A Glimpse of Hope from the U.S. Supreme Court: Bostock v. Clayton County

Guest Contributor Rosa Celorio is an Associate Dean for International and Comparative Legal Studies and Burnett Family Professorial Lecturer in International and Comparative Law and Policy, Rcelorio@law.gwu.edu, https://www.law.gwu.edu/rosa-celorio. (Full Bio at end of  article).

On June 15, 2020, the United States Supreme Court released its historic decision in the case of Bostock v. Clayton County, ruling that employers are prohibited from discriminating against any individual on the basis of their sexual orientation or gender identity in the employment setting. The case relates to three employees who claimed they were fired after revealing they were homosexual and transgender. The Court firmly ruled that Title VII of the Civil Rights Act of 1964 and its prohibition of sex discrimination applies to gay and transgender persons. 

This decision is momentous and noteworthy for the respect and guarantee of human rights in the United States for several reasons.  First, it continues the trend of the Supreme Court in protecting the rights of persons historically discriminated against due to their sexual orientation and gender identity. The decision in Bostock is an important addition to the line of cases already adopted by the Supreme Court in Obergefell v. Hodges, guaranteeing the right to marriage equality, and Lawrence v. Texas, declaring the unconstitutionality of laws which prohibit private intimate activity between homosexual persons. The Court also offers an expansive interpretation of the prohibition of discrimination on the basis of sex under the landmark Civil Rights Act, thereby offering federal judicial protection to millions of LGBTI people who are employed in the United States.  The majority affirmatively concludes that it is unconstitutional for sexual orientation and gender identity to be considered as factors in employment decisions.    

Second, it is remarkable how the Supreme Court continues identifying and protecting human rights, even when they are not explicitly included in the Constitution or federal laws. In Obergefell v. Hodges, the Supreme Court emphasized its role in identifying and protecting human rights under the Constitution, even when these are not reflected in existing legislation. This statement clearly created significant discussion and disagreements between the justices, leading to dissenting opinions in Obergefell emphasizing that the creation of rights solely belongs to the political and democratic process. The debate over the appropriate reach of the Supreme Court in identifying new rights is also very latent in Bostock, as reflected in the dissenting opinions of Justices Samuel Alito, Clarence Thomas, and Brett Kavanaugh.  The Supreme Court decision in Bostock illustrates how the check and balances system in the United States and the role of the courts can be paramount in protecting the rights of marginalized populations, especially in the area of non-discrimination.

Thirdly, the United States is currently a very divided and broken country. Much of the present polarization is related to a deep-seeded history of discrimination and inequality, which has led to protests and claims for much needed reform of current laws, policies, and institutions. It is very noteworthy that this decision was authored by Justice Neil Gorsuch, who is considered a conservative.  Judge Gorsuch applies a textualist approach to the interpretation of the Civil Rights Act, concluding that the plain text of this statute leads to the conclusion that discrimination on the basis of sex also protects homosexual and transgender persons. Chief Justice Roberts – who is also considered a conservative jurist – joined the majority.  In a moment of deep concerns in the United States over discrimination, it is extraordinary to see Justices applying conservative legal interpretation to advance the rights of millions of persons. 

Lastly, the Bostock decision is in line with numerous judgments adopted by international courts offering a flexible interpretation to the prohibition of discrimination in international and regional treaties.  For example, both the European Court of Human Rights and the Inter-American Court of Human Rights have ruled on cases establishing that sexual orientation and gender identity are considered prohibited factors under the European and American Conventions on Human Rights, even though these treaties do not explicitly mention these motives in its discrimination provisions.  As the author has indicated in her previous scholarship, an open interpretation of the non-discrimination clauses in domestic laws is a key gain for legal standards related to discrimination, and for sectors and communities particularly exposed to human rights violations. It will be very interesting to see the impact that Bostock will undoubtedly have on the crafting of new federal and state legislation in the United States protecting the rights of LGBTI persons in the employment and other settings. 

The Supreme Court ruling in Bostock v. Clayton County is groundbreaking and an important step forward in the protection of the rights of the LGBTI community in the United States. United States courts can potentially be the guardians of important human rights protections, the guarantee of non-discrimination, and access to justice.  

The US Supreme Court offered us in Bostock a glimpse of hope when most needed. 

_______________________________________________________________________

Author Bio:

Rosa Celorio currently works as Associate Dean for International and Comparative Legal Studies and Burnett Family Professorial Lecturer in International and Comparative Law and Policy
at the George Washington University Law School in Washington, DC. She also teaches courses related to the US legal system, regional protection of human rights, and the rights of women, and publishes scholarship in these areas.  Previously, she worked for more than a decade as Senior Attorney for the Inter-American Commission on Human Rights (IACHR), one of the main organs of the regional human rights protection system for the Americas. In this capacity, she held various leadership positions, including the supervision of all the legal work performed by the specialized Rapporteurships on women, LGBTI persons, indigenous peoples, racial discrimination, children, and older persons, among others. She has also acted as an advisor and consultant for several United Nations agencies. She is originally from Puerto Rico.

For more information, see: https://www.law.gwu.edu/rosa-celorio

 

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.

Fait Accompli: Singapore Again Upholds Section 377A Criminalising Homosexuality

Co-authored by guest contributors Paras Ahuja and Rahul Garg. 

Paras Ahuja is an undergraduate student pursuing law at the National Law University, Jodhpur. Her research interests include human rights, constitutional law and feminism. 

Rahul Garg is an undergraduate student pursuing law at the National Law University, Jodhpur. His research interests include gender studies, human rights and international humanitarian law.

On 30th March, 2020, the Supreme Court of the Republic of Singapore in Ong Ming Johnson v. Attorney-General upheld the constitutional validity of Section 377A of the Singapore Penal Code, 1871. Section 377A punishes any male person who commits an act of “gross indecency” with another male person, whether in public or in private. The judgement marks itself as a regressive touchpoint in Singapore’s progression towards inclusiveness and equality. 

