COVID-19: Towards a Digital Fragmentation of the Right to Education?

Written by Kristin Bergtora Sandvik* and Ingunn Ikdahl**

Introduction

COVID-19 lockdowns have had momentous impact on children’s lives worldwide and in particular on the right to education. Save the Children reports that more than 1.6 billion learners globally have faced school closures due to the pandemic, resulting in at least 10 million children not returning to school.[1] Among key international stakeholders, there appears to be a consensus that the problem is lack of access to remote education.

In the context of COVID-19, academics, policymakers and activists have given significant attention to digital learning and to the right to education.[2] However, the interlinkages between the two have been subject to little critical scrutiny. In this commentary, we interrogate how the problem of lockdowns as a barrier to education—and the proposed solutions to overcome this barrier—are defined, and the consequences for children’s right to education. Our argument is that a framing of remote learning, connectivity, and access to hardware as the solutions to lockdown unduly privileges certain understandings of how children’s right to education are violated.

We argue that the trend towards digital learning entails a platformization of education, engendering new problems, with respect to discrimination, data protection, the freedom of speech and of thought, and the right to culture. In combination, these digital platforms represent a fragmentation of the right to education. In contrast to the comprehensive and holistic understandings of the right to education developed by the UN treaty bodies, the fragmentation entails splitting the right into components, with the right to education in international law the fragmentation entails splitting the right into components, with “equal access” taking center stage. In the following piece, we consider the right to education in international law; explore the framing of the COVID-19 education challenge; and discuss how the focus on reachability and platformization—i.e. digital access—may adversely affect children’s rights. We hope that this analysis can also provide pointers for a post-COVID-19 research agenda on the right to education.

1.    The right to education in international law

The right to education is articulated in several international human rights documents, most prominently the Universal Declaration on Human Rights article 26,[3] the Convention on the Rights of the Child (CRC) articles 28 and 29,[4] and the Covenant on Economic, Social and Cultural Rights (CESCR) articles 13 and 14. [5] Setting out to clarifying the scope and content of the right, the UN CESCR Committee adopted a “General Comment” in 1999. The Committee relied on its standard 4A-criteria: Availability, accessibility, acceptability and adaptability.[6] Functioning institutions and programs must be available in the state, but also physically and economically accessible for all—without discrimination in law or in fact. Acceptability requires that its form and substance, including curricula and teaching methods, is relevant, of high quality and culturally appropriate. Adaptable education is flexible enough to meet changing needs of societies, communities and students. The Committee emphasized that these four were “interrelated and essential features” for all forms of education.[7]

Rights discourses were not the only factors shaping global policies around education. A long-term staple of development programming, education has been increasingly included in humanitarian response.[8] In 2000, UNESCO, UNICEF, UNHCR and the International Rescue Committee co-founded the Interagency Network for Education in Emergencies.[9] These efforts to fit education into the humanitarian agenda emphasized urgency and humanitarianism, rather than rights, and framed education as “a service that could be packaged” like other forms of packaged emergency aid. The focus on service delivery distanced education from politics, and rhetorically, access was prioritized over quality.[10] The “Education Cannot Wait” fund, launched at the World Humanitarian Summit in 2016, also emphasized the need for convergence of humanitarian and development approaches to education in emergencies and protracted crises. While human rights occupied no prominent place in the founding documents, it was central in the UN’s recently adopted Social Development Goal 4 on “inclusive and equitable quality education … for all.”[11]

A convergence between humanitarian discourses on education in emergencies and human rights-based approaches to education initially surfaced in 2008. The then UN Special Rapporteur on the Right to Education devoted his annual report to the topic of “Right to education in emergency situations,”[12] retaining the 4A-criteria and critiquing both donors and large sectors of the international communities for formally committing to the right to education while failing it in practice (paras 69-81). The same year, the CRC committee similarly emphasized the need for a broad rights-based approach to education in emergencies—integrating the four general principles of the CRC: “the right to non-discrimination (article 2); best interests of the child (article 3); the right to life, survival and development (article 6); and the right to be heard (article 12).”[13]

Digital learning only made intermittent appearances in these early soft law documents on the right to education. One example is the CESCR Committee’s brief suggestion that physical accessibility to education could be achieved not only by attendance at a neighborhood school, but also via “modern technology.”[14] A sustained discussion of digitization and children’s rights only emerged around 2014, as the CRC organized a Day of General Discussion on “Digital media and children’s rights.”[15] A draft general comment from CRC on “Children’s rights in relation to the digital environment” is still under development.[16] The current draft, from August 2020, underlines the importance of quality and privacy concerns in digital education.[17]  However, the Committee also suggests the potential of digital educational technologies for “children not physically present in school or living in remote areas or in disadvantage or vulnerable situations.”[18] This point echoes the Committee’s earlier statements on the role of digital media as a possible alternative to formal schooling for specific groups of children.[19] Thus, the Committee states, “At times of, for instance, public emergency or humanitarian situations, access to health services and information through digital technology may become the only option.”[20]

Hence, the relationship between the right to education and the global turn to technology-enabled distance learning is both in transition—and in need of further unpacking.

2. Framing the problem: Education during COVID-19 in international law and policy instruments

From the outset of the pandemic, a range of global actors has been involved in providing policy advice.[21] A rapidly growing body of fact-sheets,[22] reports,[23] and compilations of online resources [24] have contributed to framing the problems of education during COVID-19. The absence or immaturity of digital transformation of education has been a key element.[25] In this section, we map out key understandings in current policy discourse on violations of children’s rights. In Section 3, we identify a set of issues critical to children’s rights to education missing from this conversation.

In the specific logistical context of lockdown, limited and unequal access to internet and hardware (“reachability”), as well as inadequate digital transformation of education more generally (including a lack of policies on digital learning) are the key features of the problem. UN Agencies and INGOs have repeatedly pointed out that the access to connectivity that exists is highly unequal and divided along a range of dimensions: between high- and low-income countries,[26] between poor and wealthy inside countries,[27] between rural and urban areas, and affecting girls in particular.[28]

Specific solutions emerge from this problem-framing. Actors such as the World Bank and OECD present remote learning as central, and technology as “one of the most critical tools.”[29] This framing reflects broader trends concerning intersections of technology with the human rights field, as well as the emergency education field.[30]Technological solutionism is premised on a view of technological progress as inevitable, apolitical, and able to mitigate political, economic, social, and cultural forms of human suffering. Self-responsibilization through technology involves an increasing emphasis on individuals actively taking responsibility—though technology—for their own welfare, health, education etc. An integral part of the framing is the opportunity to learn and experiment with educational technology.[31] The framing of tech solutions also distracts from the deficiencies that led to an inadequate “pandemic responses in the first place, such as broken public systems, lack of trust, or social inequalities.”[32]

While a prominent component of the global discourse on education and development, rights-based approaches have been remarkably absent from the COVID-19 statements on education by international actors. Where rights-based arguments are made, such as in the recommendations by UNESCO and the International Commission on the Futures of Education[33] and the UN Secretary General’s policy brief on “Education during COVID-19 and beyond,”[34] it is for the definition of the right to education to be expanded to also include “connectivity entitlements.”[35]

Statements from human rights institutions appear to make a similar shift: away from a comprehensive and holistic understanding of the right to education, towards a narrower focus on access. In March, all the human rights treaty bodies emphasized the equality in access in a joint statement on COVID-19.[36] Echoing this approach, the COVID-19 statement from the CRC (para 3) emphasizes inequalities in access, foregrounding online learning as the main tool, and alternative solutions as safety nets for those without tech tools and internet connectivity.[37] While the CRC Committee’s draft General Comment on “Children’s rights in relation to the digital environment” mentioned above encompasses a nuanced approach to technology,[38] the COVID-19 statement thus perpetuates an ‘access first’ focus with respect to emergencies. The CESCR Committee’s COVID-19 statement takes a similar approach.[39]

