Author Archive for Nay Alhelou

The Scope of Justice: Comparing Two Distant Criminal Justice Systems

By Donggeun Lee, RightsViews Staff Writer and a second-semester junior majoring in Human Rights.

“Comparison is in many ways a useful mirror into which we look, and by looking we notice things about ourselves and our own country and our systems that sometimes might please us [and] that sometimes might give us pause and even cause us disappointment and dismay.” – Professor David T. Johnson

On October 12th, the Columbia Law School hosted an event entitled “Criminal Justice in Japan – A Comparative Perspective” addressing the question of what we can learn from differences between criminal justice in Japan and the United States. The event was moderated by the executive director of the Center for Japanese Legal Studies, Nobuhisa Ishizuka, and featured two speakers: David T. Johnson, a professor at the University of Hawaii, and Kiyo A. Matsumoto, a United States District Judge at the Eastern District of New York. 

Differences between Japan and the United States

According to Franklin E. Zimring, the author of the book, “The City That Became Safe,” America’s crime rate has been in decline  since the 1990s. The largest and longest sustained drop in street crime ever experienced by a big city in the developed world is in New York City. However, when one compares NYC to Tokyo, one can conclude that, in terms of crime,such as homicide, NYC is still not as safe compared to Tokyo as Professor Johnson said. Additionally, other East Asian cities are far safer than NYC.

When it comes to criminal justice, the incarceration rate, and killings by police in the US are by far higher than they are in Japan. Professor Johnson believes the availability of guns might partly explain the lower rates of homicide and killings by police in Japan, as guns make homicide easier and policing more dangerous. In addition, the professor argues, Japan uses criminal sanctions far less and more carefully  than the United States. 

The conviction rates

Interestingly, the conviction rate is higher in Japan. However, the direct comparison in the conviction rates between the US and Japan also has a flaw; plea bargain cases do not go to trials in the States, unlike in Japan where they do. In addition, Japan’s version of plea bargaining provides leniency in exchange for information for someone else’s crime, not in exchange for confession. The Japanese Constitution provides protection against self-incrimination. If one were to add the plea bargain into calculation in the conviction rate in the US, the conviction rate goes up to nearly 99%, which is then similar to that of Japan. Both countries rely on admissions of guilt to secure a conviction; however, the employed pressures are different.

The role of admission of guilt

In the US, the significant trial tax and the high chance of receiving a longer sentence if someone loses in a trial make it nearly impossible for many defendants to reject the offers made by prosecutors. In Japan, however, suspects of crimes have the right to remain silent, but they are not entitled to have a lawyer present during interrogation nor can they request that their testimony be registered in a dossier. In addition, interrogations tend to be long. These characteristics of the Japanese “Hostage Justice” system may lead defendants to admit guilt regardless of whether that is a lie or truth. They do so to get out of the interrogation, explained Professor Johnson. 

The number of cases that go to trials is significantly lower in Japan than in the US, added Executive Director Ishizuka. This might suggest that prosecutors are less interested in exercising their power. Professor Johnson believes the conviction rate, excluding plea bargain numbers in the States, is lower in Japan because prosecutors in Japan are more cautious, only bringing cases to trial when acquittals are not likely to happen. 

This cautiousness, which Professor Johnson referred to as “shinsho”(しんちょう []), in Japan leads to several questions. First, perhaps Japan is failing to prosecute ‘all’ cases, even necessary ones. Second, going further with the first question, deterrence might not be the primary goal in Japan as it is in the States. Third, the high conviction rate discourages the supply of defense lawyers. Fourth, judges in Japan might be longing to see a case where they can adjudicate, or they might assume that the trials are beyond a reasonable doubt only by knowing that trials have been brought, Professor Johnson said.

Differences in the Exercise of Prosecutorial Discretion

Despite these questions, Professor Johnson stated that the main reason for the high incarceration rate in the US is “prosecutor-driven prison admissions.” Additionally, the plea bargaining is not well-protected by international laws, said Professor Johnson.

Judge Matsumoto, a District Judge for the Eastern District of New York, explained the processes of the US justice system before a trial. Before a trial, a grand jury must agree to the indictment. There are regulations to protect a suspect’s rights in the US grand jury, such as only admitting legally obtained evidence. For example, any evidence gathered without a lawyer’s presence after a suspect requested a lawyer must be suppressed in the US. The grand jury does not exist in Japan, and unlawfully obtained evidence may be used.  There are exceptions in both countries. This “fruit of the poisonous tree” concept, which describes a doctrine that extends the exclusionary rule to suppress illegally obtained evidence, exists in Japan. In practice, however, it is frequently ignored. The concept tends to be  interpreted as a right to remain silent while enduring questions.

Professor Johnson added that by no means is the Japanese criminal system perfect. However, from a strictly comparative perspective, more things could be improved in the American justice system. Judge Matsumoto points out the higher incarceration rates of people of color and the privatization of prisons, which is a highly controversial topic. However, the judge also pointed out that hope is not lost in the US. For example, the federal government has released a sentencing guideline, which is now mandatory to reduce disparity of criminal sanctions among the states and reform the justice system. There has been some progress especially for the treatment of non-violence drug crimes, said Matsumoto. 

Takeaways and Reflection

From a comparative perspective, both countries’ problems in criminal justice become amplified, especially the incarceration rate in the States. However, too many factors play important roles in two justice systems on top of pre-existing cultural differences: plea bargains, regulations on interrogations, presence or absence of a grand jury, laws in practice, and statistical differences. 

This makes it hard to claim that the Japanese system is “better” on face value. Many regulations, which do not exist in Japan, might be the reason for the United States’ lower conviction rate, excluding the number of plea bargain cases. Existing racial biases and inequality in wealth are also factors in the American justice system. Plea bargaining prosecutors incarcerate people without trials, and vigorous adversarial defense lawyers may charge higher rates and may then be available only to wealthy people.

The story of Kalief Browder shows that the problem in the US is real, not theoretical. Browder spent 3 years in the Robert N. Davoren Center, without a trial, after being charged for robbery in the second degree and other crimes. Browder’s trial was delayed 31 times by a request of the prosecutor and neither him nor his family were too poor to pay ransom or afford a defense lawyer. The appointed lawyer was overwhelmed with other cases and failed to take effective measures for Browder. The latter never accepted any offer from the prosecutor because he wanted to seek justice and prove innocence. In the meantime, Browder had to suffer from physical and sexual violence in jail, in addition to spending 800 days in solitary confinement, out of 1110 days of imprisonment. Later it was found that the prosecutor did not have any good evidence for this case; it was clear that the prosecutor’s main goal was to keep Browder in jail by delaying his trial and breaking his will so he would have no choice but accept the off After the prosecutor dropped the case without any compensation or even an apology, Browder was released from prison but killed himself two years later. 

Almost every problem in the American justice system can be found in Browder’s blood-boiling story. Presumption of innocence was ignored in the name of plea bargain, an innocent adolescent had to suffer from incarceration, violence, and solitary confinement, and seeking justice was impossible due to lack of financial means. 

In the US, the suspects who lack sufficient legal knowledge and help can easily be turned into criminals. Thus, the prosecutors and police – the law enforcement agency – can abuse plea bargaining as a means to gloss over their misjudgment, bringing criminal charges against innocent suspects. The justice of the legal system can be threatened, as in Browder’s case,  by the fact that the suspect is from a low-income household and is black, a target of racial discrimination.

