Truth, Reconciliation, and Reparations…But What About Justice? An Interview with Nana-Jo Ndow

RightsView contributor James Courtright recently sat down with Nana-Jo Ndow to discuss Gambia’s transitional justice process. For 22 years, Yahya Jammeh ruled The Gambia through widespread corruption, repression of media, torture, enforced disappearances and extrajudicial killings. He was voted out of office in December of 2016, and fled after a political impasse at the end of January 2017. At the beginning of this year the Truth, Reconciliation and Reparations Commission (TRRC) began hearing testimony in The Gambia from victims and perpetrators of Jammeh’s regime. 

The interview has been edited for clarity.

Nana-Jo Ndow, daughter of disappeared and murdered Gambian buisnessman Saul Ndow. ©Jason Florio

Can you introduce yourself?

My name is Nana-Jo Ndow and to put it simply I like to say I’m from Ghana – Gambia – UK. My Dad was a business man, he went wherever there was opportunity. 

What brought you to human rights work?

I had a father who was very into human rights and politics, so we’d always have debates and conversations. I volunteered with Amnesty International about 12 years ago in London. I thought I wanted to be a doctor, but at Amnesty I realized I didn’t necessarily want to treat people, I wanted to understand the root causes of why these things are happening. 

Regarding transitional justice in The Gambia, which is what I’m working on now, that was sparked by what happened to my father (Saul Ndow). He was a fierce critic of Yahya Jammeh, the former president of The Gambia. In 2013 he was forcibly disappeared on the orders of the former president. At first, I thought my father was just being kept somewhere, so I was trying to find his whereabouts and trying to get him freed. It really had a devastating impact on me physiologically, physically, and also in the family. I don’t want anyone else to go through that. If I can help one person not go through that, I would have done what I’m meant to do on this earth. 

You’ve never heard anything from the Gambian government?

The government kept silent, that’s the whole thing with enforced disappearances. It’s the silence. It’s another way of torturing people because you’re not sure if you’re moving in the right direction. Am I making that person be tortured more if I speak up? Am I putting myself in danger? There’s this constant fear, this constant guilt. We never spoke up, but we reached out various individuals, groups and institutions including the UN, the working group on enforced and involuntary disappearances, the Senegalese, the UK, the Red Cross, and Amnesty International. We were frantic but also relentless. I knew who to reach out to because of my work for Amnesty, but even knowing who to turn to, it was still very … I wouldn’t even say frustrating, it was debilitating. Now imagine all these others who are not connected to the internet or are completely isolated, what they go through in their heads, how powerless they feel. 

I want to take a few steps back. Can you talk a little about your experiences in Latin America?

I moved to Argentina in 2001 because I liked the idea of moving to South America. In Argentina I really got to understand more about what Argentinians went through with the dictatorship. When I found out about my father it was easier for me to speak about it with my Argentinian friends because to them this was not a new concept. They probably knew someone who knew someone whose father’s sister’s uncle’s father’s uncles’ brothers had been forcibly disappeared. The military there tried to impose some kind of amnesty so no one would be held accountable, but Argentinians got up in arms. You see the Madres de Plaza de Mayo saying they want answers, and they still haven’t given up. It was very inspiring to see how they pushed back.

Do you think The Gambia can learn anything from Argentina?

The Gambia is different in many ways. It’s in West Africa and it’s a tiny country, while Argentina is a Latin American country and is very big. That being said, it was bizarre [for the organizers of the Gambian truth commission] to go to South Africa and Sierra Leone, because the context was completely different. In South Africa they had apartheid, in Sierra Leone it was a civil war. In The Gambia you had a repressive state. It started with a junta, which it what you had in Argentina. In both countries there was a small group of people terrorizing society and completely ripping families apart, so for me there’s so much to learn from Argentina.

How does the Gambian Truth, Reconciliation and Reparations Commission (TRRC) fit into this?

In The Gambia it’s the Truth, Reconciliation, and Reparations Commission – but reconciliation between whom and whom? Is this meant to replace justice? What really bothers me is this narrative that if you’re seeking justice, which means holding someone accountable for their actions, it’s portrayed like you’re asking for revenge. This is not what we’re asking for. In Argentina people insisted accountability was their right, and Argentinians pushing back set a precedent for other cases in Latin America. When you say let ‘bygones be bygones’, you’re giving license for others to do the same thing. Some of those who were involved in my father’s case had been mercenaries in Liberia and were given amnesty. Then they moved to Gambia. What does that say? In Liberia they also went through a truth commission, but up to this day not a single person has been prosecuted.

Are you worried about that in the Gambia?

I’m very worried about that. Some people in government are trying to portray victims who are asking for justice as being unreasonable or as being selfish by saying we’re stopping society from moving on. But you don’t just sweep this under the carpet. Maybe I can forgive you, but you still have to be held accountable. The truth commission is to have a historical record of the human rights violations that happened in the last 22 years. But for me somehow it looks like it’s a way for society to accept it. The burden is always placed on the victims and I think that’s why I’m so inspired by the Argentinians.

What is reconciliation for you?

To begin with, it’s having people know your story. But it’s also listening to what victims say they want. I feel like so much emphasis in The Gambia has been placed on those who’ve committed crimes. The focus has been on the perpetrators, and again the victims are forgotten. The government cannot come in and say “this is how we’re going to reconcile.” They must listen to those who’s suggestions they don’t necessarily agree with or like. As a government they’re serving the country, they have to listen to people, it has to be an inclusive process. The Gambia is such a small country, someone’s brother’s uncle’s cousin killed that person. There could be tensions, but you have to make it clear that with reconciliation you also have to be accountable for your actions. It’s very important for future generations. 

What are you working on now?

I’m the founder and the executive director of the African Network against Extrajudicial Killings and Enforced Disappearances (ANEKED). We’re a small organization led by victims of the former regime. My cousin went through the emails back when we were trying to find my dad in 2013, and she said it made her realize that ANEKED actually started back then. That for me was like wow, everything we learned back then, we brought it with us when we officially launched. 

We have quite a number of protects, one of which is the TRRC Digest, which is a repository of the truth-seeking process in The Gambia. People need to know what’s being said at the commission, but many don’t have time to sit in front of the screen all day, so we’re summarizing as accurately as possible. We then have it translated into the four main local languages, Fula, Jola, Wolof, and Mandinka, and we air it on the radio. We’ve received great feedback. Information is so powerful, people need to know what witness said happened in their community and in other communities. It’s easy with so many things coming out every day to lose track, but with the Digest we can go back and say this one person killed x number of people, what are we going to do about it? It falls into the four principles of dealing with the past: right to know, right to justice, right to reparations, and guarantee of non-recurrence. We need to have this out there so no one can come along and decide to re-write history. 

We also got funding to do a memorialization project. We want to have a place where there will be a memorial center where you would have the stories of witnesses and objects. What inspired us is the Argentinians with the Museo Sitio de Memoria ESMA where you have this former detention center where they show you what people went through and give you names of missing people. I think this should be out there for people to visit and for schools to take students because it’s part of the history. 

Also, again the name says it all, it’s a network for young activists. It’s very easy to feel alone doing this work, to feel isolated. You need to know there are other activists out there and share good practices and tactics. But safely! 

I’m also involved in ongoing litigation. I filed against the government of The Gambia for the failure to conduct proper judicial investigations and prosecute those who were accountable. My case, well that of my fathers, is very clear. Names were out there before the truth commission. Why don’t they conduct a judiciary investigation? There’s already a lot of evidence out there and we’ve given that evidence to the government. So, it’s sort of trying to make them understand there needs to be accountability, and hoping this sets a precedent for other people. 

How do you stay centered and healthy doing this difficult work?

I want this to be out there because there’s so much stigma about it – I see a therapist. Therapy has really allowed me to put boundaries, to know when I’m reaching my limit because I hear stories that are so heavy and make me go all over what I went through. Sometimes I have to pull back because I’m no use if I burn out or have a breakdown. Therapy allows me to really share how I feel. It’s difficult, and I have to constantly re-center myself, but I was given tools through therapy. I’ve been very blessed to be surrounded by great people. My husband is amazing and has been incredibly supportive. My cousin I work with is amazing. I have another cousin who is fantastic, I can share my feelings and my frustrations with them. My mother has also been trying to be very supportive of the work ANEKED does. In this work I’ve come across a lot of people who have complexly lost their ability to empathize. I constantly remind myself you have to have empathy. It’s OK to be irritated, but you have to let it go. Don’t hold onto that feeling, its unhealthy. It doesn’t serve you. 

The Legacies of ‘Never Again’: Genocide Prevention Activism

By: Jalileh Garcia, Staff Writer for Rights Views

Every year in the month of December, the Historical Dialogues, Justice, and Memory Network holds a conference where scholars and practitioners share their scholarship and experiences in the field of historical dialogue. 

This year’s theme was “Prevention Activism: Advancing Historical Dialogue in Post-Conflict Settings.” The event’s theme sought to understand how to address and redress the violent past in order to prevent ethnic and political conflicts in the future. The conference took place  December 12-14 at Columbia University. 

From left to right: Andrea Zemskov-Zuege, Ilya Nuzov, Mark Wolfgram, Baskara Wardaya, and Elisenda Calvet Martinez. Photo by Jalileh Garcia

On Saturday, December 14, Mark Wolfgram from the University of Ottawa opened the event “Uses of History in Genocide Prevention II” by stating that the panelists would speak about their experiences and expertise in different countries and on distinct thematic issues that addressed how to ensure non-recurrence of genocides and mass atrocities through prevention activism, or the effort to record, acknowledge, address and redress the violent past. 