A notable exception is the Special Rapporteur on the right to education, who in the annual report for 2020 gave attention to problematic dimensions of digitalization of teaching. Going beyond issues of connectivity and access, the report points out “the patent global lack of preparedness for a crisis of this magnitude,” as well as the risks involved if temporary measures, such as reliance on distance learning and private actors, become permanent.[40]

2.    Privatization, platformization, and children’s rights

As education has become an emergency matter, educational technologies have been positioned as a frontline emergency service. Edtech actors are “treating COVID-19 as a business opportunity to prove its benefits, extend its reach and grow market share,” with the dual aim of providing “a short-term response to the pandemic and a long-term ambition for whole education systems.”[41] The Special Rapporteur emphasizes that “the massive arrival of private actors through digital technology should be considered as a major danger for education systems and the right to education for all in the long term.”[42] To contribute to a future research agenda, here we identify three critical knock-on impacts on children’s rights.[43]

The first issue concerns how discrimination is exacerbated in the education context through two interlinked trends: platformization and privatization. The rise of corporate and state-controlled platform ecosystems[44] has caused concern about how the ‘platformization of schooling’ reinforces traditional exclusions, by leaving out students without access to digital gadgets or connectivity.[45] COVID-19 can also facilitate long-term privatization of education,[46] as an alternative business model is emerging: selling Edtech to students and parents in a new direct-to-consumer model of education.[47] According to critics—with whom we sympathize—thinking around digital inequalities must move beyond issues of access, and focus on supporting, regulating and designing “an inclusive digital future for us all.”[48]

The second issue relates to data protection and privacy. From a commercial—and governmental—point of view, digital education is not only about delivering educational content to children, but also about improving learning management systems and monitoring tools to track student learning.[49] Thus, in practice, digital education . The scale and depth of intrusive data collection and the involvement of additional actors raises questions about protection of children’s rights to privacy and data protection[50] and whether due diligence is undertaken to maintain the integrity of children’s digital bodies. Children’s digital bodies are constituted through the images, information, biometrics, and other data stored in digital space. [51]

The final issue arises with reference to freedoms of thought, of speech, and of access to the cultural life of the community. The values of public education, and the integrity of national or minority and indigenous education systems are affected if platformization and stated goals of ‘transforming cultures’ of education through technology[52]restructure the content of education. Technology is not neutral. An increase in personalized adaptive learning systems can undermine or reshape curricular values or flatten contextually driven approaches to education: technology platforms orient teachers to see student data as interchangeable with students, which we believe highlights the need for greater scrutiny of technology platforms’ role in the classroom.[53] We propose that while private sector actors play a crucial role in delivering education, the question of democratic process and democratic control is becoming increasingly acute—as noted by commentators, “The risk is that curricular values that have hitherto beendemocratically processed and negotiated may be replaced by de facto curricular values co-created by commercial interests and algorithmic powers.”[54]

Concluding thoughts

This commentary—which can hopefully also serve as a future research agenda—argues that the digital transformation of education through Edtech and remote learning, and the normative emphasis on access to hardware and software, fragments the right to education in ways that are precarious to the best interest of the child. As noted above, the notion of ‘building back better’ signal the experimental tenor of Edtech in emergencies. This echoes observations that emergency remote teaching has been positioned in ‘experimental’ terms with respect to what schools, the idea of education, and learning looks like.[55] At present, many policy decisions can be construed as experimental. Yet, in the context of emergency education, there are experimental attributes that go beyond the pedagogic politics of the pandemic, to serve the political and economic interests of Edtech itself. Beyond the questionable ethics underlying this type of experimentalism,[56] what is problematic here is the apparent abandonment of a holistic and multi-dimensional approach to the right to education in favor of an emphasis on digital access. At the beginning of 2021, the CRC Committee is finalizing its general comment on children and the digital environment. This document can be enormously important in putting the right to education in emergencies back on a rights track.

*Professor, Department of Criminology and Sociology of Law, Faculty of Law, University of Oslo

**Professor, Department of Public and International Law, Faculty of Law, University of Oslo

Notes

[1] Jess Edwards, Protect a Generation, Save the Children (2020), https://resourcecentre.savethechildren.net/node/18218/pdf/vr59-01_protect_a_generation_report_en_0.pdf.

[2] Netta Iivari, Sumita Sharma & Leena Ventä-Olkkonen. Digital Transformation of Everyday Life—How COVID-19 Pandemic Transformed the Basic Education of the Young Generation and Why Information Management Research Should Care?, 55 Int’l J. Info. Mgmt. (2020); Ellen Kollender & Maissam Nimer, Long-term Exclusionary Effects of Covid-19 for Refugee Children in the German and Turkish Education Systems: A Comparative Perspective, IPC-Mercator Policy Brief (2020), https://ipc.sabanciuniv.edu/Content/Images/CKeditorImages/20200717-00071708.pdf; Shanti Raman et al., Where Do We Go From Here? A Child Rights-Based Response to COVID-19, 4 BMJ Paediatrics Open 1 (2020), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7299026; Titus Corlatean, Risks, Discrimination and Opportunities for Education During the Times of COVID-19 Pandemic, Proceedings of the 17th Research Association for Interdisciplinary Studies Conference (June 1-2 2020), http://rais.education/wp-content/uploads/2020/06/004TC.pdf.

[3] G.A. Res. 217 (III) A, Universal Declaration of Human Right (Dec. 10, 1948).

[4] Convention on the Rights of the Child, 20 November 1989, 1577 U.N.T.S. 3.

[5] International Covenant on Economic, Social and Cultural Rights, 19 December 1966, 999 U.N.T.S. 171.

[6] With small variations, these criteria have been used by the Committee to clarify the normative content of various rights, including housing (General comment no. 4, 1991), food (General comment no. 12, 1999), education (General comment no. 13, 1999), health (General comment no. 14, 2000, and General comment no. 22, 2016), water (General comment no. 15, 2002), social security (General comment no. 19, 2008), participation in cultural life (General comment no. 21, 2009) and scientific progress and research (General comment no. 25, 2020). They now appear as a framework of general applicability for economic, social and cultural rights.

[7] Committee on Economic, Social and Cultural Rights, General Comment no. 13 (1999), The Right to Education (Article 13 of the Covenant), para. 6, U.N. Doc. E/CN.12/1999/10 [hereinafter Gen. Comm. 13].

[8] World Education Forum, Thematic Studies: Education in Situation of Emergency and Crisis: Challenges for the New Century, UNESCO(2001), https://inee.org/system/files/resources/UNESCO_Education_in_Situations_of_Emergency_and_Crisis_2000_en.pdf; see also Dana Burde, Amy Kapit, Rachel L. Wahl, Ozen Guven, & Margot Igland Skarpeteig, Education in Emergencies: A Review of Theory and Research, 87 Rev. Educ. Res. 619 (2017); Fumiyo Kagawa, Emergency Education: A Critical Review of the Field, 41 Comp. Educ. 487 (2005); World Education Program, The Dakar Framework for Action: Education for All: Meeting Our Collective Commitment, UNESCO (2000).

[9] INEE, Minimum Standards for Education in Emergencies, Chronic Crises and Early Reconstruction, UNESCO (2004), https://www.refworld.org/pdfid/41f627494.pdf.

[10] Burde et. al, supra note 10, at 623.

[11] Susan Nicolai et. al., Education Cannot Wait: Proposing a Fund For Education in Emergencies, Overseas Dev. Inst. (May 2016), https://www.odi.org/sites/odi.org.uk/files/resource-documents/10497.pdf.

[12] Vernor Muñoz (Special Rapporteur on the Right to Education), Right to Education in Emergency Situations, U.N. Doc. A/HRC/8/10 (20 May 2008), https://www.ohchr.org/en/issues/education/sreducation/pages/annualreports.aspx.