Getting back to a comparative perspective, one thing that ties the two countries together is that reformation is hard to achieve. However, the challenge of reform must be taken on for the sake of the human rights of those involved in either country’s criminal justice system. 

Does Addressing Climate Change Mean Addressing Racism?

By Noah Smith, RightsViews staff writer and graduate student in the Human Rights Studies program at Columbia University

On October 28, Climate Refugees and the Institute for the Study of Human Rights at Columbia University brought together experts in environmental racism, indigenous rights, climate science and racial justice to discuss the two fundamental issues of our time: race and climate change. The panelists offered their expert opinions on the intersectional relationship between race and climate change and discussed solutions to mitigate these issues moving forward.

The climate crisis has disproportionately impacted marginalized populations, many of whom may be displaced or forced to migrate, because of years of unequal access to opportunities and gaps in human rights. Panelist Dr. Ingrid Waldron, a noted sociologist, has coined this disproportionate impact as ‘Environmental Racism’ which she defined as ‘‘a disproportionate location and exposure for indigenous, racialized communities and poor white communities to contamination from polluting industries and other environmentally hazardous activities.’’

The panel further articulated the delineation of ‘Environmental Racism’ by discussing the COVID-19 pandemic, George Floyd’s murder and the subsequent protests for racial justice, which correspondingly exemplified the effects of two divergent crises that have disproportionate impacts on Black, Indigenous and People of Color (BIPOC) because of systemic unequal access to opportunities. In 2020 the JAMA Network Open, which is part of the Journal of the American Medical Association, published a report which elucidated that in the United States Black mothers are most adversely affected by pregnancy risks associated with climate change and Black communities face heightened risks of air pollution. Upon revealing these startling realities, the panelists state that race appears to be a greater risk of exposure to environmental pollutants than poverty.

Panelist Professor Philip G. Alston, the UN Special Rapporteur on Extreme Poverty and Human Rights, discussed a 2019 report on Climate Change and Poverty, which found that developing nations will bear 75% of the financial costs and losses associated with the climate crisis, despite only contributing 10%  of carbon dioxide emissions. Alston further asserted that one could argue that ‘‘the whole phenomenon of climate change is driven by racism because it’s outsourced, and the dominant white elites are going to be able to protect themselves and they do not care about the terrible consequences that are being predicted because they will hit other groups.’’

Given the current bleak narrative, the panel offered future solutions to assuage the concerning trend we see regarding the current crisis. Panelist Dr. Lucky Tran, a science communicator based at Columbia University, spoke of the need to fight for communities harmed by bad science policies. Stating that there is a broad misunderstanding by science advocates who operate under the belief that facts alone are enough to convince individuals that climate change as well as racial inequality are real and pose existential threats to our society. He pointed out that this line of advocacy is not enough stating that ‘‘facts are not enough, we are talking about values. We’re talking about real lives, we’re talking about stories, and we have to do that a lot better.’’ This emphasis on storytelling as part of the solution to the climate crisis has been utilized by many science advocates in recent years. 

In fact, I recently watched a documentary titled America’s First Climate Change Refugees, which told the stories of communities across the US who are now threatened by rising sea-levels resulting from climate change. The individual voices showcased in this documentary are incredibly powerful and exemplify how storytelling can help us address complicated issues such as climate change. 

Furthermore, panelist Dr. Carlton Waterhouse, an international expert on environmental law, spoke about environmental justice and suggested we think of it in three frames: distributive, procedural, and justice as recognition. This framework of conceptualizing environmental justice recognizes that there is an unequal distribution of pollutant sources in society, a lack of recognition of marginalized voices in government and environment policy procedural processes, as well as a lack of recognition of what marginalized communities need and deserve. 

Actualizing these frames of justice should be a priority and as stated by Dr. Waterhouse recognizing ‘‘inequitable distribution of pollution, the harm that comes from it, and the benefits that are derived from it, that to me is the core of environmental justice.’’

Make the Money, Make (up) the News? The Underreported War of Nagorno-Karabakh

By Nay Alhelou, Co-Editor of RightsViews and MA Candidate in Human Rights Studies at Columbia University. 

Four weeks on, the war over Nagorno-Karabakh continues despite a third ceasefire agreement that was supposed to take effect on October 26. In the meantime, a parallel war – a war of (mis)information – finally starts to make headlines.

Over the past two weeks, both academics and journalists reported on the ways in which Azerbaijan has been using its financial power to set the tone of the conflict in Nagorno-Karabakh.

Academics at Harvard University and Columbia University pointed out that Azerbaijan has been investing in lobbying firms and using social media ‘trolls’ to spread misinformation in the aim of getting the public’s support. For example, Azerbaijani Telegram channel “The Tagiev” claimed that videos showing the capture and execution of two Armenian soldiers were staged, even though originally the channel itself posted them and identified them as real. However, an investigation by Bellingcat found that the videos were indeed factual, unlike the claims made by the Azerbaijani Ministry of Defense. Similarly, an Armenian Weekly journalist wrote an in-depth piece detailing different examples of propaganda articles brought to audiences by Azerbaijani-paid PR firms.

As important as these and similar articles are, they have yet to make it to the mainstream. As such, the potential fact-checks and context they provide may go unnoticed. Unless you happen to be an avid reader of a university’s newsletter, you just might miss crucial pieces of information.

However, the so-called mainstream media are not entirely oblivious to Azerbaijan’s financial powers and how they can impact not just the conflict itself, but also how the international community views it. 

Indeed, media are well aware of Azerbaijan’s oil and gas reserves and the economic power – or at least advantages – these may bring to the country. Be it the ability to misinform the public or gain the sympathy of world powers, the less advantageous impacts of Azerbaijan’s economy tend to be ignored, or at best mentioned ‘en passant.’  

For example, on October 18, The New York Times stated matter-of-factly that “Azerbaijan, an oil and gas hub on the Caspian Sea, has deployed superior firepower, using advanced drones and artillery systems it buys from Israel, Turkey and Russia.” While such a statement alludes to the benefits of a strong oil and gas reserve, it falls short from providing an in-depth analysis of said benefits. Readers are then left without any clear understanding of the economic and political powers that are at play and that may be impacting the reaction of the international community (or lack thereof) vis-à-vis the conflict and its resolution.

Again, in another article that the NYT claims would help readers “understand the conflict,” there is no mention of the economic disparities between the two warring sides at all. Even with their economies combined, the GDP of Nagorno-Karabakh (USD 713 million in 2019) and that of Armenia (USD 13.6 billion in 2019) are still less than half the GDP of Azerbaijan alone, which stood at USD 48 billion in 2019. Whether an omission of neglect or intent, the result remains the same: key context is missing.

Other outlets are not as oblivious to the power that comes with money. In an Arabic opinion piece published in “The New Arab” – a pan-Arab outlet based in the UK – Ammar Dayoub plainly warns that the difference between Azerbaijan’s and Armenia’s economic resources will directly impact the outcome of the conflict. He argues that “Azerbaijan’s power stems from the fact it was armed with energy revenue, after 1994, from Russia, Turkey and Israel” and with Armenia’s scarcity of resources, Nagorno-Karabakh will be unable to stand against “the regionally supported attack.”

Even in cases where journalists point out the lies or half-truths spread by the warring countries, a human rights lens seems to be missing. In particular, the mainstream media are neglecting the fact that the right to information – which is an integral part of the freedom of expression – is continuously under threat.

