WHERE WE STAND ON FEMALE GENITAL MUTILATION

Gambia’s parliament recently approved a bill banning female genital mutilation (FGM) and setting high penalties of imprisonment and fines for offenders. The passage of the law came shortly after Gambian President Yahya Jammeh had condemned the practice for not being commanded in the Quran. According to a 2010 report, 63 percent of Gambian woman and children aged from 14 to 49 have been subject to FGM.

FGM was defined in 1997 by the WHO, UNICEF and UNFPA as the “partial or total removal of the external female genitalia or other injury to the female genital organs for non-medical reasons.” Procedures for circumcision differ according to the ethnic group, but they include removal of the clitoral hood and clitoral glands, removal of the inner labia, and in the most severe form (known as infibulation) removal of the inner and outer labia and closure of the vulva. In this last procedure, a small opening is left for the passage of urine and menstrual fluid; the vagina is opened for intercourse and opened further for childbirth. FGM is conducted from days after birth to puberty and beyond.

FGM is prevalent in 29 African countries, Yemen, Iraqi Kurdistan, and elsewhere in Asia, the Middle East, and other scattered communities around the world. However, of the more than 125 million girls and women alive today who have undergone the procedure, one in four live in Egypt. That is more than any other country in the world. According to a government report released in May 2015, 92% percent of married Egyptian women aged 15 to 49 have been subjected to FGM. This figure is down from 97% in 2010, probably because FGM has been illegal in Egypt since 2008. However, the practice remains woven into the very fabric of Egyptian society, where many see cutting as a way to “purify” a girl and to show she is ready for marriage.

The practice of FGM has been the subject of international concern and is considered to be a global health issue. FGM has no medical benefits and can cause lifelong physical and emotional trauma for the women who have undergone the procedure. The UN has consistently campaigned for an end to FGM, labeling the practice, among other things, gender-based discrimination, torture, an affront to human dignity and an irreparable, irreversible abuse of the human rights of women and girls. However, FGM has proven to be difficult to eradicate.

Experts that have studied the issue point out that part of the difficulty in the campaigns attempting to eliminate the practice is the common misconceptions around FGM. One misconception is that it is men that force FGM on women. In fact, elderly women often do the most to perpetuate the custom. Many women undergo circumcision voluntarily, and joyfully partake in the ritual. For young girls circumcision becomes a way to prove that they are worthy of the challenge of being a woman. Female circumcision is part of demarcating insider and outsider status. By being circumcised girls become members of a group of elder women who have more power in their community. So, even though the argument is being made that FGM is about the control of women and their sexuality and sexual pleasure, data shows that across Africa, the support for the practice is stronger among women than among men. Women who support the practice justify its perpetuation by saying that FCM is women’s business. As in, it is for women to decide this. In the U.S., adult women are capable of giving consent for surgical procedures, some of which are arguably similar in nature as FGM, consider for instance, a breast reduction, a surgical procedure common in the US and other Western countries. The issue is one of free will. What would it take to get a woman in an African country to be in the same position of being able to give consent? Social pressures in the nations that practice FGM are so strong that no woman could ever opt out. Thus, women who undergo the procedure, even those who seem willing and even proud to participate, might not be doing it really because they want to, but because they feel that to be respected members of the community they have to comply with this custom.

The argument about the lack of free will of those being circumcised is even more powerful in cases where children are forced to have the procedure. In half the countries for which national figures are available, most girls are cut before the age of five. Arguing against suggested similarities between FGM and body shaping in Western countries, philosopher Martha Nussbaum has stated that a key difference is that FGM is often conducted on children using physical force.

It is important to note that FGM is not an individual behavior, such as it could be the decision to undergo a certain surgical procedure for cosmetic reasons. Deciding not to circumcise a daughter is not an individual behavior. That decision would have to be explained to the immediate family (husband, siblings, etc.), to the extended family (the in-laws), and the in-laws would have to answer to their friends throughout the community, which makes the decision particularly difficult to make given the societal pressure.

Perhaps the best strategy to eliminate FGM is to warn about the negative health consequences to the women who undergo the procedure. The dangers and lifelong health problems that women experience after the procedure are particularly serious in communities where the traditional way of circumcision does not include sterilized instruments, antibiotics, and other measures to minimize health complications. So far, it appears that these are the arguments that are most effective in persuading those who believe in tradition that there are some traditions that must be ended, and there has been some progress in the drive to end FGM.

So far, 24 of the 29 countries where FGM is concentrated have enacted legislation against FGM. In the countries were FGM is a common practice, the percentage of girls aged 15 to 17 that have had the procedure has dropped from 74.4% in 2008, to 56% in 2015. In May 2015, as one of his final acts as president, Goodluck Jonathan banned the procedure in Nigeria. Somalia recently announced that it will introduce a law that will ban FGM, as well. This is a significant step in the right direction as Somalia has one of the highest rates of female genital mutilation in the world. Egypt has announced a plan to reduce FGM by 10-15% in the next five years. If it works, it will mean that for the first time in decades, “uncut” girls would outnumber those who have had the procedure.

PEOPLE ARE PEOPLE: THE REFUGEE CRISIS IN EUROPE

A BRIEF STORY OF THE CONFLICT

The conflict began in March 2011, when pro-democracy protests erupted in the southern city of Deraa, after the arrest and torture of some teenagers who had painted revolutionary slogans on a school wall. Security forces opened fire on demonstrators, killing several, which followed with more people taking to the streets. These events triggered nationwide protests of people demanding the resignation of President Assad. By July 2011, hundreds of thousands were taking to the streets across the country demanding that President Assad step down.