Ilya Nuzov, the Eastern Europe and Central Asia Desk Director at the International Federation of Human Rights, started the panel. He focused on the normative aspects of preventative activism, particularly on truth as a tool of prevention. The right to truth is linked to the right to effective remedy, which is codified in Article 2(3) of the International Covenant on Civil and Political Rights (ICCPR), Article 14 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), and Article 6 of the Convention on the Elimination of All Forms of Racial Discrimination (CERD), among other international agreements. Nuzov shared that truth has two aspects: the individual and collective. Individually, it is the right of each person to know what happened to them or their loved ones in past genocides that have affected them. Collectively, it is the right of society to know what happened in their violent past.

“While punishment is used as the primary measure to ensure non-recurrence of genocide and other mass atrocities, the fulfillment of the right to truth also carries a preventative potential,” explained Nuzov. By learning about the causes and events of past crimes, states recognize their responsibility in said crimes, while also acknowledging particular social identity groups that suffered as a result. 

Nuzov then presented the question “What is the legal regime for prevention?.” He argued that the legal basis for the fulfillment of the right to truth lies in the international legal obligations of states to prevent mass atrocity crimes. This duty has been present in various human rights conventions such as the Convention for the Prevention and Punishment of the Crime of Genocide. Article 1 of the Convention states that “[t]he Contracting Parties confirm that genocide… is a crime under international law which they undertake to prevent and to punish.” While the duty to prevent is mentioned, the extent of the duty is really only expounded in the current draft of the Crimes Against Humanity Convention, he explained. 

Mass atrocities that are left in impunity have the ability of manifesting into future violence, as there has been no accountability for grave crimes, victims are not redressed for their suffering, and there is no consensus on the truth of the events that occurred. As such, addressing grave human rights violations is vital to ensure non-recurrence. Truth, in this sense, could function as a tool to prevent future atrocities. 

Andrea Zemskov-Zuege, consultant with the organizations Change of Perspective and Culture for Peace, presented on prevention activism in Burma, now called Myanmar. Providing a brief historical context of the situation, she highlighted the present massive state-induced media campaign and violence against Rohingya Muslims perpetrated by the Myanmar security forces with the support of armed Rakhine Buddhist individuals. Due to the rise of violence towards the Rohingya, many have fled to neighboring Bangladesh. There has also been the emergence of a Muslim resistance movement, previously known as Harakah al-Yaqin, which is now called the Arakan Rohingya Salvation Army. It is commanded on the ground by Rohingya who use their guerilla training to organize attacks. 

Because the two identities – the Rakhine Buddhists and Rohingya Muslims – are increasingly isolated, Zuege found that the best approach to bridge these communities together would be through narrative. The exchange of experiences through narrative hopes to create empathy, while reducing estrangement and achieving advocacy for minorities by each of the groups. She emphasized the importance of choice in this approach, as it means people are actively willing to learn and share. 

Narrative approaches can take various forms. In Myanmar, there were two projects executed by several organizations. The organizations began by training youth from Rakhine and Rohingya communities to facilitate storytelling sessions among their respective communities based on biographical experiences. Here, facilitators would also introduce basic conflict transformation themes. After coordinating storytelling sessions in their communities, the Rakhine and Rohingya youth facilitators then came together and shared their experiences with each other in efforts to improve their community work. Zuege mentioned how sharing biographical experiences is a central feature of the program in Myanmar, as it a low-key method for the exchange of experiences because it is not confrontational and allows both the Rakhine and Rohingya people to get to know each other. 

Baskara Wardaya, lecturer of History at Sanata Dharma University, spoke next of the role that everyone has to play in remembering the aftermath of the 1965 mass violence in Indonesia. He provided a brief historical context of the situation, sharing that mass killings in Indonesia led to the deaths of more than 500,000 people in efforts to eradicate “communist threats.” The Communist Party, known as the PKI, had gained much traction in Indonesia. As such, the military had become wary of the party’s rise in power and the possibility of a rebellion in the country. The event which marked history was the murder of six senior army generals and one lieutenant in October 1965, which was subsequently blamed on the PKI. Shortly after, the killings against against any person suspected of being communist or having ties to the communist movement began. Eventually, Suharto, the General of the Army, took power over the presidency in 1967. As such, Suharto came to control all of the narratives of what happened in 1965, concealing the truth about the events that had occurred for the next 31 years, shared Wardaya. 

Organizations hoping to expose the horrors of the 1965 mass killings arose as a response to the government’s efforts to hide the truth. Sekber 65 is one of these organizations. It was established in 2005 and is comprised of civil society members. Sekber 65 raises awareness of the crimes committed by the Indonesian army in 1965 through truth-telling. Members publish magazines, books, or have artistic performances that convey true stories of the suffering that took place. 

Explaining why Sekber 65 takes a non-judicial approach, Wardaya described that “dealing with the 1965 issue by taking the case to court would be ineffective, which is why we started doing these activities.” In fact, through the civil society initiatives, the government has slowly shown more signs of cooperation towards taking on the issue.  

Elisenda Calvet Martinez, Assistant Professor of International Law at Universidad de Barcelona, was the last to speak. Her presentation focused on combating corruption and impunity as a guarantee of non-repetition in Guatemala. She looked specifically at the role that the International Commission against Impunity in Guatemala (CICIG) played in the country.

Elisenda Calvet Martinez. Photo by Jalileh Garcia

Beginning in 1960 and lasting until 1996, Guatemala found itself in a civil war fought between the government military forces and leftist rebel groups.  Martinez states that in this internal armed conflict more than 200,000 civilians were murdered. Sources indicated that most civilian casualties were indigenous people, and that the State of Guatemala perpetrated a genocide against its Mayan inhabitants. Yet, according to Martinez, the violence after conflict was even higher than during the armed conflict. As such, the unsustainable violence in Guatemala led to the creation of the CICIG, which was formalized through an agreement between the UN and the State of Guatemala. 

The CICIG’s mandate centered on the dismantling of illegal security groups and clandestine security structures, which were created during the armed conflict. They provided special recommendations for institutional reform, worked on more than 100 cases of high impact, and identified 60 criminal structures. By trying the impunity of the past, the CICIG sought to hold accountable the people responsible for abuses during the internal armed conflict, many of whom continue to retain much of the country’s political and financial power to this day. 

As a whole, the speakers made the audience speculate on how to deal with the past as a way to move forward in the future. Overall, the panelists provided the audience with diverse viewpoints and shared different methods for genocide or mass atrocity prevention ranging from using the normative legal regime to narratives, civil society organizations, or UN commissions against impunity. 

It was particularly interesting to see how Zuege grappled with these questions of truth. She believed that in conflict narratives, individuals with different social identities and experiences would have ideas of the truth that do not always contend. As such, Group A and Group B would believe differently about an issue depending on how they felt. Yet, these narratives begin to line up when one puts them together. Meanwhile, the CICIG determines culpability of individuals involved in illegal and clandestine security forces which reinforces guilt in a case, and not conciliation. While the effectiveness of all of these methods are to be determined or hard to assess, they provide hope that individuals can improve their current or past country situations. 

While the panelists’ perspectives and experiences varied in context, all of the speakers grappled with how to record, acknowledge, address and redress the violent past in order to counter violent and hateful realities. In this way, we see how the human rights regime allows for flexibility in how to address genocide or mass atrocities and ensure their non-recurrence.

An Unending Crisis: India’s Amendment to the Citizenship Act

Guest Contributor Anant Sangal is currently an undergraduate student of B.A., LL.B. (Hons.) at the National Law University, Delhi, India. He is deeply interested in the issues of constitutional law and human rights law

The sledgehammer of the Indian State is powerful and surreptitious. It is powerful because its impact is realized and is then hard to undo and is surreptitious, because it often acts in the ambit of the Indian Constitution. Most recently, it was cracked hard on the illegal Muslim immigrants from Afghanistan, Bangladesh, and Pakistan. In the first-half of December 2019, the Parliament of India passed a legislation, which sought to amend (“Amendment”, hereinafter), the Indian Citizenship Act, 1955 to provide for the citizenship to the people belonging to certain specified communities from India’s three neighboring countries, that is from Bangladesh, Afghanistan, and Pakistan. 

The new proviso to Section 2 (1) (b) of the 1955 Act reads, “Provided that any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan, who entered into India on or before the 31st day of December, 2014 and who has been exempted by the Central Government by or under clause (c) of sub-section (2) of section 3 of the Passport (Entry into India) Act, 1920 or from the application of the provisions of the Foreigners Act, 1946 or any rule or order made thereunder, shall not be treated as illegal migrant for the purposes of this Act;.

A plain reading of the proviso to the Section will establish this wide and clear that the sole community excluded from the realm of protection of the newly amended statute is the Muslim community. As per the Statement of Objects and Reasons appended to the Citizenship (Amendment) Bill, 2019 and in his speech while tabling the Amendment in the lower-house of the Parliament, the Union Minister of Home Affairs suggested that the Amendment seeks to provide a home to the religious persecuted minorities in either of these three theocratic nations, where Islam is the State religion. Therefore, the primary assumption is that people belonging to only these six communities are persecuted on the basis of their religion and hence, India must act as their homely abode.

The ostensible exclusion of the Muslim community is based on the assumption that they are not persecuted at all in those nation-states, where Islam is the state religion. However, this is far from being true. The Ahmediya and the Shia sects of the Muslim community have faced severe persecution at the hands of the Sunni Muslims in Pakistan and the Rohingyas of Myanmar continue to be widely persecuted by the Buddhists in Myanmar. The 2013 United Nations report states that the Rohingya Muslims are the most persecuted in the world. Therefore, the assumption and the justification the legislation provides for excluding the Muslim community is false and does not have a very strong foundation either. Rather, the new basis of granting citizenship to the illegal immigrants is based on a majoritarian conception. 