To be sure, this right does not guarantee that people will get accurate information per se. However, it can be argued that the spread of misinformation and the exclusion of key data restricts the audience’s right to access information. As a result, public opinion about the conflict as well as peace resolution efforts may be negatively impacted, if not skewed to the benefit of the richer country.  

Under international humanitarian law, all sides involved in a conflict are subject to equal obligations and have equal rights. This principle ensures that no side can claim that it is fighting a ‘just’ war in the hopes of getting away with everything it does on the battleground.

This principle, however, does not extend beyond the battlefield, where anyone seems to be able to claim anything from the justness of the war to the facts of the war and its context.

Indeed, when a military war turns into one of information, there seems to be only one rule: ‘he who pays the piper, calls the tune.’ That is, until we call it out.

Complicating Ruth Bader Ginsburg’s Legacy Through the Lens of White Feminism, Race, and Indigenous Rights

By Rowena Kosher, Co-Editor of RightsViews and student at Columbia’s School of General Studies majoring in Human Rights with a Concentration in Gender & Sexuality Studies.

On September 18, Justice Ruth Bader Ginsburg died at 87, after serving on the Supreme Court of the United States (SCOTUS) for 27 years. Ginsburg, popularly known as RBG, and in her most recent fame “The Notorious RBG,” is a feminist icon. This is for good reason—she accomplished a number of “firsts” in her lifetime and her work contributed to groundbreaking progressive legal changes, particularly regarding gender. 

Flowers on the steps of the Supreme Court following Ginsburg’s death. // Creative Commons

Ginsburg graduated top of her Columbia class and became the first woman to be appointed as full professor at Columbia Law. As Director of the ACLU’s Women’s Rights Project, she litigated over 300 sex discrimination cases before working on the D.C Court of Appeals for 13 years. Ginsburg joined SCOTUS in 1993, where she served until her death. During this time, Ginsburg rose to mainstream fame, becoming well known for her blistering dissents and constant advocacy as one of the vital liberal justices on an increasingly conservative court.

Following Ginsburg’s death, the media blew up with condolences, concerns about political implications, and articles commending Ginsburg on the successes of her career. Yet in this barrage of (justifiable) abounding praise, I couldn’t help but think about what happens when a person, a human, becomes an icon so coopted by a movement that her humanity becomes erased. In truth, Ginsburg was a person, and people are not perfect. What do we lose in this black and white thinking about legacy?

A caveat: in this article, I will offer a critical overview of Ginsburg’s legacy. In doing so, I do not intend to discredit or ignore the vastly important implications of the decisions that she made over the course of her career, particularly for women. Rather, I hope that this article presents the opportunity to, amongst our mourning and praise, also think deeply about who benefits from RBG’s legacy, and more importantly who falls to the wayside: namely poor, queer, Black and Indigenous People.

 

Ginsburg’s Feminism was for White Women

In 2013, a NYC student started a Tumblr account entitled “The Notorious RBG,” beginning the memeification of Justice Ginsburg as a white feminist icon. // Creative Commons

Ginsburg was director of the Women’s Rights Project during the height of second wave feminism, a time characterized by calls for women’s equality to men. Also known as “sameness feminism”, this camp challenges anything that could be perceived as treating women as the “lesser sex.” Ginsburg based her entire legal career on reasoning that adhered to this model. Her cases on sex discrimination followed a formula: anything that appeared to be treating a member of one sex differently from a member of the other sex was either sex discrimination, or in the case of her 1 in 4 male plaintiffs, reverse sex discrimination. 

Although on face value, this version of feminism intuitively makes sense, its historical context and practical application mean that in practice, it only really benefits one group: white women. Of which, of course, Ginsburg herself was a member.

As Muqing Zhang points out in a 2019 article in The Establishment, equality to men is an easy point of view for an upper-middle class white woman to have because sexism is often the only form of discrimination that white women face. Yet, maintaining a sameness-based sex equality argument obscures, and even worsens, the experiences of, for instance, poor, Black, queer women, whose marginalizations are plural. In fact, it was the very prominence of the consistent exclusions resulting from a sameness feminist model that led to the development of Critical Race Theory.

Ginsburg’s appeal to white feminism is clear and with this in mind, Ginsburg’s popularized successes in court take on a different tone. Zhang argues that Ginsburg’s formulaic equality framework resulted in the consistent and lasting elimination of any preferential policies towards women—results that were successes for only white women. Cases such as Weinberger v Wiesenfeld (1975) and Califano v Goldfarb (1977), ended policies on federal aid that benefited women specifically. Although aligned with a white feminist model of success, eliminating preferential policies leaves the poor, queer, non-white women who rely on these programs stranded. The results of these decisions are not racist in intent, but they do say something about the challenges of her positionality as a wealthy white woman. Zhang writes, “Although it may not have been Ginsburg’s explicit intent to harm the most marginalized of women, part of the insidiousness of white feminism is that it convinces its believers that the white woman’s experience is the universal experience for all women…in the end, it is not the intent, but the devastating impact that matters.”

On Race:

Ginsburg was not entirely oblivious about the challenges that she did not herself face. At her swearing-in ceremony in 1993, Ginsburg said: “A system of justice will be the richer for diversity of background and experience.” In 1994, Jerome McCristal Culp Jr. wrote and published “An Open Letter From One Black Scholar to Justice Ruth Bader Ginsburg” in which he reminded Ginsburg that diversity on the court does not automatically ensure that diverse voices are heard before the court. Further, understanding one form of oppression (gender) does not mean that one can or will understand another (race), or their intersections. “Privilege does not mean that the holder cannot hear the voices of the oppressed,” writes Culp Jr., “but it does suggest that one possessing such privilege ought to take care to examine where she is in relation to others and where she and others are going.” As with Crenshaw, Culp Jr. cites the challenges of applying an equality model to racial settings. The Equal Protection Clause of the 14th Amendment is a model that at best maintains the status quo, and at worst reinforces existing racialized inequalities.

When Ginsburg engaged with issues of race directly, it came across with mixed messages. One such example is her hiring record. At her confirmation hearing, Senator Hatch questioned Ginsburg about the fact that over her 13 years at the DC District Court, out of 57 employees, not a single one was Black. Ginsburg replied by saying, “I am going to try harder, and if you confirm me for this job, my attractiveness to Black candidates is going to improve.” Yet, over her 27 years on SCOTUS, she only hired one Black law clerk. Granted, law clerks for SCOTUS justices are notoriously white across the board—85% since 2005. However, a systemic problem is not an excuse for a lack of revision of hiring practices, and it is still disappointing to read of Ginsburg’s poor record.

Ginsburg made headlines again in 2016 for her insensitive response to Colin Kaepernick kneeling for the National Anthem as a protest to police violence and in support of Black Lives Matter. In the original interview, Ginsburg calls the protest “dumb and disrespectful” and compares it to flag burning. Ginsburg quickly apologized after massive media blowback. Although it appears that Ginsburg was taking issue more with the action of political speech that Kaepernick chose to take than with the cause he was protesting for, it’s frankly surprising that she was “unaware” of the nature of these protests and further, demonstrates a tendency in the legal world to interpret political actions along a hierarchy of value. Progressive values are structured to favor some political spaces (like campaigns) over others (like sports). And the very spaces that are favored are the spaces that are already structurally exclusionary to BIPOC.  Where is the space for voices against racism when the easily accessible platforms to denounce it are valued less than the institutions that gatekeep? 

