Archive for Region

Decoding India’s Faltering Extradition Track Record: A Human Rights Approach

Guest Contributor: Tanishk Goyal is a second year law student at the West Bengal National University of Juridical Sciences, Kolkata. 

On July 2 2019, The U.K refused to extradite a couple who were accused of murdering their adopted Indian boy and his brother-in-law in order to receive a life insurance payout. The UK’s reasoning for this refusal took place against the backdrop of the inhumane and degrading human rights conditions prevailing in India. This discharge added on to the intractably dismal extradition track record of India, despite it having ratified the 1949 Geneva Conventions and The U.N Convention Against Corruption which adopt the framework for extradition and mutual legal assistance between countries for an expedited and effective extradition process. One of the fundamental reasons for this situation is India’s international perception as a country which cannot ensure the safety of the offenders it extradites. 

Although India has ratified the International Covenant on Civil and Political Rights, which lays down a human-rights based framework against torture, the country has still not been able to convince the international community that it can ensure the protection of the civil rights of the accused. 

The UK has justified its actions based on the ruling from a 1989 case in the European Court of Human Rights, Soering v the United Kingdom. This ruling argued that on the basis of Article 3 of the European Convention on Human Rights, before extraditing an individual, the requested state must conduct a strict judicial scrutiny of the extradition process in order to assess for any potential human rights violations against the accused which might take place in the requesting state. This reasoning is primarily intended to ensure the fulfillment of jus cogens norms as a part of the international obligation to protect human rights. Moreover, before the requested state can commence extradition proceedings, it needs to ensure compliance with its treaty obligations. Particularly, it ought to examine the compliance with the United Nations Convention Against Torture, which has been ratified by 166 state parties of which India is not one of them. Thus, as the ECHR understands it,  jus cogens and treaty obligations in fact do override state sovereignty if there is a possibility of the violation of an accused’s human rights in the requesting State.

 

The international community tends to perceive India as a country which continues to have a relatively higher capital punishment rate. This is amply illustrated by the fact that, in the year 2018, India had as many as 162 persons who were sentenced to death by the trial courts. The absence of provisions dealing with the human rights of the accused in the Indian Extradition Act, and the recent Criminal law (Amendment) Act, 2018, which favours a pro death penalty approach to sentencing, also drastically reduces India’s chances for conducting successful extraditions. The overcrowding of Indian jail cells, the lack of proper medical facilities, and the lawlessness and highhandedness of the police in India are oft cited reasons for refusing the extradition of its offenders. 

The appalling conditions of Indian jail cells and ill-treatment of individuals in custody is tremendously infamous internationally. This was illustrated by the 1990 case of Gill v Imundi, when a US District Court, on the basis of evidence offered to it from India, noted that sending the accused to India would lead to gross violations of human rights and the treatment that he would receive would shock the court’s “sense of decency.” Come 29 years later, the precedence of this case still evokes the same international sense that India disregards the human rights of its prisoners, which is one of the fundamental reasons why, even today, India faces the questions of the violation of due process and human rights before it can commence extradition proceedings. 

Beyond formal treatment of prisoners in custody, India also has a demonstrated history of vigilante justice, with vigilantes lynching people on mere suspicion and hearsay. India’s lack of any substantial jurisprudence or case law taking active steps to curb these lynchings also does not help it enhance its extradition numbers.

If India wishes to have success in future extradition requests, Indian Extradition Law needs to be amended to include provisions which ensure the protection of human rights of the extradited individuals. In practice, India must display appropriate precedence which shows that extradited individuals are treated as per international human rights obligations, and protected from unjust and inhumane conditions. Undoubtedly, India should accede to the  UNCAT in order to build a more persuasive case for extradition in the times to come. 

It is imperative to note that, while India assures the international community that an accused person, after being extradited, would be treated according to international humanitarian standards, it can only add weight to these assurances by carving out certain inroads into the Indian Extradition Law. This allows India to address its human rights issues by actively setting precedence which fundamentally transforms its misconceived perception in the international realpolitik.  

Avoiding Another Islamic State by Recognizing Karbala: Shi’i Collective Memory and Transitional Justice Mechanisms in Iraq

Guest Contributor: Roukhsar Nissaraly graduated from Columbia University in 2017 with a master’s degree in human rights studies. She is now a law school student at Sciences Po Paris and currently interning at the European Court of Human Rights. Her research interests include Shi’ism, the right of religious minorities, and the interplay between Islam and human rights.

1400 years ago, the soldiers of Umayyad caliph Yazid I proudly announced, “we swear on our honor and the honor of our Emir that we have been able to destroy the race of Abu Torab (‘Ali ibn Abi Talib),” the founder of the Shi’i faith (Cheikh Abbas Ghomi’s Nafasul Mahmoom, “Relating to the Heart-Rending Tragedy of Karbala,” 2005. Trans. to French by Farideh Mahdavi-Damghani. Trans. to English is mine). In 2015, when the Islamic State (IS) was at the peak of its power, its self-proclaimed caliph Abu Bakr al-Baghdadi made a general call to arms against the Shia Muslim population: “I will not conclude without commending (…) those who humiliate the Rafidah {Shias} in their strongholds (…) Your next engagement, by Allah’s permission, will be (…) Karbala.” This order, which encouraged persecution of the Shias in the city of Karbala, could also be read as “let history repeat itself.” In particular, this history references the Battle of Karbala of 680 AD in which Shias faced an oppressive massacre and human rights violations. The lasting legacy of this battle has shaped the Shi’i creed and still awakens strong memories of injustice within the population. 

Depiction of the Battle of Karbala. By Abbas Al-Musavi, from Brooklyn Museum

The narrative of Shi’i repression takes its roots in the Battle of Karbala, which is regarded by the Shia population as the greatest tragedy in the history of humanity. During this conflict, Hussain, grandson of Prophet Muhammad, third Shia Imam and son of ‘Ali ibn Abi Talib, and his 72 companions were denied water for three days and brutally massacred by an army of 30,000 men under the orders of Yazid I, as retribution for Hussain’s leadership of a revolutionary movement for social justice against the tyrannical government of his time. The bodies of Hussain and his men were mutilated and trampled by horses, and their heads were mounted on lances. In the aftermath of the battle, the women and children were made captives and stripped of their hijabs before undertaking a painful journey by foot in the desert. 

Over the centuries, the Battle of Karbala has been the most passionately commemorated event in Shia faith, and annually plunges the entire community into mourning. For forty days, the Shias actively assert the actuality of the historical narrative that has shaped their principles by deploring the human rights violations perpetrated against Hussain and his family. From reading eulogies to conducting blood and charity drives in the name of Hussain, the Shia population has tried to uphold the values of humanity and compassion that have characterized Hussain’s personality throughout history.   

The event of Karbala has not been understood and commemorated in the same fashion across different Islamic sects, which has made the creation of a shared historical narrative quite difficult. The instrumentalization of Karbala by extremist groups such as IS could also be partly explained by the fact that the event has never been formally recognized and condemned. As a result, IS has been able to recreate the Karbala narrative, and maintain the dynamics of terror against the Shias. 

In fact, several parallels can be drawn between the events of the past and those of contemporary Karbala. For instance, IS has targeted Shias on the basis of their beliefs; Hussain and his family were martyred for their values as well. IS has plundered Shi’i religious sites and stolen antiquities, just as the perpetrators looted Hussain’s women and children after the massacre. Finally, the extremist entity owned a flourishing slave market on which women from minority groups were sold like merchandise; similarly, Hussain’s women and children were stripped of their hijab and paraded through the streets of Kufa and Damascus in front of crowds who would humiliate them. Lesley Hazleton writes in After the Prophet: the Epic Story of the Shia-Sunni Split in Islam a reinforcing claim: “the Karbala story is indeed one without end, still unfolding through the Muslim world, and most bloodily of all in Iraq, the cradle of Shia Islam.”   

Now that the Islamic State has been weakened in Iraq, Shias have been able to undertake their yearly pilgrimage to the shrine of Hussain, a journey of recognition and submission that is animated by commemorative practices such as religious gatherings (majles), theatrical representations, and the practice of chest-striking. While this “journey of a lifetime” commonly known as Arbaeen demonstrates the existing strong communitarian memorialization movement in place, it is perhaps fitting to consider the use of transitional justice mechanisms in the context of Karbala, in order to help break the vicious circle of violence fueled by historical grievances. 

