International Human Rights Law

Tanzania Withdraws Jurisdiction from the African Court. What recourse remains for Tanzanians?

/ Nathalie Greenfield & Gabriela Markolovic / Leave a comment
(photo credit)

On November 21, 2019, Tanzania withdrew from Article 34(6) of the African Charter’s Protocol: the provision by which States accept the competence of the African Court on Human and Peoples’ Rights to receive cases from individuals and NGOs. Tanzania is only the second State—after Rwanda—to withdraw from Article 34(6). When Rwanda made its Article 34(6) withdrawal in 2016, the African Court mandated a notice period of one year for withdrawals and declared that the withdrawal would have no legal effect on cases pending before the Court.

Applying the Rwandan precedent to Tanzania’s withdrawal suggests that Tanzanians can only continue to file before the Court until the one-year notice period expires, on November 20, 2020. This change is significant, as individuals comprise the overwhelming majority of applications to the African Court.

Despite the closure of this important avenue for Tanzanians seeking remedies for human rights violations, there are other avenues through which Tanzanians can bring their claims. The African Commission on Human and Peoples’ Rights and the UN Treaty Bodies provide two such avenues.

A. The African Commission on Human and Peoples’ Rights

The African Commission is a quasi-judicial body tasked with the interpretation of the African Charter. Distinct from the African Court, the Commission can hear complaints against States Parties to the African Charter, including Tanzania.

The Commission presents a viable alternative to filing with the Court in several ways. By turning to the Commission, Tanzanian applicants can continue to build jurisprudence in the African continent and pursue Tanzania’s compliance with its human rights obligations under the African Charter. Successful petitions enshrine human rights norms in Tanzania, as well as in all States Parties to the African Charter, and applicants can secure reparations for the harms they have suffered.

Additionally, the Commission has shown interest in ruling on human rights claims in Tanzania, despite Tanzania’s withdrawal. On November 22, 2019, just a day after Tanzania’s withdrawal, the Commission published a statement to Tanzania strongly urging its government to guarantee a range of public freedoms and to protect human rights activists. Tanzania’s withdrawal may only serve to heighten the Commission’s interest in the State’s human rights compliance.

Although the Commission can begin to fill the gap left by Tanzania’s withdrawal for individuals who have suffered human rights abuses, it is not a replacement for the Court. First, the Commission faces a severe backlog in cases: in June 2019, the Commission had 240 cases pending. If Tanzanians seek redress before the Commission in the same numbers as they did before the Court, they can expect to see prolonged delays in having their petitions heard.

Second, Tanzanian applicants may not always see favourable decisions from the Commission enforced at state level. Tanzania is required to submit biannual reports to the African Commission on its human rights compliance, but Tanzania has only submitted two such reports: one in 1992 and another in 2008. Because of this lack of data, as well as the minimal formal policy guiding these state-reporting measures, it is difficult for the Commission to monitor whether Tanzania is implementing its decisions and recommendations. Moreover, Tanzania does not appear to have enforced the one decision on the merits that the Commission decided against Tanzania.

Despite these complications, the African Commission can fill some of the gap that Tanzania’s withdrawal from the African Court will leave post-November.

B. UN Human Rights Bodies

The UN Treaty Bodies can also hear human rights claims against Tanzania.

Two of the UN Treaty Bodies have jurisdiction over Individual Complaints filed against Tanzania: the Committee on the Elimination of Discrimination Against Women (CEDAW Committee) and the Committee on the Rights of Persons with Disabilities (CRPD Committee). Tanzania ratified the Optional Protocol to the CEDAW in 2006 and the Optional Protocol to the CRPD in 2009, thus recognising the competence of both bodies to consider communications against Tanzania.  

Where claims allege a violation of either the CEDAW or the CRPD, Tanzanians may consider bringing an Individual Complaint to CEDAW or CRPD Committees, respectively. Though the Treaty Bodies present a wholly different forum for complaints than the regional human rights tribunals of the African Court and Commission, they go a long way to filling the gap left by Tanzania’s withdrawal.