Article 14(1) (a) of the Constitution of Singapore guarantees every citizen the right to freedom of speech and expression. The petitioners in this case contended that Section 377A derogated this right by failing to recognize one’s sexual orientation to be a part of the term “expression” within Article 14. While interpreting the term “expression,” the court applied the rule of “ejusdem-generis”. The rule postulates that wherever there is an enumeration of a list of specific things followed by a generic term, the genus term (here, “expression”) should be interpreted in context of the specie term(s) (here, “speech”) and not in its widest possible construction. The court, upon application of this rule, observed that “expression” is therefore restricted only to verbal “speech” and excludes sexual identity of a person. It, therefore, held that the right to freedom of expression is encompassed within the right to freedom of speech, reducing the term “and expression” to redundancy and surplusage. 

We argue that that is an erroneous application of ejusdem-generis. It is settled law that ejusdem-generis should not be applied in a way that makes the usage of the genus term redundant in a provision. This is a fundamental principle of statutory interpretation pointed out in case laws citing Sutherland. The Singaporean court’s interpretation, on the other hand, renders the term “expression” otiose and goes against the principle that legislature doesn’t use words in vain. 

Additionally, the court relied on the marginal note of Article 14 [i.e. “Freedom of speech”, assembly and association] to ascertain the scope of the provision in order to buttress its holding that “expression” is subsumed within “speech”, since the marginal note mentioned only “speech”. This reliance conflicts with the Singapore Supreme Court’s former observation in the case of Ezion Holdings Ltd v Teras Cargo Transport Pte Ltd, where marginal notes were held to be non-exhaustive and imprecise and therefore, not determinative enough of the true contents of a provision. 

The court, furthermore, conveniently maneuvered its way to protect Section 377A from the violation of right to life and personal liberty, enshrined under Article 9(1) of the Constitution. In refusing to include the protection of “homosexual-identity” within the scope of personal liberty, the court aligns its reasoning by saying that the right to personal liberty was not an absolute one, but was qualified. It stated that “unenumerated rights were not capable of specific protection.” However, this seems particularly faulty, as “personal liberty” by itself is an abstract right; it is a collection of rights involving several aspects of a person’s life and doesn’t guarantee any specific individual right singularly. In this context, the exclusion of “unenumerated rights” from the scope of personal liberty will leave it hollow and subject to arbitrary discretion as to its scope. 

In its reasoning, the court also observed that Section 377A does not criminalise a male homosexual for his “homosexual orientation”, but only for the actus reus consisting of performance of a homosexual activity with another man. The court additionally stated that a heterosexual man would be equally liable if he were to commit a homosexual act. This distinction between criminalising the “state of homosexuality” and the conduct, that is, the “homosexual act” is farcical and theoretical. This distinction fails as it renders the manifestation of the sexual identity impractical by punishing the conduct. Identifying the flaw in such an argument, the US Supreme Court in the case of Lawrence v. Texas noted that when the act that is criminalised is so closely correlated with the “state-of-being-homosexual”, it resultantly has the effect of defining the very identity as criminal. 

The court, in its subtlety, eschewed from answering the question of whether or not the sexual orientation of a person is an immutable factor. The question of immutability was deemed central by the court since the granting of the right to life and personal liberty in this case was considered to be contingent on the recognition of sexual orientation as immutable. However, frustrated with overwhelming scientific evidence from both sides in this regard, the court eventually declared this question outside the realm of legal discussion, belonging rather to the area of scientific controversy. We argue that there is no relevance of a conclusive determination on the aspect of immutability to the question of recognition of the fundamental rights. Either way, there is vacuity in the reasoning of the court as to why a chosen sexual orientation should not be entitled to the same constitutional protection in as much as an immutable sexual orientation would be, along the “born-with-it”/“it-is-my-choice” spectrum. Therefore, regardless of homosexuality falling anywhere between this immutability/choice spectrum, the larger human rights violation relates to the resultant stigma associated with criminalization. The judgment ultimately legitimises an assumed sense of normalcy which according to the court, is only heterosexuality. At the same time, it portrays homosexuality as an anomaly not protected by fundamental rights. 

The judgement, therefore, observes a false understanding of various provisions and judicial tools of interpretation, seemingly to achieve a predestined holding. The bench microcosmically imposes its own ideas of heteronormativity on the Singaporean society, which is not only upsetting, but also mistaken.

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. 

The Tibetan Model of Resistance: Human Rights in Tibet

Guest Contributor Divya Malhotra is pursuing her Ph.D. from the School of International Studies, Jawaharlal Nehru University (JNU) and is a non-resident fellow at the Middle East Institute, New Delhi where she monitors and documents Pakistan-Middle East relations. Her areas of interest include human rights studies. Her writing has appeared in the Times of Israel blog. 

The world today is riddled with violence and conflict. Countries across Asia and Africa are engaged in a perpetual struggle for political and religious autonomy and self-determination. Be it West Asia’s Arab Spring, Israeli-Palestinian conflict over land, the Baloch and Pashtun separatist movements in Pakistan, or the turmoil in Kashmir, violence has become accepted as a status-quo in these areas. However, one community’s struggle for separation has had an intriguingly peaceful and spiritual dimension: the Tibetan resistance movement.     

Historical Background

The Tibetan independence movement is a political movement for the independence of Tibet and the political separation of Tibet from China. It has been principally been led by the Tibetan Diaspora across the globe. In 1950, China’s People’s Liberation Army invaded Tibet, marking the beginning of their struggle for self-determination. In May 1951, the agreement of the Central People’s Government and the Local Government of Tibet on Measures for the Peaceful Liberation of Tibet was signed in Beijing, giving Tenzin Gyatso, the 14th Dalai Lama, control over Tibet’s internal affairs. The tensions between both sides continued and in July 1956, Qimai Gongbo, headman of Tibet’s Gyamda County, led a rebellion against the Chinese government. In 1956, the Dalai Lama reached New Delhi via Sikkim where his elder brother Norbo joined him after his trip from the US. As per Chen’s account, Norbo advised the Dalai Lama to either lead the Tibetan struggle from India or the US. The Lama, however, returned to Lhasa to lead his people. 