In her world in the courtroom, Ginsburg didn’t stand out on cases related to race but generally sided with the other liberal justices in condemning white supremacy & racial discrimination. After all, the civil rights framework that challenges racism is the same as her well-worn equality framework for gender discrimination. For example, as an attorney, Ginsburg credited the work of Black queer civil rights attorney Pauli Murray in Reed v Reed. She authored an amicus brief for Coker v Georgia writing, “the death penalty for rape is an outgrowth of both male patriarchal views of women…and gross racial injustice created in part out of that patriarchal foundation.” Ginsburg also clearly addressed the intersections of voter suppression and race in her famous dissent, Shelby County v Holder.

She ruled in favor of several important cases regarding the rights of the incarcerated, although it is not clear that these decisions were based on her awareness of mass incarceration as an issue with disproportionate effect on BIPOC. Yet Ginsburg also supported increased barriers for prisoners seeking rights in federal courts and joined the majority in Overton v Bazzetta, upholding draconian visiting restrictions. Definitely a mixed record.

One interesting case study of Ginsburg’s lack of engagement with race is her Utah v Strieff (2016) dissent. An equal protection 4th amendment case about warrants and unlawful stops, Justice Sonya Sotomayor wrote a harsh dissent critiquing the ruling, which included what is now colloquially referred to as Sotomayor’s “Black Lives Matter Manifesto.” In this condemnation that also cited Black scholars and activists Michelle Alexander and Ta-Nehisi Coates, Sotomayor wrote “[the decision] implies that you are not a citizen of democracy but the subject of a carceral state, just waiting to be catalogued.” Ginsburg signed onto all of Sotomayor’s dissent except this section. Ginsburg ruled on the liberal side, and yet stopped herself at Sotomayor’s explicit discussion of race. Why did she pass up an opportunity to use her platform as a prominent white woman in power to express solidarity with BIPOC?

Indigenous Rights: RBG’s Biggest Regret

Ginsburg accepting her nomination to the Supreme Court in 1993. She was nominated by President Bill Clinton. // Creative Commons

When it comes to Indigenous Rights, Ginsburg likewise does not have a strong record of support. The legal field itself contributes to this. US law is based primarily on individual rights, a reflection of Western neoliberalism. This comes in conflict when dealing with Indigenous Peoples, whose rights are collective. Further, education about Indian Law is poor across law schools; only a few states include it on their Bar examinations. As a whole, the American legal system is rooted in the history of systemic genocide, exclusion, and erasure of American Indians. Given this, it is upsetting but not surprising that in her confirmation hearing, Ginsburg stated that “I cannot pretend to any special knowledge in this area of the law.” The Marshall Project does note that Ginsburg’s decisions on cases regarding Indian Law improved over the course of her time on the court. For example, her very last Indian Law case, McGirt v Oklahoma (2020), importantly ruled that a majority of Eastern Oklahoma is Indian Country—a landmark recognition of tribal sovereignty. However, backtracking to some of her earlier decisions, we see a number of cases where Ginsburg restricted Indian rights, such as US v Navajo Nation (2002) and Strate v A-1 Contractors (1997). Perhaps the most notorious, however, is City of Sherrill v Oneida Indian Nation of New York.

Ginsburg authored the 8-1 2005 Sherrill decision, ruling against the Oneida Indian Nation regarding their claim to tax-exempt status on traditional Oneida land which NY had acquired as the result of an illegal transaction in the 19th century, and then was repurchased by the Oneida Nation in 1997-98. Ginsburg’s reasoning rested on longstanding racist legal doctrines such as the “Doctrine of Discovery.” Ginsburg argued that the “longstanding Non-Indian character” of the land and the Oneida’s delay in seeking relief kept the tribe from “rekindling the embers of sovereignty that long ago grew cold.” This decision was heavily and rightfully critiqued.

It is clear that Ginsburg took these critiques to heart. In May of 2020 she confided in some of her clerks and peers that Sherrill was the single decision in her time at the court that she regretted the most. She paired this with a declaration of hope that the next SCOTUS nominee be a Native American woman.

What does all of this tell us? It tells us that Ginsburg made countless valuable progressive, life changing decisions that benefitted hundreds of thousands of Americans. It tells us she has the capacity for growth and critical thought and the humility to apologize. It also tells us that she made some really bad decisions, too. In other words, she wasn’t perfect. Nobody is. Legacies are complicated, and the legacy of a judge on SCOTUS even more so. 

We experience a general failure to recognize Ginsburg’s complicated history because she has been elevated to icon status in the pervasive white feminist narrative. As Si’iyda Shabazz writes, “painting her as a superhero on a pedestal” by the ever-impervious white feminist umbrella means we forget (or are prevented from realizing) that at the end of the day, RBG made mistakes. Just as her successes deserve to be shouted from the rooftops, the less rosy side of her record ought to be available for critique. We can only become better citizens, better feminists, and better advocates by knowing that mourning and critical analysis are not mutually exclusive, and in fact can strengthen each other and provoke us to turn Ginsburg’s legacy into justice-oriented action.

The Struggle for Equality: When Will European Roma Human Rights Finally be Respected?

By Larissa Peltola, a staff writer for RightsViews and a graduate student in the Human Rights MA Program. 

The Roma, pejoratively referred to as Gypsies, are Europe’s largest and most marginalized and disenfranchised ethnic minority.  There are an estimated 10-12 million Roma in Europe, making up 5 percent of the population. The Roma are most concentrated in Italy, Spain, France, and the UK, according to Amnesty International, but have settled in every country on the continent. Originally migrating to Europe in the 9th century from Northern India and what is now Iran, Turkey, and Armenia, the Roma have faced discrimination, racism, xenophobia, and inhumane treatment in every country they have settled in. They were forced into slavery in most of Europe leading up to the 19th century, were the second-largest group targeted for extermination by the Third Reich (an estimated 25-75% of Europe’s Roma population were decimated in WWII), and were targeted for murder and rape during the conflict in Kosovo. 

Photo copyright: Archiv C891 Ungarische Zigeuner-Familie, Roma, unter deutscher Besatzung, 1940er https://www.flickr.com/photos/65091855@N03/24650497476

Today, the Roma are still described using the most common negative stereotypes: gypsies, thieves, criminals, savage, lazy, intellectually inferior, and other derogatory descriptions. A majority live in slums without access to running water or electricity and are at near-daily risk for violence committed by non-Roma European citizens. In 2019, six French men were arrested in a plot to burn down a Roma camp near Paris due to their belief in the baseless accusation that French Roma had been involved in a kidnapping ring in poor Parisian neighborhoods. Despite this failed attempt, anti-Roma sentiment and violence in France spiked soon after these racist and unfounded allegations circulated on social media. According to the New York Times, over several days Roma men were beaten and threatened according to advocacy groups. In Rome in 2017, three young Roma girls aged 4, 8, and 20 were burned alive when their camper-van was set on fire in an intentional attack on the camp. These are merely a few of countless examples of physical violence against the Roma.

European citizens are not the only ones guilty of inciting violence against the Roma. Government officials from several countries have used their influential platforms to call for violence against the Roma. French National Assembly Member Gilles Bourdouleix remarked in 2013: “Maybe Hitler didn’t kill enough of them.” Hungarian ruling Fidesz party co-founder Zsolt Bayer declared: “A significant part of the Roma are unfit for coexistence. They are not fit to live among people. These animals shouldn’t be allowed to exist. In no way. That needs to be solved — immediately and regardless of the method.”