Transitional justice, which can be either retributive or restorative, has often been used in the aftermath of genocides in order to redress past human rights violations, compensate the victims, recognize their suffering, and ultimately prevent future conflicts from occurring through the acknowledgment of past crimes. One of its core principles is the guarantee of non-occurrence, which it seeks to fulfill by implementing mechanisms of truth, reconciliation, and reparation.

In the case of Karbala, while some normative mechanisms of transitional justice, such as the formation of tribunals to judge the perpetrators or truth-and-reconciliation commissions, can hardly be put in place, an altered approach mainly based on historical dialogue and memorialization may be considered. Historical dialogue, in the view of historians such as Elazar Barkan and EH Carr, can not only create more peaceful relations between groups who view the historical narrative differently, but also change political realities. If the story of Karbala were to be openly discussed by religious groups in Iraq for instance, an exercise of open-mindedness and tolerance for “the other’s” story could be practiced, which would ultimately help ease intergroup tensions and give rise to a new foundation for coexistence and peace-building. 

Compensating victims is another direct mechanism of transitional justice, which may not be very pertinent for remote cases such as Karbala. However, memorialization initiatives can be taken to officially recognize the victims’ suffering, and ensure lasting remembrance of the atrocities. From “memory baskets” containing replicas of Karbala symbols such as Hussain’s flag and a flask of water to building official memorials or museums, strategies for memory building could give the victimized community a sense of security and dignity. Finally, the inclusion of the story of Karbala in history books for instance may help attribute a sense of legitimacy to the narrative, strengthen the memory of younger generations and allow them to avoid repeating their past. 

While there are limits to transitional justice, it might still be worth a shot in the context of Karbala. Iraq is in dire need of stable politics and interfaith relations, and most of all, it deserves to be in charge of its future history. Avoiding another Islamic State? Recognizing Karbala could possibly become the first building block of this strategy for enduring peace. 

Of Orwellian Times and Beyond: Examining India’s Recently Amended Anti-Terror Law

Guest Contributor Ashwin is an Advocate practising across trial and appellate courts in India. He belongs to ’18 B.A.LL.B.(Hons.) class of Rajiv Gandhi National University of Law, India.

When governments decide to condemn one as being “involved in terrorism” simply on the basis of belief and nothing else, one cannot help but wonder whether “Thought Police” from George Orwell’s 1984 is being brought to life. To be condemned solely on beliefs would indeed be blasphemous for the vires of justice. The Indian Parliament has recently introduced a process which allows individuals to be subjectively designated as terrorists by the government. The recent amendments to the Unlawful Activities (Prevention) Act allow the Indian Central Government to designate any individual as being “being involved in terrorism” based solely on, as stated,“if [the Central Government] believes that such… individual is involved in terrorism.”

 Violation of the Principles of Natural Justice & lack of Procedural Fairness

These recent amendments to the Act threaten the principles of natural justice and procedural fairness. The principles of natural justice underlie the need for procedural fairness. These principles aim at safeguarding the right to a fair trial procedure. The two most widely recognized principles of natural justice are audi  alteram partem and nemo judex in causa sua.  Audi Alteram Partem refers to  the right of a person to be heard before he or she is condemned by law. Similarly, nemo judex in causa sua literally implies that none shall be a party to their own cause.This implies  that a party which levels an allegation, cannot adjudicate upon the accusation as well.   While commenting on the fitness of a legislation vis-à-vis principles of natural justice, in the landmark case of Maneka Gandhi v. Union of India the apex court laid down that “…  legislation must take processual provisions which accord with fair norms, free from extraneous pressure and, by and large, complying with natural justice. Unilateral arbitrariness, police dossiers, faceless affiants, behind-the-back materials, oblique motives and the inscrutable face of an official sphinx do not fill the ‘fairness’ bill…

Under the Unlawful Activities (Prevention) Act, the Government of India is not required to establish convincing evidence or even give an opportunity of representation to an individual, before they are designated as a person involved in terrorism. The government, solely acting on its “belief”, can pass an order unilaterally,thereby violating the principle of audi alteram partem.  Additionally, there is no requirement to hand over the reasons in writing to the person being so condemned. 

The only instance of a statutory hearing offered through the legislation comes after the label of being “involved in terrorism” is attached. This hearing takes place in the form of a review process, under S.36 of the Act. This review process entails a summary proceeding by a Review Committee, which assesses whether the grounds of detention are indeed valid or not. The review proceedings award wide discretion to the presiding adjudicators since its manner of working has not been comprehensively outlined in the legislation. Notably, the power of appointing an adjudicator to hear an accused’s review plea lies with the Central Government, which also designates the person as a terrorist.  Pursuant to S. 37(3), the Central Government may appoint the judge who is to preside over a Review Committee. While in the event of appointing a sitting judge, the concurrence of the Chief Justice of the High Court is required; if the government chooses to designate a retired High Court judge to hear the issue, then in such a case complete discretion regarding the choice of adjudicator lies with the Central Government. Thus, the same authority which condemns an individual for being involved in terrorism, i.e., the Central Government, has also been awarded the discretion to appoint the person who shall decide the condemned individual’s review plea.

Amendments to the Anti-terror law & India’s international obligations

The legislation also derogates from India’s international obligations. This is particularly true in relation to the International Covenant on Civil and Political Rights, to which India is a party. The ICCPR lays down under Article 14 that “…everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal...” Furthermore, the covenant provides the right “To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him.” The ICCPR calls such rights “minimum guarantees”. 

Interestingly enough, the Government of India has itself recognized the obligation of a state to ensure a fair trial by relying on ICCPR in its own written submissions to the International Court of Justice in the Jadhav Case, even according it the status of an erga omnes obligation.

To have a zero-tolerance policy towards terrorism is indeed a welcome step. However, in doing so, one cannot manifest a procedure which awards excessive power. The recent terror amendments have evoked criticism within India, with scholars and writers looking at the amended law as a potential threat which may lead to civil death for those who dissent, and even India’s very own McCarthyism moment

It must be noted that in the past more than 2/3rd of the cases under the Unlawful Activities (Prevention) Act have resulted in acquittals or discharge of the accused. The unamended Act already defines a  “Terrorist act” and accords an independent trial procedure and punishment for it.The recent amendments add erroneous discretion to an Act that ought to be based in principles of procedure and natural justice. 

Being labeled as a terrorist has immense consequences for the accused. This designation should only be awarded once a person is convicted of committing a terrorist act under the Act, pursuant to proper procedural review. This would ensure that the label of being involved in terrorism comes after appraisal of evidence by an independent court rather than simply the belief of the executive.

Celebrating World Indigenous Peoples’ Day and Confronting Challenges in Defending Indigenous Languages and Territory

By Jalileh Garcia, RightsViews staff writer 

August 9th marked the 2019 International Day of the World’s Indigenous Peoples. The theme for this year is Indigenous Peoples’ Languages. 

According to the United Nations Development Programme, it is estimated that there are 370-500 million indigenous peoples in the world, representing over 5,000 different cultures. Furthermore, a majority of the 7,000 languages in the world were created and are spoken by Indigenous Peoples. Yet, despite this immense lingual diversity, human rights experts indicate that four in 10 Indigenous languages are in danger of disappearing. The main reason for the disappearance of these languages is the fragility of systems to ensure that Indigenous Peoples rights to land and territory are respected, protected, and guaranteed, including, among other reasons, forced assimilation. 

As such, entire cultures are at risk of disappearing as companies and governments are stripping Indigenous communities of their lands. These cultures include the belief in a special relationship with the environment─land has physical, cultural, and spiritual value. While Indigenous Peoples around the world have varying cultures and languages, they have all shared a common history in the face of colonization and oppression. 

Because of this history and present day marginalization, Indigenous Peoples around the world are some of the world’s most vulnerable populations. Forced assimilation that undermines Indigenous traditions and languages, institutional discrimination, and harassment enacted by extractive industries and government practices are just a few examples of the challenges Indigenous Peoples face today.

For Indigenous Peoples, the defense of the right to identity, language, self-determination, and land can be deadly in an ever capital-driven world. The production of raw materials by large corporations for the sake of acquiring capital has consistently come before the lives and needs of indigenous people, along with other communities that have historically been marginalized, disrupting land, resources, and culture.