Supporters of the opposition began to take up arms, first to defend themselves from security forces, and later to expel them from their local areas. Violence escalated and a civil war ensued. By early 2012, fighting had reached Damascus and the city of Aleppo. By June 2013, the UN estimated that 90,000 people had been killed in the conflict. By August 2014, that figure had more than doubled to 191,000, and continued to climb to 220,000 by March 2015.

The conflict that began with prodemocracy demonstrations between those for or against President Assad, quickly acquired sectarian overtones, pitching the country’s Sunni majority against the president’s Shia Alawite sect. The rise of the jihadist groups, including Islamic State (IS), the extremist group that grew out of al-Qaeda in Iraq added a further dimension.

Presently, Islamic State has taken control of large areas of territory across northern and eastern Syria, as well as neighboring Iraq, and are now involved in a “war within a war,” battling rebels and jihadists from the al-Qaeda-affiliated Nusra Front, as well as Kurdish and government forces.

The Islamic State, which has been defined by the UN as a terrorist group, has been waging a campaign of terror in large areas of territory in northern and eastern Syria inflicting severe punishments on those who transgress or refuse to accept its rule, including torture, public executions and amputations. Its fighters have also carried out mass killings of rival armed groups, members of the security forces and religious minorities, and beheaded hostages, including several Westerners.

THE REFUGEE CRISIS

Syria’s conflict has devastated the nation. Current estimates indicate that more than 240,000 people have been killed, including 12,000 children. One million more are wounded or permanently disabled. More than half of the country’s population of 22 million has been forced to leave their homes. Many of them have moved multiple times since the conflict began. According to the United Nations High Commissioner for Refugees (UNHCR), at least 7.6 million have moved within Syria, and more than 4 million have taken refuge in the neighboring countries of Turkey, Lebanon, Jordan and Iraq. About half of those displaced are children. Absorbing the influx of refugees has been an overwhelming challenge for Syria’s neighbors, with strong implications for the stability of the entire region.

THE EU’S POSITION

Generally, asylum is granted to people fleeing persecution or serious harm in their own country and in need of international protection. Asylum is a fundamental right; granting it is an international obligation, first recognized in the 1951 Geneva Convention on the protection of refugees. At present, 145 countries of the world, including Europe, Canada, the United States and most Latin American countries, are signatories to the 1951 Geneva Convention on the Protection of Refugees.

An asylum seeker is a person who has applied for asylum under the 1951 Refugee Convention on the Status of Refugees on the ground that if she is returned to her country of origin she has a well-founded fear of persecution on account of race, religion, nationality, political belief or membership of a particular social group. A refugee, in the context of the current crisis, means a person fleeing civil war or a natural disaster, but not necessarily fearing persecution as defined by the 1951 Refugee Convention.

In the EU, an area of open borders and freedom of movement, States have usually used a joint approach to guarantee high standards of protection for both, asylum seekers and refugees. However, the current refugee crisis prompted by the Syrian civil war has resulted such an overwhelming arrival of people to some countries, that it is becoming a challenge to reach agreement among the EU States.

Nearly half a million migrants crossed the EU’s borders from January to August 2015, compared with just 280,000 during the whole of 2014. The majority came from Syria but there are also people who came from Libya, Sudan, Pakistan, Nigeria, Kosovo, Iraq, Iran, Darfur, Somalia and other countries in the hope of a new life somewhere like Germany, France or the UK. Under an EU rule known as the Dublin regulation, refugees are required to claim asylum in the member state in which they first arrive. But some EU countries, such as Greece, Italy, and Croatia, have been allowing migrants and refugees to pass through to countries where they may have better prospects.

Yesterday the European governments reached a divisive deal to impose refugee quotas; they agreed to distribute 120,000 refugees among member states. The decision was reached on a majority vote with the objections of four eastern members. Although Slovakia threatened to take court action against the resettlement quotas, the other three countries that voted against quotas reluctantly accepted the plan, but not without expressing their disagreement.

Hungary’s prime minister, Viktor Orban, accused Germany of “moral imperialism” over the refugee crisis stating that even if Germany decides to take in more refugees, it should not try to force other countries to do the same. Britain refused to take part in the EU refugee-sharing scheme because it does not belong to the Schengen “open borders” zone in continental Europe, and it opted out of the discussions. Later, David Cameron pledged that Britain would take 20,000 Syrians from camps by 2020.

THE US POSITION

The White House stated last week that the US would take at least 10,000 Syrian refugees in the next fiscal year, which begins October 1. Secretary of State John Kerry announced Sunday that the U.S. will raise the annual number of total refugees it accepts over the next few years. The Wall Street Journal reports that under the new plan, the U.S. will take on 85,000 refugees in the fiscal year 2016, which starts in October, and 100,000 in 2017, up from a current annual total of 70,000. The 2016 total would include the 10,000 Syrian refugees the Obama administration has already said it would like to admit.

According to the UN, worldwide, nearly 60 million people have been forcibly displaced. Of that number, 38.2 million are internally displaced, 19.5 million are refugees, and 1.8 million are asylum-seekers. Under the new plan, the U.S. will accept 85,000 refugees next year. This number is undoubtedly large, but it pales in comparison to the scale of the problem, and what other countries, sometimes much poorer than the US, are doing in response. The top six countries to host refugees are Turkey (1.59 million), Pakistan (1.51 million), Lebanon (1.15 million), Iran (982,000), Ethiopia (659,500), and Jordan (654,100).

CONCLUSION

There is no easy solution to the refugee crisis in the world. Although the civil war in Syria, and the resulting flux of refugees in Europe has made the problem more palpable in the last few weeks, the sad reality is that there are millions of individuals that are forced every year to leave their homes for fear for their safety, and almost half of them are children.