The longevity and strength of the UN Treaty Bodies lends their judgments gravity and impact. Jurisprudence from both the CEDAW and CRPD Committees shines a light on, and seeks to remedy, human rights violations the world over. Tanzanian lawyers and activists bringing complaints before these Committees can use the international respect and clout of these bodies to their advantage, to build awareness of human rights issues in Tanzania and to support their in-country efforts.

Importantly, Tanzania generally complies with its administrative obligations under both the CEDAW and CRPD by submitting its periodic reports. Neither Committee has heard many Individual Complaints against Tanzania, though, which makes analysing the likelihood of their enforcement difficult. The CEDAW Committee has heard one Individual Complaint against Tanzania, following which Tanzania implemented some—but not all—of the Committee’s recommendations. The CRPD Committee has heard two complaints against Tanzania, with similarly mixed results. Though Tanzania’s limited track record on enforcement may raise questions about the utility of bringing claims to the Treaty Bodies after November 2020, it does not diminish the utility of the UN as way forward for Tanzanians who have suffered human rights abuses.

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From November 20, 2020, Tanzanian individuals and NGOs will be deprived of an important avenue through which to bring human rights claims. It is clear, though, that Tanzania’s withdrawal does not doom all human rights claims against the state. Individuals and NGOs must turn to alternative forums to fill the gap left by Tanzania’s withdrawal.

Meanwhile, international groups should recognise the critical work being done by domestic advocates to raise awareness of these changes within Tanzania.

Introducing Nathalie Greenfield & Gabriela Markolovic

/ Nathalie Greenfield & Gabriela Markolovic / Leave a comment
Cornell, Law School, JD
Cornell, Law School, JD

It is our great pleasure to introduce our new IntLawGrrls contributors Nathalie Greenfield and Gabriela Markolovic. Nathalie and Gabriela are third-year Juris Doctor students and Charles Evan Hughes Scholars at Cornell Law School in Ithaca, New York. Nathalie is a graduate of the University of Cambridge (UK), where she received her Master’s degree in cultural policy, and she worked in gender equality policy at the European Parliament before starting at Cornell. Prior to law school, Gabriela received her Bachelor’s degree in Industrial and Labor Relations from Cornell University, minoring in International Relations and Law and Society.

Between August 2019 and May 2020, Nathalie and Gabriela were students in Professor Sandra Babcock’s International Human Rights Clinic at Cornell. During their time in the clinic, Nathalie and Gabriela represented defendants facing the death penalty in Tanzania in their appeals to the African Court on Human and Peoples’ Rights, identifying novel legal claims involving sexual and gender-based violence.

In 2021, Nathalie and Gabriela will continue working on behalf of incarcerated women in an advanced international human rights clinic, and are keen to tackle gender-based discrimination and contribute to the advancement of women in the legal profession. 

State Sponsored Persecution of Uighur Muslims in China

/ Vaishnavi Chaudhry / Leave a comment

It is a well known fact that the People’s Republic of China is infamous for carrying out human rights violations on a large scale. Right now, an organized state sponsored reign of terror is being perpetuated by the authoritarian regime against the Uighur Muslims  of the country. The Uighur Muslims are an ethic Turkish minority group residing in the northwestern region of Xinjiang province of China. This region is known as Xinjiang Uighur Autonomous Region (XUAR). 

Ever since Chen Quanguo , the Chinese Communist party secretary, has been given the charge of XUAR, the crimes against the Uighur Muslims have considerably increased through their illegal detention in internment camps. Though there is little information about the treatment of detained Uighur Muslims in these camps, some credible sources have reported that detainees are forced to live in prison like conditions in these camps and are subjected to torture on a regular basis. Apart from these, the Uighur Muslims are also subjected to state surveillance so as to ensure that they are prevented from practicing Islam in any form or manner. Furthermore, the Chinese government has also adopted the policy of harvesting human organs from the Uighur Muslim community. 

Beijing has often responded to accusations about illegally detaining Uighur Muslims by terming the detention or internment camps as ‘re-education centres’ for the betterment of the Uighur Muslim Community. However, this is a poor attempt on Beijing’s part to thwart any criticism by the international community.