In March 1959, China brutally suppressed mass uprisings in Tibet, leaving 545 Tibetan rebels dead and over 4,800 wounded. “We only lived to kill the Chinese”, recalls one Tibetan veteran, hinting at the essentially violent character of the freedom movement. At the outset of the brutal uprising in 1959, fearing for his life, the Dalai Lama and his entourage fled Tibet with the help of the CIA, crossing into India in March and reaching Tezpur in Assam on 18 April. Eventually he set up the Government of Tibet in Exile in Dharamshala, India, popularly known as “Little Lhasa“. 

The Central Tibetan Administration (CTA), headquartered in McLeod Ganj, Dharamshala, was established in 1960 as the “sole and legitimate government” of Tibetans. The CTA was authorised to look after the immediate and long-term needs of Tibetan people with special focus on seven major areas, namely, religion and culture, home affairs, finance, security, education, health, and International Relations. Under this charter and structure, the series of institutions run by the Dalai Lama have been creative, constructive and productive in nature.  

The Tibetan flag, adopted by the 13th Dalai Lama in 1916 and used in official capacity through 1951. Since then, it is used only by the Government in Exile and is symbolic of an ongoing freedom movement.

After the founding of the government in exile, he re-established the approximately 80,000 Tibetan refugees who followed him into exile in agricultural settlements. The Tibetan struggle has not been at rest since then, as has also been well documented by famous authors including Qingying Chen, Brazinsky and Melvyn Goldstein

Two external players have been important to the Tibetan struggle during its infancy; India – which offered an alternate home to the Tibetan community in exile and the US, as elaborated by Qingying Chen in his detailed treatise “Tibetan History”. With the principal intention of containing Communist China, the intelligence agency is believed to have channelled annual amount of USD 1.7 million for anti-China operations, including USD 180,000 annual subsidy for the Dalai Lama. As per Gregg Brazinsky, Kennedy and Johnson administration offered continued support to Tibetan rebels, and two “Tibet houses” were established in New York and Geneva to coordinate with Tibetan leadership. Washington and Delhi’s support to Tibet was perhaps motivated by anti-Beijing sentiments and respective geopolitical interests. The US support was helpful till the 1990s, but after the fall of communism in 1989, the American policy toward China changed and “they stopped their help”. Nevertheless, their support came handy for the fragile Tibetan movement. 

Characteristics of the Movement

While most of the other global secessionist movements have focused on training militia and perpetuating violence, this movement has essentially had a spiritual dimension to it. The Dalai Lama guided and led his people in a profound and positive manner. For any political movement, the personality of the leader is instrumental to shaping the struggle. By that logic, the Dalai Lama’s positive personal spiritual aura has also spilled over into the Tibetan resistance movement. Although he holds immense influence for Tibetans and their politics, the Dalai Lama still sees himself as a “simple Buddhist monk” and not a political leader. His day starts at 3 in the morning and ends at 7 in the evening: a reflection of his simplistic and pristine lifestyle. Yet, he continues to mentor a seven decades old freedom struggle and his political views revolve around the notion of democracy. In his own words, “No system of government is perfect, but democracy is closest to our essential human nature. So it is in all our interests that those of us who already enjoy democracy should actively support everybody’s right to do so.”

Labelled as a “brilliant master of this elusive modern equilibrium”, the Dalai Lama is an enigma. In his book The Open road: The Global Journey of the Fourteenth Dalai Lama, Pico Iyer beautifully articulates how the Dalai Lama spends his day “meditating on the roots of compassion and what he can do for his people, the Chinese brothers and sisters who are holding his people hostage” and at the same time, continues his spiritual journey. 

Instead of defining his people’s struggle in terms of “Good Tibetans, bad Chinese”, the Dalai Lama, with an essentially positive prism, sees the issue as a struggle between “Potentially good Tibetans, potentially good Chinese”. In 1989, the Dalai Lama was awarded the Nobel peace prize for his approach to Tibetan liberation. It won’t be wrong to state that the Dalai Lama always emphasized on non-violence and practises of meditation, yoga and spirituality for protecting human rights.

Introspection, meditation, spirituality and peaceful mediation have been at the core of the movement. Even though the Dalai Lama retired from his position of the political head of Tibetan people in 2011, his ideas and ideals continue to define the movement. Human rights violations have been documented in Tibet, where Chinese authorities continue to restrict and refrain the people from expressing their support for freedom. There have been cases of arrest and self-immolations. Yet the struggle in itself has been devoid of the massive bloodshed and violence which dominates and depicts the struggle of other communities in the rest of the Asian subcontinent. Tough, resilient and persistent, the community has not given up on its demands in accordance with the Dalai Lama’s peaceful ethics.  

Despite the armed uprisings in the beginning and continued violent suppression by Chinese authorities, the resistance movement in Tibet has been relatively peaceful in nature, following the Dalai Lama’s peace oriented approach. However one may wonder whether this approach to secession has yielded any tangible gains? A basic overview clearly indicates that the Tibetan struggle has not reaped any concrete benefits. The number of casualties varies from a few thousands to millions, based on different data sources. However at a comparative level, what have the Palestinians, the Balochs, the Pashtuns and the Kashmiris gained by adopting violence? All these communities, allegedly suppressed by the powerful regimes, have not made much notable territorial or political gains either way.     

Amidst perpetual conflict and bloodshed, the peaceful nature of the Tibetan struggle, because of the Dalai Lama’s influence, is an inspiration to a new generation. Perhaps if the world were to follow a Tibetan model of struggle, logic and peace will prevail while giving everyone a chance to express their dissent without harming the others.   

Exploring Careers in Human Rights: ISHR’s 2020 Human Rights Career Panel

Exploring Careers in Human Rights: ISHR’s 2020 Human Rights Career Panel

By Rowena Kosher, Co-Editor of RightsViews 

In the midst of the global pandemic of COVID-19, orders of social distancing and indoor sheltering in place, students and panelists tuned in virtually for ISHR’s annual career panel last week, meeting through screens to discuss what the multiplicity of careers in the human rights field can look like. Gergana Halpern, ISHR’s Director of Educational Programming, moderated the panel. 