Countries in the world have a choice to make: they either provide meaningful help in the resettlement of refugees, or they do not. The German Chancellor, Angela Merkel, said that Germany could take as many as 800,000 refugees this year, as compared with the 85,000 the US has indicated it would accept in 2016, and the 20,000 that Britain has committed to accept by 2020.

As long as there are undemocratic regimes in the world, political turmoil, wars and natural disasters happening around the globe, there will be asylum seekers and refugees asking for help. And even though there is no easy solution to the refugee problem in the world, there is something that can be concluded easily, asylum seekers and refugees are people, like us, looking for a safe place to live and raise their families.

SEAFOOD, SLAVERY, AND THE FISH WITH A STORY

Thailand is the world’s third largest exporter of seafood and seafood products. The European Union imported more than $1.15 billion worth of seafood from Thailand in 2013, while the value of seafood imports by the United States exceeded $1.6 billion in 2014. If you live in the US or Europe and purchase shrimp at your local supermarket, it likely came from Thailand, and it is just as likely that it came from slave boats. The situation is pervasive, occurring across sectors, from fishers to processors and in different species, so it is not just shrimp but other seafood products as well.

Trafficking of men and boys from Burma, Cambodia, and Thailand onto fishing boats by brokers is widespread. The majority of these boys and men are illiterate, recruited from rural areas where jobs are scarce. Unfortunately, Thai government officials for years have either turned a blind eye or are complicit in these abuses. Even though last year the State Department blacklisted Thailand for failing to meet minimum standards in fighting human trafficking, placing the country in the ranks of North Korea, Syria and Iran, there were no additional sanctions. The United States continues to buy about 20 percent of the country’s $7 billion annual exports in the industry.

Research conducted by the International Organization for Migration (IOM), the International Labour Organization (ILO), Thai academic institutions, international and national nongovernmental organizations, and global trade union federations has uncovered that work on Thai fishing vessels is extremely abusive. Problems include widespread and systematic use of forced labor, frequent physical abuse leading in some cases to extrajudicial killings, excessive work hours ranging up to 20 hours per day, non-payment of wages, inadequate food and medical services, and dangerous working conditions causing serious injuries to workers.

Crewmembers have reported being punched, beaten with metal rods, deprived of sleep, imprisoned without food or water, and forced to continue working after injury. Travel documents are often confiscated and withheld; cases of abandonment are also reported. Violations of fair and promised pay are common, particularly the extraction of “agency fees” and the withholding of pay at the end of the contract period. Recruited crew members may pay up to several times their supposed monthly wage for these “fees”, and there have been reported examples of fishers working without pay for several years.

The Thai fishing industry remains heavily reliant on trafficked and forced labor. Poor and chaotic fisheries management has resulted in the majority of Thailand’s fisheries becoming over-exploited. As boat operators have looked to cut costs, working conditions and wages have suffered, causing many workers to turn away from the industry. This situation has led to a significant labor shortage, with a shortfall estimated to be as high as 50,000 people and increasing. This labor shortage fuels abusive practices in the fishing industry, with employers and brokers resorting to deception, corruption, coercion and violence in order to meet the demand for workers.

Fishing boat owners and captains have regularly resisted efforts to regulate conditions of work on fishing boats, and have denied that abuses occur. The profit margin for them is considerable. Widespread human trafficking and abuse is allowed to continue, in part, because the supply chain remains a black box, even to those within the industry. Even though most distributors, buyers, and exporters of seafood are aware that human rights abuse is a problem in the industry, most of them do not believe it happens in their company’s supply chain.

Consumers are also blind to this situation on many fronts. Between 25 and 70 percent of all fish sold in North America and Europe is mislabeled—wrong species or wrong country of origin. As a result of mislabeling, consumers do not know what kind fish they buy, where it comes from, or the human cost involved in fishing it. The fish we buy and eat do not have a story.

Customers are willing to pay for a story, and that willingness to pay can be a vehicle for profound environmental and social change. For instance, Starbucks tells its customers the story of Fair Trade coffee, and customers at the supermarket buy cage-free eggs and grass-fed beef based on the story behind the products. These labels and the stories they tell are about making the world a better, fairer and more compassionate place, and customers are willing to pay for that.

With regards to seafood, a consumer who understands that the reduced price of seafood at the local supermarket is the result of the slavery and inhumane treatment of those who fish it, or the result of unsustainable fishing practices, might prefer to pay a higher price for seafood caught by a local fisherman who fishes sustainably and who treats its employees with dignity. The story matters.

Bar codes and auditable traceability technology can help the supply chain carry better stories. However, customers must also do their part and demand a more responsible fishing industry even if prices for seafood increase. Some argue that customers will not pay more for their seafood regardless of where it comes from, but fifteen years ago, many argued that no one would pay extra for coffee that delivered a guaranteed price to farmers, and today Fair Trade coffee is everywhere. For those who care about human rights and sustainability, the first step is to ask for the fish with a good story.

 

UNIVERSAL JURISDICTION AND JUSTICE FOR THE VICTIMS: THE CASE AGAINST HISSÈNE HABRÉ

After a two-decade campaign for justice by the victims, the trial in Senegal of the former Chadian dictator Hissène Habré is set to begin July 20, 2015. Habré will stand trial on charges of crimes against humanity, torture, and war crimes before the Extraordinary African Chambers (the chambers) in the Senegal court system.

Habré seized power in 1982, in a CIA-backed coup, and ruled with an iron fist until his overthrow in 1990. In December 1990, the CIA and state department’s Africa bureau loaded C-141 cargo planes with weapons and proceeded to save the dictator in return for his eight-year collaboration with Ronald Reagan’s covert effort to destabilize Muammar Gaddafi in Libya. Since 1990, he lived with impunity in Dakar for 22 years.