China’s Violation of International Law

The mass detention of Uighur Muslims, prevalence of torture against detainees, lack of information about the whereabouts of the detainees and the harvesting of their organs constitute crimes against humanity. Article 7 of the Rome statute of the International Criminal court lays down the criteria as to what specifically constitutes Crimes against Humanity and that criterion is being fulfilled by the Chinese government. Crimes against humanity take place when civilians are subjected to continuous human rights violations which are ignored or perpetuated by the governing authorities. According to Article 7(2) (a) of the Rome statute , crimes against humanity are committed in accordance with the state’s formal policy as in the case of China.  Additionally, according to the Rome statute, persecution of a community on the basis of religious or cultural ground also constitutes a crime against humanity.

Application of Human Rights Law

There are four major conventions on human rights and China is a party to all four of them. These are the International Convention on the Elimination of All Forms of Racial Discrimination , the International Covenant on Economic, social and Cultural Rights , Convention against cruel and other, Inhuman or Degrading Treatment or Punishment. Through the unjustified mass detention of the Uighur Muslims, China has been flouting the above mentioned conventions and has drawn widespread criticism from around the world. 

Crimes against Uighur Women 

China is also a signatory to the Convention on the Elimination of All Forms of Discrimination against Women. It is arguably the most widely violated convention by China when it comes to Uighur Muslims. Reports have emerged that Uighur Women are subjected to rape, medical experiments, forced sterilization and their menstrual cycles are often disrupted so as to prevent them from procreating. Apart from that, China is also implementing a ‘ Pair Up and Become a Family’ program under which Uighur women are forced to live in the same household as communist party officials so as to acquaint them with the ethnic Han Chinese culture. All these are indicative of the fact that China has been violating the CEDAW. 

Conclusion

Under the garb of combating religious extremism, China has adopted policies against the Uighur Muslim Community which have resulted in the creating of genocide like situation in the Xinjiang province. The cultural genocide that is being committed by China deserves much more attention from the world. Owing to the country’s global influence, it hasn’t received the kind of backlash that it deserves from the world community.

Discussion Friday 3 April: Domestic Violence During COVID-19: Sheltering at Home When Home is the Most Dangerous Place

/ Stephanie Farrior / 1 Comment

The Roosevelt House Human Rights Program of Hunter College and the Sisterhood is Global Institute are hosting a live online discussion on Friday April 3 with frontline women’s rights activists from across the world.

Friday, April 3, 2020 1:00 pm – 2:00 pm EDT (17.00 – 18.00 GMT)

For victims of domestic violence, home is often the most dangerous place on earth. As the world moves towards lockdown to prevent the spread of COVID-19, women may have no safe place to turn. Moderated by Jessica Neuwirth, the discussion will explore current realities of domestic violence victims and solutions for supporting women in this vulnerable moment.

Discussants:
Carmen Espinoza, Executive Director of Manuela Ramos in Peru
Shafiqa Noori, Director of Humanitarian Assistance for Women and Children of Afghanistan
Diane Rosenfeld, Lecturer on Law and Director of the Gender Violence Program at Harvard Law School
Randa Siniora, Executive Director of the Women’s Center for Legal Aid and Counseling in Palestine

Registration is required. You may register here and join at zoom.us/j/580841531. 

Webinar on Wed. 25 March: Human Rights and Public Policy Implications of the COVID-19 Pandemic

/ Stephanie Farrior / 2 Comments

The Roosevelt House Public Policy Institute of Hunter College in New York City is holding a panel discussion via Zoom on Wednesday 25 March.  RSVP here so you can join the session when it starts.

 Responding to COVID-19: The Human Rights and Public Policy Implications of the Pandemic

Wednesday 25 March, 1:00-2:30 pm EDT (17:00 GMT – 18:30 GMT)

 With the increasing numbers of confirmed new cases of COVID-19, countries face tremendous challenges and very difficult decisions. Restrictions on freedom of movement and association in the interest of health security have been addressed differently in different countries, with differing results. Join us online for a timely virtual discussion addressing the urgent human rights and public policy implications of the global public health crisis.