[13] The recommendations were drafted following a CRC Day of General Discussion on “The right of the child to education in emergency situations,” where presentations were made by the INEE, UNESCO, UNICEF and the Special Rapporteur on the Right to Education. Day of General Discussion on “The Right of the Child to Education in Emergency Situations” Recommendations, Comm. on the Rights of the Child, 3 October 2008,

https://www.ohchr.org/Documents/HRBodies/CRC/Discussions/Recommendations/Recommendations2008.doc.

[14] Gen. Conm. 13, supra note 13, para. 6.b.

[15] CRC, Day of General Discussion 2014: Digital Media and Children’s Rights, OHCHR (12 September 2014),

https://www.ohchr.org/EN/HRBodies/CRC/Pages/Discussion2014.aspx.

[16] The draft General Comment on Children’s Rights in Relation to the Digital Environment is available on the Committee’s webpage, alongside submissions and comments. See CRC, Submissions on Concept of GC digital Environment, OCHCR https://www.ohchr.org/EN/HRBodies/CRC/Pages/Submissions_Concept_GC_Digital_Environment.aspx; see also  CRC, Draft General Comment No. 25 (202x): Children’s Rights in Relation to the Digital Environment, U.N. Doc CRC/C/GC/, 14 August 2020, https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CRC/C/GC/25&Lang=en  [hereinafter Draft Gen. Comm. Digital Environment].

[17] Id. at paras. 111-112.

[18]  Id. at para 110.

[19] Such statements have included out-of-school girls (see CRC & CEDAW, Joint General Recommendation No. 31 of the Committee on the Elimination of Discrimination Against Women/General Comment No. 18 of the Committee on the Rights of the Child on Harmful Practices, CEDAW/C/GC/31-CRC/C/GC/18, para. 64, 14 November 2014); children in street situations (see CRC, General Comment No. 21 (2017) on Children in Street Situations, CRC/C/GC/21, para. 54-55); and indigenous children (CRC, General Comment 11, Indigenous Children and Their Rights Under the Convention, CRC/C/GC/11, para. 61).

[20] Draft Gen. Comm. Digital Environmentsupra note 18, para. 101.

[21] See, for example, the cooperation between the Harvard Global Education Innovation Initiative, HundrED, the OECD Directorate for Education and Skills, and the World Bank Group Education Global Practice. Lessons For Education During the COVID-19 Crisis, World Bank(22 June 2020), https://www.worldbank.org/en/topic/edutech/brief/lessons-for-education-during-covid-19-crisis [hereinafter Lessons for Education].

[22] COVID-19: At Least a Third of the World’s Schoolchildren Unable to Access Remote Learning During School Closures, New Report Says, World Bank (26 August 2020),

https://www.unicef.org/press-releases/covid-19-least-third-worlds-schoolchildren-unable-access-remote-learning-during; COVID-19: Are Children Able to Continue Learning During School Closures?, World Bank (August 2020), https://data.unicef.org/resources/remote-learning-reachability-factsheet.

[23] Fernando M. Reimers & Andreas Schleicher, A Framework to Guide an Education Response to the Covid-19 Pandemic of 2020, OECD (2020), https://read.oecd-ilibrary.org/view/?ref=126_126988-t63lxosohs&title=A-framework-to-guide-an-education-response-to-the-Covid-19-Pandemic-of-2020; Emma Wagner & Hollie Warren,  Save Our Education: Protect Every Child’s Right to Learn in the COVID-19 Response and Recovery, Save the Children (July 13, 2020), https://www.savethechildren.net/save-our-education-report.

[24] See Fernando Reimers et. al, Supporting the Continuation of Teaching and Learning During the COVID-19 Pandemic, OECD (2020),

https://www.oecd.org/education/Supporting-the-continuation-of-teaching-and-learning-during-the-COVID-19-pandemic.pdf; Remote Learning, Distance Education and Online Learning During the COVID19 Pandemic : A Resource List by the World Bank’s Edtech Team, World Bank (26 March 2020), https://documents.worldbank.org/en/publication/documents-reports/documentdetail/964121585254860581/remote-learning-distance-education-and-online-learning-during-the-covid19-pandemic-a-resource-list-by-the-world-banks-edtech-team.

[25] As early as March, the World Bank’s “multi-sectoral task force,” anticipating a global wave of school closures, identified the unequal access to technological devices and high bandwidth internet as a key issue to be addressed in the preparative phase. Kalipe Azzi-Huck & Tigran Shmis, Managing the Impact of COVID-19 on Education Systems Around the World: How Countries Are Preparing, Coping, and Planning for Recovery, World Bank Blogs (March 18, 2020),

https://blogs.worldbank.org/education/managing-impact-covid-19-education-systems-around-world-how-countries-are-preparing.

[26] Wagner & Warren, supra note 25.

[27] Edwards, supra note 1.

[28] Building Back Equal: Addressing the Gender Dimensions of COVID-19 School Closures Through Technology, UNESCO (September 10, 2020),

https://en.unesco.org/news/building-back-equal-addressing-gender-dimensions-covid-19-school-closures-through-technology; see also Bridging the Gender Digital Divide, Plan Int’l, https://plan-international.org/education/bridging-the-digital-divide; Phumzile Mlambo-Ngcuka & Anne-Birgitte Albrectsen, We Cannot Allow COVID-19 to Reinforce the Digital Gender Divide, Devex (4 May 2020), https://www.devex.com/news/opinion-we-cannot-allow-covid-19-to-reinforce-the-digital-gender-divide-97118.

[29] Lessons for Educationsupra note 31.

[30] Research Handbook on Human Rights and Digital Technology: Global Politics, Law and International Relations (Ben Wagner, Matthias C. Kettemann & Kilian Vieth, eds., 2019); Kristin Bergtora Sandvik, Wearables for Something Good: Aid, Dataveillance and the Production of Children’s Digital Bodies, 23 Info., Comm. & Soc’y 2014 (2020); Karen Yeung, Algorithmic regulation: A Critical Interrogation. 12 Reg. & Governance 505 (2018).

[31] See, e.g.Lessons for Educationsupra note 31 (“The COVID-19 crisis is an opportunity for policy makers to learn from each other and co-operate to mitigate the effects of the pandemic and maybe even ‘build back better.’”); David Edwards & Guy Ryder, see also Reimagine Education to Achieve Quality Learning for All, UN and Partners Urge, UN News (5 October 2020),

https://news.un.org/en/story/2020/10/1074652; Teachers: Leading in Crisis, Reimagining the Future, UNICEF (5 October 2020), https://www.unicef.org/press-releases/teachers-leading-crisis-reimagining-future.

[32] Antoine de Bengy Puyvallée, Book Review: Data Justice and COVID-19. Global Perspectives, Security & Dialogue (Nov. 4, 2020),

[33] International Commission on the Futures of Education, Education in a Post COVID-19 World: Nine Ideas for Action, UNESCO (2020), https://unesdoc.unesco.org/ark:/48223/pf0000373717/PDF/373717eng.pdf.multi.

[34] Policy Brief: Education During COVID-19 and Beyond, United Nations (August 2020), https://www.un.org/sites/un2.un.org/files/sg_policy_brief_covid-19_and_education_august_2020.pdf [hereinafter Policy Brief].

[35] Bono & Mark Zuckerberg, To Unite the Earth, Connect It, N.Y. Times (Sept. 26, 2015), https://www.nytimes.com/2015/09/27/opinion/sunday/to-unite-the-earth-connect-it.html (citing SDG target 9.c).

[36] UN Human Rights Treaty Bodies Call for Human Rights Approach in Fighting COVID-19 (24 March 2020), https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25742&LangID=E.

[37] The Committee on the Rights of the Child Warns of the Grave Physical, Emotional and Psychological Effect of the COVID-19 Pandemic on Children and Calls on States to Protect the Rights of Children (8 April 2020), https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=INT/CRC/STA/9095&Lang=en.

[38] See Draft Gen. Comm. Digital Environmentsupra note 17, discussing among others impact and regulation of the business sector (paras. 36-39) and the right to privacy (paras. 69-79).