Many Indigenous Peoples choose to protest the destruction of the environment, recognizing the threat that extractive industries pose on both their livelihoods and global welfare. Some corporations lash back at protesters with violence. In 2018 alone, 164 land and environmental defenders were reported killed, according to Global Witness, reporting that “indigenous people are on the front line of these killings, along with attacks by countries’ legal systems.” In 2017, Honduras was considered the deadliest country for land and environmental defenders, affecting many of the Indigenous Peoples who live there.  

Honduras has signed various international agreements, such as the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), that are meant to safeguard the rights of indigenous communities in the country. Additionally, Article 346 of the Honduran Constitution protects the rights, territories, and natural resources of the Indigenous population. Important to the UNDRIP and Indigenous Human Rights is the principle of free, prior, and informed consent by those who wish to use any territory or resources belonging to Indigenous Peoples.

Yet, despite all of this, Indigenous communities in Honduras have been excluded from  free, prior, and informed consent and consultation regarding the development of extractive industries such as mining, hydro-electric, and monoculture projects that occur in their territories. As a result, this has caused conflicts between the Indigenous communities and the state, as the state has allowed for companies to enter their territories and extract raw materials from their lands. Effectively, this has had devastating effects from the contamination of water sources to a loss of food supply, infringing on cultural values and overall violating Indigenous rights. Throughout this, both the state and companies are complicit in these extractive schemes. 

Berta Caceres

One of the iconic figures in the fights against extractive industries in Honduras was Berta Caceres, a Lenca indigenous leader, human rights defender and the co-founder of the Civic Council of Popular and Indigenous Organizations of Honduras (COPINH). 

In retaliation for her work against projects that sought to extract natural resources in the Lenca territory― such as the building of the Agua Zarca dam which was licensed to the Desarrollos Energeticos S.A. (DESA) company― she faced criminalization, threats and attacks. In 2016, Berta Caceres was murdered in her home of La Esperanza, Intibuca. 

In November 2017, in a publication by the Grupo Asesor Internacional de Personas Expertas, or the International Advisory Group of Expert Persons (GAIPE), it was confirmed that the murder of Berta Caceres was organized and financed by the executives of the company DESA. The reason? To end any and all opposition against building the dam. 

The report also accused the company’s executives of being responsible for creating campaigns that sought to discredit Berta Caceres, stalking  COPINH members, instituting threats, hiring gunmen, sabotaging news outlets, bribing officials of the Justice department, and paying police forces.  

Seven people have been found guilty of executing the crime, though there were severe irregularities in the entire process. While multiple executives organized and financed Berta Caceres’ murder, only the executive president of the company, David Castillo, was accused. Even then, his preliminary hearing was suspended indefinitely and the crime remains in impunity. 

Berta Caceres’ case is only one of the many in the country, and one in hundreds of cases around the world. Nonetheless, it represents how Indigenous Peoples have actively defended their rights. Though others actively participate at the UN in Permanent Missions, each way represents a fight against a system that denies Indigenous Peoples right to identity, language, self-determination, and land. 

As we celebrate World Indigenous Peoples’ Day, we reflect on the loss of languages of indigenous peoples’ around the world, as well as the complicity that our governments and companies have in violating the rights of a population that have historically been marginalized. We also celebrate the rich cultures that make up the Indigenous Peoples around the world, who are working at the local and international levels towards crystallization of their human rights. Indigenous Peoples and their allies are also remembering Berta Cáceres and her contribution to the fight for Indigenous rights, as they prepare to celebrate the diversity and beauty of Indigenous languages in 2019.

LGBTIQ rights |Recent developments in Kenya

Guest contributor Brian Dan Migowe is a graduate of the 18′ LL.M class at the Center for the Study of Human Rights at the University of Strathclyde, Glasgow, UK. 

July 2019 marks a month since the Kenyan High Court dismissed a consolidated petition of the National Lesbian and Gay Human Rights Commission (‘NGLHRC’) and other interested parties seeking inter alia abolishment of sections 162(a),(c) and 165 of the Kenyan penal code, which forbid same-sex relations and prescribe a jail sentence of up to 14 years for those found guilty. A long-awaited pronouncement, the NGLHRC’s challenge to the constitutional standing of these two legal provisions has been a subject before the court for the last quadrennium. Petitions have come to the court on two separate occasions. The first petition was initiated by Eric Gitari (then the Executive Director of NGLHRC) in 2016. Two other organizations, the Gay and Lesbian Coalition of Kenya (‘GALCK’) and the Nyanza, Rift Valley and Western Kenya Network (‘NYARWEK’), along with individual petitioners who had been personally affected by the laws, filed a second petition in the same year raising similar arguments. The High Court consolidated the two petitions and referred them to a three-judge bench.

Substantially, the petitioners argued that Kenyan anti-LGBTQ+ laws stood in stark breach of the assurance of protection from discrimination and the right to human dignity and privacy as proscribed in the country’s constitution. In Kenya, guaranteed rights include the freedom from discrimination (Article 27), the right to dignity (Article 28), freedom and security of the person (Article 29), the right to privacy (Article 31), and the right to the highest attainable standard of health (Article 43). Petitioners further argued the government’s lack of political will to enforce in affirmation the rights of minorities and marginalised groups, per article 56.

The respondents to the case, led by the Attorney General (representing the Government) and a group of interested parties, argued that the constitution outlaws all same-sex relations. Additionally, they claimed that the LGBTIQ community is not assured categorical protection from discrimination, given that the country’s values and morals as enunciated in the constitution are against same-sex conduct and interrelations. Accordingly, the law was legitimate insofar as it criminalised such said conduct.

In its dismissal pronouncement, the High Court rejected claims put forward by the petitioners, finding that the impugned provisions were well defined in the Kenyan law, thus not ambiguous; and  that the provisions remained non-discriminatory without singling the LGBTIQ persons unless contra evidence was sufficiently presented and proved. The court also argued that the constitutional rights to privacy and dignity are not absolute and should be read in the context of Article 45 (2) of the constitution, which states that “Every adult has the right to marry a person of the opposite sex,” an ultimate [narrow] read which underpinned the dismissal of the petition. In the bench’s reasoning, decriminalizing the impugned provisions would indirectly open the floodgates in favour of same-sex marriage, an argument already contented to be imprecise. 

The ruling flies in the face of several other Kenyan court decisions that have upheld LGBTIQ people’s fundamental rights. In 2015, the High Court ruled in support of NGLHRC in a case that concerned freedom of assembly and association. The Non-Governmental Organizations Board (NGO Board), a government agency, had refused to register NGLHRC after three failed attempts , claiming that doing so would be ‘acting inconsistency to the laws of the republic’ and that the organization’s actions would be permitting immorality. The court found that the NGO Board was impermissibly discriminating based on the presumed sexual orientation and gender identity of NGLHRC’s personnel, in violation of constitutional protections around equality and non-discrimination [Article 27]. The Court of Appeal recently upheld  this ruling in March although the NGO Board has appealed to the Supreme Court which now awaits the determination of the Apex court.

A 2018 court decision continued the seeming progress by Kenyan courts. After forced anal examinations were carried out on two people arrested in Kwale by the police in 2015, on suspicion that they were gay, a three-judge bench of the Court of Appeals handed down a ruling in 2018 overturning the orders that set pace for abhorrent perceived medical acts and in effect stopped any such examinations on people charged with consensual homosexual conduct. 

Positively pedalling, especially on issues concerning transgender persons, Kenyan courts have moved the needle forward. In 2014, the High Court ruled in favour of a transgender activist, Audrey Mbugua, on her right to have her school certificate reissued with her female name, and with no gender marker. A separate 2014 ruling also compelled the NGO Board to register Transgender Education and Advocacy (TEA), a non-governmental organization led by Mbugua.

Thus, the High Court’s most recent failure to decriminalize same-sex relations [repeal Ss 162 (a), (b) & 165] both reverses previous precedential progress and transgresses on its international law obligations. In its 1994 decision in Toonen v. Australia, the UN Human Rights Committee – the body that interprets the International Covenant on Civil and Political Rights (ICCPR), to which Kenya is a state party – held that laws prohibiting consensual same-sex conduct infringe on the rights to privacy and non-discrimination of persons of this association – contra to the scholarship now being developed by the High Court at Milimani, Nairobi!