The Amendment projects that the true civilizational abode of the Hindus is only India. Therefore, it appears to be yet another step towards solidifying the argument that we hear for long about how the English have England, the Americans have America, but the Hindus do not have Hindustan (India). The Amendment finally seeks to legitimize a majoritarian and an exclusionary idea of citizenship, where a deliberate attempt is made to exclude only the immigrants belonging to the Muslim community from acquiring the Indian citizenship. The real dangers of legalizing something of this kind is while we do not have an established theocratic state but the selective targeting of a selected community helps us inch closer to an undeclared theocratic state, where rights for minorities remain at the whims of the majority.

That said, the founding fathers of the Indian Constitution were torn between choosing the just mode for granting citizenship to the people. The country was reeling under the aftermath of a bloody and a gruesome partition, where the Indian subcontinent was divided into two halves on the communal lines. In that setting, the drafters of the Indian Constitution, the great visionaries they were, decided to side with jus soli as the basis for the grant of citizenship rather than jus sanguinis. Jus soli provides for citizenship on the basis of the place of birth of an individual i.e. the soil, on which such person is born. Jus sanguinis is a much more elite and a racist conception of citizenship, where the citizenship is determined by an individual’s descent or ethnicity of one or both parents.

Operating under the scar of partition, it was surely very progressive to choose jus soli as the basis of citizenship and include the same in Part II of the Indian Constitution. The Indian Citizenship Act, 1955 was in furtherance of this conception itself. However, the successive Amendments to the Act dragged the basis of citizenship from jus soli to jus sanguinis, with religion acquiring a substantive stake in this shift. In 2004, the Act was amended to provide that even if a person was born on the Indian soil but had even one parent as an illegal migrant at the time of her birth, such person will not qualify for the grant of Indian citizenship. I mention that the Amendment was religiously motivated and targeted a specific community because it was introduced to neutralize the heavy efflux of people from Bangladesh, majority of whom are Muslims and happened to give birth to their children in India. The present Amendment is just another step furthering that very idea.

After the legislation was assented to by the President of India, the final stamping authority required for converting any bill into a legislation after the same has been passed by both the houses of the Indian Parliament, there has been a massive public uproar in the entire country. The entire political opposition has been on the streets rallying against the passage of the Amendment and a slew of petitions have already been filed in the Supreme Court of India (the apex Indian court), challenging the constitutional validity of the legislation. The petitions do, and rightly so, question the Amendment to be arbitrary as the classifications drawn by the Amendment are based on the inherent qualities of a human being, which the Indian Constitution prohibits. 

Under Article 15 of the Constitution, while the same is applicable only to the citizens of India, the presence of certain listed categories mandates that discrimination on the basis of the inherent qualities of a person is prohibited by the Indian Constitution, two of which are religion and place of birth. In that sense, the classifications drawn by the new Amendment itself are based on religion and the country of that person and hence, will fall fowl of the equality code of the Constitution. While it is being extensively argued how the limitation of applicability of Article 15 operates against the Muslim illegal migrants itself, it has to be recognized that Article 14, which is applicable to all persons and not just to citizens, will operate on the same principle which forms the basis of Article 15 as well.

As I conclude this article, the Chief Minister of West Bengal, another Indian state bordering Bangladesh, has given a clarion call to conduct a plebiscite on the Citizenship (Amendment) Act, 2019 under the vigil of the United Nations so as to reach the conclusion whether the people of the country support something like the Amendment Act. While I do not believe how valid is the demand for conducting a plebiscite will be, given that the Indian Constitution contains a well-defined and structured procedure for creation of a legislation, however, the repercussions of categorically exiling a community into invalidity will not be feeble, to begin with.

Erosion of the Right to Freedom in Kashmir: How India Violated Established Principles of Constitutional and International Law

Guest Contributor Bhaskar Kumar is a 3rd year student at National Law School of India University, Bangalore. His areas of interest include criminal justice, human rights, constitutionalism and international law. He writes for a number of platforms including law review blogs and media platforms like The Hindu, Live law JILS-NUJS etc.

In anticipation of unrest after altering the special constitutional status of the state of Jammu and Kashmir, the Indian government detained several political leaders and imposed a broad restriction on freedom of movement and press in August 2019.  

These restrictions were imposed in the aftermath of abolishing article 370 of Indian Constitution. This article was part of the Constitution of India which provided special status to the state of Jammu and Kashmir. By virtue of this article, the people of Jammu and Kashmir used to enjoy some privileges including exclusive property rights. 

The government justified this amendment by considering it a step that ensures the complete integration of the state into the Union of India and to have better control over the territory in order to curb terrorist activities allegedly taking place there.

By imposing section 144 of Criminal Procedure code (1973), the government banned public meetings and shut down the internet and phone services completely which consequently disrupted news and information services. With this step, the government of India has violated the right of freedom guaranteed under article 19 of Indian constitution which protects citizens’ right to freedom of movement, assemble peacefully without arms and press until and unless security of state, sovereignty or interests of the general public is at stake. When such concerns are at stake the government might impose reasonable restrictions over enjoyment of these rights.

In the present case, however, the measures taken by the government of India cannot be said to put reasonable restrictions on the enjoyment of these rights in light of numerous judgments delivered by the apex court. In Indian Express Newspapers v Union of India(1985) 1 SCC 641, the Supreme Court held that freedom of press is crucial to communicate facts and opinions which educate people about political establishments and hence, there cannot be any interference with that freedom in the name of public interest. In the present scenario, due to imposition of restrictions, newspapers are not able to operate or circulate their services. This amounts to an infringement of the right to freedom of expression.

While stressing the importance of the freedom of the press, the Apex court in Dinesh Trivedi v Union of India held that citizens have the right to know about government decisions and actions. But citizens can only know government’s decisions and restrictions when they have access to media sources. In Sakal papers pvt. ltd. v Union of India the Supreme Court observed that the right to freedom of speech entails the right to circulate one’s views to all whom one can reach and care to reach and courts must be vigilant of any kind of restriction over such circulation of views in order to preserve the democratic ethos. 

Due to the imposition of a curfew in Kashmir and the presence of a large number of military personnel, it is impossible for a journalist to cover the news about the prevailing conditions due to imposition of section 144 CrPC. According to its managing editor, the Kashmir Times, a leading newspaper of state, has only been able to publish a minute version of its editions because of restrictions. The imposition of section 144 has made it almost impossible for journalists to carry on their duties.


In Babulal Parate v. State of Maharashtra the apex court ruled that section 144 of CrPC can only be imposed when there is an actual prominent threat endangering public order and tranquility which has not been ensured by government before imposing the curfew. The Internet has also been shut down and the circulation of information has been impossible because of this. The Government of India has ruthlessly interfered with the freedom of press and information. The mandate of article 19 doesn’t give the unbridled power to governments to impose restriction merely on the grounds of speculation and anticipation. The reasonable restrictions on fundamental rights cannot be of such disproportionate nature that they extinguish the right itself. The Indian government has failed to justify the nexus between potential terrorist threats and internet and media shut down for an unreasonably long period of time, as there is no indication of any kind of threat to public tranquility in the  present case.

Looking at the situation from the perspective of international humanitarian law, Article 19 of the International Covenant on Civil and Political Rights (ICCPR) ,which has been signed and ratified by India, requires that the government protect the right to freedom of expression and Information. According to a resolution passed in 2012, the UNHRC affirmed that right to information applied online as well. Article 19(2) of the ICCPR mandates that everyone “shall  have right to freedom of expression and this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print in the form of art or through any other media of his choice”. As per article 19(3) of ICCPR, the right to freedom of expression and information can only be restricted on the conditions that they are done so by law and are necessary for respecting the rights of others and to protect the national security or public order.

In the present case, the aspect of necessity has severely been overlooked. As discussed earlier, there was no substance to show that there was in fact a threat to national security and public order. The respect of modern communication channels–particularly the internet–is very important for a democratic country. As an interactive medium, the Internet opens up new possibilities for communication and is accordingly relevant for the theory of democracy. It ensures participation by forming audiences and opposing audiences and enhances the possibilities for political information, deliberation and participation. No other medium facilitates the communication between state and citizen to the extent that the internet does.  Research on the importance of the internet for civil society groups shows that net-based communication is  key for the organization of transnational protests and solidarity in particular. Even though some studies have pointed out that online content is relatively conventional and little use is being made of the interactive potential inherent to the technology, this form of communication remains. In Ahmed Yildirim v. Turkey the European Court of Human Rights held that the access to media platforms is an indispensable tool for exercising the right to freedom.

The recent steps taken by Indian government in Kashmir constitute serious violations of principles enshrined in the constitution of India and international covenants signed and ratified by India. However, the government has not responded to the questions raised by media and civil society in this regard. Last month a delegation from European Union visited Srinagar, (the capital of Jammu and Kashmir) to have a first-hand understanding of situation. The visit was diplomatically important as the government’s move was criticized internationally by lawmakers. However, the visit was unofficial and there was no intention on the part of delegates to submit the report to European Union.

The Indian government should not have unbridled power to curtail the fundamental rights of its citizens. Constraints imposed on media and the internet must therefore be removed as soon as possible and citizens should continue to enjoy their freedom of speech.

The Ayodhya Ruling and the Rule of Law

Guest Contributors Prannv Dhawan and Parth Maniktalaare are law students at NLSIU Bengaluru and Campus Law Centre, Delhi respectively. Prannv is the founding editor of the Law School Policy Review and Parth is an editor of the online journal, Polemics and Pedantics.