Panelists:
Jamil Dakwar, Director of the Human Rights Program at the ACLU
Phelim Kine, Director of Research and Investigations at Physicians for Human Rights
Ram Raju, MD, Senior Vice President and Community Health Investment Officer, Northwell Health
Moderators:
Jessica Neuwirth, Rita E. Hauser Director of the Human Rights Program, Roosevelt House
Shyama Venkateswar, Director of the Public Policy Program, Roosevelt House

Click here to RSVP to this Zoom panel discussion.

ICC Assembly of States Parties Symposium: Between the 18th ICC ASP and the 71st Anniversary of the UDHR … Can hope rise again?

/ Valerie Oosterveld / Leave a comment

IntLawGrrls welcomes Ghuna Bdiwi, who contributes the post below directly from the International Criminal Court (ICC) Assembly of States Parties (ASP) in The Hague.

Ghuna BdiwiGhuna Bdiwi is a lawyer and a member of the UN Syrian Constitutional Committee as part of the experts and civil society group. She is a PhD candidate of international criminal law at Osgoode Hall Law School – York University. Ghuna is a delegate of the Canadian Partnership for International Justice to the 18th ICC ASP.

December seems to be a remarkable month for international justice. Two important milestones are taking place this month: the 71st Anniversary of the Universal Declaration of Human Rights (UDHR) and the 18th ICC Assembly of States Parties. The former event is to be held on the 10th of December, to commemorate the fundamental principles that should apply to every human predicament. The UDHR affirms in its preamble some of the major principles that humans should not live without, providing that “the inherent dignity of all members of the human family is the foundation of freedom, justice and peace in the world.” The latter event is held every year by State Parties to the ICC to convene and discuss matters related to the advancement of the international criminal justice system. This system is meant to sustain one of the important foundations of human dignity, that is to guarantee justice. The ICC, to a large extent, blossomed to guarantee lasting respect for and the enforcement of international justice, and to ensure that human rights violations do not occur with impunity. The establishment of the ICC was a direct response to prior human suffering resulting from wars and human-caused humanitarian disasters.

In 2019, the picture shows that a number of countries around the world are speaking out against evidence of corruption within authoritarian governments, while demanding democracy, freedom, equality and dignity. We witnessed mass demonstrations in Egypt, whereby Egyptians defied their government. Protests, demanding the government’s resignation, have filled the roads in Lebanon. In Iraq, mass protests have taken place to end government corruption, economic mishandling of economic resources, and other social cavities like poverty, unemployment, and lack of essential public services. In Hong Kong, protests are in response to citizens’ struggle for freedom of expression, rights of autonomy and self-determination. In Iran, national demonstrations have also ensued. Citizens simply want to get rid of authoritarian regimes.

Yet, this picture reminds me of the Syrian uprising that began on March 15, 2011. Many Syrian revolutionists were optimistic to establish the country they had envisioned – a democratic state that secures respect of their humanity, dignity, freedom and the rule of law. Contrary to the expectations of Syrian revolutionists, the response to their demands included grave human rights violations. The responses amounted the infliction of torture, imprisonment, murder, extensive destruction and appropriation of properties, as well as widespread, systematic and indiscriminate targeting of civilians, schools and hospitals. According to Articles (7) and (8) of the ICC Rome Statute, the conduct listed above constitutes heinous international crimes – namely, war crimes and crimes against humanity. In response to state wrongdoing, calls to address and halt human rights violations have been heard loudly from a variety of voices; citizens, the international community, individual states, intergovernmental organizations, non-governmental organizations, practitioners, diplomats, scholars, and others. Despite the list of concerned voices, there have been limited responses. There is no doubt that the UDHR is a milestone document in the history of human rights, but, alone, it is not an adequate tool to respond to calls to protect innocent civilians and prevent the scourge of war.

The strongest response to human rights violations might be a military response, but it can cause severe repercussions. The case of Iraq illustrates this reality. In 2005, the US decided to militarily intervene, claiming its intervention would implement democracy and free the people of Iraq from Saddam Al-Hussein’s ruthless dictatorship, but the country remains in a state of unrest up to this moment.  In contrast, the Rome Statute of the ICC was created to guarantee and enforce legal – rather than militaristic – justice.