The Panelists – What Do You Do?

Halpern began the session by asking each of the four panelists to introduce themselves, their current work, and what their job entails. 

Louis Bickford is the CEO and founder of Memria, an online platform for the collection and sharing of stories through audio and text, and an Adjunct Professor of Political Science at ISHR. He has 20 years of experience in the human rights field and as such has worked in a variety of capacities, including in truth commissions, testimonial collection, academia, NGOs, and now technology. 

Rebecca Norlander is the Lead Researcher at Knology, a “collective of scientists, writers, and educators dedicated to studying and untangling complex social issues.” Knology focuses on providing practical approaches to problems in which human rights play a role. Norlander highlighted that her current job looks at human rights at large from a variety of approaches, encouraging cultural appreciation and identifying best practices in advancing positive social change. She identified two focus areas of her work: institutions themselves—how can they serve as vectors to advance social good?—and human rights education.

Karen Karnicki, an alumna of ISHR’s Human Rights MA program, is a Program Associate at the Rockefeller Brothers Fund (RBF). RBF is a philanthropic grant-making institution with an endowment to support projects worldwide. RBF’s investment assets as of January 31, 2020 total $1.26 billion. Karnicki works on a program that provides grants to civil society organizations focused on peacebuilding. Karnicki’s responsibilities are twofold: firstly, she performs grants administration and management, including advocating for grant recipients and ensuring grants comply with IRS and other regulations. Secondly, Karnicki travels to meet various people involved in the grant application process, giving her the opportunity to see the work of many civil society organizations and their human rights-related missions.

Daniela Karrenstein is a Political Affairs Officer at the UN Office of Counter-Terrorism’s policy unit. She prepares talking points and makes background notes on policy issues that will be later discussed with the Secretary General and other senior officials. A significant portion of her job involves working with the many UN member states, attempting to find common ground in opinions on policy approaches or document provisions. She also handles the preparation of the Under-Secretary-General for engagements on issues of strategic interest to the broader UN. 

Breaking Down Partnerships in Human Rights

Halpern queried about the nature of partnerships in human rights work. Human rights is filled with many actors. How can one identify the right actors to work with, and what do partnerships look like? Agreeing, Bickford stated that “this entire field is built on partnerships,” and although the nature of the actors and partnerships may vary, they all boil down to the same conversation. In essence, all partnerships are about developing strategies and alignments, asking “how can we work together?” and “What do we bring to the table?” Of course, not all partnerships will work out, such as an instance when a funder may decline to contribute to an applicant, but when partnerships have been established, they operate through communication and a shared commitment to human rights issues.

Karrenstein described the nature of her specific engagement in human rights partnerships, ones which exist within the large intergovernmental system of the UN. Because of the legal and moral authority of the UN, universal values as enshrined in the UN charter are the basis of the UN’s human rights work. United by this commitment, member states ideally work together to develop solutions to international issues. In her capacity, Karrenstein is able to have direct contact with the UN member states, as such developing partnerships both informally and formally to push states on issues of strategic interest. Direct contact with member states and the security council has many advantages. Yet, the UN system also comes with challenges. It is hard for 193 states to agree, and Karrenstein notices the heavy influence of geopolitics on causing stagnation on certain issues. Further, although she loves the intercultural and interdisciplinary relationships between UN staff members, those varying backgrounds can also make it challenging to communicate effectively with each other.

On a much more “birds-eye” level, the partnerships Karnicki builds in the human rights field are a bit more removed. In the world of philanthropy, program staff like Karnicki build large networks, connecting with individual actors, governments, civil society, and NGOs. These connections allow Karnicki to see the whole “ecosystem of organizations” and human rights issues, a broader perspective that excites her because she can see not only the many issues, but also how they overlap. Bickford, who has also spent some time in the philanthropic world, noted the tension between NGOs and philanthropic organizations, in which NGOs see only their issue and consider it the “most important”, yet philanthropy sees the many “most important” issues all vying for support.

Slightly removed from direct service, Norlander’s work in research takes a more behind-the-scenes approach to a human rights partnership. As she noted, there are many different layers and levels to doing what we call “human rights work.” What Norlander does brings research and analysis to direct players in the field, informing best practices, approaches, and helping to guide decision making. As such, she builds one relationship with academia and research and another with on-the-ground practical solutions to the issues that the research reveals. 

Figuring Out Your Path

From the grassroots to the international level, main players to players behind the scenes, it is clear that partnerships structure the human rights field. With so many potential paths to follow, how can you know what type of human rights career best suits you? Panelists touched on this throughout the event, explaining how they were able to mesh their personal preferences and styles to their various jobs. 

Karnicki encouraged students to ask themselves “how does my brain work best?” Personally, she would not work well in a job that is too specific: “I would be a terrible specialist. I’m much more of a generalist.” This is why philanthropy works so well for her. Bickford concurred with the suggestion to build off of the generalist/specialist distinction. Do you want to wake up in the morning and ask yourself what is going on in a narrow slice of the world or do you want to drink your morning joe while pondering the state of the entire field at large? 

Students may also consider how they want their days to look like, said Norlander. This is something she wished she had asked herself when in school. Do you want to be interacting with people all the time, or do you want to sit back and do more solo activities? Norlander spent several years in academia, which she admitted could be individual and isolating at times. Once she began to embrace an interdisciplinary approach to her engagements, she found it rewarding to be collaborative with others. “This whole time I’d been my own mini think tank,” she said, “and now I have all these other people to think with.” You get trained to do one thing well, Norlander said, but there is a richness that comes with working in collaboration. 