The 24 May ruling is particularly disappointing considering progress elsewhere in Africa and around the world. In January, Angola presented into operation a revised penal code that no longer punishes so-called “vices against nature.” Other African countries that have equally soundly revoked anti-homosexuality laws through penal code reform in recent years include Seychelles, Mozambique, Sao Tome and Principe, Lesotho and Botswana. Visibly slow pedalling are  33 countries in Africa which still have laws on the books that outlaw consensual same-sex relations. Elsewhere in the world, courts are striking down these anachronistic colonial-era laws that criminalize same-sex relations, such as Kenya’s penal code. India decriminalized same-sex relations through a landmark court ruling in 2018, as did Trinidad & Tobago, while Belize’s Supreme Court struck down its sodomy law in 2016. Palau, Nauru, and Northern Cyprus have decriminalized homosexual conduct through legal reform in recent years.

Kenya’s government has adopted an ambivalent stance on LGBTIQ rights, with dissimilar remarks on a case for their recognition and safety from cruel, inhuman and degrading treatment. Kenya accepted a recommendation at the UN Human Rights Council in 2015 to adopt legislation prohibiting discrimination on the grounds of sexual orientation and gender identity, consistent with constitutional guarantees of non-discrimination, but no such legislation has been passed. Most notably, as the appeal at the apex court remains on the May 24 ruling, LGBTIQ persons shall continue, directly and indirectly, in similar or dissimilar fashion continue to suffer indifference to their equal protection by the law recognition their [own] existence, at least for now.

Gaza On Screen: An Interview with Film Festival Curator, Nadia Yaqub

By: Laura Charney, RightsViews Staff Writer

This April, the Center for Palestine Studies at Columbia University hosted the “Gaza on Screen” film festival highlighting films made by Gazans and about Gaza. Curated by Dr. Nadia Yaqub, “Gaza on Screen” offered an invitation to not only bear witness to the lived struggles and resilience of Gazans, but also the opportunity to engage the ways that Gazans articulate and envision their own experiences.

For over twenty years, Palestinian film festivals across North America and Europe have brought Palestinian stories to international audiences. However, Palestinians in Gaza face particularly prohibitive measures that inhibit the communication of their stories. Since 2007, Israel has maintained a blockade on Gaza, controlling its airspace, coastline, and borders, and restricting the movement of goods and humans entering or leaving the territory.

It was not until this past April at Columbia University that a film festival focusing exclusively on Gazan stories came to life. In an attempt to shine light on the issues specifically facing Gazans, “Gaza on Screen” strove to unsettle some of the borders that hinder the circulation of Gazan stories.

The three-day-long film festival programmed feature-length films, documentaries, short films, and a master class with Abdelsalam Shehada, a Gaza-based film director who has made over 20 documentaries.

There was also a Q&A with some of the student filmmakers who directed the short films. Mohammed S. Ewais, a student at Al-Aqsa University, joined the film festival over Skype from Gaza City to discuss his film, We Love Life (2015), a documentary-style portrait of Gaza-based graffiti artist Belal Khaled, who transforms architecture gone derelict from Israeli explosions into works of art. The title of the film comes from the Mahmoud Darwish poem: “We love life if we find a way to it.” When asked if there was a political message in his film, Ewais responded, “To spread awareness of the humanitarian crisis in Gaza. No one knows what is going on here.”

 

Because of the embargo, Gaza faces a water crisis, constant electricity outages, destroyed infrastructure, and a deteriorated economy. Israel’s multi-layered apparatus of state control is justified under the pretense of security, while denying Gazans the tools to secure their own livelihoods. The intensive border regime means that international perceptions of Gaza are often marred by the impossibility of accessing and understanding the actual experiences of Palestinians in Gaza.

In the keynote speech at the Dreams of a Nation Palestine Film Festival at Columbia University in 2003, Edward Said said that “the whole history of the Palestinian struggle has to do with the desire to be visible.” Palestinian-produced films, like those shown at “Gaza on Screen,” engages this struggle, through bringing to the fore the names, memories, and personalities of individuals and families who are often represented in broad and stereotypical strokes in dominant media narratives.

The pursuit of being “visible” is also bound within the limitations that Palestinians face when attempting to access their own written histories. Since Israel invaded Beirut in 1982, Palestinian national archives have been in the hands of the Israeli Defense Force. The Israeli state has placed restrictions and legal obstacles that hinder access to the Palestinian archives, effectively controlling the possibilities of generating Palestinian-produced historical knowledge by rendering it inaccessible to its traditional owners.

Visual material is one force that disrupts this censorship. Film affords the potential of narrating stories that have been displaced in the archives. Palestinian cinema – factual and fictive – has been a crucial force in making visible political realities that authentically reflect lived experiences.

The circulation of Palestinian film allows stories to speak to audiences across borders. When describing his feelings on visual narratives, Ewais stated: “Cinema is my only way out.” Because of the blockade, he has never left Gaza. Ewais is one of the many directors and filmmakers who contributed to telling Gazan stories at “Gaza on Screen.”

“Gaza On Screen” was curated by Nadia Yaqub, Professor and Chair in the Department of Asian Studies and Adjunct Associate Professor in the Department of English and Comparative Literature at UNC Chapel Hill. Dr. Yaqub’s research critically examines Arab cultural texts, and has recently focused on Palestinian literature and visual culture. Her latest book, Palestinian Cinema in the Days of Revolution (2018), analyzes films of the Palestinian national liberation movement through the late 1960s and 1970s.

I spoke to Dr. Yaqub over the phone to discuss Gazan self-representation on film, the possibilities of visually and transnationally communicating resistance, and the urgency of telling stories that are meant to be silenced.

 

 

Dr. Nadia Yaqub

This interview has been condensed and edited for clarity.

Laura Charney: What did you want to illuminate about Gaza when curating this film festival?

Nadia Yaqub: The idea was Hamid Dabashi’s [Hagop Kervokian Professor of Iranian Studies and Comparative Literature at Columbia University]. He approached me and asked me to curate this film festival. I had never done any work specifically on Gaza, but it immediately sounded interesting. I have done many years of work on Palestinian cinema, and I had thought a lot about the difference between filmmaking in exile, filmmaking under occupation, and the filmmaking among citizens of Israel.

Gaza as a particular unit has an interesting, distinct history within the larger Palestinian history because of its relationship to resistance. The resistance movement, the PLO as a militant organization, the first Intifada, all have their origins in the Gaza Strip.

Geographically, it’s this little piece carved out of Israel. Gazan residents live in close proximity to the homes that they lost in 1948. The huge influx of refugees in 1948 utterly changed the demographics of the area, and that has just been exacerbated ever since, through rapid population growth. If you can define the Palestinian condition as one of exile and displacement and ongoing dispossession, Gaza is always the extreme case.

There is a lot I couldn’t include in the film festival, but I was immediately interested in the variety of film material – the ways in which Gaza had been manipulated by different actors in film, the ways in which Gazans had represented themselves, the ways in which Gazans or others have tried to intervene in the visual materials about Gaza such that it is not only defined by conflict and dispossession, but also in fiction film, experimental film, in documentaries.

What I tried to do with the festival was very briefly trace a history of image making. At the same time, include these various types of representations and to represent different perspectives, but always varieties of what I would call a Palestinian-centric perspective. I wasn’t interested in including how Israel views Gaza, or how Iran or Hezbollah, who are close allies of Gaza, support or use Gaza for their own ends. Those are all interesting questions that I did not want to broach. There is a lot of film that is made from the perspective of solidarity activists – people who were on the ground in 2008, 2009, who participated in various flotillas, for instance. I wasn’t interested in those stories for the purposes of this film festival. That’s what I mean by a Palestinian-centric view.

LC: Because Gaza is under blockade, this film festival provided an opportunity for many to be let in on how Gazans view themselves, and Gaza itself. International understanding of Gaza often comes from how journalists cover it, or how the Israeli media portrays it. The student films provided a kind of radical disruption from these dominant representations – hearing their stories, the way they want to tell them, is quite rare.

NY: Yes. Film is obviously a form of communication. People make films in order for other people to see them: there’s something sort of inherently transnational about it. In some ways that are different from literature, film is about communicating outward. Films about Palestine are almost always made for outside audiences. Within that framework that’s kind of messy and transnational, it’s hard to define – what is a Palestinian film? Does the director have to be Palestinian, and what does that mean? Do they have to have Palestinian blood in their veins? Do they have to have lived in Palestine or within a Palestinian community? Those are messy questions. Nonetheless, we somehow, through that messiness, have to sift out the Palestinian voices, and the Gazan voices, and attempt to recognize what they are saying. Some films in the series – Antoni Akacha’s film Voices from Gaza, and Savona’s film Samouni Road – were not made by Palestinians, but I did feel as if they fit within this framework.  That is probably a product of those filmmakers’ long engagement with Palestine and Gaza.