In the Syrian context, sadly, the death toll has reached approximately 600,000 people, nearly six million people are displaced outside the country, and approximately 600,000 people are reportedly missing. Despite these harrowing statistics, human rights law has been unable to provide them with adequate responses. If Syria was a State Party to the Rome Statute of the ICC, many perpetrators would likely be imprisoned by now, or at least fleeing from the hands of justice.

I might sound very optimistic, but it sounds to me that when we call for criminal accountability, our calls send a message to perpetrators that we know what they have done, and that they deserve to be prosecuted and punished. We tell them that we will hold them accountable whenever the circumstances allow for it. Calling for criminal accountability has value in itself; value that is beyond the values we generate from calling for human rights violations to be addressed. For example, calls for criminal accountability might deter government figures or make them think carefully before violating citizens’ rights. Think about the range of states mentioned above, which are witnessing recent demonstrations and demanding that governments step down: none of these countries have ratified the Rome Statute. I argue that, if those countries were Parties to the Rome Statutes, government reactions to citizen’s demands would take on an entirely different form, which is enough of a reason to justify the importance of the ICC.

Of course, the ICC faces many critics related to its efficiency, selectivity and financial cost, but let’s not forget that it is still in its childhood. Let’s try to be optimistic that the ICC will be one day be able to fulfil its promise to guarantee lasting respect, enforce justice, and prevent impunity.

This blogpost and the author’s attendance to the 18th ICC ASP are supported by the Canadian Partnership for International Justice, funded by the Social Sciences and Humanities Research Council of Canada.

CPIJ 

SSHRC

 

 

 

Read On! Protection of Refugees and Migrants against Xenophobia

/ Cecilia Marcela Bailliet / Leave a comment

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

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

/ Sara Ochs / Leave a comment

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. 

Safeguarding women after disasters: some progress, but not enough

/ Kristin Bergtora Sandvik / Leave a comment

Hundreds of Mozambicans were killed and thousands made homelessrecently by Cyclones Idai and Kenneth. Almost immediately, there were reports of a sadly familiar story: women being forced to trade sex for food by local community leaders distributing aid.

Globally, international organisations appear to be grappling with the issue more seriously than before. Yet reports about sexual exploitation keep coming. How does the aid community strategise to protect women’s safety in disaster situations?

Over the past 15 years, I have done research on sexual exploitation of displaced women in Uganda and Colombia. I have also worked with a variety of humanitarian organisations on accountability and legalisation. Through this, I have identified the factors necessary to bring justice to the victims of predatory aid workers.

Sexual exploitation must be recognised as a real and widespread problem. There must be staff and management accountability. Transgressions must be sanctioned through disciplinary or penal measures. But there are also major dilemmas that need to be understood and tackled by governments, agencies and, most importantly, local communities.

Sexual exploitation in aid

The sexual exploitation of disaster and conflict victims is a global – and longstanding – phenomenon. Over the last 25 years, there have been radical changes in the standards of global public morality around the conduct of personnel working for international organisations and NGOs when vulnerable adults and children are involved.

Nevertheless, the willingness to see sexual exploitation as an inherent feature of the international community’s intervention to bring development, humanitarian aid or peace has been much slower to evolve.

It was only 24 years ago that UNHCR issued guidelines on sexual violence and refugees that expressly mentioned international refugee workers as being implicated in sexual violence against refugees.

The sexual abuse of vulnerable women and girls in several African countries by international aid workers was recently described as “endemic”. It was also noted that perpetrators easily moved around the sector undetected.

Several recent cases have been reported from Cote d’ivore, to the Democratic Republic of the Congo, Namibia, Liberia, Sierra Leone, South Sudan and the Central African Republic.

These have involved aid workers and peacekeepers, as well as local aid workers and government employees.

In my research on refugees, accusations concerning “sex for resettlement” registration surface regularly. I found these to be frequent while working on refugee resettlement in Kampala 15 years ago. Despite the UNHCR’s promise to reform, similar accusations keep resurfacing, most recently in Kenya. The time has come for the international community to seriously debate the power mechanisms embedded in the resettlement process that enable sexual exploitation to fester.

What will fix the problem?

The first step is to organise accountability.

Humanitarian accountability first emerged as a concern in the 1980s. It was institutionalised in the 1994 Code of Conduct for the International Red Cross and Red Crescent Movement and NGOs in Disaster Relief . The 1996 Joint Evaluation of Emergency Assistance to Rwanda was a defining moment.