[39] CESCR Committee, Statement on the Coronavirus Disease (COVID-19) Pandemic and Economic, Social and Cultural Rights, U.N. Doc. E/C.12/2020/1 (17 April 2020), https://undocs.org/E/C.12/2020/1.

[40] U.N. Special Rapporteur on the Right to Education, Right to Education: Impact of the Coronavirus Disease Crisis on the Right to Education—Concerns, Challenges and Opportunities, U.N. Doc. A/HRC/44/39 (15 June – 3 July 2020), https://undocs.org/A/HRC/44/39 [hereinafter Rapporteur Right to Education].

[41] Ben Williamson, Rebecca Eynon & John Potter, Pandemic Politics, Pedagogies and Practices: Digital Technologies and Distance Education During the Coronavirus Emergency, 45 Learning, Media & Tech. 107 (2020), https://www.tandfonline.com/doi/full/10.1080/17439884.2020.1761641.

[42]  Rapporteur Right to Educationsupra note 42.

[43] In particular CRC articles 13, 15, 16 and 17. For an interesting discussion see Carly Nyst, Amaya Gorostiaga & Patrick Geary, Children’s Online Privacy and Freedom of Expression, UNICEF (May 2018), https://www.unicef.org/csr/files/UNICEF_Childrens_Online_Privacy_and_Freedom_of_Expression(1).pdf.

[44] José Van Dijck, Seeing the forest for the trees: Visualizing platformization and its governance, New Media & Soc’y (2020), https://journals.sagepub.com/doi/full/10.1177/1461444820940293.

[45] Concept Note for a Digital New Deal, IT for Change (2020) https://itforchange.net/digital-new-deal.

[46] Ben Williamson & Anna Hogan, The Edtech Pandemic Shock (7 October 2020), https://www.worldsofeducation.org/en/woe_homepage/woe_detail/16856/the-edtech-pandemic-shock-by-ben-williamson-anna-hogan.

[47] Williamson, Eynon and Potter, supra note 41.

[48] Id.

[49] The push for data collection can be illustrated by the UN Secretary General policy brief, which recommends comprehensive data collection at multiple levels. Policy Briefsupra note 34, at 24.

[50] See Draft Gen. Comm. Digital Environmentsupra note 18, para. 18 (children’s right to be heard), 70 (data collection for educational purposes), 112 (dangers of commercial exploitation in the context of digital educational technologies).

[51] Kristin Bergtora SandvikProtecting Children’s Digital Bodies Through Rights, Open Rights Global (30 October 2019), https://www.openglobalrights.org/protecting-childrens-digital-bodies-through-rights.

[52] Gerhard Fischer, Johan Lundin & J. Ola J. Lindberg, Rethinking and Reinventing Learning, Education and Collaboration in the Digital Age—From Creating Technologies to Transforming Cultures, 37 Int’l J. Info. & Learning Tech. 241 (2020), https://www.emerald.com/insight/content/doi/10.1108/IJILT-04-2020-0051/full/html.

[53] Priya C. Kumar et al., The Platformization of the Classroom: Teachers as Surveillant Consumers, 17 Surveillance & Soc’y 145 (2019), https://ojs.library.queensu.ca/index.php/surveillance-and-society/article/view/12926/8488.

[54] Thomas Hillman, Annika Bergviken Rensfeldt & Jonas Ivarsson. Brave New Platforms: A Possible Platform Future for Highly Decentralised Schooling, 45 Learning, Media & Tech. 7 (2020). The special rapporteur has been particularly vocal in this regard: “Distance learning tools must make use of high-quality content that is adapted to local contexts and, in particular, local languages, and must be introduced together with effective and ongoing training for teachers and learners. They should permit teachers and learners to provide their input, allow for pedagogical differentiation depending on the level and the capacities of learners and should also allow academic freedom and creativity.” U.N. Special Rapporteur on the Right to Education, supra note 40, para 48. And: “The likely expansion of public-private partnerships in the post-crisis period risks increasing educational inequalities, with limited citizen engagement or accountability.” Para 77.

[55] Williamson, Enyon and Potter, supra note 23.

[56] Kristin Bergtora Sandvik, Humanitarian Wearables: Digital Bodies, Experimentation and Ethicsin Ethics of Medical Innovation, Experimentation, and Enhancement in Military and Humanitarian Contexts 87-104 (2020); Kristin Bergtora Sandvik, Katja Lindskov Jacobsen & Sean Martin McDonald, Do No Harm: A Taxonomy of the Challenges of Humanitarian Experimentation, 904 Int’l Rev. Red Cross 319 (2017).

This post was initially published at https://www.yjil.yale.edu/covid-19-towards-a-digital-fragmentation-of-the-right-to-education/

Proposed U.S.-Kenya FTA presents key opportunity for Biden administration to negotiate first enforceable gender clause in a U.S. FTA

The United States and Kenya launched negotiations of a free trade agreement (FTA) on July 8, 2020. On January 18, 2021, the Maritime Executive reported that observers in Kenya expressed concerns that the free trade initiative might stall in the new Biden administration. Despite this concern, pursuit of a free trade agreement with Kenya is not incompatible with longstanding U.S. free trade policy and would likely be compatible with Biden’s trade agenda. A May 2020 Congressional Research Service (CRS) report on the proposed U.S.-Kenya FTA Negotiations indicated that although Kenya is not a major U.S. trade partner, it has a dynamic economy and is the second-largest beneficiary of the African Growth and Opportunity Act (AGOA), set to expire in 2025. Moreover, negotiation of the U.S.-Kenya FTA presents the Biden administration with a key opportunity to negotiate the first enforceable gender clause in an FTA expected to be a model for subsequent US FTAs in Sub-Saharan Africa and around the world. It also provides both the U.S. and Kenya the opportunity to promote and ratify the 2019 ILO Convention 190 on Violence and Harassment at Work.

One day before the U.S. and Kenya launched negotiations of a bilateral FTA, the International Trade Centre (ITC) released Mainstreaming Gender in Free Trade Agreements, a report presenting recommendations to boost the participation of women in trade through FTAs. The research team that produced the report examined 73 FTAs involving 25 countries, finding that 40% contained no reference to gender whatsoever and 35% contained at least one reference to gender. Some of the report’s recommendations included embedding gender provisions in the Preamble and text of FTAs, leveraging corporate responsibility, adopting gender-related minimum standards, and strengthening monitoring and dispute settlement mechanisms. The ITC’s report highlighted three Best Practice examples of incorporating gender rights in FTAs – none of which include the U.S. as a trading partner. These Best Practice examples include the Canada-Chile FTA, the Canada-Israel FTA, and the East African Community (EAC) – of which Kenya is a member.

In Mainstreaming Gender in Free Trade Agreements, the ITC highlighted several key takeaways from its analysis of gender provisions in the EAC and two recent Canadian FTAs between Chile and Israel. Notable provisions in the two highlighted Canadian FTAs include: a stand-alone chapter on gender and trade, emphasis in the cooperative activities agenda on improvement of women’s job opportunities through education and job training, and creation of institutions to address concerns of women as both workers and entrepreneurs – for example, specialized gender-specific consultation measures and dispute resolution mechanisms.

The EAC treaty (of which Kenya is a signatory) contains provisions that highlight gender equality as a fundamental right, prescribe gender mainstreaming in all endeavors, and enhance the role and contributions of women in political, economic, and technical development. In fact, the EAC is not the only African multilateral institution that contains gender-forward provisions. The Common Market for Eastern and Southern Africa (COMESA) treaty contains a chapter titled, “Women in Development and Business” (Chapter 24). This chapter contains language emphasizing the need for full participation of women in sustainable growth programs for rural transformation and improvement of conditions in the informal sector.

Not only does negotiation of the U.S.-Kenya FTA afford the U.S. the opportunity to negotiate an agreement with a partner already experienced with the incorporation of gender provisions in trade arrangements – it affords both the U.S. and Kenya the opportunity to adopt bi-lateral measures to address serious issues facing women workers and entrepreneurs in Kenya.