Repeated violence and discrimination against the Roma continue to have a detrimental effect on their communities throughout Europe. Currently, 90% of Roma are at risk of extreme poverty, are subjected to forced evictions and deportations, face educational segregation, and on average, have lifespans that are ten years shorter than their non-Roma counterparts. Over 77% of Roma and Travellers (a similar nomadic but ethnically distinct group mainly living in Western Europe) in the UK have been victims of racially motivated attacks and hate crimes and in the UK, 70% of Roma experienced discrimination in seeking education, nearly 50% were refused employment due to their ethnicity, and 30% cannot access proper healthcare. Moreover, there are few recent reports on the overall status of the Roma in Europe as a majority of countries choose not to collect or take part in data collection.

This begs the question: why, in practice, have the rights of the Roma been left out of human rights discourses in Europe? This is a question that can only be answered honestly by confronting over a thousand years of racism, negative stereotypes, and xenophobia. Much of the discrimination they face has to do with the perception of their culture. Many Europeans view Roma culture as one that has a collective identity based upon a nomadic lifestyle, a group full of fortune tellers, beggars, thieves, child snatchers, people that are too lazy to work or get an education and instead choose to be a drain on society. Many believe that Roma lifestyles not only contradict, but are also inherently dangerous to the European way of life. These ideas emerged from a series of stereotypes imposed on them shortly after their enslavement in the 13th century. Consider the character of Esmerelda from the Hunchback of Notre Dame, Cher’s popular song Gypsies, Tramps, and Thieves, or the reality show My Big Fat Gypsy Wedding which follows teen “Gypsy” brides. Each of these examples perpetuate the stereotypes of Roma girls as sexually promiscuous, Roma men as predators, and the Roma in general, as criminals. These myths were further perpetuated during the Holocaust and continue to spread throughout Europe today, made worse by social media. The Roma are continually scapegoated and are blamed for social, political, or economic problems facing the state.

Despite a large population, there is no central Roma authority since there is not one single Roma identity but instead a variety of unique cultural and linguistic groups throughout the continent. Moreover, there are few powerful Roma figures and very few politicians or others that can lobby on their behalf. The lack of advocacy on behalf of the Roma also comes from a lack of reliable data on their communities. On average, European countries do not dedicate enough resources for the collection of disaggregated data, which is essential in order to develop programs tailored to the needs of the community. Without this necessary data, financial resources cannot be allocated by the European Union, European Commission, and state governing bodies, thereby trapping the Roma into continued cycles of poverty. 

Incorporating Roma rights into the broader human rights framework necessitates an assessment of the legacy of colonialism in Europe that has gone unacknowledged and unaddressed. International organizations like Open Society Foundation, founded by George Soros, and Former Secretary of State Madeline Albright’s National Democratic Institute, have committed millions of dollars to advancing Roma rights throughout Europe, with varying degrees of success. However, many European politicians have pushed back on allowing for greater Roma participation in the social, cultural, and political field. Some countries have been accused of not distributing funds specifically allocated by international funders and the European Union for the advancement of Roma rights and community projects.  

The Roma have been victims of mass atrocities and genocide throughout history and continue to experience cultural genocide. Each European country where the Roma live has a legal and moral obligation to address the multitude of human rights violations against the Roma. States are responsible for correcting racial injustices by

  • integrating Roma children and adolescents into schools and putting in place mechanisms to prevent educational segregation, 
  • increasing access to the healthcare sector, 
  • developing discrimination and harassment training programs in all levels of society, especially for the police, prosecuting crimes against the Roma as hate crimes, and 
  • sentencing perpetrators of these crimes to the full extent of the law. 

If European countries continue to promote the idea that they are the defenders of human rights and that they fully embrace the articles of the Universal Declaration of Human Rights, then they must do more to protect the most vulnerable and disenfranchised population on their continent.

It is time that Roma citizens be treated with the dignity and respect under the law that is afforded to all other Europeans.

Turkey’s Alarming Regional Intervention Continues to Affect Minority Communities with Impunity, This Time in Azerbaijan

By Guest Contributors Anoush Baghdassarian and Sherin Zadah

Tucked away into the southern caucasus is a region struggling for survival, not against COVID-19, but against yet another offensive by Turkey, this time in Azerbaijan, targeting the region’s minority populations.  

On Sept. 27, 2020, a war broke out in the Republic of Artsakh, also known as the Nagorno-Karabakh Republic (NKR). The conflict is mainly between Armenia, the ethnic Armenians of NKR, and Azerbaijan, but Turkey is also a player in the conflict; it has pledged support for Azerbaijan, closing its border with Armenia and reaffirming Azerbaijan’s claims to territorial integrity. 

Amid the current crisis, Turkish President Recep Tayyip Erdogan pledged to “support our Azerbaijani brothers with all our means as always,” including military assistance. This manifested into a coordinated premeditated attack against one of its historic minority communities — the Armenians. This follows shortly after Turkey’s crimes against the Kurds, another one of its repeatedly persecuted ethnic groups. Turkey launched a targeted military campaign in northeastern Syria as confirmed by an August 2020 UN Human Rights Council Report that credibly accused Turkish-backed militias of committing crimes against humanity in Northern Syria against the minority Kurdish population. 

Turkey’s historical oppression of its minority populations such as the Kurds and Armenians has continued with impunity. Today, it has escalated to the immoral mobilization of a sophisticated network of proxy fighters that it deploys abroad, including in Libya, Armenia, and other countries, to fight its wars abroad. 

The Syrian National Army, or SNA, is one of the proxy groups that consists of vulnerable, war-torn Syrians who arguably would not be able to reject Turkey’s lucrative offer of 1,500-2,000 lira per month to fight abroad in Libya and now most recently, in Azerbaijan. 

Turkey has been acting without consequence in Syria, Libya, and now the self-proclaimed  Republic of Nagorno-Karabakh, or NKR, located between Armenia and Azerbaijan, but de jure recognized as within Azerbaijan’s borders. For over 25 years the NKR conflict, a stalemated tug-of-war between self-determination and territorial integrity, has been relatively peaceful (with minor skirmishes over the years, the longest lasting four days in 2016). Before the violence erupted, SNA commanders were transferred in late September to southern Turkey, and then transported to Azerbaijan on September 25th.  This occurred two days before the violence began in NKR. 

Turkey, the second largest military power in NATO,  has re-ignited the violence through its unilateral military support of Azerbaijan, and redefined it in alarming ways. This military alliance has been solidified through the Baku-Ankara agreement which prioritizes military cooperation between Turkey and Azerbaijan. To aid Azerbaijan and to further Turkey’s neo-ottomanism ambitions, Turkey has deployed Syrian foreign fighters to Azerbaijan. 

While it has already been confirmed that Azerbaijan used internationally condemned, and banned, cluster munitions in Stepanakert and Shushi, Turkey’s use of mercenaries adds another element of illegality to the fighting in NKR, according to Articles 2 and 5 of the International Convention Against the Recruitment, Use, Financing and Training of Mercenaries, and Article 2(1)(b) of the International Convention for the Suppression of the Financing of Terrorism.  The mercenaries deployed by Turkey are already credibly accused of war crimes and crimes against humanity in Northern Syria, and are also affiliated with well-known terrorist organizations. Even the head of Russia’s SVR Foreign Intelligence Service stated that the conflict was attracting “hundreds and […]even thousands of radicals hoping to earn money in a new Karabakh war.” 