LC: I noticed that a lot of the films on the lineup were documentaries, ethnographic, or experimental of some kind. I’m thinking about what metaphor can do to express the inexpressible, and the choice behind not including so many fictional films. Is there a draw in Gaza toward experimental or documentary films? How does this reflect the landscape of filmmaking in Gaza, and how Palestinian and Gazan filmmakers articulate their own stories?

NY: In my research, I found that there are about 15 feature-length fictional films that have been made about or in Gaza. Five of them were made in Egypt in the fifties and early sixties – they’re Egyptian films, where Gaza is this territory where Egyptian characters go to work our their problems. They’re very melodramatic.

11 feature films have been made from the early 90s until today. That’s not insignificant if you think about how tiny Gaza is. But the vast majority of films are documentary. The number of essay and experimental films in the program are not reflective of their percentage of output.

A lot of documentaries made about Gaza are international – to tell an international audience, ‘this is how difficult it is to cross borders,’ ‘this is what’s going on with fisherman,’ ‘this is what it’s like to live in a refugee camp.’ Where you draw the line between a reportage, which is a bit longer than a news story, and address in a little more depth a current situation, and a documentary, is almost impossible to decide sometimes. There’s a huge amount of this material, but it makes it a conversation about journalism, rather than about filmmaking. There is a bias toward the unusual in the film festival that I did.

LC: Considering the history of stolen Palestinian archives, or archives that are inaccessible to the public, I would imagine that you faced some limitations in putting this selection of films together. What were some of the challenges you faced in curating this selection?

NY: For this film festival, the issue wasn’t really stolen archives. Of course, there is the famous case of the five PLO archives that disappeared during the Israeli invasion of Beirut in 1982, including the archive of the Palestinian Cinema Institute, but bear in mind that that filmmaking did not include very much material about Gaza. I did include one of those films which has been found – it has not yet been restored so the copy that was screened was scratchy – but that may be the only film from the early period, before 1982, that the PLO made that focused on Gaza.

The problem of the archive more generally was definitely a challenge. This is a particularly Palestinian problem in the sense that there is no national Palestinian archive or archive project. To be fair, if you look across the Arab world, the difficulty of accessing archives of Arab film in other Arab countries has not necessarily helped film scholarship on the Arab world. There’s the notorious case of Syria. From the mid-60s until the Syrian civil war, they funded, produced, many hugely interesting films. Those films would be released, often during the Damascus International Film Festival, perhaps some of them would screen at, say, the Carthage Film Festival in Tunis, and then they were locked up and no one got to see them. Film scholarship on Syrian film has been severely limited for that reason. This may be one of the most extreme cases, but it is also not easy to do research on Algerian film, Tunisian film, Moroccan film.

I could imagine if the PA [Palestinian Authority] were to form a film archive, the problem of Palestinian politics – the Fatah/Hamas split, for instance – would be the big issue, and how the PA has dealt with the PLO’s militant past. Those questions would probably give rise to a problematic archive.

LC: Something that came up among audience members throughout the film festival was how resistance and political struggle is framed in these films. Abdelsalam Shehada’s films, for instance, are gorgeous, but they also represent an ideal of nonviolent resistance. This is something that some people grappled with. At the same time, I think the goal of a lot of these films was to disrupt normative assumptions about Gaza. How do these films situate themselves within a wider history of Palestinian political struggle in cinema?

NY: I would say that filmmakers are quite savvy in responding to the global context in which they are working. In the 1970s, when you had a militant Palestinian film movement, the idea of national liberation through armed struggle was global. It was accepted as a legitimate means for oppressed people to achieve their rights. There was, for instance, the Vietnam War, the anti-apartheid movement in South Africa, the struggles in Latin America – they are allies of the PLO. The PLO were not, by themselves, advocating armed resistance.

The struggle was placed within the context of the Cold War, so it’s complex. Of course, many of these organizations were labelled as terrorist within mainstream media in the West, but there were also allies. It was a completely differently landscape. Now, the ideological battle line is drawn between the Muslim world and the rest. So, Palestinian militancy is really only alive within an Islamic militant movement. There’s only very little marginal support for that in the West, and there’s lots of reasons for that – I’m not arguing by any means that leftists in the West should support Hamas or Hezbollah, but we also don’t need to glorify or romanticize the nature of armed resistance from the 1970s. That was really problematic and compromised, both in terms of the Palestinian movement, and globally.

For a Palestinian filmmaker who wants to engage with a western audience, there is no space for any kind of claim of violent resistance. Nonviolence is the only space. You have to work within the space you’re given.

LC: This is a really crucial distinction – understanding who the films are made for. Not to sound insensitive, but there is a need to humanize Gaza, because of the dominant narrative that associates Gazans with terrorism. That was, to me, why a film like Samouni Road was so powerful.

NY: I think that’s an extremely powerful film. There was a scene that really stood out to me, where the family talks about their apolitical stance. They’re not a part of any political party, they don’t want money from Hamas, they don’t want their tragedy to be exploited. It seemed to me – that was a message to us.

LC: Yes – it also makes me wonder, as a western audience, the complexity with which we are prepared to give Palestinian subjects on film. The dichotomy between peaceful resistance – being apolitical, nonviolent – versus active political resistance, is reductive. Yet it is only the former that tends to be palatable to western audiences.

NY: This is interesting in the context of the history of human rights filmmaking. Monica Maurer is a German filmmaker who worked within the PLO in the last years of Beirut. 1979 was declared the UN International Year of the Child, so a lot of filmmakers took advantage of that to create films about children. [Maurer] made a film called “Children of Palestine.” The film is structured around the declaration of the rights of the child – they have the right to family and freedom, to work and education and time to play, a national identity, and several other rights. She structured the film around each of these rights and shows how the PLO, through its armed struggle, is working to mitigate the ways in which Israel is denying children these rights. The film won first prize at the International Human Rights Film Festival in Bulgaria in 1980. So militancy, as a way of working towards human rights, used to not be incompatible. Returning to what we were discussing earlier, the discourse has changed around the world. There are things you could say in the early 80s that you cannot say now.

LC: It is fascinating to think of the construction of victimhood on film – how constructing the ideal victim often necessitates taking away any kind of political agency.

NY: Yes, and that is the central challenge that Palestinian filmmakers face today. I suppose that this was one of the things I was working through in curating the film festival: exactly how you can communicate Palestinian experiences in a way that works in this context, without reinforcing that image of the Palestinian as a victim.

Technology and Privacy in Refugee Aid

By: Parima Kadikar, guest contributor. Parima is a rising senior at Columbia College studying Middle Eastern Studies and Human Rights.

In an exceedingly digital world, humanitarian aid for refugees is being revolutionized by technological innovation. International non-profit organizations and UN agencies have begun to employ strategies like biometric scanning and blockchain technology to streamline aid delivery and prevent identity fraud. While these strides are noteworthy examples of progress, it is also important to address the potential privacy concerns that could result.

In the context of conversations sparked by the Patriot Act— Congress’s response to the September 11, 2001 terrorist attacks which expanded federal jurisdiction over private data and communications for the purpose of intelligence gathering– and, more recently, by the Cambridge Analytica data-mining campaign which harvested the data of millions of Facebook users without their knowledge or consent for conservative political campaigning, many Americans are protective of both their physical and digital privacy. The evidence of this can be seen from taped webcams in college classrooms to frustration with the TSA at airports to the rising popularity of secure messaging apps for activists.

For refugees, however, concerns about privacy permeate all aspects of life. If they are living in a country with strong xenophobic sentiments, refugees may wish to  conceal their identities due to fear of discrimination. Additionally, many escape or resettlement routes taken by refugees as they flee their home nations require unauthorized border crossings. BBC has produced a video simulating the privacy dangers associated with this when an asylum seeker has a cell phone; if their location is being tracked as they flee to safety, they could be targeted by border authorities and their asylum requests could be denied for entering unauthorized.