Certainly, academic training can influence where students may direct their interests, although several panelists stressed the importance of being open to new and unexpected interests, as well. Bickford received his training in political science and enjoyed that because of its problem-solving nature. Karrenstein came from a legal background, having received a law degree in Germany focused on public international law and human rights law. Her time as a research assistant to a professor in public international law also solidified her interest in seeking a career where she could use this expertise. She knew that she wanted to work in the multilateral world and set her sights on the UN. Yet, panelists encouraged students to cast a wide net when thinking about jobs after graduation. “The human rights education lies in you,” said Norlander. Don’t sell yourself short; there are any number of organizations and companies across many sectors where you can be the human rights voice. Karnicki agreed, stating that some people may have to go out of their comfort zones to things more tangentially related to human rights, but that you can bring a social justice lens to any job you do. 

This is relevant for what Halpern noted as one of the most commonly-asked questions from students, and a question that was posed to the panelists: “do I have to go to law school to do human rights?” The overwhelming consensus from the panelists was a resounding “no.” While, as Karrenstein pointed out, some jobs may have a prerequisite of a law degree, human rights work can take a plethora of forms which do not require a JD. You should do what you love, claimed Bickford. If you love law, then by all means pursue law. For people who enjoy rules and structure, law can be a great career path. But if you are someone who thinks culture changes society, then a sociological or anthropological approach may be a better fit. The moral of the story? Think deeply about what will provide you the most value, personally and practically. 

Building a Human Rights Skillset

It is clear that human rights jobs can span the gamut, yet the panelists all stressed a common “human rights skillset” that is helpful no matter where you choose to work. 

Technically, Norlander stressed the necessity of being able to conduct research in a variety of methods. Learn the research skills, and more importantly, do not treat issues in isolation. “Not only do you need a range of methods,” she said, “but you also have to recognize it as a social system.” Connected to this is what Bickford called the skill of “problem-solving-ness.” The field, he said, is all about tackling problems. Can you sit down at a table, take a problem, and wrestle it into some type of a solution? The human rights field is moving on from its old “naming and shaming” approach to one that is solution-focused. Be prepared to bring interdisciplinary problem-solving skills to the work you do. This is especially important because, as Karrenstein and Bickford noted, it is necessary in the human rights field to be able to demonstrate impact. 

Knowledge acquisition, however, is of little use in the human rights field without the ability to communicate it to various audiences. Karrenstein’s job in the UN highlights this necessity. It is not just the technical knowledge that counts, she said, but rather is first of all about communication skills. The UN functions off of collaborative relationships between members who may have very different mindsets on an issue. “Set the scene,” she recommended, and keep in mind the political terrain that member states are constantly navigating. The soft skills truly steal the spotlight. Karnicki likened communication skills to translation: in her job, she needs to translate grant content from an applicant to the decision makers who approve grants. Knowing how to build a case and advocate for her grantees is crucial to translate their missions to an audience. 

Textual communication is a technical skill that every human rights practitioner will need to hone. Know how to write, said Norlander. Be able to synthesize a lot of information into concise and digestible summaries. In the context of the UN, Karrenstein could not underestimate the value of drafting skills—being able to explain a complex scenario in simple and short ways. 

Finally, panelists discussed positionality. As people in the human rights field, we must constantly question our own biases, privileges, and assumptions. Many fields are shifting right now, focusing more on questioning the intentions and impact of certain “old school” approaches to human rights issues. Karnicki noted that the philanthropy world is asking new questions about equity in a way that it has not before, querying issues of marginalities and a donor’s role given their power and resources. Donors should try to develop a sense of humility and listening, working against the industry’s history of acting as ‘expert’ in ways that are sometimes unwarranted. “I feel like I have a role to play in pushing for more equitable distribution of resources,” she said. 

This is also an important question to ask oneself when thinking about field work in human rights. Bickford argued that the role of international actors is changing all the time. What is the added value, if any, of international actors “parachuting in” to provide expertise and leaving immediately after? The paradigm of North-based expertise and South-based recipient is “totally inappropriate now,” he argued. We need to rethink the entire model, constantly reassessing power relations and scanning where there is actual added value in assistance. Karrenstein agreed, admitting the UN’s sometimes problematic past engagements in missions or mandates that were more political compromises than valuable assistance. 

From a research side, Norlander highlighted some methodologies that embrace a conscious engagement with researcher positionality. She subscribes to a constructivist approach, in which the researcher acknowledges their position and biases. She enacts this through participatory action research (ensuring those who will be affected by the process have a voice in the process) and grounded theory (seeing what emerges from the data rather than a top-down imposition). 

Where do we go from here?

Throughout the panel, speakers presented their own experiences in concert with their recommendations for students and new graduates exploring a career path in human rights. As Karnicki recognized, the job hunt is an uncertain and scary time. This is not to mention that we are currently experiencing the emotional rollercoaster of a global pandemic and massive unemployment. Yet, looking for a career is also a chance to explore one’s passions and creativity. “The idea of positioning yourself perfectly will be absolutely impossible,” argued Bickford. Instead, pursue the thing that you like the most, because in the end, it almost always “kinda works out in a weird way.”  

A State’s Responsibility in an Epidemic: Human Rights and the Coronavirus Outbreak

Guest Contributors Bodhisattwa Majumder and Devashish Giri are penultimate year students at Maharashtra Law University Mumbai. Their interests include Constitutional Law, Public International law and Maritime law. Any discussion related to the paper can be made via mail at bodhisattwa@mnlumumbai.edu.in or Giridevashish15@gmail.com

The outbreak of Coronavirus or COVID-19 (“Coronavirus”) from Wuhan, China (“People’s Republic of China “) has engulfed as many as twenty four countries across the globe with a medical emergency and has claimed more than 3,800 lives as of now. 

This strain of the virus is graver than the other types of Coronaviruses as it has never been identified in humans before. Coronavirus belongs to the zoonotic group of viruses which can affect a human being with a range of health ailments ranging from the common cold to serious problems such as Middle East Respiratory Syndrome (MERS-CoV) and Severe Acute Respiratory Syndrome (SARS-CoV). The World Health Organization and other countries including the US have declared it as a “Global Public Health Emergency”.  In order to restrict the transmission of the virus, however, China has taken various restrictive measures which have caused serious human rights violations including but not limited to arbitrary censorships, lockdowns, quarantines, police suppression, and mass detentions.