A five-judge bench of the Supreme Court in India has unanimously held that the possession of the most-contested piece of land in Indian political history—the 2.77 acres where the Babri Masjid Mosque once stood—should in fact be exclusively given to the Hindu claimants of the case. At the same time, the Court invoked its special power to do ‘complete justice’ under Article 142 to restitute the damage caused by ‘egregiously illegal’ idol installation (1949) and Masjid demolition (1992). Hence, it ordered the government to allot an alternate plot of 5 acres to the Sunni Muslim Waqf Board at a ‘prominent place’ in Ayodhya for the construction of a new mosque. 

A few words have become an indispensable part of the vocabulary describing this judgment. Politicians and legal commentators alike are calling it a “win-win situation,” BJP spokesperson Nalin Kohli calls it an “inclusive judgment,” and Prime Minister Modi calls it “a golden chapter in the history of the Indian judiciary.” On the other hand, even as the judicial outcome has come to represent a vindication of the ideological Hindutva, many have stated that the Hindu majoritarian context and atmosphere has cast its shadow on the Court’s narrow and technical reasoning to hold that on the balance of probabilities, Hindu parties have a better claim to adverse possession of the site. Be that as it may, across the board there seems to be a concealed satisfaction, as if by upholding the claims of the Hindu-majority, the court has averted a crisis. However, the finer aspects of the rule of law seem to have been compromised or diluted in order to satiate the faith and belief of a community. 

Rule of law requires that people be governed in a manner that is equal, just, and non-arbitrary. Considering the highly religious nature of the property dispute, the court corrected emphasized the importance of equality amongst religions. It cites  SR Bommai v UOI to emphasize that secularism and fraternity are basic features of the Indian Constitution (see paragraphs 82 and 83). The Court goes on to strongly affirm both the constitutional value and significance of the Places of Worship Act, 1991. The Act, legislated in the context of deep communal divisions in the country by a legislature concerned about national integrity, provides for criminal punishment for converting the places of worship of any religious denomination. The court emphasizes the principle of non-retrogression of pre-constitution era disputes to further the legislative intent behind the Act, states: “The law is hence a legislative instrument designed to protect the secular features of the Indian polity, which is one of the basic features of the Constitution. Non-retrogression is a foundational feature of the fundamental constitutional principles of which secularism is a core component. The Places of Worship Act is thus a legislative intervention which preserves non-retrogression as an essential feature of our secular values.” Hence, the Court raises this statute to the pedestal of a constitutional statute whose importance has been highlighted by various secular and progressive activists considering the likelihood of similar communal disputes being raised in other places of worship in Mathura and Varanasi. This is an important signaling from the Court that any derogation from judicious application of the Act would certainly violate the Court’s reasoning.

The court remarks in the Ayodhya Judgment: “[land] title cannot be established on the basis of faith and belief alone (para 788).” And yet, the court proceeds to say “Once the witnesses have been deposed to the basis of the belief and there is nothing to doubt its genuineness, it is not open to the court to question the basis of the belief”; “Whether a belief is justified lies beyond the ken of judicial inquiry (para 555).” Analyzing this language,  Professor of law, Faizan Mustafa notes, “The court while pronouncing the judgment did try its best to strike a balance between law and faith. But clearly faith has the last laugh here.”

While it is undisputed that a significant section of the Hindu population believes Ayodhya to be the birthplace of the Hindu deity Lord Rama, it is unclear whether such belief can be grounds for legal adjudication in what is essentially a title dispute. Furthermore, such deference to religious beliefs also stands in opposition to the Supreme Court’s ruling in the  Indian Young Lawyers Association vs. State of Kerala) case, wherein the court explicitly favoured constitutional morality over any personal/religious beliefs. “In the public law conversations between religion and morality, it is the overarching sense of constitutional morality which has to prevail.” (para 189). It remains to be seen what the Ayodhya ruling’s jurisprudence bears for the review petition in the Sabarimala case, in which an order is expected next week.  

Another instance of the court deferring in favour of the beliefs of Hindu devotees in the judgment is where it disregards the longstanding bifurcation of the disputed site between an inner and outer courtyard. The ruling states, “Despite the setting up of the grill-brick wall in 1857, the Hindus never accepted the division of the inner and the outer courtyard. For the Hindus, the entire complex as a whole was of religious significance. A demarcation by the British for the purposes of maintaining law and order did not obliterate their belief in the relevance of the “Garbh-Grih” being the birth-place of Lord Ram (para 773).” 

The court uses this logic to treat the entire disputed land as one unified territory—which it then proceeds to grant to the Hindu claimants. Again, this is a problematic deference to the belief of one community in disregard of the factual matrix (wherein Hindu devotees had initially only staked claims to the Ram chabutra, located in the outer courtyard). The suit that Mahant Raghubar Das had filed on January 19, 1885, sought permission to build a temple on the chabutra. The District Judge, in his judgment dated March 26, 1886, said: “This chabutra is said to indicate the birthplace of Ramchander.”

The consequences that follow from the court ignoring such distinction between inner and outer courtyards (and treating them as a composite whole) are of paramount importance. The court made two important conclusions that underpin its final orders: 

 

  1. “The Hindus have been in exclusive and unimpeded possession of the outer courtyard where they have continued worship.”

 

  1. “The inner courtyard has been a contested site with conflicting claims of the Hindus and Muslims.” (para 788, clause XVIII)

 

Therefore, as opposed to granting the Hindu representatives possession to the outer-courtyard, and then proceeding with a balancing act with respect to the possessory title for the inner courtyard, the court eventually concluded that “on a balance of probabilities, the evidence in respect of the possessory claim of the Hindus to the composite whole of the disputed property stands on a better footing than the evidence adduced by the Muslims… (para 800).” Hence, the court ordered that the “possession of the inner and outer courtyards shall be handed over to the Board of Trustees of the Trust or to the body so constituted.” The trustees, including the parties representing Lord Rama, shall have the powers for the construction of a temple and all necessary incidental and supplemental matters. 

It is also important to note that in reaching the conclusion that Muslims were not in exclusive possession of the inner courtyard, the court heavily relies on evidence of attempts by Hindus to disrupt the possession of the Muslims: “Even after the construction of the dividing wall by the British, the Hindus continued to assert their right to pray below the central dome. This emerges from the evidentiary record indicating acts of individuals in trying to set up idols and perform puja both within and outside the precincts of the inner courtyard (para 788, clause VII).”

In his essay ‘A Historical Overview’ published in the book ‘Anatomy of a Confrontation’ (1992), K.N. Panikkar records one such assertion by Hindus, “On 30th November 1858, Maulvi Muhammad Asghar, khatib and muezzin of the Babri Masjid, submitted a petition to the magistrate complaining that the Bairagis had built a chabutra close to the mosque and that they had written ‘Rama, Rama’ on the walls of the mosque.”

In a far more problematic way, the court uses the illegal acts of violence on part of Hindus to justify its conclusions about Muslims lacking exclusive possession: “The riots of 1934 and the events which led up to 22/23 December 1949 indicate that possession over the inner courtyard was a matter of serious contestation often leading to violence by both parties and the Muslims did not have exclusive possession over the inner courtyard (para 781).” 

It seems manifestly unfair for the court to allow the Hindu claimants to benefit from brazenly unruly acts which sought to interfere with the possession of the Muslims. In retrospect, Muslims amicably respecting the rights of Hindus to worship in Ram chabutra and Sita ki rasoi has in fact turned out to be counterproductive. Perhaps had they too sought to violently disrupt the religious proceedings of Hindus, the court would’ve applied the same “conflicting claims” yardstick to the outer courtyard too—and found against the exclusive possession of the Hindus. 

Nevertheless, it is important to not lose sight of a greater crisis that has been averted in Indian jurisprudence. In a context where large scale mass-mobilization for temple construction was threatened and it was declared that Ram Mandir was an issue of faith and the Supreme Court must not delay its adjudication, the Court has successfully engendered unanimous support for legal process. The court takes due notice of the unruly demolition of the Babri Masjid. “The damage to the mosque in 1934, its desecration in 1949 leading to the ouster of the Muslims and the eventual destruction on 6 December 1992 constituted a serious violation of the rule of law (para 788, clause XVIII).”  And yet the court refrains from restituting the Muslim community by restoring the mosque. The judgment seeks to establish a judicial precedent wherein minorities are simply compensated for violations of rule of law, as opposed to restituting them to their original positions with due respect for their rights and dignity. It is also worrisome because the same perpetrators continue to enjoy to impunity and gave self-congratulatory statements on the verdict.  AG Noorani’s critique of the Allahabad High Court’s judgement is equally applicable to that of the Supreme Court: “The Allahabad High Court had, in effect, sanctified the criminal conversion of the historic Babri Masjid, built in 1528, into a Hindu temple in 1949.”

The political ramifications of this judgment will not be immediately discernible. As far back as 2001, historian Mukul Kesavan had written in his book Secular Common Sense, “The construction of the Ram Mandir where the Sangh Parivar wants it built won’t lead to apocalypse. The world will look the same the morning after, but the common sense of the Republic will have shifted. It will begin to seem reasonable to us and our children that those counted in the majority have a right to have their sensibilities respected, to have their beliefs deferred to by others. Invisibly we shall have become some other country.”

The Supreme Court has averted an immediate crisis, insofar as there has been no outbreak of violence, nor any reports of bloodshed in the aftermath of the verdict. But perhaps the greater crisis that the court has involuntarily invited is that of minorities losing their faith in the institution of the judiciary. In an environment where the legislature and executive are turning unashamedly majoritarian, vulnerable minorities have nowhere to go than repose their faith in the courts. Even as the parties representing the Muslims have decided to file a review of this judgement to contest its conceptual flaws and inconsistencies, one can only hope the judiciary would give them a fair hearing and foster institutional faith in the efficacy of justice delivery. Moreover, as argued elsewhere the court should seriously consider passing directions to ensure an expeditious day to day trial in the languishing Babri Masjid demolition cases. This could be a concrete first step in the long way for the legal system to bridge the scales of justice.