That report resulted in several sector-wide initiatives. Five years ago efforts were made to streamline these in the revised Core Humanitarian Standards.

Throughout this period, sexual exploitation has been considered the worst possible behaviour humanitarian workers can be guilty of. But it has not been clear what constitutes exploitation and in which relationships it takes place. The lack of a definition, the unwillingness to articulate and enforce robust norms for professional behaviour and the absence of effective complaint mechanisms and protections for whistle-blowers have contributed to a culture of impunity for predatory behaviour against aid recipients.

Early policy responses to sexual exploitation were concerned with reputational issues. But over the past 15 years the humanitarian sector has seen a flurry of institutional initiatives to grapple with this specific issue. The effort to prevent sexual exploitation and abuse is led by the Inter-Agency Standing Committee.

The aid sector is now engaging in “safeguarding exercises”. These emerged after the Oxfam scandal in Haiti. The organisation was seen as failing to act on sexual misconduct by staff in the aftermath of the 2010 earthquake, and then to have attempted a cover-up.

Safeguarding includes all actions by aid actors to protect staff from harm (abuse, sexual harassment and violence) and to ensure staff do not harm beneficiaries.

This broad definition represents both a welcome recognition of the scope of the problem and an opportunity for a comprehensive approach. But it also creates some new challenges. Three are particularly worth noting.

The challenges

Who gets a voice: There has been vocal concern about the lack of inclusiveness in how safeguarding is practised. Critics have noted that a safeguarding industry was hatched with little attention to local and national context or participation. There is a view that safeguarding is yet another Western-centric practice. I think this critique is true. But it also creates a dilemma: should global norms about sexual exploitation in international aid be up for local negotiation?

Regulation and criminalisation. In recent years, there have been calls to regulate foreign aid actors more robustly. This is understandable. Aid actors have operated with a great deal of license and even impunity under the humanitarian banner. But drawing up new laws also creates problems. This is particularly true in a context where African civil society generally is under pressure from new restrictive laws that curtail their activities.

Responding to the call to “do something”, the international community has embraced criminalisation and criminal prosecutions to promote and strengthen the fight against impunity. But opting for criminal law and the courtroom rests on a deeply simplistic framing of structural power imbalances in aid. Legal strategies are costly and slow. The focus on sexual violence in disasters and conflicts also risks crowding out concern for other aspects of women’s lives.

Localisation: Since 2016 there has been a significant focus on the localisation of aid. The Charter for Change focuses on contracting, resource allocation, transparency and communication. It highlights the importance of not undermining local capacity. The process is generally painfully slow and a shockingly small percentage of international aid funding is actually allocated to local actors.

At the same time, there is a persistent call for international actors to do, control and know more about what goes on locally to limit corruption, incompetence and abuse. This call comes partly from media in donor states addressing taxpayers, but also from watchdogs within the sector.

This is also the case for sexual exploitation. In its report, Human Rights Watch demands that “international partners, particularly the UN, should ensure greater oversight of the conduct of local officials during the distribution of humanitarian aid”. This will not come for free.

The question is how a balance can be found between control and localisation – and who gets to determine what this balance should be.

This post was originally published at https://theconversation.com/safeguarding-women-after-disasters-some-progress-but-not-enough-116619. For an extended critical commentary on the rapid rise of the Safeguarding concept in the aid sector, see https://jhumanitarianaction.springeropen.com/articles/10.1186/s41018-019-0051-1

ICJ Advisory Opinion in the Chagos Archipelago Case: Self-Determination Re-Examined?

/ Milena Sterio / 1 Comment

On February 25, 2019, the International Court of Justice (ICJ) delivered an advisory opinion on the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965.  The advisory opinion had been requested of the court through a General Assembly resolution in 2017, on the following legal question:

“(a) Was the process of decolonization of Mauritius lawfully completed when Mauritius was granted independence in 1968, following the separation of the Chagos Archipelago from Mauritius and having regard to international law, including obligations reflected in General Assembly resolutions 1514 (XV) of 14 December 1960, 2066 (XX) of 16 December 1965, 2232 (XXI) of 20 December 1966 and 2357 (XXII) of 19 December 1967?;
(b) What are the consequences under international law, including obligations reflected in the above-mentioned resolutions, arising from the continued administration by the United Kingdom of Great Britain and Northern Ireland of the Chagos Archipelago, including with respect to the inability of Mauritius to implement a programme for the resettlement on the Chagos Archipelago of its nationals, in particular those of Chagossian origin?”