In outbreaks of viruses with communicable properties, response time in communicating information and alerting the public and world about the dangers of the virus is of the essence. Even a delay of a month can have a huge impact; in the absence of proper information, crowded public places act as the hub for transmission. 

Early on in the outbreak of Coronavirus, citizens of China were deprived of their freedom of expression and free speech. The Wuhan province was under strict observation by the Chinese government, and any information related to the outbreak was termed as mere “rumours” and prohibited from being shared across any social media platform. There were numerous reported instances of police suppression when doctors, nurses and other associated personnel working in the frontlines faced strict penal measures by the police on grounds of spreading the information related to the virus.

 It was only due to a brave whistleblower, Chinese Dr. Li Wenliang, who risked his own safety and livelihood to spread news of the outbreak in Wuhan to his alumni peers via WeChat, that the world was able to learn about this dangerous phenomenon that China had tried to keep under wraps. He sent his message on December 30, and China alerted the World Health Organization (WHO) about its outbreak on December 31. Since January 1, researchers have learned that China has been censoring WeChat accounts for words related to the Cornonavirus, blocking certain combinations or anything negative towards President Xi Jinping.  Furthermore, China placed the entire affected province under lockdown without any prior notice, which deprived the residents any chance to ensure the availability of basic amenities of life such as food and medicine. Such a measure has affected vulnerable populations of society, including those with disabilities, illness, and the elderly and deprived them of their essential needs. These are direct violations to their right to health. There has been a mass-quarantine process of millions of people for the cause of limiting the spread from the city of Wuhan. Any offering measure by any section of society be it, Lawyers, Activists or Artists, has been prohibited, censored, threatened and harassed by the organs of the government. Despite having strict regulations against discrimination regarding communicable diseases, the machinery has apparently failed.

Coronavirus has not limited itself to Chinese province and other South-East Asian states have been affected, although not every state has adopted measures which violate human rights. Amidst the Chaos, the approach of Singapore has been a silver lining, which has won praises for its benevolence and informative approach rather than an authoritarian one. Singapore’s approach has been direct and effective to reduce panic, rumours and conspiracy theories, aligning itself correctly with the statement of the Prime Minister which was posted on social media in three languages, “Fear can do more harm than the virus itself. The speech alone was proven effective as the following weekend witnessed a reduction in crowds in the city-state. The Singaporean approach included prevention, contact tracing, quarantine and access to information. Singapore’s official website of the Ministry of Communications and Information provided useful and practical advisories on topics such as ‘When to See a Doctor’, ‘What happens to suspect cases’ and ‘How to practice good personal hygiene’. The approach of Singapore prioritized the welfare and safety of citizens over political stability and economic costs, which won praise across the world. Singapore was among the most affected regions of Asia (Orange alert). Still, it chose to inform its citizens rather than bury the situation. The constant live news coverage, transparency about developments, and inclusion of health workers in planning has proved to be effective in controlling the situation and reducing  panic among citizens. 

Public International Law dictates that regardless of a health emergency or an epidemic, the measures taken to affect human rights should be legal, necessary, reasonable and proportional. Every measure must be recorded in evidence and there should be strict adherence to the procedure prescribed. An undemocratic regime leaves no scope for a consequence to the state for failures in terms of epidemic response and as a result, there is no accountability from the state. The people residing in affected areas are shunned out without any scope for the expression of dissent or discontent or even a cry for help from the international community. Human rights cannot be allowed to be violated under the garb of a health emergency and every nation should take a lesson from the incident of the Coronavirus outbreak. The priority of taking measures to restrict the outbreak lies in equal pedestal with the significance of following due process without depriving the people of their human rights. The international community needs to take a stand, and every response from a government during the outbreak of an epidemic or a pandemic must be within the four corners of human rights.

A Fresh Start in EU Migration Policy: Re-examining the Dublin Regulation

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.

During her 2019 candidacy for European Commission President, Ursula von der Leyen proposed a New Pact on Migration and Asylum to “relaunch the Dublin reform of asylum rules.” Ms. von der Leyen is correct: Europe’s asylum system needs a fresh start. The Dublin Regulation III mandates that asylum seekers register upon arrival in the first European Union (EU) member state he or she enters. At the refugee crisis’ peak in 2015, 1.3 million asylum seekers and migrants arrived in Europe. Many traveled through the Mediterranean Sea, designating Italy and Greece as first ports of entry and, therefore, responsible for processing asylum claims. The influx of asylum seekers has led to immense strains on local governments, inciting animosity against refugees and creating a significant backlog of asylum decisions. 

According to Politico, there is a backlog of 90,000 asylum cases in Greece alone. The Greek government recently released a plan to create a “floating wall” to block migration routes on the Aegean Sea and will soon begin construction of closed detention centers that will limit the movement of asylum seekers. At a press conference on February 27, the Greek Prime Minister Kyriakos Mitsotakis explicitly told those who do not qualify for international protection to “not come to Greece”, and warned that they will remain stuck on the islands until they are returned home. Although Greece’s treatment of refugees is appalling, their actions and rhetoric towards refugees demonstrates the depths of desperation which border states are being driven to due to EU inaction. To complicate issues further, the EU received its highest numbers of asylum applications since 2015; the European Asylum Support Office reported that 714,2000 applications were received in 2019. Future migration crises are inevitable, especially given climate change as an increasingly central driver of forced displacement. Commission President von der Leyen must prioritize the reform of the Dublin Regulation to create a cohesive asylum process in Europe. 