Despite gender-forward provisions in the EAC treaty, women workers and entrepreneurs in Kenya encounter a number of challenges and obstacles in the workforce and economy because of their gender. In her article The Challenges Facing Small-Scale Entrepreneurs: A Case of Kenya, Fridah Muriungi Mwobabia found that despite the importance of small- and micro-enterprises (SMEs) to the Kenyan economy, women-owned SMEs encounter several challenges – such as problems accessing finance, sex-based discrimination, administrative and legal obstacles, and lack of access to education and training. According to the National Resource Institute study Gender, Rights & Participation in the Kenya Cut Flower Industry, women working in Kenya’s cut flower industry encounter employment insecurity, compulsory and unpaid overtime, sexual harassment and violence, and lack of adequate representation by trade unions due to their non-permanent employment status. In fact, the cut flower industry in Kenya – not to mention Uganda, Colombia, and Ecuador – has become a symbol of the horrors of sexual harassment and workplace violence in global value chains.

In their 2016 article Women’s work choices in Kenya: the role of social institutions and household gender attitudes, Giovanna De Giusti and Uma Sarada Kambhampati attribute these challenges in part to social attitudes and institutions that affect both women’s access to the labor market and the types of jobs they hold. Nor can it be assumed without question and analysis that FTAs and related policies are a net positive for women. In the report on a 2017 conference on the potential impact of European Union Economic Partnership Agreements (EPAs) on African parties, international and African trade union leaders found that EU EPA trade provisions (particularly those affecting agriculture) were expected to have more adverse effects on women. Despite this, the EU did not require or conduct gender impact assessments of EPAs with its African trade partners – and did not take into account inevitable adverse impacts on working women, female entrepreneurs, and women-owned SMEs.

Both the Biden administration and the U.S. Congress can ensure through legislation and policies not only that gender provisions are adopted in the proposed U.S.-Kenya FTA and other free trade and trade promotion agreements – but that those provisions are enforceable and designed to have a positive impact on the lives of women workers in Kenya, the U.S., and other countries that access to the U.S. market. Examples of legislative and policy measures include:

  • negotiating enforceable gender-related provisions in FTAs;
  • requiring gender impact assessments of existing and proposed FTAs;
  • adopting achievable goals for economic empowerment of women and girls both as workers and entrepreneurs; and
  • requiring that all U.S. FTA partners sign and ratify ILO Convention 190 on Violence and Harassment at work.

The U.S. is already falling behind the European Union, the EAC, COMESA, and nations like Canada, Chile, and Kenya in adopting and advocating for gender-forward FTA provisions. The Biden administration has an opportunity to reverse this trend – starting with the U.S.-Kenya FTA.

Go On! The Folly of U.S. Sanctions against the International Criminal Court

Cardozo Law Institute in Holocaust and Human Rights announced open registration for The Folly of U.S. Sanctions against the International Criminal Court, which is an online event that will be held on Wednesday, February 3. The panel will explore the state of litigation challenging the Administration’s Executive Order sanctioning lawyers working with International Criminal Court, and discuss how and why the incoming Administration’s approach to the ICC might differ from that of its predecessor. The panelists include Betsy Apple, Andrew Loewenstein, Gabor Rona, Adam M. Smith, and Beth Van Schaack. Click here for details and to register for the event.

Work On! International Summer School on Human Rights in Theory and Practice

TU Dresden and Leipzig University will be hosting the 2nd International Summer School “Human Rights in Theory and Practice” from September 5th to 10th, 2021 in Dresden, Germany

The topic will be “The European Convention on Human Rights in Times of Crises” and will explore challenges and opportunities for the European Human Rights System arising out of situations of crisis. Themes such as emergency situationspopulismmigration, and the role of economic, social and cultural rights in the context of crisis will be explored from an interdisciplinary perspective.

Speakers will include both academics as well as practitioners, offering the unique opportunity to gain insights into current theoretical discussions as well as the everyday challenges of practicing law.

Information on registration can be found here and the session’s program can be found here.

Reminder: 2021 Human Rights Essay Award Competition

The Academy on Human Rights and Humanitarian Law at American University Washington College of Law is currently accepting submissions for the 2021 Human Rights Essay Award Competition. The topic of the 2021 competition is as follows: Human Rights and States of Emergency: Unexpected Crisis and New Challenges. Participants have the flexibility to choose any subject that directly relates to this topic, including international human rights law topics related to international humanitarian law and international criminal law.  The deadline to enter your submission to the Human Rights Essay Award competition is February 1, 2021. Please note that ONLY participants with a law degree are eligible to enter this competition. 

The Human Rights Essay Award will be awarded to two winners—one for a submission in English and one for a submission in Spanish—with a full scholarship (including lodging and transportation to and from Washington, D.C.) to complete the Certificate of Attendance or Diploma in the 2021 Program of Advanced Studies on Human Rights and Humanitarian Law which will take place from May 31 to June 18, 2021.

If you would like additional information or have any questions, please contact humanrightsessay@wcl.american.edu

Why I Do International Criminal Defence Work

Introduction

Most criminal defence attorneys are asked, at least a few times in the course of their careers, How can you do what you do?  How can you defend “x”?  How can you defend someone charged with “y”?   The query may be made by a friend or relative or even, sometimes, a colleague who practices in another area of law.

In 2006, I had just finished Simba, my first case at the International Criminal Tribunal for Rwanda (ICTR) in Arusha and wrote about my experiences as a defence attorney at the ICTR. The article is entitled:  “The Evolution of a Partisan:  Observations of a Criminal Defence Attorney at the ICTR,” and is available at Bepress – Evolution of a Partisan.

In 2014, I again wrote about defence work in an article, entitled “Litigating for Justice: Defense Work at the International Criminal Tribunal for Rwanda (ICTR),” available at Litigating-for-Justice.

And it is now 2021, and I am still defending persons accused of international crimes.

The query of why I do international criminal defence work elicits the same responses today as it did years ago… but I have come to the realization that the question I am really answering is:  how can I not do this?  Especially based on what I have learned over the last fifteen plus years about the nexus of law and politics, through defending clients charged with crimes in international courts and tribunals.

I was ready to “see” political forces at work at the ICTR when I first arrived in Arusha in 2004.  I did not have to be convinced that the reality of the Tribunal’s workings was about the relationship between law and politics.   But, what I was not prepared for (and experienced once I actually started to do work on my case in Rwanda) was the extent of overt State political intervention by Rwanda in the ICTR cases in Arusha.

The most important lesson I learned at the ICTR is that a State Party in a conflict can exercise power over the judicial mechanism, notwithstanding the intentions of jurists and staff to be impartial and adhere to the rule of law.     

                                                                        ***

My background had provided me with a prism with which to view and analyze how law and politics interacted.  I was a student activist, and my politics were formed in the struggles of the late 1960’s in the U.S.   I entered law school when I was 35 years old after more than a decade as a union activist.  I have now been involved in the struggles of peoples for the right of self-determination, for equality and against discrimination for a little more than half a century.

I understood politically that the world is divided into the “haves” and the “have nots,” the oppressor and the oppressed (and similar constructs) based principally on race and class and gender, and also sometimes influenced by other categories.  Law reflected these divisions, and the challenge was to use the system – if possible – to level the playing field so that the rule of law was applied with equality to all.      

I initially decided to focus on criminal defence because I wanted to talk to juries.  (I was trained and practiced in the U.S.)  Pre-lawyer, I was a labor organizer, and – in my mind – talking to juries was close to organizing.  It involved thinking about how an ordinary person, i.e. a non-lawyer, might react to the defendant, respond to the allegations, analyze the evidence, etc.  In essence, I saw part of my Defence task as  “organizing the jury” to rally to the Defence narrative or view….whatever that was in a particular case.

Being a prosecutor never even crossed my mind.