As well as the concern about losing asylum status in their destination, refugees face the possibility that the group(s) persecuting them– whether it be a government regime, militia, or other non-state actors– could also discover their location or involvement in activism through technology usage. Such a discovery could present immediate threats to a refugee’s life, or at the very least prevent them from ever returning to their home country.

One attempt to secure refugee data is the World Food Programme’s (WFP) use of biometric scanning and blockchain technology to distribute aid in Jordan’s Zaatari camp, the second largest refugee camp in

Aerial view of Jordan’s Zaatri refugee camp, where technology is used by WFP

the world. “Eye Pay,” a project within the organization’s “Building Blocks” program, allows refugees to access a digital wallet by scanning their irises at participating shops within the camp.

While this technology is impressive, it raises concerns about feasibility. Building Blocks runs on a private-permission blockchain, which addresses data security concerns but is difficult to expand in scale.The WFP’s technology is supported by the cryptocurrency Ethereum, meaning that users who buy, sell, and mine this currency validate the chain. Therefore, the market for Ethereum must grow significantly before a program like Building Blocks can be increased in scope.

In order to successfully manage the data for large refugee populations, WFP is faced with a question of how to incentivize Ethereum holders to increase the level of coordination in these initiatives. As

Biometric scanning such as “Eye Pay” uses technology to create digital wallets accessible via iris imaging

blockchain technology provides a significantly more secure alternative to storing refugees’ data on UN databases, a successful means of incentivizing coordination so as to expand the existing program could lead to outcomes that redefine refugee aid.

However, until such technology can be implemented on a larger scale, the threat of privacy breaches remains very real for refugees. In order for a displaced person to receive official refugee status from the United Nations High Commission for Refugees (UNHCR) (and, as a result, access to aid earmarked for refugees), they must submit a great deal of personal data to the agency. While it is understandable that UNHCR needs to collect information like employment and health records from applicants to prevent identity fraud, Privacy International, a non-profit organization that pressures companies and governments to implement better data privacy regulations, warns that issues arise when it shares jurisdiction over this data with other groups.

It is difficult to know about specific instances of UNHCR privacy breaches as the agency does not publicize this information. A 2014 breach of Australia’s Department of Immigration and Border Protection (DIBP), however, led to the publication of the personal details of over 9,000 unsuccessful asylum seekers on the DIPB website. These details included full names, gender, citizenship, date of birth, period of immigration detention, location, boat arrival details, and the reasons that each applicant was denied refugee status.

A lawsuit was subsequently filed against the DIBP, alleging that the asylum seekers whose information was publicly revealed were treated unfairly during the review process. While the High Court of Australia ruled that the representative litigants in this case were treated fairly by the government, the Office of the Australian Information Commissioner (OAIC) is currently (almost 5 years later) assessing whether or not the affected asylum seekers should be compensated for the violation.

Though the Australian breach occurred within a national government and not the UNHCR, it offers a high-profile example of how displaced people can suffer when their privacy is violated. As the global refugee crisis continues to intensify with each passing year, it is imperative that the UNHCR and its partners dedicate more resources and manpower to addressing privacy concerns. The few examples discussed in this blog, such as the WFP’s Building Blocks program, are steps in the right direction. However, until they can be implemented on larger scales, refugees remain especially vulnerable.  

Will the ‘not so accessbile’ Rajasthan State Assembly Elections, 2018, be a precursor to the Lok Sabha Elections in 2019?

The 2019 Lok Sabha Elections are happening throughout India in several phases. At the present moment, the entire nation is embroiled in debates about who will be elected into the next Indian government, as well as reflections on the achievements of the current administration. Part and parcel to the upcoming elections is an important element that has been widely neglected: the question of accessibility. There is a broad lack of awareness about the issue of accessible elections, exasperated by a tendency for discourse to focus on more “appealing” election issues such as development, poverty, corruption and nationalism.

‘Accessible Elections’ was finalised as the central theme for all the upcoming elections by the Election Commission of India (ECI) during the National Consultation on Accessible Elections held in the first week of July, 2018. The aim is to increase the participation of Persons with Disabilities (PwDs) in elections by making them more inclusive and accessible to increasing numbers of people from different communities. The ECI debated on means to counter various barriers to accessibility for PwDs in elections and decided to make sincere efforts to increase accessibility and ensure that the challenges faced by PwDs are addressed in an effective manner. To implement this commitment, the ECI launched the Systematic Voters’ Education and Electoral Participation (SVEEP) initiative, which is a model program launched by the ECI for educating the Indian voter base, creating awareness and promoting literacy among voters. Accessibility to elections for PwDs is a part of this initiative. Additional guidelines haven been issued by the Commission providing for certain Assured Minimum Facilities (AMF) for PwDs at the polling booths.

In keeping with the central theme of accessible elections, elections in the states of Chhattisgarh, Madhya Pradesh, Mizoram, Rajasthan and Telangana were to be held to the standards as set out by the ECI.

I conducted a basic survey of some polling booths in the city of Jaipur during the voting for Rajasthan State Assembly Elections, 2018 (the elections) in order to analyse the extent of implementation of the AMF guidelines and examine any potential loopholes which existed between planning and actual implementation.

Legislative Background

Regarding the national law, Article 14 of the Constitution of India provides for equality before law and Article 21 provides for the fundamental right to life and liberty. With specific regard to elections, Article 324 provides for the establishment, powers, and functions of the Election Commission and its objective of conducting elections in a free and fair manner. Furthermore, Article 325 provides that no person shall be ineligible to vote on the grounds of religion, race, caste or sex. This corresponds to Article 15(1) of the Constitution which provides for non-discrimination by the State against any citizen on the abovementioned grounds. Additionally, Article 326 provides for the principal of universal adult suffrage as the basis for holding national as well as state elections. In light of these provisions, Rule 49N of the Conduct of Election Rules, 1961 and the ECI guidelines have been laid down to address the issue of providing assistance to PwDs.

Relevant legislation to the question of election accessibility also exists at the international level. The United Nations Convention on the Rights of Persons with Disabilities (CRPD) was ratified by India in 2007. Article 29 of the Convention lays down that all States-Parties shall guarantee political rights to PwDs and provide the opportunities to enjoy them, including the right to vote through procedures that are accessible and easy to understand. In 2016, the Rights of Persons with Disabilities Act (RPwD) was passed and hailed by disability rights activists as ushering in a new era for PwDs. Section 11 of the Act provides that “The Election Commission of India and the State Election Commissions shall ensure that all polling stations are accessible to persons with disabilities and all materials related to the electoral process are easily understandable by and accessible to them.” This provision has been laid down keeping in view the rights provided by the Constitution of India and the Article 29 of the CRPD. Both of these provisions elucidate the fact that elections have to be made accessible to PwDs in order for them to enjoy their legal and democratic rights of choosing their governments as citizens of India.

Survey

According to the website of the Department of Empowerment of Persons with Disabilities (Divyangjan), there are more than 1.5 million PwDs in Rajasthan and 436,125 of them were enrolled as voters for the elections.

Given this large number of voters, the issue of accessibility becomes highly relevant for the continued protection of the human rights of PwD. Curious to see if the AMF guidelines were truly being implemented, I conducted a random sampling survey at polling booths in the capital city of Jaipur during the elections. The criteria I studied were:

  • Physical accessibility to the polling booths- Ramps, Wheelchairs and Attendants.
  • Availability of Braille Scripts with the indication of the parties/candidates.
  • Awareness and sensitization of the Block Level Officers (BLOs) about the ECI guidelines and laws related to rights of PWDs and their readiness towards addressing the issues faced by PwDs during the voting process.
  • Availability of separate toilets for PwDs.
  • Separate entry and exit for PwDs.

Observations and Conclusion

Most of the schools in Jaipur, both private and government, were designated as polling booths. I visited a few of these schools to conduct my survey.  I observed that, in all of the polling booths which I attended, none were at all accessible to the PwD voters.

First, there was no separate entry and exit for the PwD voters. Second, ramps were either missing in some of the places or they were temporarily set-up and seemed quite rickety and dangerous to be used. Third, there was a either a shortage or an absence of wheelchairs in most of the polling booths. Fourth, braille scripts were mostly not available for aiding the visually impaired voters and even if they were, they weren’t being used by the election authorities. Fifth, there were no separate toilets for the PwDs in any of the polling booths. Sixth, attendants were only deputed at one of the polling booths, which was a government school. And last, there was a severe lack of sensitization about the theme of elections and the SVEEP initiative and an unwillingness to help on the part of the Block Level Officers (BLO) and other election authorities. At one of the polling booths, the BLO got agitated upon being questioned about the shortage of wheelchairs and tried to put the blame on the higher level authorities. I was able to speak with some of the PwD voters who were facing issues while accessing the polling booths, but most of them were a bit hesitant to share their specific challenges with me.

