nazi Germany, have prompted widespread charges that China is actively engaging in ethnic cleansing.  In fact, China’s targeted attack on the Uighurs encompasses violations of various international human rights treaties to which China is a party, including the International Convention on the Elimination of All Forms of Racial Discrimination, the International Covenant on Economic, Social and Cultural Rights, and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Moreover, China’s mass detention, torture, and enforced disappearances of Uighurs could constitute crimes against humanity or even genocide under international criminal law.

International human rights organizations, legal scholars, and state governments have vocally condemned China’s international crimes and human rights violations, yet minimal practical action has been taken against the Chinese government.  While calls have been made for the U.N. to commence an investigation into China’s treatment of the Uighurs, at this point, none has been ordered.  In fact, the practical impact of any potential investigation is uncertain.  In its role as a permanent member of the U.N. Security Council and a non-party to the Rome Statute, China enjoys a substantial level of protection against sanctions and ICC prosecution.  

The U.S. has been aware of China’s ongoing human rights violations for years.  Members of Congress have repeatedly requested that the Trump administration impose sanctions on high-ranking Chinese officials in response to growing evidence of Uighur mistreatment.  In a July 2018 op-ed, Secretary of State Mike Pompeo recognized China’s mass detention of Uighurs, while applauding the “Trump administration’s [passion for] promoting and defending international religious freedom.” Yet, while the U.S. government apparently considered issuing sanctions, it has failed to effectively act to halt China’s persecution of the Uighurs.

In early April, a group of 43 bipartisan member of Congress wrote to Secretary of State Mike Pompeo, Secretary of the Treasury Steven Mnuchin, and Secretary of Commerce Wilbur Ross, again formally requesting economic sanctions be imposed against China for its gross human rights violations against the Uighurs. Yet, despite growing publicized condemnation and concern, the current administration’s conduct indicates it will do little to bring China into compliance with international law.  The ongoing trade talks with China present the perfect opportunity for the current administration to call for China to end its persecution of the Uighurs under threat of sanctions.  Yet, as the New York Times reports, the U.S. has not raised the issue of China’s international crimes at any time during the trade talks, viewing it as a potential impediment to negotiations.  Instead, in mid-May, following failed U.S.-China round table trade talks, President Trump issued an executive order declaring a national economic emergency and empowering the U.S. government to ban the use of technology of “foreign adversaries” deemed to pose a risk to national security. Nearly immediately thereafter, the U.S. Department of Commerce placed Huawei Technologies, the company responsible for creating many of the surveillance tools used to monitor the Uighurs, on a “trade blacklist,” thereby greatly obstructing its ability to conduct business with U.S. companies.  Yet, in failing to publicly address China’s mistreatment of the Uighurs and Huawei’s complicity in the Uighur surveillance while taking such action, the Trump administration fell significantly short in defending international law and human rights.

As a world power and a permanent member of the U.N. Security Council, the U.S. bears responsibility to bring an end to China’s ongoing international crimes.  The Trump administration’s failure to effectively leverage its trade position to bring China into line with international law not only undermines the U.S. policy of promoting global freedom of race and religion, but also prioritizes its commitment to capitalism and financial profit at the expense of human rights.