ICJ answered the first question in the negative, and concluded that the decolonization process of Mauritius had not been lawfully completed at the time of Mauritian independence.  And the court held, on the second question, that the United Kingdom was under an obligation to bring to end its administration of the islands as rapidly as possible.  This post will provide a brief factual background regarding the Chagos Archipelago, as well as a succinct legal analysis of the world court’s reasoning and ultimate conclusions.

Where is the Chagos Archipelago and what was its relationship to the United Kingdom and Mauritius prior to Mauritian independence in 1968? Between 1814 and 1965, the Chagos Archipelago was administered by the United Kingdom as a dependency of the colony of Mauritius.  In 1964, during a time when the  United Kingdom was contemplating decolonizing Mauritius, the United States expressed an interest (to the United Kingdom) in establishing a military base on one of Chagossian islands, Diego Garcia.  In 1965, the United Kingdom concluded the co-called Lancaster Agreement with the representatives of the colony of Mauritius.  Through the Lancaster Agreement, the U.K. and Mauritius “agreed in principle to the detachment of the Chagos Archipelago from the territory of Mauritius. This agreement in principle was given on condition that the archipelago could not be ceded to any third party and would be returned to Mauritius at a later date, a condition which was accepted at the time by the United Kingdom.” (para. 171).  After this Agreement, the United Kingdom detached the Chagos Archipelago from Mauritius.  In 1965, the United Kingdom also concluded an agreement with the United States, allowing the latter to build a military base on Diego Garcia.  By 1971, all of the inhabitants of Diego Garcia were forced to relocate from the island by the United Kingdom authorities and the United States proceeded to build a military base on the island.  Mauritius (without Chagos Islands) obtained independence from the United Kingdom in 1968; according to a former Mauritian Prime Minister, Mauritius had no choice but to agree to the detachment of the Chagos Archipelago prior to independence.  As of today, the United States still operates a military base in Diego Garcia (the U.S. – U.K. agreement of 1965, allowing the U.S. to operate a military base in Diego Garcia, has been extended).  The Chagossians have been dispersed, since the early 1970s, in Mauritius, the Seychelles, and the United Kingdom.  By virtue of U.K. law, they have not been allowed to return to the Chagos Archipelago.

How did the ICJ reason in this advisory opinion, and how did it reach its ultimate conclusions? First, the ICJ held that it had jurisdiction over the dispute because the request from the General Assembly for this advisory opinion constituted a “legal question” pursuant to article 65 of the court’s statute (para. 58).  Second, the ICJ held that, in its discretion, it should not decline to exercise jurisdiction over this case.  The court reasoned that it had enough factual information to answer the legal questions asked (paras. 69-74), that it was not for the court to decline jurisdiction based on the argument that the court’s opinion would not assist the General Assembly, as this is for the General Assembly itself to decide (paras.  75-78), and that it was not precluded through the principles of res judicata from rendering this advisory opinion (because the U.K. and Mauritius had arbitrated a slightly different dispute before an arbitral tribunal, and because the U.K. and Mauritius are not the same parties in the present request for an advisory opinion) (paras.  79-80).  Moreover, the ICJ rejected the argument that it should decline jurisdiction because the request for an advisory opinion would force the court to settle a territorial dispute between two states, the U.K. and Mauritius, which had not both consented to the court’s jurisdiction over this dispute (paras. 83-91).  Instead, the ICJ held that “the purpose of the request is for the General Assembly to receive the Court’s assistance so that it may be guided in the discharge of its functions relating to the decolonization of Mauritius.” (para.  86).