The Kashmir Issue: How “Miller (2)” Must Inspire the Indian Supreme Court

By guest contributors Anmol Jain and Prannv Dhawan. Jain is  a penultimate-year law student at National Law University, Jodhpur, India. He takes an active interest in the study of constitutional law and judicial approaches to human rights. Dhawan is a third-year law student at National Law School of India University, Bangalore, India. He is interested in policy and legal research in the domains of public law, human rights and climate justice. 

India’s constitutional democracy is backsliding. Speaking at a rally during the ‘National Register of Citizens (NRC) Seminar’ recently, the Home Minister advocated for the re-introduction of the much contentious Citizenship Amendment Bill, which unconstitutionally aims to provide easier citizenship requirements for non-Muslim refugees. Noted scholars have argued that previously, the National Register of Citizens exercised in Assam and now, the dilution of Article 370 of the Constitution that provides special status to the state of Jammu and Kashmir, are arguably unconstitutional attempts to further the political vendetta of the ruling party which has the capability to downgrade the credentials of Indian federal and democratic ideals. Amid global critique of the functioning of the executive branch in India, the latest coming from the Bar Council and Bar Human Rights Committee of England and Wales, United Nations and the United States Senate Committee on Foreign Relations, the attitude of the Supreme Court towards the Executive excesses has also come under the radar (see here, here, here and here). We attempt to analyse it hereunder by specifically focusing on the Jammu and Kashmir issue pertaining to dilution of Article 370.  

To briefly comment on this provision, Article 370 prescribed a special status to the state of Jammu and Kashmir by limiting direct application of the Indian Constitution to the State. Provisions of the Indian Constitution could be applied only through Presidential Orders issued upon the concurrence of the State Government. It further provided that the President may cease or modify the operation of Article 370 after taking recommendations from the Constituent Assembly of the State. On August 5, 2019 a Presidential Order was passed which inserted an additional clause in Article 367, a provision that guides the interpretation of the Constitution, to indirectly amend Article 370. It stated that the expression ‘Constituent Assembly of the State’ used in Article 370, must be read as ‘Legislative Assembly of the State’. Given the fact that the state was functioning under President’s rule through the Centre-appointed Governor at the relevant time, indicating the absence of a legislative body, it became a butterwalk for the Central Government then to modify Article 370 to such an extent that it virtually dilutes it. 

Many petitions have been filed in the Supreme Court challenging this dilution. This issue involves the determination of limits on the Executive functions in India, which is presently functioning in an ultra-strong manner with a combined strength of the whip. It involves the question of constitutional federalism and the survival of India’s democracy as envisaged by our founding fathers. Understandably, nothing could be more important in the existing backlog of the Supreme Court than securing the identity of our Constitution, which promises to India citizens and the state governments a Government limited by the Rule of Law and ideals of federalism, respectively. However, while hearing the matter on September 30th, the Supreme Court hearing was delayed, with representatives noting: ‘We do not have time to hear so many matters. We have a Constitution bench case (Ayodhya dispute) to hear.’ 

The issue of backlog in the Supreme Court of India isn’t new – it has been continuing for many years (for a more detailed discussion, see here). Given that the Court today is suffering from a high backlog of cases, an agenda of judicial reforms, as Justice Chandrachud recently articulated, must include the proposal to reduce the high number of appeals of civil or criminal suits and to streamline special leave jurisdiction. Another option for reducing the caseload burden could also be, as is continuously being emphasized by the Vice President, the establishment of multiple benches of the Supreme Court in different regions in India. However, despite the way in which this manifests, under no circumstances can the Supreme Court continue to be excused from efficaciously fulfilling its constitutional responsibility to hear all cases that come before it.

When the Kashmir petitions were placed before a Constitution bench on October 1, the Court again failed to adequately fulfil its role as the protector of liberty by further delaying the hearing. In addition to this, if the bizarre habeas corpus orders, as critically analyzed elsewhere, in September is anything to go by, the Supreme Court has uncritically accepted the Government’s disproportionate claims about national security that seem to have taken precedence over the ideals of civil liberties. The idea of a nation represented by a focus point – dilution of Article 370 to achieve greater unity, as claimed by the Central Government – has overpowered the individual dignity and identity of its constituents, which marks a move from a democratic government set-up towards right-wing populism. Such judicial evasion in the guise of national security in these crucial cases of rights abuses has been criticized by constitutional commentators by juxtaposing it with the United Kingdom Supreme Court’s swift adjudication in R (on the application of Miller) v. The Prime Minister [“Miller (2)”], a case involving breach of constitutional procedures and principles in the prorogation of the Parliament.

The Indian Supreme Court’s core constitutional role is to protect the fundamental rights of  citizens. The efficacious hearing and adjudication of the petitions against civil rights restrictions, house arrests, and communications blackouts as well as the constitutionality of the Parliament’s legislation are critical in the current times of constitutional backsliding. Rights’ adjudication ought to be placed on  a higher pedestal than smaller, less crucial issues such as a recent case the Court chose to hear: the determination of legal title in a religiously charged land dispute matter. This is especially relevant at a stage in the Indian constitutional process where safeguarding the rights to dignity and life has been understood to be at the pinnacle of public duties. As has been enunciated in multiple golden triangle cases, these rights are interpreted broadly and for the betterment of Indian citizens. Further, just recently, the Kerala High Court held that even the access to internet is a fundamental right to be protected. 

Although the Supreme Court’s wide jurisdiction and liberal interpretation of its powers creates significant  institutional constraints, this cannot be an alibi for not fulfilling the fundamental constitutional role of the court. If the Court is indeed the most powerful apex judicial body in the world, then it must tirelessly commit itself to secure the civil-political-socio-economic rights in a timely fashion. While the stellar institutional contributions of the Supreme Court to the cause of human rights and citizen’s entitlements cannot be denied, we contend that it is this very expansion of its constitutional role (perhaps self-assumed), that obligates the Court to seriously and appropriately adjudicate on constitutional challenges and petitions that seek its rescue to restore fundamental rights. It is important to acknowledge that delay in justice delivery is an absolute denial of those exact rights. The court’s present cavalier approach to collective punishment of millions of citizens without judicious and comprehensive ascertainment of existence of reasonable grounds based on the doctrine of proportionality is unfortunate and needs to be critiqued, rather than defended. Otherwise, it shall surely create an ironical situation where the ‘most powerful court’ is continuously failing to fulfil its constitutional duties, perhaps under executive influence. 

Earlier this year, the UK Supreme Court upheld the ideals of parliamentary deliberation and accountability of the executive to the Parliament by declaring Boris Johnson’s 5-week prorogation of parliament null. This is similar to the current Indian situation. It would not be wrong to argue that diluting Article 370 at a time when the State of Jammu and Kashmir is functioning under the President’s rule and substituting the views of the Governor with the views of the State Assembly is equally ‘unlawful and thus null and of no effect.’ Any further delay in action by the Supreme Court comes with a high possibility of material alteration in the functioning of Jammu and Kashmir under the amended scheme of the Constitution, the reversal of which, if the Court decides so, might bear heavy costs.  

Demonstration of the Court’s independent strength is not only lacking in the realm of highly staked political matters, but it also extends to judicial appointments as well, as witnessed in the recent controversies involving Justice Akil Kureshi and Justice Tahilramani. Commenting on the manner in which the Supreme Court has handled the petitions arising out of the recent controversy involving Article 370 of the Constitution, the state of Jammu and Kashmir and its special status, constitutional commentator Gautam Bhatia has argued that an emergency-era weak judiciary has reappeared, though in a different form this time, which has failed the fundamental principles of Indian constitutional democracy. 

In a recent judgment in Supreme Court Advocates-on-Record Association v. Union of India (2015), the Supreme Court highlighted the virtues of judicial independence and held that it is a part of the basic structure of the Indian Constitution,  again highlighted at another time soon after. Concerns regarding isolating the judicial body from the other organs of the Government have been institutionally studied by the International Commission of Jurists and under multiple international documents. However, the Supreme Court of India seems to have taken a blind eye towards itself even while it advocates internationally for  recognized jurisprudence of courts elsewhere.  

In the times when the Executive’s imposition of an information blackout and civil rights restrictions in Kashmir have continued for over 60 days and  blatantly unconstitutional legislations like the Citizenship (Amendment) Bill are sought to be passed,  the judiciary must rise to the desired standards and stand as an independent protector of the Constitution. We believe that the wide jurisdiction and the high number of cases that the Court handles weakens it. It is not impossible to achieve more balance; it has been done in the past. Justice H.R. Khanna, for example, is a judge who stood undaunted and ruled against executive excesses to uphold constitutional promise in their cases. The time has come that the present Court proves it is indeed the Constitution’s sentinel on the qui vive.

A Year After Jamal Khashoggi’s Assassination, The War On Truth Continues

By: Kyoko Thompson, staff writer at RightsViews

“A commission is coming from Saudi Arabia tomorrow; they have something to do in the Consulate. They will have something to do on my floor in the office.” – October 1 2018, 21:48

At 1:15 PM on Tuesday, October 2, 2018, Washington Post contributor and longtime journalist Jamal Khashoggi entered the Saudi consulate in Istanbul, Turkey, and was never seen again. His death was not the first of its kind. According to the United Nations, more than one thousand journalists have been murdered since 2006. Yet it drew international attention from governments and individuals alike, many of whom demanded justice. The events that followed challenged the limits of international law and U.S. foreign policy. One year later, an investigation yields more questions than answers, such as: What does justice for Khashoggi look like? Is his death a manifestation of a deeper, more insidious trend? And: What is the future of free speech in an era where authoritarianism and misinformation are not an outlier, but the norm?