The Dublin Convention was created in 1997 in response to the Schengen Zone’s development. Under the Convention and its succeeding regulations, geographic arrival points determine state responsibility for refugees. The number of refugees already present in a state are not taken into consideration when determining relocation destinations or places of stay during the processing of asylum applications. Although the Dublin Framework includes rights for refugees that are already solidified under international law, including family unification and speedy asylum decisions, those rights are not enforced equally among EU member states. Following the 2015 refugee crisis, the EU began to discuss reforming the Dublin system to include burden-sharing measures and increased human rights protections. The European Commission proposed a reallocation quota determined by each country’s population and gross domestic product (GDP). The European Parliament suggested amendments to the Commission’s proposal also to include family reunification and prior residence/study in relocation decisions. The European Council must decide whether to implement burden-sharing provisions, but has been divided on the best way to actually relocate refugees since December 2018. The Visegrád countries – Hungary, Poland, the Czech Republic and Slovakia – have refused to accept refugees or abide by quotas.

As a result of Council gridlock, member states have relied heavily on third-party agreements to curb migration. These agreements have been successful in achieving the EU’s overall goal of curbing migration but pose threats to human rights and are not sustainable in the long-term. Although the EU’s 2016 deal with Turkey led to a 97% decrease in migration from Turkey to Greece, 3RP reported that over 64% of the 3.6 million refugees living in Turkey are living in poverty. Turkish President Recep Tayyip Erdogan announced plans for the “voluntary” resettlement of refugees in a “peace zone” in Northern Syria. Pushing refugees to return to Syria would violate non-refoulement standards under international law, which mandates that a host country cannot return asylum seekers to a country where they would be in danger or would be persecuted. Furthermore, President Erdogan announced on February 27, 2020 that Turkish authorities will not prohibit Syrian refugees from leaving Turkey to go to Europe, as Turkey is facing an influx of Syrian refugees from Idlib due to recent attacks by the Assad government and Russia. This recent announcement demonstrates the precise issue with third-party agreements: they provide short term reprive for host countries but kick the can of dealing with refugees down the road at refugees’ expense.  

The EU-Turkey deal also has implications for those already in Europe. For example, thousands of refugees are stranded on the Greek island of Lesbos as the EU-Turkey agreement prohibits their arrival on mainland Greece. Most recently, protests against inhumane living conditions broke out at the Moria refugee camp, where 20,000 refugees are cramped into facilities built to house 3,000 individuals. These conditions, which are common in many refugee camps throughout Europe, infringe on basic human rights secured under international conventions, including the 1951 Refugee Convention.  The EU’s 2015 Emergency Trust Fund for Africa has decreased economic factors that encourage migration from Africa by providing over 50,000 jobs and improving living standards. However, as explained in a recent Oxfam report, European investment in specific countries and regions is tied to migration levels stemming from each origin country. Addressing underlying societal issues like poverty and inequality, and political issues like corruption is not tied to aid. The EU also increasingly has depended upon the Libyan Coast Guard for search and rescue (SAR) missions, which intercept boats and return passengers to Libya. Those sent back to Libya face torture and trafficking in detention centers run by both the government and militias. Forced returns to Libya also violates the principle of non-refoulement.

A report released by the European Council on Foreign Relations argues that member states may now be more open to asylum relocations and burden sharing. In July 2019, fourteen states signed a solidarity mechanism, pledging to relocate migrants across the EU. In September 2019, Italy’s staunchly anti-migrant interior minister Matteo Salvini was recently replaced by migration specialist Luciana Lamorgese in September 2019. Italy’s migration policies have already begun to change as private charity’s boats can now dock at Italian ports. Additionally, a recent European Council on Foreign Relations survey found that a majority of EU citizens no longer see migration as the most pressing issue of concern. Instead, survey respondents reported “health, housing unemployment, and living costs as standout issues.” Although it is easy to get caught up in the pessimism of current EU affairs, all European countries can agree that the current system under the Dublin Regulation is not working. A November 2019 EU Council Presidency report acknowledges the importance of the EU speaking in one voice about migration and concludes that “the more members states have the perception that EU legislation is meeting their concrete needs and taking into account their administrative realities, the more likely it is that the implementation will be successful.” The new Commission’s expressed interest in reforming the CEAS and the designation of €949 million ($1,039,120,000) to the EU’s Asylum, Migration and Integration Fund presents an opportunity for reform. The EU has also pledged 30.8 billion ($41,608,700,000) for immigration and border control issues in the 2021-2027 budget.  Furthermore, the conclusion of Brexit provides a pivotal moment for the remaining 27 member states to reestablish the EU’s joint efforts and cohesiveness.

Migration is one of the most complicated and emotionally-driven issues to nation-states, as it heightens various concerns regarding economic and cultural security. The EU’s current approach in relying on third-party agreements, increasing general border control, and remaining gridlocked over how to better distribute refugees throughout Europe is a significant problem. Border states, especially Greece, and larger financially stable states like Germany, cannot be solely responsible for asylum seekers. The European Commission must push states to reopen discussions and negotiations on reforming the Dublin Regulation.

Truth in Sentencing: Mass Incarceration in the United States

By Reem Katrib, Staff Writer for RightsViews 

With the mark of the 10th year anniversary of Michelle Alexander’s powerful book The New Jim Crow at the end of January, our current celebration of  Black History Month, and an approaching presidential election, it is important to bring to the forefront the continuing systemic racism in the American criminal justice system. The recent eighth presidential debate, argued the evening of February 7, 2020, in New Hampshire, brought forth this topic with the spotlight on presidential candidate Pete Buttigieg when asked why a black resident in South Bend, Indiana was four times more likely to be arrested for the possession of marijuana than a white resident after his appointment to office. While Buttigieg had initially avoided the questions posed by ABC News’ Live News Anchor Linsey Davis, he then conceded, claiming that the arrests made were made as a result of the gang violence that was prevalent in the black community of South Bend, causing the deaths of many black youths. This logic and rhetoric, however, plays into narratives which contribute to the disproportionate criminalization of black Americans, despite Buttigieg’s recognition of systemic racism in the criminal justice system on the national level. This then begs two questions; primarily, what policies on mass incarceration impact persons of color today? And what positions have the democratic presidential candidates taken on such a pervasive issue? 