Habré’s regime has been described as oppressive, cruel and inhuman. Souleymane Guengueng, a former bookkeeper recounts how he was held on insignificant political charges for nearly three years. First, he was held in solitary confinement, then packed so tightly with other prisoners they could not even lay down to sleep. Being kept alternately in total darkness or blazing electric light, 24-hours-a-day for months on end, left him nearly blind. He was hung from his testicles after being caught leading prayers for other prisoners. While in captivity he suffered from malaria, pulmonary edema and hepatitis, losing the ability to walk for months. What he suffered exemplified Habré’s regime.

Guengueng survived until he was freed with thousands of other prisoners in December 1990, when a new set of rebels, led by Chad’s current president, Idriss Déby, ousted Habré. Habré escaped to Senegal, with some $12m he had pilfered from national bank accounts, enough for him to live comfortably and buy him political supporters in Senegal to protect him for years.

After his release, Guengueng spent months quietly collecting testimonies of other prison survivors and eventually gathered over 700 testimonies. Eventually, an American Human Rights lawyer, Reed Brody, took an interest in the case, turning those testimonies, years later, into the core of a groundbreaking legal effort by Chadian victims and Chadian and international attorneys to hold Habré accountable for his crimes. Traveling with Guengueng and other Chadian victims, Brody and his team filed the first criminal complaint against Habré in Dakar in January 2000.

Habré’s trial will be the first in the world in which the courts of one country, based on the principle of universal jurisdiction, prosecute the former ruler of another for alleged human rights crimes. The term “universal jurisdiction” refers to the idea that a national court may prosecute individuals for any serious crime against international law — such as crimes against humanity, war crimes, genocide, and torture — based on the principle that such crimes harm the international, which individual States may act to protect. Generally, universal jurisdiction is invoked when other, traditional bases of criminal jurisdiction do not exist, for example: the defendant is not a national of the State or the defendant did not commit a crime in that State’s territory or against its nationals.

The first precedent for Universal Jurisdiction was seen in the case of General Augusto Pinochet. He was indicted for human rights violations committed in his native Chile by Spanish magistrate Baltasar Garzón on 10 October 1998. He was arrested in London six days later and held for a year and a half before finally being released by the British government in March 2000. The judiciary committee of the British House of Lords (the United Kingdom’s supreme court) concluded that “international law has made it plain that certain types of conduct . . . are not acceptable conduct on the part of anyone.” Pinochet was eventually authorized to return to Chile to face charges for a number of crimes. The interpretation of international law in Ex parte Pinochet grants any magistrate anywhere in the world the power to demand extradition of a person accused of crimes against international law.

The ideal behind the concept of Universal Jurisdiction for international crimes is that it would permit governments to prosecute the perpetrators of crimes against humanity wherever they were found. Mass killers who had fallen from power could be punished regardless of where they were found. In cases where the government of the country where the atrocities took place might be too weak or compromised to prosecute, some government without a history of complicity in the crimes could reach out and punish an international criminal. The thought is that the prospect of being prosecuted anywhere might motivate some rulers to put a stop to massive crimes.

Detractors of Universal Jurisdiction state that it becomes an impediment to national reconciliation procedures set up by new democratic governments to deal with their countries’ questionable pasts. Additionally, they claim that once the Pandora’s box of jurisdiction has been opened, the political pressures on international prosecutions are difficult to control. A good example is Belgium, which, until recently, had a statute providing for jurisdiction over international crimes, whether there was any connection to Belgium or not. Its courts became a haven for political claims against national leaders, claims that had no chance in the country where the events took place. Complainants sought to prosecute Ariel Sharon for abuses in Lebanon, and former president George H.W. Bush for a bombing in Baghdad during the first Gulf War. U.S. The law was eventually amended when Defense Secretary Donald Rumsfeld, threatened to withdraw NATO headquarters from Brussels, Belgian parliament weakened the jurisdiction to the point where it is available only if the victim or the accused is Belgian.

In the case of Hissène Habré, President Obama has publicly praised Senegal’s establishment of the Extraordinary African Chambers to try the worst crimes of Habré’s government. Obama said the United States would provide resources to support the work of the tribunal. Reed Brody, counsel for the victims has stated that “[i]f Hissène Habré’s trial is conducted in a fair and transparent manner it could mark a turning point for justice in Africa.”

After 22 years seeking justice, a trial in this case is also turning point for the victims and perhaps a step in the right direction in the development of justice for international crimes.

THE UNITED STATES AND SOMALIA HAVE SOMETHING IN COMMON: THEIR FAILURE TO RATIFY THE CONVENTION ON THE RIGHTS OF THE CHILD

Today we celebrate the 25th anniversary of the U.N. Convention on the Rights of the Child (CRC), the world’s most universally ratified human rights treaty. The treaty requires the commitment of states that embrace it to do all possible to ensure children’s wellbeing, dignity and protection. The U.S., accompanied by Somalia and South Sudan, are the only three countries that have failed to ratify this important instrument of international law. One hundred and ninety-four nations – including all of America’s closest allies — have ratified the CRC. To say that the US is in bad company is an understatement.

The CRC was adopted by the UN General Assembly in 1989 and became one of the most rapidly and widely adopted human-rights agreements. The United States signed it in 1995 but never ratified it. Signing a treaty implies that a country endorses its principles, whereas ratification means committing to be legally bound by it. Treaty ratification under US law requires that after the President sends the treaty to the Senate it must be approved by a two-thirds majority, the same standard required for a Constitutional amendment. The Convention on the Rights of the Child has never made it to a vote.

The Convention upholds the ideal that all children, everywhere, have the same human rights to survive and thrive, to learn and contribute to society. The CRC recognizes every child’s right to develop physically, socially and mentally to his or her fullest potential, to be protected from discrimination, exploitation, abuse, discrimination, and violence; to express his or her views freely and to participate in decisions affecting his or her future.