So, when I became a lawyer and started at Legal Aid in New York City, there was no question as to which side I would represent.  My focus was on making sure the client got a “fair shake” in the criminal justice system.

Getting a “fair shake” required making a critique of the criminal justice system.  It meant  starting from the premise that the courts and justice are not ensconced in a cocoon, free of “outside” political influence.  In fact, the workings of justice itself reflected the power relations and systemic racism of society.  One simply had to work (or even watch) arraignments in AR-1 or AR-2 in the middle of the night at 100 Centre Street, Manhattan (or any other time of day) to get a quick lesson in how class and race interact with “justice.”  It is immediately obvious, even to the most avowedly “apolitical” Legal Aid lawyer, that getting a “fair shake” was inextricably linked to the politics of the justice system.

Probably all of my cases at Legal Aid were not political cases based on the charges, but  the social and political contexts in which they occurred were generally determined by systemic racism, poverty and drugs.

The Nexus of Law and Politics at the ICTR

What immediately struck me about the ICTR cases was that they were – in the first instance – political cases.  Politics was written all over them:

  • from the Rwandan government’s official narrative of the events of 1994 repeated in every ICTR indictment to
  • the fact that not one of the 93 persons prosecuted at the ICTR was a Tutsi, or a member of the RPF, despite the findings and reports of international commissions of systematic crimes against the Hutus.

The ICTR courtroom was an important battlefield of the Rwanda Patriotic Front’s (RPF) war, starting from its 1990 invasion against the Hutu leadership in Rwanda.  This applied not only to the selective prosecution of the former Hutu government and military leadership by the ICTR.  It also permeated all aspects of the Defence work on the case, including investigations and other preparations for trial, and even more dangerous, the threats to Defence witnesses by the Rwandan government and its agents.

Rwanda’s Interference with Defence Investigations and Witness Appearances

It is important to read the Trial Chamber’s section in the Simba Judgment, at paras. 41-53.[1] And, it is crucial to ask yourself – even if only a fraction of the Defence’s allegations were true – was the defendant given his right to due process by the ICTR.  The answer, in my view, is “no,” based largely on Rwanda’s State interference with the ICTR.

Rwanda implemented a “witness as hostage” policy in its dealings with the ICTR, which was operational before the Simba case started in 2004.  In 2003 and 2004, for example, witness interference was identified in US State Department reports as a tactic of the Rwandan government.[2]  At that time, Rwanda withheld witnesses from the ICTR by refusing to issue travel papers to any witness (Defence or Prosecution).  This resulted in the disruption of three trials.

Rwanda’s policy was in retaliation for two events:  (1) ICTR Prosecutor Carla del Ponte’s “Special Investigations” into the alleged crimes of the RPF and (2) the Trial Chamber’s decision in the Barayagwiza case.

In 1999, del Ponte had opened “Special Investigations” into the alleged crimes of the RPF, and was about to issue indictments in 2002-2003.[3]  Rwanda adopted the tactic of threatening to withhold witnesses from the ICTR, as a demonstration of its displeasure with the investigation.  At some point in  2002, the “Special Investigations” were suspended,[4] and in September 2003, the Security Council relieved del Ponte of her assignment at the ICTR and replaced her with Justice Hassan Bubacar Jallow, a Gambian jurist.

The second event for which Rwanda sought “payback” was the ICTR Appeals Chamber’s decision in late 1999, dismissing the charges against Barayagwiza and ordering his release, with prejudice to the Prosecutor, based on the “egregious” conduct of the Prosecutor and the numerous due process violations.[5]  Not even five months later, the Appeals Chamber reversed its decision to release Barayagwiza, based on “new facts.” It held that the remedy for the  violation of the defendant’s rights should be determined at the end of the trial, at the time of judgment –if he is found not guilty, there should financial compensation, or if he is convicted, there should be a reduction in sentence for violations of his rights.[6]

In sum, the confluence of the initial Trial Chamber decision to release Barayagwiza and the inception of “Special Investigations”  was viewed by Rwanda as  a threat to its political agenda.   And  Rwanda was correct.  Rwanda – the only country which voted against Security Council Resolution 955 (1994) establishing the ICTR,[7]  repeatedly tried to disrupt and obstruct the ICTR – making effective Defence investigations difficult and sometimes impossible, threatening Defence witnesses and violating defendants’ fair trial rights, guaranteed under the ICTR Statute and other international instruments.    Rwanda’s policy continued, in different permutations, throughout the ICTR’s existence.  Not only had Rwanda’s political agenda permeated the ICTR’s judicial process, but it succeeded in  effectively controlling the proceedings at the ICTR.

Rwanda’s “witness as hostage” policy, in addition to halting the ICTR trials at the time,  had another important aspect:  witness intimidation.   This intimidation of Defence witnesses often started long before anyone’s name even appeared on an official witness list in court.  For example, the Simba Trial Judgment reveals that there was evidence presented by Defence prisoner witnesses that persons who had been interviewed by the Defence were instructed by the Rwandan prosecutor’s office to write down what had been discussed with the Defence, and that some potential witnesses were moved to a different prison where they were put in isolation cells, upon the order of the Rwandan prosecutor’s office.[8]   The Simba case is also cited by Professor Nancy Combs as an example of defence allegations of how Rwanda impeded Defence investigations.[9]

The aim of the Rwandan policies of obstruction was to prevent the prisoner and civilian witnesses from testifying for the Defence in Arusha.  In Simba, threats to the security of the only witness (BJK1) who could corroborate Simba’s alibi throughout the entire time period of the charges resulted in his refusal to appear in court.   And, the same Trial Chamber refused to accept the alibi statements of this witness, which he had made to both the Defence and the Prosecution.[10]

In Simba, in response to multiple Defence allegations of witness intimidation, the Trial Chamber denied that the intimidation existed, except for one person who “may have been dissuaded” to attend the trial.[11] But, three paragraphs later, it negated its ruling, by holding that this intimidation did not materially prejudice the defendant.[12]

Lastly, the flip side of Rwanda’s witness interference and intimidation of Defence witnesses was its organized preparation, within its State structures and organizations, of the Prosecution witnesses for the ICTR.  It is well-known that organizations such as IBUKA or AVEGA[13] prepared their members to testify for the Prosecution.   Within the prisons, the prisoners who would testify for the Prosecution were kept together in the “Arusha Aisle,” where they underwent preparation for Arusha.  As I recall, this evidence was elicited in the “Military 1” case.  I tried to question a Prosecution prisoner witness about this in the “Military II” case.  Unfortunately, I was unsuccessful.  But the existence of an “Arusha Aisle” and State-led organizations of victims is not so surprising.  Rwanda is a society which has perfected the molding of a collective memory based on the RPF’s version of history, and has institutionalized this in its “re-education camps”[14] and laws on “genocide deniers.”

Fighting for Fair Trial Made Me a Political Partisan

Notions of law and justice, of course, played some role in the courtroom.  But this role was overshadowed and often overwhelmed by Rwanda’s unrelenting, planned efforts to make the ICTR, whose establishment it had opposed, serve its own political ends.

Every Defence request to implement the client’s fair trial rights was tantamount to being seen by the Prosecution (and treated by the Rwandan press and government) as a hostile act  against the Rwandan government.  This adds substantial dimension to the notion of “criminal transference” generally experienced by defence attorneys in many jurisdictions.[15]   There was simply no “independent” position of the Prosecution, which was routinely advised by Rwandans who identified with the RPF.

It was almost inevitable, then, that fighting as a Defence attorney to “level the playing field”  – whether it was in conducting investigations in Rwanda or requesting withheld exculpatory material – made the Defence attorney a partisan in the events of 1994.  