Turkey is thus in breach of its obligations under the International Convention for the Suppression of the Financing of Terrorism, to which it is a member. Furthermore, Azerbaijan and Syria have also ratified the International Convention Against the Recruitment, Use, Financing and Training of Mercenaries, making the use of mercenaries on their territory illegal. Since NKR is de jure recognized as within the borders of Azerbaijan, Azerbaijani use of mercenaries in the conflict is a violation of their obligations under this Convention. 

Lastly, there is an argument to be made that Turkey is essentially coercing these impoverished Syrians into fighting, as the lack of available economic opportunity in war-torn Syria leaves them with no other option. For example, a Syrian foreign fighter fighting in Azerbaijan described to BBC how “they loaded us into troop carriers, we were wearing Azeri uniforms, and each of us was armed with a single Kalashnikov weapon. Most of the people here are poor civilians who wanted the money, not soldiers, stopped the car and we were surprised that we were in the line of fire. We did not even know where the enemy was.” While this does not preclude accountability for any illegal acts committed by the mercenaries, it is clear that the Turkish military exploited the economic and social needs of some individuals. 

While this war is too new to have thorough assessments of international law violations on the ground, we do have evidence of such violations committed by Turkey in Northern Syria. 

Turkey’s crimes against humanity against Kurds in Northeastern Syria have been well documented by the recent UN-HRC-45-31 report released in August 2020. The report documents the property theft, torture, sexual violence, forced displacement, arbitrary detention, and severe deprivation of liberty, of people “primarily of Kurdish origin” living in Afrin by the Syrian National Army. These severe human rights abuses of Kurdish civilians should be immediately condemned and acted upon by the international community, including the United Nations Security Council. 

Not only does Turkey’s use of mercenaries amount to international law violations, it also poses a threat to global security. What is especially concerning about Turkey’s use of mercenaries in furthering its foreign policy interests is that its goals are against global interests, such as combating Islamist extremism. As stated by Elizabeth Prodromou, a professor at the Fletcher School of Law and Diplomacy, Turkey’s active and passive support for ISIS and other Islamist extremist groups has been “very well documented.” Similarly, the  French President Emmanuel Macron expressed  his concern with “Turkey’s “warlike” rhetoric  which was encouraging Azerbaijan to reconquer Nagorno-Karabakh and that was unacceptable.” 

This has become a pressing global issue given that two world powers, Russia and Turkey, are on opposite sides of several major world conflicts such as in Syria and Libya and now in NKR, where Russia is trying to broker a ceasefire, and Turkey is fueling further fighting. The threat of these rising tensions risks further instability in a rapidly destabilizing region. What we see unfolding now follows an unsettling trend of Turkey’s complete disregard for the rights of minorities and raises a critical question of if Turkey will have a stopping point.

 

About the Authors

Anoush Baghdassarian is a JD Candidate at Harvard Law School. She has a Master’s in Human Rights Studies from Columbia University, and a Bachelor’s in Psychology and Genocide Studies from Claremont McKenna College. She is Co-founder of the Rerooted Archive, documenting over 200 testimonies from Syrian-Armenian refugees who have fled Syria in the last ten years.  She has a career focus on transitional justice and international criminal law and some of her work experiences include interning as an advisor to the Armenian Permanent Mission to the UN, and serving as an upcoming visiting professional at the International Criminal Court.

Sherin Zadah is a graduate of Claremont McKenna College and has worked on international development issues in Jordan and Turkey. Sherin is a humanitarian activist and former State Department intern. She has contributed to the WSJ, has been a guest speaker on NBC San Diego’s political talk and featured on national broadcasts, such as NPR where she spoke on the crisis in northeastern Syria. She is the founder of Kurdish Refugee Relief, a 501c3 non-profit organization committed to serving the needs of Kurdish refugees while creating a growing network of support. 

Social Media Platforms: A Theater for Exercising Free Speech

Guest contributor Maanya Vaidyanathan is the Policy and Engagement Manager at The Dialogue, a tech policy think-tank in India. She specialises in International Law, Gender Policies, Intermediary Liabilities and Foreign Policy. 

Guest contributor Kazim Rizvi is a Public-Policy Policy Entrepreneur and Founder of The Dialogue, a tech policy think-tank in India. Kazim is one of the leading voices in India’s tech policy discourse.

“Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.”

― John Milton, Areopagitica

Freedom of speech and expression gives individuals the right to freely express themselves without the fear of being reprimanded. This right, however, is neither absolute nor devoid of responsibility. It is a complex right that comes with reasonable restrictions, as given in Article 19(2) of the Indian Constitution

Article 19 of the Universal Declaration of Human Rights and Article 19(2) of the International Convention for Civil and Political Rights provide for freedom of speech and expression in any medium, including online media. In 2020, the Supreme Court of India guaranteed this right in the online world in a landmark judgment on the internet shutdowns in Kashmir. 

The court ruled that freedom of speech and expression and the right to carry on any trade or business using the internet, is constitutionally protected and the restrictions on this freedom must be imposed under the terms stated under Article 19(2) of the Constitution.

Online platforms act as vital communication tools which dominate our everyday lives and act as a medium for spreading and gathering news. Over the last few years, the online world has allowed people to create their own communities and find the support, encouragement and courage that they may not find elsewhere. Additionally, the virtual space has given a lot of underrepresented sections of society an identity and a platform to express themselves freely, without the fear of judgment. The internet and its intermediaries play a pivotal role in allowing people from all over the world to connect, gather information and create a sense of belonging.

Every commodity has the potential for misuse, and the internet is no exception. Along with the safe spaces that have been created online, the online world has become a breeding ground for hate speech and fake news. 

In order to tackle the growing menace in the online space, the Government of India introduced the draft amendment to the 2018 guidelines under the Information Technology Act. The changes in the amended guidelines prescribe certain conditions for content hosting platforms to seek protection for third-party content. The aim of the guidelines is to reduce the flow of unwanted and controversial content on social media platforms by mandating ‘automated filters’ to mechanically take content off the platforms and trace the original author to hold them accountable. This step, however, is not conducive with the spirit of free speech. The amended guidelines fail to define subjective phrases that warrant removal of content – such as “decency” and “morality”- which gives way to a take-down process that is arbitrary and inconsistent.

The amended rules also risk misinterpretation as the drafters have not identified any proposed metrics to determine how such online content may harm public safety and critical information infrastructure. This shows how the guidelines are contrary to the landmark ruling The Supreme Court gave in the Shreya Singhal judgment in 2015.

Additionally, the revised guidelines compromise the practice of end-to-end encryption, which will give way to widespread government censorship and surveillance.  End-to-end encryption is a system of communication where the only people who can read the messages are the people communicating. Through this system, for intermediaries to monitor content, they would have to know what the content is, which may threaten users’ privacy along with their right to free speech.

The amended guidelines lead to the violation of an individual’s right to privacy, right to equality (allowed under Article 14 of the Indian Constitution) and most importantly, the right to free speech. These three rights are fundamental human rights, awarded to each individual through national and international legislation. The internet has the power to reach the masses and allows everyone the opportunity to have a voice and call out instances of injustice and mistreatment that they may witness. Through social media platforms, citizens across the world can unite despite territorial limitations. Hate speech makes the internet a toxic environment to navigate, while fake news makes it an unreliable environment. However, censoring and controlling the speech of every user will not curb these nuisances. 