The above mentioned observations depict the reality of the polling booths during elections. It illustrates a stark difference between the reformative objectives envisaged by the Election Commission of India and the actual practices that took place during the day of voting.

The lack of physical accessibility due to the absence of ramps and wheelchairs meant that PwD voters had a hard time entering as well as exiting the polling booths. The absence of braille scripts meant that those who had visual disabilities had to take another person’s help in casting their vote, which took away their sense of autonomy and privacy in voting. Furthermore, the lack of separate toilets meant that PwDs weren’t be able to relieve themselves as they stood waiting to cast their votes.

Additionally, the lack of separate entry and exit for PwDs created additional impediments for them in accessing the polling booths. Above all, the lack of awareness on the part of the Block Level Officers and other election authorities further aggravated this situation as they were not able to understand the challenges faced by PwD voters and hence were not willing to provide any assistance to them.

In practice, it is clear that the theme of accessible elections was in vain at the Rajasthan State Assembly Elections, 2018. The lack of accessibility which I observed at the elections highlights a clear violation of the rights provided to PwDs by the Constitution of India. The ECI’s AMF guidelines were flouted during the organisation of the elections, as they were not carried out equally or adequately in the individual polling places. As a result, only 100,200 out of the total enrolled PwD voters in Rajasthan were able to cast their votes during the 2018 state elections.

This brings to light questions about the role of political will, planning, and implementation in the enforcement of human rights treaties such as the CRPD and in domestic legislation like the RPwD Act. The Indian government has taken many legislative steps to express its commitment to making rights for PwD a reality, but there remain larger policy challenges to be tackled through proper implementation of the law. This could include a stricter follow-up strategy by authorities at polling places. Concrete and reliable policy implementation is vital in order to have the largest and most positive impact on PwD and their rights to vote. Without it, the rights of PwD will remain confined to the realm of debates and discussions, leaving voters without a means to participate in their democratic society.

By: Mohneesh Rai, guest contributor, 4th year studying at the NALSAR University of Law in India-Mohneesh Rai (4th Year, NALSAR University of Law)

Human Rights in China: Mass Internment of Uyghurs & Other Muslim Populations

The Human Rights Institute at Columbia Law School invited Uyghur scholars to explore current practices of the Chinese government in the mass internment of Uyghur and other Muslim populations in Xinjiang, and address what human rights advocates and the broader public can do to end these systemic human rights violations.

Left to Right: Jessica Batke, Zubayra Shamseden, Tahir Imin

Since 2017, official reports have indicated that at least one million Uyghur and other ethnic minorities have been held in Chinese “political re-education camps” without due process rights or trial. With growing pressure from the international community to address China’s “re-education camps” in Xinjiang Uyghur Autonomous Region (Xinjiang), Columbia Law School’s Human Rights Institute welcomed an esteemed panel of Uyghur intellectuals and academics to discuss this pressing human rights issue.

Vincent Wong, a Masters of Law Human Rights Fellow at Columbia Law School and event organizer, began the presentation with a precautionary statement to the audience. “I just want to recognize that there are a lot of people in this room who have their relatives, friends, loved ones, currently detained, disappeared and whom they can no longer get in touch with,” he said.

Before the panelists began, Wong highlighted three themes that were fundamental to the discussion: history, evidence, and solidarity. He stated that “the history of Uyghur-China relations has been marked with patterns of conflict, dispossession, discrimination, resistance and crackdown. And these patterns would not be unfamiliar to the experiences of other Indigenous populations throughout modern history.”

Moderator Jessica Batke, Senior Editor at China File, welcomed Darren Byler, Lecturer at the University of Washington, Zubayra Shamseden, a Fellow at the Uyghur Human Rights Project (UHRP), and Tahir Imin, Founder of Uigher Times, to speak on their personal experiences as well as recent research and findings.

Darren Byler – Turkic Muslims and the Chinese Security Industrial Complex

In May 2014, China declared the “People’s War on Terror,” targeting Uyghurs, who are native to the land where the war is being fought, by calling them “terrorists” or “extremists.” That year, China began using cameras, check points, prisons, internment camps and forced labour factories, and “political re-education camps” to control the Uyghur population.

Specifically, the Chinese government has used a confluence of three main actors: state security, higher education, research institutions and private industries to heighten security among the Uyghur population. Byler called China’s terror capitalism the new “security industrial complex,” which has risen in response to the Uyghur piety.

In April 2018, Byler travelled to Xinjiang, where he witnessed the “security industrial complex” in action. As just one example, Byler witnessed “convenience police stations” that acted as “rapid response” stations that employed several police officers to surveil people who were walking down the street, while also conducting spot checks on “random” passerbyers. In Turpan, there were also face scanning machines that were specifically for the Uyghur population and ethnic minorities.

In relation to these biased security practices, quantitative data analysis and collection was also employed. According to Byler, police officers would go to every Uyghur home to access people using a “10 category assessment” to racially profile Uyghurs and assess their “level of danger.”

According to a victim, “Uyghurs are alive, but our entire lives are spent behind walls. It is like we are ghosts living in another world.”

Concluding his presentation, Byler argued that the Uyghur perspective is built on a process of total unfreedom, threatening Uyghurs’ basic essence to life – including faith, language, culture, and even cuisine. With the continuing mass internment and racial discrimination against Uyghurs, there are broader implications that call into question the idea of self determination. “This is something we all of us should be worried about – because if [the Chinese government] is able to do this, they will be able to do this elsewhere. This is not going to stay [in Xinjiang.]”

Zubayra Shamseden – The Targeting of Uyghur Intellectuals and the Long-Term Impact of Uyghur Scholarship and Artistic Work

Alongside Byler’s presentation, Shamseden began her presentation by translating a line from an essay by detained Uyghur linguist and scholar Abduweli Ayup: “As long as we are Uyghur, we are one unit. Our duty now is to be the prosecutor of the Chinese government.” Shamseden stated that while Ayup was a man who focused his research on Uyghur language and education, he had to be his own “metaphorical” attorney because there was no one else to speak for him or the hundreds of other silenced and imprisoned scholars in the Uyghur homeland.

In 2018, the UHRP’s report indicated that at least 338 intellectuals were imprisoned, forcibly disappeared and sent to “political re-education camps” as a part of an intensified assault and extermination of Uyghur culture. Since then, at least 5 deaths in custody have been confirmed, but the true number of intellectuals who have died in the camp or died upon immediate release is unknown.

Shamseden noted that the so-called ‘re-education camps’ by the Chinese government are in fact extrajudicial prisons and according to eyewitnesses, the intention of this type of detention is not only physical death, but also the assimilation through mental and physical reengineering of the Uyghur identity. “The sad thing is that [most] of these detained Uyghur intellectuals could have helped the Chinese government create the stability it so desired,” she said.

Throughout her presentation, she mentioned Ilham Tohti, a Uyghur economist who was sentenced to life in prison for separatism, Salih Hajim, a Uyghur religious scholar who died in custody, Sanubar Tursan, a Uyghur musician who was forcibly disappeared, and other intellectuals and scholars who have been detained, disappeared or put into China’s “re-education camps.”

“If the conditions in the region are not addressed by the international community, China will spread its brutality beyond its borders,” she said.

Tahir Imin Uighurian – “Terrorist” Babies in Isolated Orphanages

Before beginning his presentation, Imin stated that “I am not speaking as an academic. I am speaking as an ordinary member of the Uyghur community as a father, as a son, as a brother, as a friend.” Focusing on another victim group in the Uyghur mass-internment, as reported by reliable media outlets and UHRP, up to 800,000 Uyghur children were left behind, and sent to state run orphanages, once their parents were forcibly disappeared, detained or imprisoned.

According to Imin, “these babies are being considered by the [Chinese government] as terrorists and are being educated to be a ‘normal, lawful, nice citizen.’” These Uyghur children are being educated to get rid of their “radical, terrorist ideologies.” They cannot see their parents, speak Uyghur or implement a Uyghur Islamic diet – and because of this, suicide, depression, and fear are common.