Most American laws are already consistent with the ideals of the CRC, but not all. A notable exception is that in the United States children under 18 can be incarcerated for life without parole. Since the treaty prohibits cruel and degrading punishment of children, those laws may be deemed in contravention of the treaty. Opponents of the treaty say it would usurp American sovereignty. Although America has laws against child abuse, a third of states allow corporal punishment in schools and none bans it at home. Parent-rights groups claim the treaty would undermine parents’ authority, particularly over religious and sex education.

Studies by the Children’s Defense Fund, UNICEF, and others show that, relative to its wealth and compared to other industrialized countries, the U.S does not fare well with regards child poverty, teen birth rates, low birth weight, infant mortality, child victims of gun violence, and the number of minors incarcerated. It is incomprehensible how the richest nation on earth allows one out of six children to live under the poverty level; how its laws permit a child to be killed by guns every three hours; or how so many children and families live without basic health insurance.

Ratification of the CRC in itself would not immediately change the situation of children in American. However, it might help establish a national framework to establish clear objectives that the federal and state governments, private organizations, and individuals, can use to shape policies and initiatives to better meet the needs of children and their families.

Internationally, ratification of the CRC would help enhance U.S. standing as a global leader in human rights. Additionally, as a party to the Convention, the U.S. would be eligible to participate in the Committee on the Rights of the Child (which is the international body that monitors the CRC’s implementation), and work toward strengthening further progress for children in all countries.

On behalf of President Bill Clinton, Madeline Albright signed the CRC in 1995, signaling the U.S. government’s intention to move toward ratification. But the George W Bush administration took no further action. President Obama has done nothing tangible towards getting the treaty ratified by the U.S. Senate.

As a presidential candidate in 2008, referring to the CRC, Barack Obama underscored the importance of the US returning “[…] to its position as a respected global leader and promoter of human rights” and promised to “[…] review this and other treaties to ensure that the U.S. resumes its global leadership in human rights.” Over 100 CEOs and leaders of prominent American child welfare organizations and faith-based groups have made a joint appeal to President Obama to order such a review.

As we celebrate the 25th anniversary of the CRC, many of us hope that the United States will join the international community in embracing the CRC as a safeguard for the defense of children’s rights and well being everywhere.

Ugandan’s notorious Anti-Homosexuality Act is overturned but for the wrong reasons

A Ugandan constitutional court declared the country’s anti-gay law illegal. The reason was that parliament did not have a quorum when it was passed. The five judge constitutional court ruled that the speaker of parliament had acted illegally when she allowed a vote on the measure despite the lack of a quorum when the bill was passed. They also found the speaker ignored objections by the prime minister to this effect.

The anti-gay bill, which has been very disputed by international rights groups (and discussed previously in this blog), was signed into law in December by President Yoweri Museveni. The bill provided for homosexuals to be jailed for life, outlawed the promotion of homosexuality and obliged Ugandans to denounce gays to the authorities or be charged with promotion of homosexuality.

Anti-homosexuality sentiment is prevalent in Uganda, and critics have said that Mr. Museveni signed the law to win domestic support ahead of a presidential election scheduled for 2016, which will be his 30th year in power. But Western nation opposed to the bill responded with aid cuts to Uganda’s government in protest since the law was passed. Rights groups say the law triggered a sharp increase in arrests and assaults of members of the country’s lesbian, gay, bisexual and transgender (LGBT) community

The government could call for a new session with quorum or appeal the ruling in the Supreme Court.

HAPPY NEW YEAR, BUT NOT FOR THE CHILDREN OF THE CENTRAL AFRICAN REPUBLIC

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According to UNICEF at least 16 children have been killed and 60 seriously injured since last month’s outbreak of violence in Bangui, the capital of the Central African Republic (C.A.R.). At least two of these children were beheaded and one child was severely mutilated.

According to the UN, 1,000 people have been killed and about 370,000 have been displaced in armed conflict in Bangui in December. More and more children are being recruited into armed groups, and they are also being directly targeted in atrocious revenge attacks. During the past month, the UN said the number of child soldiers in C.A.R. had more than doubled to 6,000 as fighting escalated.

The armed conflict in the Central African Republic started in December 2012 and led to the overthrow of President Francois Bozize in March by Séléka (also called the Séléka CPSK-CPJP-UFDR). The armed group is comprised of an alliance of several militia groups that were active in the C.A.R. The coup plunged the C.A.R. into chaos. Looting and attacks became widespread; state buildings, ministries, and schools were looted and in some cases destroyed altogether.

Former Séléka rebel leader Michel Djotodia, who is now president, has not been able to control ex-rebel militias, who were not incorporated into the army after the coup of March 2013. These former Séléka rebels, who are Muslim, are battling Christian self-defense groups known as Anti-Balaka.

Since the coup of March 2013 overthrowing President Francois Bozize, uncontrolled elements of Séléka and unknown armed groups have been carrying out attacks against the civilian population. By September 2013 fighting had extended to other parts of the country including Bouar in the west towards Cameroon and to the east of the capital in Damara. By October 2013 the UN Security Council approved logistical support to the African Union peacekeeping force (AFISM-CAR) on the ground and permitted French troops to control the airport. By November 2013, peacekeeping forces reported having witnessed summary executions and mass displacement as whole communities, terrified by the brutality of the armed groups, fled their homes.

During the last few months the fighting has been relentless, and according to UNICEF, the results are grim:

Over 1000 people dead

495,000 internally displaced people

1 million people are food insecure

1.6 million people in need of assistance (total number of inhabitants: 4.6m)

60% of health structures have been destroyed since December 2012

90% of medical facilities have no more stock

And now the children are being targeted.