Policies are required to take into consideration the interests of all people, either individually or collectively. What is therefore desirable is regulation of social media, not its censorship. Social media platforms need to continue to remain theaters for safely exercising the right to free speech.

Why the EU Should Reconsider Renegotiating the 2016 EU-Turkey Migration Deal

Guest Contributor Ali Cain is an M.A. Candidate in the European History, Politics and Society Program at Columbia University. She is additionally the Program Coordinator for the Cardozo Law Institute in Holocaust and Human Rights (CLIHHR). Her research interests include populism, refugee rights and transatlantic relations.

Turkish President Recep Tayyip Erdogan has used over 4 million refugees in Turkey as political blackmail against the European Union (EU). Leveraging the 2016 EU-Turkey Migration Deal, Erdogan has consistently threatened to “open the floodgates” and allow refugees to cross into neighboring Greece whenever his demands are not  met. Previous demands have included quicker EU accession talks, European support for a refugee safe zone in northern Syria, and more funding to support refugees.

 In late February 2020, Russian and Syrian government forces attacked the Syrian province of Idlib, forcing thousands to flee into northwest Turkey. In response, Erdogan finally fulfilled his threats and allowed thousands of refugees to leave, even providing buses for transportation to the Greek border. Upon arrival, refugees were greeted with tear gas, barricades and shouts to go back home. Videos later surfaced of the Greek Coast Guard circling refugee boats in what looked like an effort to both deter them from landing but also capsize them. The New York Times further reported that the Greek Coast Guard beat migrants with sticks and shot at them, resulting in the death of a Syrian refugee. Worryingly, the EU’s willpower and ability to address this crisis and reinvigorate the discussion over modifications to Europe’s Common European Asylum System (CEAS) is substantially reduced as it now faces the surmounting challenge of tackling COVID-19. 

In discussing this new migration crisis, the EU has taken a defensive position in calling for the protection of Europe’s borders. Instead of using this opportunity to reinitiate a conversation on a “fresh start” for Europe’s asylum system as she advocated for during her consideration for EU Commission President, Ursula von der Leyen instead commended Greece for being Europe’s shield and offered its government €700 million ($769,968,000) of aid, €350 million ($384,984,000) of which would go to strengthening Greece’s border control. While offering support to Greece, Ms. von der Leyen and European Council President Charles Michel also visited Turkey to discuss renegotiating the 2016 EU-Turkey Migration Deal. At the height of the 2015 refugee crisis, the EU and Turkey agreed that each individual who arrived at the Greek border by boat and/or without official permission would be returned to Turkey, as it is considered a safe country for “irregular” migrants. In exchange for every individual sent to Turkey, a Syrian would be accepted into an EU member state. The EU initially agreed to provide €3 billion ($3,299,860,000) of assistance to the Turkish government to fund on-the-ground projects for refugees. 

Since the agreement was finalized, Erdogan has demanded more funding and the EU has obliged, increasing its contributions to €6 billion ($6,599,720,000) and extending its support of projects until 2025. Other parts of the deal have faltered; the EU agreed to visa liberalization for Turkish citizens and a reinvigoration of accession discussions regarding Turkey joining the EU. However, there has been little movement on both of these commitments due to Erdogan’s growing usurpation of power which has led to an increased crackdown on opposition, heightened violence towards the Kurdish community, and greater involvement in the Syrian conflict. The EU has additionally failed to accept its agreed exchange of Syrian refugees. Only 27,000 have been resettled since 2016. 

Many European governments would see the original agreement as a logistical success given that its goal was to deter refugees from coming to Europe. Yet, although migration from Turkey has fallen by 97%, a crisis still remains. Turkey is growing increasingly unsafe for refugees. The renegotiation of this deal would allow Erdogan to continue fostering an unsafe environment, pressure Europe into more funding, infringe on refugee’s human rights and further challenge Europe’s human rights commitments. 

First and foremost, Turkey does not meet and will not meet the EU’s standards for accession. Since a 2016 coup attempt, Erdogan has made Turkey, which was once applauded as a successful Muslim democracy, into an increasingly authoritarian state. Following the coup, he fired thousands of government workers, educators, and military members and arrested many of them for “anti-state” crimes. He then issued a referendum in 2017, allowing him to consolidate executive power by controlling elections, intervening in the judiciary, and appointing ministers directly. This power grab led to international outcry, including from the EU who referred to the constitutional changes as a “big setback for democracy.”  

Turkey’s increasingly authoritarian state is best exemplified in its status as the biggest jailer of journalists by the Committee to Protect Journalists and its ranking as “not free” by Freedom House. Erdogan’s actions clearly violate Europe’s commitment to human rights and its principles for the accession process; any previous reforms that satisfied the EU’s conditions for membership should now be considered completely null and void. Therefore, a renegotiation of this deal that commits to reassessing Turkish accession is not only woefully misguided but jeopardizes the human rights standards and legal commitments the EU is obligated to uphold. 

Second, refugees in Turkey are facing increasingly hostile conditions due to rising unemployment and growing xenophobia that conflict with Turkey’s status as a safe country. There are over 3.6 million Syrian refugees in Turkey. 64% of those living in Turkish cities are living at or below the poverty line because it is extremely challenging for refugees to obtain working permits. Unemployment in Turkey is now at 13%. 

This had contributed to an increase in xenophobic sentiment among Turkish society. It has been reported that 60-80% of Turks  want Syrian refugees out. Violence has begun to occur, with Syrian owned stores being attacked in July 2019 after a false rumor about a Syrian sexually assaulting a minor was circulated. The hashtag #ÜlkemdeSuriyeliIstemiyorum (I don’t want Syrians in my country) has become prominent throughout Turkish social media. 

This public pressure, as well as the clear strain on Turkey’s social services, has led to increased deportations. There is a lack of accountability in ensuring asylum procedures are lawfully carried out. Turkey is a signatory to the 1951 Refugee Convention and its 1967 Protocol, and is therefore required to not only protect refugees but also uphold the international legal principle of non-refoulment which mandates that refugees cannot be sent back to countries where they will face human rights violations.  A 2019 investigation by Refugees International found that Turkish authorities were increasingly stopping Syrian refugees to check their identification papers and accelerating deportations to Syria, many of which were forced returns. Furthermore, Erdogan has sought to resettle Syrian refugees in a “safe zone” controlled by American backed Kurdish forces. Many have criticized this plan, including the Europeans. A resettlement in northern Syria, where violence continues, not only threatens refugees but also enflames Turkey’s tensions with the Kurds. Although this plan is at a stand-still, Erdogan continues to seek out and demand support, using his release of refugees into Europe as political bait.  

Finally, the 2016 deal has allowed for conditions to also worsen for refugees in Greece. Those who arrived in Greece following the agreement were prohibited from crossing into mainland Europe, resulting in refugees having to seek asylum in Greece or face immediate deportation to Turkey. Because the deal mandates that all of those who fail to qualify for asylum be deported, Greek authorities must detain everyone who is considered to have entered Greece irregularly, which has led to overcrowding in detention centers. An estimated 40,000 people live in facilities built for 6,000. Conditions in these camps are dire; Amnesty International reported those detained on the Greek islands of Lesbos and Chios had “no access to legal aid, limited access to services and support, and hardly any information about their status or possible fate.” The Greek islands have thus become a prison of both limbo and inhumane living conditions for asylum seekers. According to the New York Times, Greece has detained migrants at secret detention centers and is sending them to Turkey without any due process on their asylum claims. Although Greece does have the right to detain those who enter its borders, it is nevertheless obliged by international law to give each asylum applicant a fair and timely consideration. 