 

“He has arrived.” – October 2, 2018; 13:13

 

In November 2018, Turkey shared audio of Jamal Khashoggi’s October 2nd visit to the Saudi consulate with Britain, France, Germany, Saudi Arabia, and the United States. In it, Saudi officials can be heard discussing Khashoggi’s imminent arrival and assassination. The recordings, obtained from inside the consulate itself, provide gruesome confirmation of what was already strongly suspected by journalists and politicians alike: Jamal Khashoggi was lured to the consulate under the false pretense of obtaining documents required for his marriage to then-fiancee Hatice Cengiz, and brutally executed, dismembered, and disposed of by Saudi authorities. 

Much of the narrative available to the public today is the result of the efforts of the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Dr. Agnes Callamard—who, with the assistance of the recordings, consulate security footage, and Turkish authorities, was able to piece together the events immediately leading up to, and following, Khashoggi’s death. An expert in human rights, Dr. Callamard possesses extensive experience in the field, having previously worked with Amnesty International, Humanitarian Accountability Partnership (HAP), and ARTICLE 19. In December 2018, she began a six-month investigation that culminated in the release of her report on the inquiry into the unlawful death of Jamal Khashoggi at the 41st session of the Human Rights Council in June of this year. Her findings, which criticize the international response to Khashoggi’s murder—including the response of Saudi and U.S. officials—shed a harsh light on the consequences of free speech, and the limitations of international law. Her official opinion? This was a state-sanctioned killing. 

While Saudi authorities have continued to insist that Khashoggi’s death was a domestic matter, “I completely disagree with this analysis,” said Dr. Callamard at an event at Columbia Law School last month. On the contrary, she says, Khashoggi was murdered by fifteen Saudi officials—named in her report—“fourteen of whom in my opinion have worked together before.” And, while she did not assign individual liability, she did strongly assert that Khashoggi’s death “constituted an extrajudicial killing for which the State of the Kingdom of Saudi Arabia is responsible.” Moreover, the killing—and Saudi Arabia’s procedural and official response to it—violated multiple international laws, including the Vienna Convention on Consular Relations. According to Dr. Callamard, the impact is clear: this was a crime “of such a nature, in my view, that it qualified as an international crime, and therefore that it could lead to universal jurisdiction.” 

 

“How could this happen in an embassy?” – Jamal Khashoggi, October 2, 2018; 13:22

 

Khashoggi, who left Saudi Arabia in self-imposed exile in September of 2017, was a well known Saudi dissident and critic of Crown Prince Mohammad bin Salman. He claimed that the government had banned him from using Twitter and pressured his publishers to fire him; and in fact his column in Al-Hayat, a popular Arabic daily, was canceled earlier that year. Determined not to be censored, Khashoggi moved to the United States so that he might continue to write for the Washington Post. In an opinion piece shortly after, he wrote “I have made a different choice now. I have left my home, my family and my job, and I am raising my voice. To do otherwise would betray those who languish in prison. I can speak when so many cannot. I want you to know that Saudi Arabia has not always been as it is now. We Saudis deserve better.” 

Human Rights Watch has confirmed that Saudi Arabia has a history of stifling free expression. In 2015 alone, more than six writers and advocates were arrested and punished for peacefully expressing their opinions. According to Human Rights Watch, “One was sentenced to death and the others to lengthy prison terms. At least four were also banned from traveling abroad for five to 10 years.” Usually, the sort of opinions that cause pushback from the Saudi government are those that characterize it, or its leadership, unfavorably. Khashoggi, however, believed he was being silenced because of remarks he made at an event in November of 2016. At the event—a panel discussion at the Washington Institute for the Near East—Khashoggi warned that Saudi Arabia should be wary of a Trump presidency because his stances on the Middle East were contradictory, which wasn’t likely to change. Ironically, Trump has actually remained steadfastly supportive of Saudi Arabia since taking office—so supportive, in fact, that he turned a blind eye to Khashoggi’s murder.

Trump and Prince bin Salman in 2017

Nearly two months after Kashoggi’s disappearance and after weeks of seeming to avoid commenting on the incident, President Donald Trump finally announced that he was “standing with Saudi Arabia.” In many ways, this is not surprising; according to the Council on Foreign Relations, Saudi Arabia is a “critical strategic partner in the region,” and the countries’ cooperation in mutual business and security interests survived even 9/11.  In his statement, issued in November 2018, Trump cited mainly economic reasons—not the least of which was oil—for his continued support of a state that even the CIA concluded ordered the extrajudicial killing and dismemberment of a U.S. resident and Washington Post journalist. “After my heavily negotiated trip to Saudi Arabia last year, the Kingdom agreed to spend and invest $450 billion in the United States. This is a record amount of money. It will create hundreds of thousands of jobs, tremendous economic development, and much additional wealth for the United States.”

If Donald Trump was to radically diverge from the course set by previous administrations and stand against Saudi Arabia, one imagines that it would not be spurred by the untimely death of a journalist. He has, after all, shown little respect for journalists and their trade. Notorious for denouncing publications that describe him unfavorably, Trump has referenced “fake news” in his Tweets no less than 578 times since winning the 2016 presidential election—that’s once every two days. Perhaps even more appallingly, on October 24th, 2019, Trump canceled subscriptions to two publications that will henceforth no longer be delivered to the White House. White House Press Secretary Stephanie Grisham defended the decision, saying that “hundreds of thousands of taxpayer dollars will be saved” as the administration moves to force other federal agencies to cancel their subscriptions, as well. The publications that were banned? The New York Times and the Washington Post—two publications that frequently criticize Trump and his administration (the infamous September 2018 op-ed in The New York Times is a rather memorable example). 

Is it a coincidence that the very publication Jamal Khashoggi, a Saudi journalist whose government made numerous attempts to silence before murdering him in cold blood, contributed to is one which Trump himself has slandered and suppressed? Maybe. It is certainly eerie, though, that months before Khashoggi’s death, in February of 2017, the newspaper—which has not had an official slogan since its founding in 1877—changed its headline to “Democracy Dies in Darkness.” Washington Post associate editor Bob Woodward said it wasn’t so much a response to Trump as it was about “the dangers of secrecy in government, which is what I worry about most.” In fact, Woodward credits federal judge Damon J. Keith for the slogan. Keith wrote “Democracies die behind closed doors” in his 2002 ruling on Detroit Free Press v. Ashcroft, which centered around closing immigration cases off from the press and public if they were of special interest to national security. He continued, “The First Amendment, through a free press, protects the people’s right to know that their government acts fairly, lawfully, and accurately…When government begins closing doors, it selectively controls information rightfully belonging to the people. Selective information is misinformation.” 

Judge Damon Keith passed away earlier this year, but his contributions to the law, civil rights, and free expression endure; and so do his parallels to today’s events. Because, you see, Judge Keith was famously sued personally by President Richard Nixon over his 1971 ruling against warrantless wiretaps—the sort of warrantless wiretaps used in the Watergate break-in a year later. Nixon, the president who used executive privilege to defy subpoenas, concealed information from Congress, and fired those that opposed him. The president whose close advisors were indicted for obstruction of justice. The president who was certain to be impeached in the House after a single, revelatory phone call. 

Free expression is a human right. It is protected in international human rights instruments such as the Universal Declaration of Human Rights,  the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, among a plethora of others. Its significance is explicitly described and protected in documents such as the Office of the High Commissioner for Human Rights General Comment No. 10, 11, and 34; not to mention the U.S. Constitution. So important is free expression, says the American Civil Liberties Union (ACLU), that without it, no liberty is secure; without it, “other fundamental rights, like the right to vote, would wither and die.”

There is no denying it: the United States is at war with information. Perhaps it always was. From Russia’s campaign to influence the 2016 presidential election to Mark Zuckerberg’s and Rupert Murdoch’s meetings with Trump officials, information is actively hidden, obscured, and weaponized by those in power at great risk to our Republic. And on the front lines of this battle are the warriors of free expression; that human right upon which so many others precariously stand. Warriors like Jamal Khashoggi—activists, advocates, and journalists. Courageous individuals who face the darkest of dark, where democracies go to die, and dare to turn on a light.

“The stout man with the gray goatee and the gentle demeanor dared to disagree with his country’s government. He told the world the truth about its brutality toward those who would speak out. And he was murdered for it.” 

– Karl Vick, Time Magazine, 2018 “The Guardians and the War on Truth”

Classrooms and Curricula: the Role of the Right to Education in the Prevention of Mass Atrocities

By: Nay Alhelou, RightsViews Co-editor

In her first talk in an academic setting in the USA while serving in her current capacity, the UN Special Rapporteur on the Right to Education, Dr. Kombou Boly Barry, highlighted how education could help prevent mass atrocities. On October 15, she addressed students, teachers, and fellows at Columbia University and discussed the report she presented three days later to the United Nations.

Dr. Boly Barry was appointed by the UN Human Rights Council in 2016 to examine the right to education as an independent expert. She is mandated to conduct country visits, respond to allegations of violations of the right to education and promoting dialogue with governments, civil society and other actors.

According to the Special Rapporteur, schools can either be the space where intolerance is harnessed or where tolerance is promoted. In favor of the former, she remarked: “In a world where everybody is afraid of everybody else… education should be used as a tool to help us push for the values of humanity.”