Since 2017, Imin has been a target by the Chinese government due to his activism for Uyghur culture and scholarship. Because of his activism, he has lost all contact with his wife and daughter. “[My daughter] was my whole life. I never spend a day without thinking of her… But since then, I haven’t heard anything from them. I tried to call, no one has answered by call.” Her last words to him were “Father, don’t call us again. Police are the best people. Chinese police are good people – nice people. But you are not. You are a bad person.”

“I am talking about this painfully heartbreaking issue by myself. I don’t want to talk about my daughter with other people. This is not a joke, this is not a game. Everytime I try to say something, I lose everything in my heart,” he said.

What You Can Do

The speakers mentioned that there are several ways to bring awareness to the human rights violations occurring in Xinjiang. Call your senators and representatives to support the Uyghur Human Rights Policy Act of 2019, share the Uyghur Human Rights Project’s short briefings and reports on the mass internment and assimilation of the Uyghurs and sign the Statement by Concerned Scholars on China’s Mass Detention of Turkic Minorities.

In order to prevent the continuous assimilation and mass internment of Uyghurs and other ethnic minorities, Shamseden stated that “a fight from the intellectual community, especially the academic sectors are crucial.”

To learn more, check out the UHRP.


By a RightsViews Staff Writer

Sanctuary Law – Can Religious Liberty Protect Immigrants?

Summers in Arizona can be unforgiving. One quickly learns to test the surface temperature of objects left in the sun before committing to full contact and to never wear shorts on leather car seats. From May through September, it is not at all uncommon to avoid the outdoors as much as possible; the reprieve of air conditioning far preferable to streets and sidewalks that fry feet as quickly as eggs.

The arid, rocky, cactus-laden land that Arizona is perhaps best known for lies mostly in the southern part of the state, where temperatures can surpass 115 degrees Fahrenheit. Over 370 miles of that land stretches across the border to Mexico, which for years migrants have attempted to traverse at great risk. From 2000 to 2010, the remains of 1,755 people have been found scattered throughout this desert; individuals that succumbed to dehydration, starvation, or sun exposure. Despite the dangers, migrants from Central America continue to cross into the southwestern United States; either desperate or determined to seek out relatives, work, or refuge from violence. An average of over 500,000 migrants have been apprehended in the last five years alone by U.S. Customs and Border Protection. The presence of families and minors at the southern border—and the government’s punitive response to them—has drawn media attention of late; increasing pressure on policy makers and human rights advocacy groups alike to find real, cogent solutions.

Earlier this year, a federal judge found four volunteers from the humanitarian aid organization “No More Deaths” guilty of entering the Cabeza Prieta National Wildlife Refuge in southwest Arizona without a permit and leaving behind food and water—both of which qualify as misdemeanor offenses. The volunteers explained that the food and water was left behind for migrants that often cross through the area, and that they failed to obtain and sign a permit because the wording stipulates individuals may not leave behind food, water, or medical supplies. The volunteers, whose legal battle is ongoing, face $500 in fines and up to six months in federal prison. Several other No More Deaths volunteers face similar indictments. The response to these humanitarian efforts, led by the U.S. Attorney’s Office in Arizona, calls into question the United States’ already controversial approach to immigration policy.

An event at Columbia Law School earlier this month, “Sanctuary Law: Can Religious Liberty Protect Immigrants?” featured an all-female panel—Lizbeth Mateo, Winnie Varghese, Amy Gottlieb, and Rose Cuison Villazor. The women discussed whether or not, and how, U.S. policy that protects the religious freedom of citizens can be used to aid migrants arriving in the southwest.

Back, from left to right: Winnie Varghese, Katherine Franke, Matthew Engelke, Amy Gottlieb, Lizbeth Mateo. Front: Liz Boylan, Rose Cuison Vilazor.

Lizbeth Mateo, an attorney and immigrant rights activist, offered an interesting and unique perspective into the plight of migrants along the southwestern border. She currently represents several migrants in the custody of the U.S. Department of Homeland Security Immigration and Customs Enforcement (ICE). Their cause, she said, is near and dear to her heart—because she herself is an undocumented immigrant.

Whenever Mateo visits a client or represents one in court, she runs the risk of being arrested and detained in an ICE detention center. But the gamble, she says, is worth it. Her clients, after all, have risked everything to get here: their lives, their freedom, their wellbeing—what right has she to fear, when her clients have so much on the line?

While posing compelling arguments for migrants’ need of legal representation, Mateo and her fellow panelists make it clear that it is only half the battle. Currently, California and New Mexico are the only states along the border of Mexico with sanctuary laws—that is, “laws, ordinances, regulations, resolutions, policies or other practices that obstruct immigration enforcement and shield criminals from ICE.” These laws make it difficult for ICE to issue or complete detainers, and can protect undocumented immigrants for a time. Arizona, however, has no such laws.

In lieu of sanctuary counties and towns, migrants have found protection in churches. Although ICE agents are not legally barred from entering a church or detaining someone residing in a church, a 2011 Obama-era policy still in effect deems churches “sensitive locations” in which ICE may not engage in enforcement actions unless there are exigent circumstances or prior approval has been obtained. This grey area has provided many undocumented immigrants a home of sorts; a place where they can convene with loved ones, receive aid from local nonprofits and aid organizations, and stage their fight against deportation.

That fight can be a long one. Some, such as Edith Espinal, a client of Mateo’s, have spent over 500 days in sanctuary seeking support from local and state representatives. Edith, an undocumented immigrant and mother of two U.S. citizens, has yet to be visited by any of the elected officials her legal team has reached out to. Without a personal appeal to policy makers, Mateo worries that sanctuary will never be truly guaranteed to her clients. “We need a safety net for these families,” she said to a packed lecture room at Columbia Law, “A safety net is not just a church, it is the guarantee that someone can leave the church without risking being deported the next day.”

In 1993, Congress passed the Religious Freedom Restoration Act (RFRA). The act, which was drafted largely in response to a controversial Supreme Court decision in 1990, served as a robust protection of the religious liberties of U.S. citizens. Katherine Franke, one of the event’s organizers and Columbia Law School’s Faculty Director of the Law, Rights, and Religion Project, explained that the act was originally intended to protect religious minorities—”non-normative, non-majoritarian religions”—from the impact of laws that “may not on their face infringe on religious freedoms, but do in practice.” Theoretically, RFRA could be extended to situations in which individuals in border states wish to offer their private residences as sanctuaries, volunteers wish to leave food and water in the desert as an act of faith, or where the deportation of an undocumented immigrant severs a deeply important religious connection to a community, religious leader, or family member.

While at first these extensions of RFRA may seem a promising relief for the many thousands of migrants seeking refuge in the southern United States, its use in this manner also poses a great risk to other kinds of individual freedoms. In June of 2014, the Supreme Court held that RFRA allows for-profit corporations the ability to withhold health coverage of medications and services that violate their owners’ religion; something praised by conservatives (Burwell v Hobby Lobby Stores, INC). Could it be that RFRA, if used to serve an arguably socially liberal agenda, would thereby arm a more conservative one? Panelists Amy Gottlieb, Rose Cuison, and Reverend Winnie Varghese attempted to answer exactly that question. Their consensus, however, is that we simply cannot know. Yes, said Villazor, RFRA could be used to protect immigrants; but there is good reason for concern that strengthening legal, faith-based arguments will bolster “the other side’s” efforts to exclude, subjugate, and discriminate. Reverend Varghese similarly felt that there is no need for a value outside of our own, national identity. “What we should be fighting for is the Constitution, I think,” Varghese said.

Many faiths are founded on or around a religious obligation to help those in need. It is understandable, then, that advocates might use religion as a lightning rod—an ignition of action, a channel for outrage—in their efforts to shield undocumented immigrants from deportation, to preserve family units, and to rescue migrants from brutal, untimely deaths. And while organized religions and personal beliefs deserve adequate protection under the law, the relationship may rightfully end there. This theoretical dilemma regarding RFRA is reminiscent of a Greek myth, in which a young Pandora stumbled upon an artifact that held more than she had bargained for. In the end, blurring the lines between church and state to serve one purpose—however good and holy—may put so much else we hold dear in jeopardy.


By Kyoko Thompson, by RightsViews Staff Writer