Additionally, the European Commission announced it would offer €2,000 ($2,199) to those living in Greek detention camps who voluntarily agreed to return home. Although the Commission stated that the intended recipients of this funding are economic migrants and not refugees, poor camp conditions and severely delayed asylum decisions could put pressure on refugees to return to their home countries. It is also questionable how many economic migrants are in Greece, considering that most individuals are from war-torn Syria, Afghanistan and Iraq. Instead of trying to buy out migrants in returning home to potentially unstable states, the Commission could instead use its funding to better improve the living conditions in detention facilities and support Greece’s government in processing its asylum applications more efficiently. 

Turkey’s concerns about the refugee crisis  are not totally unfounded as it is the largest host country in the world. Considerable strain has been placed on its social services and its population. Hosting four million refugees in a country that is struggling economically is not an easy task. However, growing anti-refugee sentiment and the subsequent harms to the refugee population in the country is one of many clear signals that the EU should not renegotiate its 2016 deal with Turkey. Rather, steps ought to be taken to address the structural causes of such a high number of refugees forced to leave their homes. The EU should not allow itself to continue to be in Erdogan’s chokehold; by continuing its “payer not player” status in using funds as a conflict resolution mechanism instead of diplomacy and mediation, the EU is helping to prolong violence in Syria, Iraq and Afghanistan. Although the world is currently occupied with COVID-19, and rightfully so, the EU will have to return to its discussion on migration reform eventually.  When it does, it has moral and legal obligations to protect refugees and to figure out a solution that is dependent on European states and international law, not Erdogan’s will. 

Failing to Protect Human Rights: The United States and the Asylum Cooperation Agreements

By: Jacquelyn Sieck, RightsViews Staff Writer 

In 2019, the United States forced countries in the Northern Triangle – a region composed of Guatemala, El Salvador, and Honduras – to sign Asylum Cooperation Agreements by withholding over $500 Million in aid. These threats of aid suspension echo Cold War-Era proxy war interventions in Central America, during which the United States blocked the Guatemalan government from receiving “much-needed” development loans from the World Bank because it did not approve of the Arévalo Government. During these proxy wars, the United States offered “support for a coup in Guatemala, brutal government forces in El Salvador, and right-wing rebels based in Honduras known as the Contras.” This U.S. support led to gross human rights abuses, and demonstrated to the region that the United States is willing to act on threats and suspend aid to governments in need in order to further its foreign policy objectives. This sentiment and realization forced the Northern Triangle to respond swiftly to the aid suspension by signing the formal Agreements, after which over $143 Million in aid was released to the countries. 

The Asylum Cooperation Agreements were each signed bilaterally between the United States and the respective Northern Triangle country. The Agreements allow for the transfer of asylum seekers who arrive in the United States without having applied for asylum in at least one third country. Most alarming about the Asylum Cooperation Agreements, however, are that they designate Honduras, El Salvador, and Guatemala as “safe.” This is in spite of the fact that in 2018, El Salvador had 51 murders per 100,000 people, and Honduras had 40. Further, the U.S. Department of State’s yearly Country Reports on Human Rights Practices have recognized human rights violations, violence, and impunity in the countries of the Northern Triangle. The United States’ 2017 National Security Strategy explicitly states: “transnational criminal organizations—including gangs and cartels— perpetuate violence and corruption, and threaten the stability of Central American states including Guatemala, Honduras, and El Salvador.” These government reports show that the United States has, in fact, recognized the violence in the region; the United States government is attempting to argue these countries are safe while having produced numerous documents which argue the exact opposite.

This recognition of violence in the region can be found in the numbers of asylum grants and applications from the region in recent years. In August of Fiscal Year 2019, the United States Citizenship and Immigration Service published statistics that 72% of the migrants apprehended at the U.S. Southern border were from the Northern Triangle countries. Another report, authored by Nadwa Mossad in the DHS Office of Immigration Statistics, published statistics that in FY 2016, 27.1% of all asylum grants were from El Salvador, Honduras, and Guatemala. This number was met by 31.9% of all asylum grants being from the Northern Triangle in FY 2017, and 19% of all asylum grants in FY 2018. In order to be granted asylum, the applicant must meet the Immigration and Nationality Act definition of a refugee – have a well-founded fear of persecution on account of race, religion, membership in a particular social group, or political opinion –  and be inside the United States. 

There has been a large pushback to the newly signed Agreements from civilians and legislators in all countries involved. Guatemalan media began recognizing that their Congress had not passed the Agreement and El Salvadoran Elected Representatives talked about how the Agreement contradicted the laws on migration and foreigners. Moreover, the President of El Salvador, Nayib Bukele, discussed how El Salvador did not have the capacity to maintain a humane environment for asylum seekers. This lack of capacity is shown by statistics the government of El Salvador published, which stated they only processed 87 refugee applications and zero political asylum applications between June 12, 2014, and June 12, 2019. Guatemala received 262 asylum requests in all of 2018 and only has four asylum officers to manage them. In the United States, civil society organizations sued the Trump Administration, but the U.S. Supreme Court stated the policy could be enforced while lower courts continue their adjudications. Justices Sonia Sotomayor and Ruth Bader Ginsburg dissented and stated that the Agreements  “upend longstanding practices regarding refugees who seek shelter from persecution.”

The effects of the aid suspension have already been experienced by the region, as projects remain at risk because the State Department “reportedly reprogrammed $404 million (82%) of the $490 million of FY2018 assistance Northern Triangle.” The Congressional Research Service has said that this lost aid “could jeopardize recent improvements in security conditions in the Northern Triangle,” noting that “homicide rates are reportedly increasing once again in some neighborhoods in Honduras from which USAID withdrew due to a lack of funds.” 

The risks, however, have already begun for asylum seekers: the first Honduran asylum seeker arrived in Guatemala on November 22, 2019. The asylum seeker was reportedly offered asylum in Guatemala, a job, and a place to live, but decided to return to Honduras. Less than two weeks later, two more Honduran asylum seekers and the first El Salvadoran asylum seekers were transferred to Guatemala, and Alejandra Mena, the spokeswoman for the Guatemalan migration institute “did not specify whether the migrants from Honduras and El Salvador would seek asylum in Guatemala or return to their countries.” The uncertainty as to whether the migrants will return to the country from which they fled shows the dangers of the Agreements in providing protection to asylum seekers.

These Agreements show a continued U.S. influence in Central America, and put the safety of Asylum seekers at risk by forcing the Northern Triangle governments, all of whom have a mass exodus of citizens each year who seek asylum in the United States, to sign Asylum Cooperation Agreements and begin accepting transfers of asylum seekers. The transfer of tens of thousands of asylum seekers to these Northern Triangle countries will place an extreme burden on underdeveloped asylum systems that have only handled hundreds of cases in the past few years. With over 59,000 migrants on the U.S.-Mexico border awaiting U.S. immigration hearings, the failure to protect asylum seekers remains evident. As of February 4, 2020 the United States has transferred 378 Honduran and El Salvadoran asylum seekers to Guatemala, the majority of whom are women and children. In order to protect human rights, the United States must stop the transfer of asylum seekers to dangerous countries which have underdeveloped asylum systems and cannot offer protection to those the transfers which arrive.

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.