Cultural diversity and acceptance are some such human values that Dr. Boly Barry argues should be promoted in schools. She noted that, according to her research and field work,  in many colleges and schools around the world, teachers and students are being silenced and sent to prison – or even killed – for speaking up. Rather than being censored, Boly Barry believes that members of the education community should be given the chance to express themselves instead.

This is particularly relevant given that the role of education is a preventative one. The Special Rapporteur highlighted the need to help kids learn the core values of non-discrimination, equality and inclusivity before they become adults. When these values become part of children’s personalities, mass atrocities and gross human rights violations will occur less frequently. In addition, children should learn about genocides and mass atrocities that happened in the past, especially when these events have affected their cultures.

In response to a student who explained how Serbia continues to deny the existence of a mass atrocity in the country, Dr. Boly Barry said that “if you deny the history of a people, you are building the roots of war, violations and violence.”

Further, Dr. Boly Barry emphasized the role of open schools – schools where educational materials can be accessed by anyone – which allow parents to know what their children are learning in the classroom. She explained that if “students are blinded in their classrooms, they do not know what is happening in society.” Schools should follow curricula that not only promote the values of diversity and acceptance but that also bring theory and practice together, which also involves educating them on past histories of their nation and the world, as well as current events and debates.

In the discussion, it was also pointed out that schools established by the United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) already have a human rights curriculum. UNRWA students learn about human rights, healthy communication skills and peaceful conflict-resolution as well as tolerance. However, these students live in a reality that stands in contradiction to some of these ideals: for example, students in the West Bank and Gaza regularly face adversity and conflict and those living in refugee camps in Lebanon tend to suffer from dire socioeconomic conditions. Given these contradictions between an ideal world where human rights are fully enjoyed and a tough reality where some rights are abused, Dr. Boly Barry stressed that it is very important to contextualize what children are learning in school. Teachers can help their students make sense of what they are learning by using culturally-specific examples and discussing issues that affect their lives.

“If we forget the values of humanity in the process of education, we lose everything,” she said.

Dr. Boly Barry was a former Minister of Education in Burkina Faso and holds a PhD in Economic History. Her expertise in education, however, does not only stem from her professional and academic experiences but also from her personal experience as a woman coming from a nomadic background. Noting that only 2% of nomadic girls attend schools, the Special Rapporteur said that hers is an exceptional case but she hoped that through her mandate she can help people claim and enjoy their right to education.

As enshrined in Article 13 of the International Covenant on Economic, Social and Cultural Rights, the right to education not only contributes to the development of human personality, but it also enables people to effectively participate in society. As students and academics enjoying their right to education at a top university, we have a duty to critically engage in this learning environment and use our skills to make for better, culturally-richer and more tolerant societies.

This talk was co-sponsored by Columbia University’s Teachers College International and Comparative Education Program, the University’s Institute for the Study of Human Rights, Columbia Law School’s Human Rights Institute, and the Peace Education Network (PEN) of Teachers College.

A Living Text? Dr. Hugo Slim on War, Humanity, and the Geneva Conventions under the ICRC’s Mandate

By Rowena Kosher, Co-Editor of RightsViews

The International Committee of the Red Cross’ (ICRC) reverence for its mandate to the Geneva Conventions was obvious as Columbia students welcomed Hugo Slim, ICRC’s Head of Policy and Humanitarian Diplomacy Division, to speak on “War and Humanity: Challenges and Trends in the 70th Year of the Geneva Conventions” on November 6.

Photo by Michelle Chouinard

From its founding in 1863 in Geneva, the ICRC has been committed to the provision of international humanitarian aid, embedding itself as one of the core players in international humanitarian law (IHL) as it developed over time to regulate jus in bello, or the “conduct of war.” It was the ICRC that convinced states in 1864 to adopt the very first Geneva Convention, creating a universal obligation of care for all wounded soldiers. From that moment on, it was also the ICRC that ultimately headlined what the IHL community now holds as some of its most fundamental texts: the four Geneva Conventions of 1949 and their two 1977 protocols. These texts are the ICRC’s mandate, and as an organization, it holds them near and dear. 

Dr. Hugo Slim, with a copy of the Geneva Conventions. Photo by Rowena Kosher

Dr. Slim, a renowned figure in the humanitarian world, began his presentation by holding up a book: a dog-eared, well-worn, coffee-stained text containing the language of the Geneva Conventions. This book, he began, started in 1949 with only 60 states having ratified it. Now, in 2019, 197 states have acceded to the Geneva Conventions, and many parts of it have become so intuitive that states understand them as pieces of customary, binding law. “[This book] is a moral, legal, and political achievement,” he articulated, “and a real high point of humanitarian multilateralism.” 

And yet, although the Conventions are both an achievement and existing law, they are no less relevant today than they were during the World Wars. Slim described that these are texts that focus on violence and our response to violence—a reality that “continues to mark the human species in the present day.” Indeed, both the Conventions and the international environment face a changed world: one with more states parties, with more technology, with new mechanisms of warfare. All of this, he claimed, is vital to the ICRC fulfilling and furthering international humanitarian ethics. 

To accomplish this task, Slim believes in beginning with a return to the text, asking “what does humanity look like in the Geneva Conventions?” If the ICRC is mandated to protect humans in wartime, who does it serve, to what ends, and in what philosophical conception? 

On the most basic level, Slim said, the Geneva Conventions conceive of four groups of “protected persons:” the wounded and sick, the wounded at sea, prisoners of war, and civilians. These are the explicitly articulated classes of the legal text. Yet, the Conventions go beyond this to articulate protection of certain human relationships and human objects; relations or things that the texts deem “necessary to be fully human.” The relationships that the Conventions protect include family and the idea of “being with others in this world and not just being alone.” Objects essential to human survival, such as food, water, medicine, and business, also get recognition. On a cultural level, Slim argued that the Conventions protect objects essential to human meaning, from religious objects and sites to cultural property, such as libraries and historic art. To go even further, he noted that the environment enjoys protections of its own in the Conventions, receiving a legal personality by virtue of the fact that in order to be human, one needs the environment. 

Humanity, then, in the Geneva Conventions, is holistic. Slim said “To be alive is a matter of biology, but to live a life of dignity, one that is truly human, requires relationships and means of survival.” The Conventions move beyond the physical life into the communal life, beyond the human into the earth. He claimed that humanity becomes physical, emotional, and spiritual as the Conventions likewise function as a combination of law, military manual, social work guidance, and administrative guidance. Under their five action distinctions (precaution, distinction between soldier/civilian/object, proportionality, impartial relief, and human treatment), the Geneva Conventions enact their vision of humanity within the context of armed conflict. 

Slim’s main priority as the policy director of ICRC requires that he operationalize the Conventions’ vision of humanity in the present day, addressing the trends and challenges that have cropped up in our changing world. In this lecture, he listed several major strategic shifts worldwide that he sees as most pressing for the ICRC and the Geneva Conventions, as they attempt to accomplish their goals for humanitarian aid. 

Political Change

Photo by Michelle Chouinard

A total of 133 new states have acceded to the Conventions since 1949. The vast majority of these new parties are formerly colonized nations taking their rightful places on the world stage. This has challenged the “older” approach to global policy in which negotiations were a discussion among “like-minded states.” Now, Slim said, we live in a multipolar political environment. As such, the ICRC must answer with “multipolar diplomacy,” focusing on extending its network with a “multipolar footprint” and “network of multipolar relationships.” 

 

A Radical Conservative Wave

In recent years, a radical conservative wave has swept through many parts of the world, from the US to the UK to India. Slim recognized that it can be tempting to dismiss conservative nations, however,  the ICRC must find new ways of relating with conservative nations when it comes to international aid. In order to fulfil its mandate, the ICRC hopes to practice “humanitarian diplomacy” so as to find areas of ethical overlap between the principles of the Geneva Conventions and traditional conservative values. We need to “find a genuine humanitarian contract,” he argued. 

Changing Warfare

The security situation in 2019 is marked by several differences compared to 1949. To start, Slim explained, militaries as of the past few years have developed so-called “near peer conflict worries,” concerned about growing threats from fellow Great Power “peers” developing into another Great Power conflict. Such a conflict would change the field of humanitarian aid immensely. 

In addition, the ICRC has observed increased salience of coalition warfare, resulting in a complicated mix of states and armed groups as partners in armed conflicts. This has repercussions for the Geneva Conventions. Not all partners may be party to the treaty, leading to inconsistent adherence to IHL amongst coalitions themselves. The ICRC is currently working on an initiative to ensure IHL respect by all partners to a collation, Slim said, although it is not yet clear that it will succeed.

Lastly, the ICRC is paying close attention to the implications of the rise in urban warfare, which brings along with it particular worries about technology and the use of explosive weapons in densely populated areas. There are unique concerns to think about when a method of war may involve the ability to sabotage entire electrical grids or stop entire cities. In order to protect civilians, the ICRC has an initiative asking states to agree to a policy of non-use of explosive weapons in highly populated areas unless under real military necessity. 

Weapons old and new

The ICRC has had strong stances on the use of highly destructive weapons of war since its founding. Of the “old” weapons the ICRC has always, since 1945, advocated for the abolition of nuclear weapons. “There is no way to use a nuclear weapon which is in compliance with this book,” he noted, holding up his copy of the conventions. Just because they have been around for a while, we cannot let nuclear weapons slip into history, he added. The ICRC will maintain its anti-nuclear position.

New weapons, however, also need to be addressed. The ICRC is particularly concerned about digitalization, autonomy, artificial intelligence, and deep learning technologies, which have put weapons systems on “the cusp of a major revolution,” according to Slim. Great powers are in a technological arms race, and the unfortunate paradox of this is that no one wants to begin anti-proliferation negotiation until they have already become the proverbial “winner”; thus the present day finds us in an utter freeze of negotiations. For the ICRC, Slim described a present focus on ethical arguments, attempting to articulate what the proper use of these weapons would be. Slim sees the policy of maintaining human control as key to addressing future high tech weapons. 