After answering the jurisdictional challenges, the ICJ turned to the merits.  The court examined the right to self-determination under customary law, and whether this right existed under customary law in the late 1960s, at the time that the U.K. decolonized Mauritius.  According to the ICJ, General Assembly Resolution 1514 of 1960 “represents a defining moment in the consolidation of State practice on decolonization” (para. 150) and “[t]he wording used in resolution 1514 (XV) has a normative character, in so far as it affirms that ‘[a]ll peoples have the right to self-determination.'” (para. 153).  Moreover, according to the court, “[b]oth State practice and opinio juris at the relevant time confirm the customary law character of the right to territorial integrity of a non-self-governing territory as a corollary of the right to self-determination.” (para. 160).  Thus, the ICJ concluded that the right of self-determination was a part of customary law in 1968, at the time of Mauritian independence.  Next, the court concluded that the people of Mauritius, through the Lancaster Agreement of 1965, did not freely consent to the detachment of the Chagos Archipelago (para. 172), and that the decolonization of Mauritius was thus not lawfully completed, as it did not respect the relevant principles of self-determination.  In light of this conclusion, the court found that “the United Kingdom’s continued administration of the Chagos Archipelago constitutes a wrongful act entailing the international responsibility of that State” (para. 177) and that “the United Kingdom is under an obligation to bring an end to its administration of the Chagos Archipelago as rapidly as possible, thereby enabling Mauritius to complete the decolonization of its territory in a manner consistent with the right of peoples to self-determination” (para. 178).  Moreover, the ICJ concluded that because “respect for the right to self-determination is an obligation erga omnes, all States have a legal interest in protecting that right” and “while it is for the General Assembly to pronounce on the modalities required to ensure the completion of the decolonization of Mauritius, all Member States must co-operate with the United Nations to put those modalities into effect” (para. 180).

Why did the court (likely) decide the way it did, and what does this all mean? First, it is important to note that the court’s decision was virtually unanimous: the judges unanimously determined that the court had jurisdiction; by twelve votes to two, the judges decided to comply with the request to render the advisory opinion (Judges Tomka and Donoghue against); by thirteen votes to one, the judges reached their substantive conclusions (Judge Donoghue against).  Second, as Marko Milanovic has argued, the outcome of this case may demonstrate how important the framing of the legal question is (“by avoiding the use of the term ‘sovereignty’, Mauritius and the GA defused the likelihood of the Court dismissing the case as involving a bilateral dispute”).  This may explain, in part, why the ICJ judges ultimately reached the conclusions above – that the narrow and clever wording of the advisory opinion request allowed the ICJ to reach particular legal conclusions without having to address issues of U.K. and/or Mauritian sovereignty.  Third, I agree with Marko Milanovic that the ICJ’s discussion of the most fundamental and difficult issue – whether the right of self-determination was part of customary law in 1968, at the time of Mauritian decolonization – was too brief, too rushed, and insufficiently developed in terms of legal analysis.  Fourth, the ICJ did not explain how the people of Mauritius could have freely exercised their right to self-determination (when they consented to the separation of the Chagos Archipelago): was the U.K. at an obligation to conduct a popular referendum in Mauritius on this issue, or were there other modalities of self-determination available in 1968? Fifth, it is clear that this outcome is a big loss for the U.K., as the ICJ most clearly stated that the Mauritian decolonization was not lawfully completed and that the U.K. was under an obligation to end its administration of the Chagos Archipelago immediately. Sixth, it may be argued that the outcome of this case is a loss for other countries, such as the U.S., as the ICJ concluded that all states were under an obligation to co-operate with the United Nations to ensure the completion of the decolonization of Mauritius (does this mean that the U.S. is now under an obligation to dismantle its military base on Diego Garcia?) Seventh, it may also be argued that the ICJ missed another opportunity to pronounce itself on the contours of the right of self-determination, like in the Kosovo Advisory Opinion.  The legal question in this advisory opinion concerned the right to self-determination directly; instead of quickly concluding that the right was part of customary law in 1968, the court could have included a more detailed legal analysis of the content and modalities of the right of self-determination under customary law.

It remains to be seen how the U.K. (or the U.S.) will react to this advisory opinion, whether the U.S. will be willing to negotiate the relocation of its military base in Diego Garcia, and whether the people of the Chagos Arhipelago may be allowed to return to their home land.