Targeted attacks against children constitute an obvious violation of international humanitarian, human rights law, as well as the laws of armed conflict.

So, what to do?

Should the international community intervene?

If so, how should it be done?

NATURAL DISASTERS, HUMAN RIGHTS AND INTERNATIONAL LEGAL OBLIGATIONS FOR HUMANITARIAN ASSISTANCE

Forecasters warned even before Typhoon Haiyan struck the Philippines that it might be the strongest storm in recorded history. It was 3.5 times more ferocious than Hurricane Katrina — and large enough to stretch from California to New York. The super typhoon made landfall in the eastern Philippines on November 8, 2013. With almost 10 million people affected, it is estimated that over 10,000 people have been killed, and nearly 700,000 displaced persons are taking refuge in some 1, 316 evacuation centers in 9 regions. Approximately, another 260,000 displaced persons are living outside these centers.

On December 26, 2004, an earthquake measuring 9.0 on the Richter scale triggered a powerful tsunami across the Indian Ocean. The tsunami struck northern Sumatra; the west coasts of Thailand, Myanmar, and Sri Lanka; the east coast of India; the Maldives; and northern Africa. The tsunami resulted in the deaths of approximately 240,000 people and displacement of more than one million people.

On October 8, 2005, another earthquake, measuring 7.6 on the Richter scale, struck Northern Pakistan, triggering landslides and hundreds of continuous aftershocks. The earthquake killed approximately 86,000 people, including more than 17,000 children; injured over 100,000 people; and caused destruction to infrastructure and housing, leaving an estimated 500,000 families homeless.

In 2005, Hurricane Katrina killed 1,833 people and caused property damage estimated at $81 billion. Although Hurricane Katrina’s physical impact was confined within U.S. borders, its aftermath attracted global concern because the United States needed and accepted disaster assistance from the international community of States.

Natural disasters resulting from natural phenomena, such as earthquakes, volcanoes, tsunamis, hurricanes, and famines, are a worldwide concern. They have affected nearly two hundred million people per year over the past two decades causing billions of dollars in property damage worldwide. Natural disasters know no geographical boundaries, no country, no region and no politics. They appear to be increasing in number and intensity, and people all over the world have endured their devastating consequences, such as loss of life and livelihoods, damaged infrastructure, and economic costs.

Natural disasters have demonstrated the vital role of the international community in facilitating humanitarian assistance to affected States. However, since there are no international legal obligations on States regarding disaster relief, it could potentially follow that individual Nation-States do not have any legal responsibilities concerning humanitarian assistance for natural disasters.

The lack of international legal obligations pertaining to disaster response is troubling, particularly when international aid agencies are overstretched in responding to crises. In a situation report released on Monday, November 11, the UN Office for the Coordination of Humanitarian Affairs (OCHA) said that the capacity and resources of some agencies are “overstretched” as they are currently responding to two other humanitarian crises in the Philippines: the Central Visayas earthquake and the siege in Zamboanga City.

These past natural disasters have demonstrated the concern among all States for the responsibility to warn about the potential disaster, to react to the devastation, and to rebuild destroyed communities. Given the lack of international legal instruments setting forth the obligations of States regarding natural disasters some would argue that these “obligations” are rooted in customary international law.

In order for something to be considered customary international law, there must be general agreement among States to be bound to the responsibility to act in time of crises. While the international community has generally demonstrated an interest to be bound to the responsibility to provide humanitarian aid, this interest may not rise to the level of a legal duty since state practice of the responsibility to protect victims of natural disasters is likely insufficient and not widespread enough under customary international law standards. Thus, justifying the responsibility to provide assistance under customary international law may be difficult to argue.

Grounding the Nation States’ obligations in this regard on human rights might be more appropriate. Acknowledging the applicability of human rights norms to natural disaster victims would expand the scope of international human rights and reinforce the regime of international human rights law. Recognizing and codifying the relationship between human rights and the difficulties faced by disaster victims would impose on all States a legal responsibility to act in crisis arising from natural disasters.

However, implementing an international human rights instrument for natural disaster victims requires some sort of legal framework detailing its implications. It would also require that such legal framework defines and clarifies the States’ obligations. In effect, the human right in question would be related to the right to shelter, food, life, and health care as they arise in a time of crisis due to natural devastation.

Natural disasters affect the international community regardless of the geographical location where the disaster takes place. Although the international community relies on the individual State’s willingness to help, as well as on UN agencies and other NGO’s to react in time of crises, some argue that the aftermath of recent catastrophic natural disasters demonstrate the need for an international treaty clarifying the responsibilities of all States regarding natural disasters.

The important questions to consider are as follows:

Does the international community of States have a responsibility to provide humanitarian assistance to disaster-affected States?

Should the United Nations be involved in creating legal obligations for States regarding humanitarian aid?

Should these legal obligations be grounded in international human rights law?

THE WAR ON TERROR, DRONES AND INTERNATIONAL LAW

Unmanned aerial systems (UAS), also known as drones, are aircraft either controlled by ‘pilots’ from the ground or autonomously following a pre-programmed mission. In addition to the term “drone”, these types of crafts may also be referred to as “unmanned aircraft,” “remotely piloted aircraft,” or “unmanned aerial vehicles.” There are dozens of different types of drones, the most commonly used fall into two categories: those that are used for reconnaissance and surveillance purposes and those that are armed with missiles and bombs.

A report released today by Amnesty International titled “ ‘Will I Be Next?’ U.S. Drone Strikes in Pakistan” contains information on 45 drone strikes it says were carried out by the United States in North Waziristan, Pakistan, between January 2012 and September 2013. In some of the attacks, it says, the victims were not members of militant groups like al Qaeda or the Taliban, but just ordinary civilians.