Protracted Conflict and Fragility

Many conflicts today have been going on for decades, not to mention the continued effects felt from post colonization, he said. Short- and long-term work is important in protracted conflict. He believes the ICRC should stay aware of the nexus between humanitarian development and peace, along with the fact that this requires dedication to a multi-year investment so as to have “sustainable humanitarian impact.” 

Climate and Conflict

Slim noted that the ICRC sees a growing trend in the number of people who are dealing with simultaneously conflict and climate shocks. “What does it mean to live with both these profound risks at one time? What does this mean for ICRC’s actions?” he asked, and then noted the ICRC’s intent to green itself as an institution. 

People’s participation and a shift in humanitarian agency

Photo by Rowena Kosher.

Humanitarian aid has a history of a colonial mindset on the part of aid-givers to aid-receivers. Recognizing the ICRC’s complicity in this history, Slim articulated the need to change the grammar of aid. Rather than the patriarchal, patronizing “subject-verb-object” form of WE help YOU, humanitarian grammar must become more prepositional: “YOU are surviving, YOU are the subject of your lives, YOU are amazingly surviving with help from us.” This new approach, beyond grammar, is intersectional in intent, with the goal of giving more power to people in organizing and discussing what is best for them, rather than imposing assumed needs. 

In addition to participation from those receiving aid from ICRC, Slim noted that donors increasingly want a say in how their funds are distributed by the organization. Trust, which will be the main focus at the ICRC’s upcoming December conference in Geneva, takes on two forms: operational trust and accountability. The ICRC must find a balance between compliance systems and a principle of trust with its donors, remembering that at the heart of this relationship is risk-sharing. “If you want to be in the game of helping people,” Slim said, “you will have to risk something.” 

What does it matter that these trends be examined? How do the Geneva Conventions translate to today’s day and age? These are crucial questions that interrogate the philosophical, practical, and human implications of war. Despite the forward progression of time, war and violence remain as high as ever, though somewhat changed in modality and nature. Humanitarian aid remains necessary. The Geneva Conventions are certainly well-worn, but they are also a living document, requiring the constant re-investigation and re-interpretation by states, parties to conflict, and aid providers like the ICRC.

Period: End of Sentence Critical Panel: The Inconvenient, Bloody Truth Behind the Oscar-Winning Documentary

By: Laura Charney, RightsViews staff writer

On September 26, the Menstruation and Gender Justice Working Group hosted a film screening and critical panel on the Oscar-winning documentary short Period: End of Sentence. Moderated by Inga Winkler, lecturer at the Institute for the Study of Human Rights at Columbia University and Director of the working group, the panel included Shobita Parthasarathy, Professor of Public Policy and Women’s Studies at the University of Michigan, Lauren Houghton, Assistant Professor of Epidemiology at the Mailman School of Public Health at Columbia University, and Emily Hoppes, a consultant at Huru International.

Period: End of Sentence follows a group of Indian women in the rural Hapur district, 60 kilometers outside of Delhi, as they transition from a life of shame surrounding their periods toward establishing a self-sufficient microeconomy based on menstrual pad manufacturing. During the process, the documentary claims that girls and boys are educated, stigmas are shattered, and a new gender-equitable horizon ascends.

Period: End of Sentence is narrated as a story of empowerment and resilience. Centered on the catchphrase, “a period should end a sentence, not a girl’s education,” the Pad Project – the NGO that funded the film – elaborates on its website: “When a girl gets her period in the United States, she may miss a class. When a girl gets her period in a developing country, she may never go to school again.” While this notion certainly cements grounds for outrage, its accuracy is ambiguous at best. 

Menstrual health programming is often obscured by shoddy statistics, lack of thorough quantitative data, and approaches to international development that favor implementing behavioral changes based on generalized survey data. While the panelists agreed that it was exciting to see a film all about periods gain critical acclaim, they critiqued Period: End of Sentence on the basis of its reliance on unreliable research, perpetuation of harmful stereotypes, and iteration of a savior complex rooted in technical fixes.  

“Menstrual health management practices have become commodified, scalable, and packageable. The Times of India reports that only 12% of women in India use sanitary pads, while the rest use ‘shocking’ materials like rags. Allegedly, 23% of girls drop out of school when they begin menstruating. These statistics are baseless – we know nothing about how these studies were conducted. Yet they have enormous social power,” Professor Parthasarathy pointed out.

These oft-cited statistics that suggest that girls in developing countries miss schools because of their periods have been widely debunked.  The field of international development is rife with “zombie statistics” – statistics, often informed by questionable research, that become ubiquitous.

Even credible quantitative data can compress complex political and economic conditions that produce gender-based inequalities.  Often, the impulse to respond to complicated societal imbalances is with market-based solutions. This is particularly manifest in the language of “empowerment,” which posits that women and girls in the global south can manifest their own destiny through offering them skills and labor. Popular solutions in development thinking, such as microfinance loans, locates the solution to impoverished conditions with the individual, rather than with the structural drivers of inequalities, such as national debt or offshoring cheap labor. As a result, the burden of development is often transferred away from the governments and corporations that produce poverty, toward women and girls who become disproportionately responsible for their communities’ livelihoods. 

“There are no quick fixes, but the documentary makes it seem that way. The machine provides the fix,” Dr. Winkler said. 

Prior to the filmmaker’s team arriving in Hapur, the subjects of the film were generally unfamiliar with single-use pads, and instead, used cloth. The project started when a group of girls from a private high school in North Hollywood learned about a new pad-making machine, raised money through a Kickstarter to buy one, and installed it in a rural village. “The film states that rural India has a menstrual problem, and we have a solution. Yet it does not prove that it is a sustainable solution,” Dr. Houghton noted.

“Indigenous knowledge systems are automatically seen as backwards in ‘developing contexts,’ but there is evidence that the pads are low quality, there are issues with disposal, and the machines break down frequently,” Dr. Parasarathy added.

Introducing western technologies and products as the “solution” reveal both the seductions and limitations of global development thinking. Emily Hoppes, who works for an organization that provides reusable menstrual products and comprehensive sexual and reproductive health education in Kenya, emphasized that products alone are not a sufficient solution to addressing stigma surrounding menstruation, and comprehensive sexuality education is necessary.

Indeed, the pad-making machine, for all its dexterous possibilities, can be understood as an outgrowth of what Dr. Parthasarathy calls “tech saviorism.” Tech saviorism “invites” the receiving subjects of an intervening technology to participate in economic development projects that are facilitated by others, and thus gives off the veneer of self-empowerment. According to this logic, before the introduction of these technologies, women were not already engaged in innovative practices. Instead, their previous practices are understood as embarrassing, dirty, and culturally oppressive. Yet in an era in which sustainable products loom large in menstrual product innovation, one would be remiss to dismiss the potential merits of reusable cloth.

Inga Winkler, Lauren Houghton, Emily Hoppes, and Shobita Parthasarathy (Left to right)

One scene in the film depicts several women saying that they could not pray in their temple while they were menstruating. Dr. Houghton, who has conducted extensive research in Bangladesh, the UK, and Mongolia on environmental risk factors on women’s health, noted that religion alone rarely dictates gender relations. For some women, observing menstrual practices can be seen as liberatory – a reprise from prayer or cooking for several days. 

The fault lines of the global north/south divide are manifest in the approach to menstrual health policies. “In the south, culture is often thought of as a barrier to menstrual health management,” Dr. Houghton said, “whereas in the north, the focus is on biochemical solutions, and culture is ignored. Yet turning the lens on ourselves, what does it say about our culture that we manage our periods with biochemical products?”

One panel attendee, Vanessa Siverls, a menstrual health consultant, pointed out that a major gap in the design of femtech and menstrual innovation is that it leaves behind menstruators who experience unique periods. Irregularities regarding menstruation are not merely a matter of the life course, but also depend on genetic makeups and socioeconomic contexts. Black women are more likely to experience uterine fibroids than women of other races, and more frequently report severe symptoms. Trans and nonbinary menstruators, too, are often left out of policy-based solutions and thus face unique challenges in managing periods in gender-segregated institutions like school bathrooms, shelters, or prisons.

There was one scene in particular that I felt spoke to the counterintuitive nature of the language of empowerment. The film takes us to the interior of a classroom, where we see adolescent girls and boys sitting patiently at their desks. The teacher asks one girl to stand and define “menstruation.” The girl reluctantly rises, hesitates and fumbles through a word or two, then is completely silent. She looks straight ahead, and you can feel her throat choking up with embarrassment as she eventually squeezes her eyes shut. As viewers, we’re called to look on with pity, to patronizingly empathize with the challenges of stigma and shame in a small, rural community; to want to help her empower herself.

I thought back to being a pre-teen girl growing up in Toronto, and how I would have felt if my teacher had asked me to stand in front of my whole grade and to explain what a period was. Because I was a bit of a loudmouth, I probably would have laughed and called on a friend to answer the question. Nonetheless, underneath my performative exterior, I would have been shaking, and mad at my teacher for putting me on the spot.

At the end of the documentary, Mr. Muruganantham, the inventor of the pad machine, says that “the strongest creature is not the lion, not the tiger, but the girl.” Orchestral instrumentation sweeps as the women, once vulnerable and timid, now laugh, hug, and discuss the power of feminism. A slow motion shot captures girls in a schoolyard doing long jump.  The spectacle of “girl power” is so overwhelming that I can’t help it when the hairs on the back of my neck slowly stand up: the product takes precedence over the process. In the end, don’t we all want a success story?