The notion of  a “fair trial” for ICTR defendants was an impossibility where the ICTR became a battleground for Rwanda’s leadership under the RPF to assert and re-affirm its political power.  As Avigdor Feldman, a leading Israeli human/civil rights lawyer, and founder of B’Tselem, has stated in the film The Advocate (about the work of Lea Tsemel, an Israeli attorney who represents Palestinians),

“A fair trial means giving both sides an equal chance.  But since the balance of power is a priori unequal, a fair chance is never given [referring to Palestine side in the Israeli Occupation].”

In an ICTR courtroom, there were two sides:  the Prosecution and the Defence.  But the weight of Rwanda on the Prosecution side guaranteed that the Defence did not have an “equal chance,” rendering fair trial illusory and unattainable.

I quickly came to the powerful realization that struggle in the courtroom is as much about the historical narrative as it is about culpability.  At the ICTR, its judgments are a historical narrative of the events of 1994. This is the reason that the government of Rwanda has so tenaciously tried to exercise control over the ICTR, especially the Prosecution. As a former ICTY Prosecutor has pointed out, “The struggle for the interpretation of historical events through the trial record might be as important in [the] long run as the determination of guilt or innocence of the individuals tried.”[16]

The result was that the historical record produced by the ICTR was marred by its selective prosecution of only Hutus, and its failure to hold include the RPF accountable for its well documented crimes in the conflict.  As Wilson has pointedly stated, “Unless this changes, we can conclude only that the historical record produced by the ICTR is a partial one, as it has rendered an account of the crimes of just one side in the conflict, the losers.”[17]

This purpose of writing the historical record – from the perspective of the victors – means that notions of justice and fairness are submerged within the judicial process.  The struggle for defence attorneys is to pull these notions out of the political morass which is inevitable in the cases in international courts and tribunals.  So, if you want to make sure your client has a “fair shake,” you try to extricate fairness and justice from the sometimes muck of political conflict.  Not an enticing image, but probably an accurate description of the work I do as an international criminal defence attorney.

[1] There are also a number of law review articles, which can be found through Google, citing Simba as an example of  Rwanda’s witness intimidation and interference in ICTR cases.

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[2] The 2003 US Department of State Country Report for Rwanda states:

The International Criminal Tribunal for Rwanda (ICTR) experienced its most troubled year to date. Shortly after Prosecutor Carla Del Ponte announced her intention to indict RPF soldiers for war crimes committed in 1994, a part of the mandate established for the ICTR, Rwandan genocide survivor organizations in January called on prosecution witnesses to boycott the ICTR for a number of reasons, including alleged mistreatment of witnesses. In June the government imposed new travel restrictions on prosecution witnesses that disrupted three trials, and refused to provide access to documents needed by the prosecution. In July Del Ponte informed the U.N. Security Council about these obstructions.

In the 2004 Rwanda Country Report on Democracy, Human Rights and Labor, February 28, 2004, the US Department of State acknowledged that “ government authorities sporadically prevented witnesses from attending and giving testimony at the ICTR, which delayed the judicial process.”

See also Wilson, Richard Ashby, Writing History in International Criminal Trials  (Cambridge University Press: New York, 2011), pp. 43-44.

[3] The mandate of SC Resolution 955 was to prosecute both sides of the Rwandan conflict.

[4] See Human Rights Watch letter to Security Council, 25 October 2002.

[5] Jean Bosco Barayagwiza v. The Prosecutor, ICTR-97-19-AR72, Appeals Chamber, Decision, 3 November 1999, paras. 106-108.

[6] Ibid., Decision, 31 March 2000.

[7] Minutes, Security Council Meeting, 8 November 1994 (S/PV.3453)

[8] SeeProsecutor v. Simba, Judgment and Sentence, 13 December 2005, fn. 54.

[9] Combs, Fact-Finding Without Facts, The Uncertain Evidentiary Foundations of International Criminal Convictions (New York: Cambridge University Press, 2010), p. 147.

[10] See, Beth S. Lyons, “Enough is enough:  the illegitimacy of international criminal convictions:  a review essay of Fact-Finding Without Facts, The Uncertain Evidentiary Foundations of International Criminal Convictions by Nancy Amoury Combs,” in Journal of Genocide Research (2011), 13(3) pp. 293-295, especially fn 70.

[11] Judgment, para. 50.

[12] Judgment, para. 53.

[13] See discussion of Prosecution witnesses who alleged that they were asked to give false testimony by IBUKA in the “Media case” at the ICTR, Combs, pp. 155-156.

IBUKA, formed in 1995, is an organization of genocide survivors.  It has played a leading role in propagating the Rwandan government’s view of the genocide, including its fundamental view that anyone who believes that there was a genocide against both Tutsis and Hutus, is guilty of the crime of genocide denial, or negationism.  See, for example, IBUKA’s “Open Letter to United States Congress Regarding HR#1426,” 17 June 2010, stating that Professor Peter Erlinder is a genocide denier, at www.businesswire.com.  IBUKA has also been the instrument, along with AVEGA, the organization of genocide widows, through which the Rwandan government has implemented its retaliatory policies of non-cooperation to obstruct the workings of the Tribunal.  Lars Waldorf, “A Mere Pretense of Justice”: Complementarity, Sham Trials, and Victor’s Justice at the Rwanda Tribunal,” Fordham International Law Journal, Vol. 33, No. 4, April 2010, pp. 1221-1277 points out that a member of the RPF’s central committee was appointed as president of IBUKA in 2000, “the same year that several Tutsi survivors critical of the RPF’s policies were effectively neutralized,” pp. 1231-1232.  On AVEGA’s website, www.rwanda-genocide.org, it states that the association was approved by ministerial decree No. 156/05 on October 30, 1995.

[14] See, Thomson, Susan.  “Re-education for Reconciliation:  Participant Observations on Ingando.”  See also,  Mgbako, Chi, “Ingando Solidarity Camps: Reconciliation and Political Indoctrination in Post-Genocide Rwanda,” Harvard Human Rights Journal 18, (Spring, 2005), pp. 201-224.

[15] At Legal Aid in NYC, I have experienced the occupational hazard of being the object of criminal transference where, in court, the judge (and/or the prosecutor) transfers his or her attitude about the crimes charged against the defendant to the defence attorney. Both defendant and defence counsel become identified with the criminal acts alleged.  At the international courts and tribunals, particularly at the ICTR, a defence attorney (especially in military and other high profile cases) was often viewed with similar transference:  the crimes alleged against a defendant were imputed to the defence counsel….simply because s/he was defending someone and fighting for a fair process.  So, the line between fighting for a client’s rights and being viewed as a supporter of the client’s side in the conflict was, at best, blurred and more often, non-existent at the  ICTR.

[16] Nice, Professor Sir Geoffrey, “Legal Process as a Tool to Rewrite History – Law, Politics, History,” Lecture, Gresham College, 13 February 2013.

[17] Wilson, Richard Ashby, Writing History in International Criminal Trials  (Cambridge University Press: New York, 2011), p. 46.