The report by Amnesty International was made public the day before Pakistani Prime Minister Nawaz Sharif is due to meet U.S. President Barack Obama in Washington and calls for certain measures to bring the drone program in line with international law, including conducting impartial investigations into the cases documented, bringing those responsible for human rights violations to justice and offering compensation to civilian victims’ families.

Most of us are familiar with UAS from their use in such places as Afghanistan, Pakistan and Yemen. The main characteristics of UAS are that they do not carry a pilot onboard, but function from “pilot” control from the ground or elsewhere, and they use pre-programmed flight coordinates. The use of UAS have many advantages for the military such as low costs—both for flying as well as maintenance and acquisition, longer flight times and less risks to pilots.

UAS began to show their usefulness at the beginning of the Cold War as a reconnaissance tool. Over time, they have evolved into being used for three categories of action: as attack weapons, operation or strike tools, and as surveillance or reconnaissance systems. All the functioning of the UAS is generally controlled via a laptop computer, a kit mounted on a vehicle or in a larger fixed facility. The current military inventory for unmanned aerial vehicles exceeds 6,000 spread out among all branches of the military, with significant increases planned in the future.

In addition to the report released by Amnesty International, a report issued in conjunction with an investigation by Human Rights Watch details missile attacks in Yemen, which the group believes, could contravene the laws of armed conflict, international human rights law and Barack Obama’s own guidelines on drones. Human rights groups have accused US officials responsible for the secret CIA drone campaign against suspected terrorists in Pakistan of having committed war crimes.

The criticism launched against the US for their use of UAS in Pakistan is based on allegations that drone attacks have killed innocent civilians. Amnesty International has highlighted the case of a grandmother who was killed while she was picking vegetables and other incidents, which could have broken international laws designed to protect civilians.

According an internal Pakistani report leaked earlier this year, at least 10 civilian deaths were confirmed as a result of CIA drone strikes in 2009. The New America Foundation estimates that up to 207 civilians were killed from 2006 to 2009, along with up to 198 people who were not identified in reliable media reports to be either civilians or militants.

The United Nations Convention on Certain Conventional Weapons (CCW or CCWC), concluded at Geneva on October 10, 1980 and entered into force in December 1983, prohibits or restricts the use of certain conventional weapons which are considered excessively injurious or whose effects are indiscriminate. The aim of the Convention and its Protocols is to provide new rules for the protection of military personnel and, particularly, civilians and civilian objects from injury or attack under various conditions by means of fragments that cannot readily be detected in the human body by X-rays, landmines and booby traps, and incendiary weapons and blinding laser weapons.

To the extent that drone attacks are not sufficiently accurate to prevent civilian deaths, some argue that they are in contravention of the Geneva Convention. Additionally, as the applicability of international humanitarian law is sometimes unclear, human rights groups argue that America’s battle with al-Qaeda does not meet the intensity required under the laws of war to amount to an armed conflict.

Do we need the UN to step in and provide a definition of armed conflict for purposes of the use of drones by the US military (or CIA)?

Is the preemptive use of drones to strike at terrorists justified as part of a “new” kind of almost continuous war where the enemy may strike at any time and without any warning and thereby justified under Article VII of the UN Charter?

Is the US use of drones in contravention of international human rights law, which only permits using deadly force when strictly and directly necessary to save human life?

Catalonia and The Right of Self-Determination

International Human Rights Law is concerned, above all with the equality and dignity of every human being. It, therefore, sets limits to the collective rights of both majorities and minorities, neither of which can be used to overrule the freedom and equal dignity of the individual.

Asbjórn Eide

On September 27th, 2012, the Catalan Parliament approved the holding of a referendum on Catalonia’s independence from Spain. Regional President Artur Mas has demanded that a referendum on independence be held in 2014; but thus far he has been unable to get the central government’s approval for such a vote. Some have suggested that Catalonia demands its independence under the international law right of self-determination.

The principle of self-determination is prominently embodied in Article I of the Charter of the United Nations. The right to self-determination is the right of a people to determine its own destiny allowing them to choose its own political status, and to determine its own form of economic, cultural and social development. The right to self-determination is also recognized in other international instruments, including the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.

The right to self-determination is indisputably a norm of jus cogens, which are the highest rules of international law and must be strictly obeyed at all times. Additionally, both the International Court of Justice and the Inter-American Commission on Human Rights of the Organization of American States have ruled on cases in a way that supports the view that the principle of self-determination has the legal status of erga omnes. Ergas omnes obligations of a State are owed to the international community as a whole and, thus, may be seen as broader even than jus cogens.

Under present international law, the following four factors are relevant to answering the question of whether a “people” may achieve independence. These factors are: 1) location, 2) the will to exist, 3) denial of “internal” self-determination, and 4) brutal oppression. The fourth concept, brutal oppression, establishes secession as the remedial aspect of self-determination.

Location

The language “all peoples have the right of self-determination” has no territorial limitation, however, most scholars agree that “a people” must exist within a confined and established territory. The ICJ has found that groups found in East Timor, Western Sahara, and Palestine had a right to self-determination as peoples. The concept of location is not exact, yet its importance rests in localizing the will of all peoples concerned.

Will to Exist

“A people” comes into existence when a group asserts its will to exist and becomes aware of its identity based on given political considerations. If the majority of a group remains genuinely passive in safeguarding its identity, the group is not a bearer of the right to self-determination. Under international customary law, leaders of groups claiming self-determination on behalf of the group must actually represent the entire group and not merely factions or parties within the collective.

Denial of Self-Determination

Political rights, in particular the right to participate in elections—to vote and to stand for election—on the basis of universal and equal suffrage; to take part in the Government as well as in the conduct of public affairs at any level; and to have equal access to public service are essential to determine if the group within the larger region is deprived of fundamental rights. For minorities to participate effectively in public affairs, they must have an ability to express their opinions on decisions affecting them. This includes the right to participate substantively in decisions on the regional and national levels. To ensure such participation, states should reserve seats for minorities in decision-making bodies. Political representation without considering minority aspirations in the decision-making processes undermines the concept of self-determination.

Brutal Oppression

Brutal state oppression of its domestic groups confined within state borders results in a clear deprivation of the right to self-determination, and in questioning state’s borders. In the external aspect of self-determination, all peoples have the right to “determine freely their political status and their place in the international community based upon the principle of equal rights.” Minorities must undergo a parallel form of brutal oppression to exemplify characteristics of “a people” with a remedial right to self-determination. Without the total denial of “internal” self-determination, courts will stop short of examining whether a group constitutes “a people.”

Remedial Aspect of Self-Determination — Secession

Secession is the effort of a group or section of a state to withdraw itself from the political and constitutional authority of that state, with a view to achieving statehood for a new territorial unit on the international plane. Any claim of right to secede will be interpreted very strictly because if the right to secede were universal, the resulting fragmentation could undermine peace and security, and create several thousand independent states (some say as many as 5,000). However, remedial secession may exist for “peoples” under specific circumstances.

Secession over territorial integrity might be legally permitted under very narrow circumstances such as when a state (1) persistently refuses to grant participatory rights to a religious or racial group, (2) grossly and systematically tramples upon their fundamental rights, (3) denies the possibility of reaching a peaceful settlement within the framework of the state structure, and (4) commits gross fundamental human rights breaches.

Even if it is an option, the right to secession may be unwarranted if the state stops the discrimination and institutes legal remedies. In absence of concrete evidence showing human rights violations, and denial of participation in government rising to the point of calling into question the state’s territorial integrity, alternate modes of self-determination compatible with territorial integrity should be exercised. They may include enhanced local self-government in a demographic area, or union with confirmation of territorial unity.

The Case of Catalonia

To assert a successful claim of self-determination through secession, Catalonia would have to show that it had been the victim of severe current oppression.

The Catalans already have self-determination within the Spanish State. Spain is a democratic country in which Catalans have full and equal rights as Spanish citizens. Catalonia joined the Kingdom of Castile as a partner in Spain over five centuries ago through legitimate means. Although since then Spain has increasingly imposed itself on the administration of Catalonia, and Catalan language and culture have been banned for periods, Catalonia today enjoys autonomy within Spain, under a Constitution that was written by seven respected legal scholars, two of whom were Catalans. Catalan nationalists regularly win elections within Catalonia to govern Catalonia and to represent Catalonia in Madrid.

The current Catalan self-government is founded on the Spanish Constitution of 1978. This Constitution recognizes 17 autonomous regions. Autonomous Catalonia has a constitution of its own and is represented and governed, to a considerable extent, by the Generalitat de Catalunya, the regional “Government of Catalonia,” composed of a Parliament, a President and an Executive Council.

The powers of the Generalitat are exclusive, concurrent and shared. When it comes to exclusive responsibility – for example, culture, development of Catalan Civil Law and tourism – the regional government has both executive and legislative powers. The concurrent powers are those areas of competence in which both the state and the region have jurisdiction. As a rule, the central government establishes the basis for legislation and the Generalitat assumes the further legislative development and execution. Regarding the shared powers, the region can assume the execution of state legislation. The areas of the Generalitat responsibility embrace a wide sector of social life. The most important issues are: regional economic policy; regional planning, building and housing policy; energy and environment; culture and media; education, universities and research; public health and social services; tourism, leisure and sport; police and public order.

Although many Catalans may not be satisfied with the level of autonomy granted to Catalonia under the current constitutional regime, they are able to, and do indeed, affect change through constitutional and democratic means. The United Nations Charter sanctifies existing states except under extreme scenarios; if Catalonia cannot meet these legal standards, Catalan nationalists must find another means to achieve their goal of self-determination independent of the Spanish State.

In 2010, the Spanish Constitutional Court reached a decision regarding Catalonia’s autonomy charter, the Catalan Statute of Autonomy. The verdict came after four years of debate over the limits of Spain’s decentralized method of rule. The Catalan statute dates back to 1979, and a commission of the Catalan Parliament convened to reform it in February 2004. In their decision, the Court rejected 14 of 223 articles in a decision that otherwise approved the statute. In particular, the Court refused to acknowledge Catalonia’s self-recognition as a nation in the legal sense, emphasizing the “indissoluble unity of the Spanish nation.” Spain’s decision allowed Catalans to claim Catalonia as their nation in a historical sense, as the constitution still labeled Catalonia a “nationality,” but denied the attempt to create a legally recognizable nation.

Since the 2010 decision, a powerful nationalist movement has surfaced seeking to confer Catalonia legal nationality. Some argue that Catalonia’s governmental leaders might be utilizing the claim to self-determination as a political tool to distract from their bad management of resources in the region. Others claim that Spain is taking advantage of Catalonia’s resources, which constitute about 1/5 of the Spanish economy and failing to provide appropriate economic support to the region. Regardless of the position one takes on the issue of Catalonia’s independence under international law principles Catalonia does not appear to have a valid claim for self-determination as international law establishes express limitations on the exercise of minority rights and autonomy, amongst which the loyalty to the central government.

However, the question remains: Should an internationally recognized claim of self-determination be absolutely necessary for a region to secede? Can a region demand to be recognized by the international community as an independent country even if it does not meet the requirements for self-determination as of right? Should Spain’s central government do as England with Scotland, and allow for a referendum on the issue of whether Catalonia should become independent from Spain?