International Commission of Inquiry to Open Hearings on Racist Police Violence in the US on MLK Day

FOR IMMEDIATE RELEASE
Thursday, January 7, 2021
Contact Person: Kerry McLean, Esq.
kerrymclean@gmail.com

(Thursday, January 7, 2021) — The National Conference of Black Lawyers (NCBL), the
International Association of Democratic Lawyers (IADL) and the National Lawyers Guild (NLG)
have assembled a commission of experts from around the world to investigate racist police
violence against people of African descent in the United States. The International Commission
of Inquiry on Systemic Racist Police Violence Against People of African Descent in the United
States will broadcast live hearings online with testimony from victims’ families and lawyers
beginning January 18, 2021, which is the the day that the United States will commemorate the
birthday of civil rights legend Martin Luther King, Jr. The hearings come to a close on February
6, 2021.
In June 2020 an international coalition of hundreds of organizations and individuals sent a
communication to the United Nations Human Rights Council urging that the UN convene a
commission of inquiry to investigate racism and racist police violence in the United States. The
UN declined the request, though it did task the UN High Commissioner on Human Rights with
preparing a report on racism.
Following the UN’s decision to not convene a commission of inquiry, the NCBL, the IADL and
the NLG joined forces to establish a Commission of Inquiry. The Commission of Inquiry will
investigate the systemic, widespread and grave violations of the rights of Black people in the
United States and present its findings in a report. The report will be given to the United Nations
High Commissioner and shared with the public.
“For decades people of African descent in the United States have sought in vain to seek relief
from the systemic lynchings and killings under the color of law by petitioning domestic courts,
including the United States Supreme Court,” said Lennox Hinds, Professor Emeritus at Rutgers
University and chair of the Commission of Inquiry’s Steering Committee. Hinds, who practiced
criminal law for decades domestically and internationally continued, “This International
Commission of Inquiry is our latest attempt to give voice to the international outrage resulting
from the public lynching of George Floyd, to once again expose the pandemic of racist police
violence against people of African descent and to hold the United States government
accountable before the international community.”
The 12 Commissioners hail from countries around the globe and include notable figures such as
Sir Clare Roberts, former President of the Inter-American Commission on Human Rights,
Professor Sir Hilary Beckles, UN Advisor and Chair of the CARICOM Reparations Commission
and pioneering lawyer Hina Jilani, who is a member of the Nelson Mandela-founded group The
Elders.
The hearings will be broadcast live via Zoom. For a full schedule of the hearings and other
information about the Commission of Inquiry please visit: http://www.inquirycommission.org

Register for the hearings at: https://bit.ly/inquirycommission

COVID-19 Battles in Cox’s Bazaar Refugee Camps

Source: The UN Official Website

This article attempts to understand the International Human Rights Violations of the Refugees in Cox’s Bazar Camps and how can they be secured of their right to health.

Introduction

Owing to the travel disruptions caused by the coronavirus, the United Nations High Commissioner for Refugees (UNHCR) and the International Organisation for Migration (IOM), as of March 17, 2020, temporarily suspended refugee resettlement departures, leaving millions of refugees in temporary settlements.  Such closures have significantly impacted refugees by making them more vulnerable to health-care risks. This decision endangers the lives of thousands of refugees surviving the “dire and dangerous” conditions of the world’s largest refugee settlement, the Cox’s Bazaar Camp. The Camp hosts around 725,000 refugees, with only 10.7 square meters per person. Crowded conditions have caused the virus to race through the camps and risked thousands of refugee lives. Given the camp’s conditions, the threat of these cases and human rights abuses are alarming. This situation calls for an effective and inclusive approach to secure the refugees of their human right to health.

Through the Prism of International Human Rights Perspective

The constitution of the World Health Organisation recognises the right to health as a fundamental right and guarantees it to every individual without any form of discrimination. Article 12 of the International Covenant on Economic, Social and Cultural Rights, guarantees every individual the right to enjoy the highest attainable standard of physical and mental health without any discrimination. Bangladesh has ratified this convention and therefore is obligated to uphold right to health as a human right of health as a human right of the refugees. Yet there is only a little indication of these rights being enjoyed by the refugees. The constitution of the World Health Organisation recognises the right to health as a fundamental right and guarantees it to every individual without any form of discrimination.The world health organisation has stated that understanding health as a human right creates a legal obligation on states to ensure access to timely, acceptable, and affordable health care of appropriate quality as well as to providing for the underlying determinants of health, such as safe and potable water, sanitation, food, housing, health-related information. Bangladesh, being a member of the World Health Organisation, and having accepted its constitution, has the obligation to secure the right to Health to it’s citizens. The ambit of this right is broad enough to include refugees as well.

Therefore, Bangladesh has to ensure the protection of human rights of the refugees and provide them with health-care services as provided to the citizens. Long-term neglect and inattention have aggravated the human rights of refugees and made them uniquely vulnerable in COVID-19 Crisis. The World Health Organisation released The Report on the health of refugees and migrants in the WHO European Region: no public health without refugee and migrant health (2018) where it urged the countries to implement policies that provide health-care to the refugees, irrespective of their legal status. Bangladesh lacks an express law regulating the administration and refugee rights. The absence of an administrative framework for refugees in Bangladesh has exposed the refugees to greater healthcare risks and endangered their lives.vHealth-care services like testing are scarce to refugees. Cox’s Bazaar settlement lacks proper hygiene and sanitation. Several reports mention the unavailability of water and soap in/outside latrines, preventing proper hand wash. This exposes the community members to safety and health hazards, making them more vulnerable to the COVID-19 risks.

Conclusion

Although the government of Bangladesh is responsible for protecting the refugees, however, given the economic crisis failed by the country, it might not have the financial means to do that at present. Considering this, the United Nations High Commissioner for Refugees should step in and take responsibility of providing healthcare to all refugees. The government of Bangladesh should focus on holistic development and adopt a human rights-based approach as supported by the Global Humanitarian Response Plan and Develop a detailed response in close collaboration with the United Nations High Commissioner for Refugees. The COVID-19 crisis represents an opportunity to address long-standing structural weaknesses and devise an inclusive crisis-resilient refugee management system by adopting a two-pronged counter-exclusion strategy – financial and socio-medical.

Countries like Bangladesh that host large refugee settlements should attempt to strengthen the health care facilities in the camp and with the help of international and national aid agencies, aim to provide clean water and sanitary conditions.  For decades, the refugees have struggled and have been treated as the Invisibles. The virus would have a catastrophic impact on the lives of the refugees. It is time to acknowledge their human rights and work towards ensuring them a safer environment.

Introducing Pravah Ranka

It is our great pleasure to introduce our new IntLawGrrls contributor Pravah Ranka. Pravah is reading law at Gujarat National Law University, India. Her research interests include International Human Rights Law, Public International Law, Gender-Justice, Law and Technology, Intellectual Property Rights, Criminal law and Arbitration. She has previously interned under Senior Advocate Indira Jaising, where she worked on the written submissions for the ongoing cases in the Supreme Court of India. She has also interned at the National Human Rights Commission of India where she produced policy recommendations concerning the Criminal Law Amendment Bill, 2013 and Violence against women. Currently, she is working as a research assistant at the Centre for Human Rights Studies, Jindal Global Law School under the supervision of Assistant Professor Rohini Sen wherein she is working on a project which hopes to address and contribute to an inclusive and democratic research and policy-making processes that would help in creating safer institutions and making sexual harassment redressal measures more efficient. Her research work has been published on various international as well as national platforms.

She is also the co-founder of the Bleed Organization, which is a non-profit organization, working to end period poverty and menstrual stigma in Rural India. The action plan based on the three pillars: 1. organizing educational workshops about menstrual health; 2. advocacy for systemic change, regarding menstrual equity, through policy and legislation; 3. Distribution of eco-friendly menstrual products in rural areas. She hopes to bring about a positive change in the lives of menstruators all across India.

Heartfelt welcome!

Read On! “Identity and Diversity on the International Bench”

International courts and tribunals hold the power to decide on questions involving sovereignty over territory, grave human rights violations, international crimes, or millions of euros’ worth of economic interests. Judges and arbitrators are the ‘faces’ and arguably the drivers of international adjudication. Yet certain groups tend to be overrepresented on international benches, while others remain underrepresented. 

Although international courts and tribunals differ in their institutional make-up and functions, they all rely in essence on the judgement of a group of individuals, each with their own background and experience. Even if adjudicators’ identity is not the only, and may not be the decisive, influence on their decision-making, the relative lack of diversity has an effect on the judicial process and its outcomes, which in turn entails broader implications for the legitimacy of international law. 

This book analyses the implications of identity and diversity across numerous international adjudicatory bodies, focusing on a wide range of factors. Lack of diversity within the judiciary has been identified as a legitimacy concern in domestic settings, and the last few years have seen increasing attention to this question at the international level as well, making the book both timely and topical.

For more information, please see : https://global.oup.com/academic/product/identity-and-diversity-on-the-international-bench-9780198870753?cc=nl&lang=en&#