A History of Mass Incarceration in the United States

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

The 13th Amendment of the United States Constitution was ratified on December 6, 1865 and deems slavery unconstitutional, except as a punishment for crime.  While the ratification of the 13th amendment was meant to abolish slavery, a mythology of black criminality continued to be perpetuated through a white nationalist narrative that took alternative, but just as harmful, forms to target black Americans. Movies such as “The Birth of a Nation” (1915),which was responsible for the rise of the Klu Klux Klan, committed to a narrative of black criminality that many white people wanted to tell. White people wanted to continue to benefit from the “loophole” in the 13th amendment; more so, the movie depicted them, and specifically members of the Klu Klux Klan, as “valiant saviours of a post-war South ravaged by Northern carpetbaggers and immoral freed blacks.”  

Slavery in the 19th century and continuing discrimination, violations and abuse, and segregation policies such as those of the Jim Crow era have led to generational trauma and the dispersion of black communities from the south. These human rights violations have not ceased with time but only have changed in nature; systemic oppression against people of color has continued through carefully nuanced political policies that only propagate these violations as systems of protection. The mass incarceration of people of color, which has fed into the prison industrial complex, reasserts systems of racial discrimination and the policing of those marginalized. While not slavery by name, the mass incarceration of people of color  acts as slavery in practice.

 Although the United States has the highest rate of incarceration at 25% per cent, it only constitutes 5% of the world population. This is a massive statistic, yet, as Alessandro Di Giorgi articulates, “the sheer extension of the correctional population in the United States does not convey the race and class dimensions of the US penal state—the result of a four-decade-long carceral experiment devised from the outset as a political strategy to restructure racial and class domination in the aftermath of the radical social movements of the 1960s.”

The Civil Rights movements that began in the late 1940s were countered by efforts to criminalize black leaders such as Fred Hampton, Assata Shakur, and Angela Davis.  In the 1960s, President Nixon emphasized “law and order” and synonymized crime and race through a “war on drugs” in which drug dependency and addiction were regarded as a crime, a rhetorical “war” that disproportionately targeted poor, urban neighborhoods occupied by primarily people of color. Through this syntax of subtle and thinly veiled racial appeal, matched with backlash towards the Civil Rights Movement, the Nixon campaign deployed the “Southern Strategy,”  which aimed at gaining the votes of lower income white people who had previously voted with the democratic party. This strategy utilized the war on drugs as a top-down approach to gain the support of the white people who had felt isolated and alienated with the dismantling of the Jim Crow laws on racial segregation. 

The war on drugs was only strengthened in later years, especially with the election of Ronald Raegan in 1982. Increase in poverty as well as the widespread dealing of crack, which was easier to access than powdered cocaine, meant an increase in incarceration rates of low income people of color as well. Significantly, crack and cocaine are identical in molecular composition; however, crack had become associated with blackness and thus a worse form than powdered cocaine, which was used just as frequently by high-income white people as a “party drug.” More so, crack was cheaper to produce and therefore circulated more easily among lower income communities as opposed to cocaine which was mostly circulated and in the possession of middle and upper classes, and more specifically, white people. A study conducted by the ACLU found that “in 1986, before the enactment of the federal mandatory minimum sentencing for crack cocaine offenses, the average federal drug sentence for African Americans was 11% higher than for whites. Four years later, the average federal drug sentence for African Americans was 49% higher.”

“What Raegan eventually does is takes the problem of economic inequality, of hyper-segregation in America’s cities, and the problem of drug abuse and criminalizes all of that in the form of the war on drugs,” argues Ava Duvernay in her documentary 13th.  

This narrative was only furthered by President Bill Clinton who proposed several policies encouraging policing and the death penalty for violent crimes. During his administration, the three strikes rule for prisoners as well as mandatory minimums were created. This meant that cases moved from under the jurisdiction of judges to that of prosecutors; notably, 95% of elected prosecutors throughout the U.S. are white. “Truth in sentencing,” which is a law enacted in order to reduce the likelihood of early release from imprisonment,  has often been questioned as a result of this change in how individuals charged with crimes get prosecuted and sentenced. Significantly, 97% of those locked up, for example, have plea bargains and do not even go through trials. This was significant to the Clinton administration as he claimed a more hardline approach with regards to criminal justice in order to gain support and win the presidential elections. 

Under Bill Clinton, sixty new capital offense punishments were also added to the law, and the 1994 Federal Crime Bill led to the massive expansion of the prison system through increase in funding and personnel such as police officers. This bill then also meant the expansion of the prison industrial complex, and hence the benefit of certain corporations as well as the political progression of Clinton through similar means to Raegan and Nixon. 

As seen in the figure above, extracted from The Sentencing Project: Fact Sheet: “Trends in U.S. Corrections,” state expenditure on corrections has dramatically increased over time. This attests to the use of mass incarceration as a political strategy that perpetuates racial discrimination as politicians have increasingly utilized a hardline criminal justice approach in order to gain public support. This is especially evident with the election of Clinton and the expansion of the prison system which included increase in funding.  

It also asserts the influence of the American Legislative Exchange Council (ALEC) on policy bills. ALEC is a lobbyist group that advocates for limited governance, free markets, and federalism. Importantly, ALEC claims the membership of many organizations and legislators. Previous member, Correction Corporations of America (CCA), has benefited as the leader of private prisons as a result of such influence over federal spending. The CCA has had a role in shaping crime policy across the country, including the increase in criminalization of communities of people of color. More so, there is now a move towards the privatization of probation and parole by the American Bail Coalition, a system in which people could be incarcerated within their own communities.  

In prison, incarcerated individuals experience a process of immediate sensory deprivation and dehumanization, followed by disenfranchisement that essentially removes their rights as citizens, such as the right to vote or get a job as the right to vote excludes previously incarcerated people. The racial caste then seen during the Jim Crow era has been redesigned. Not only has there been incessant criminalization and disenfranchisement of black people, but convict leasing has also risen as a new form of slavery. Convict leasing, which started as early as 1844 in Louisiana, means the leasing of the labor of those incarcerated, often without compensation and in poor conditions, in order to increase profit in a certain sector.  The legal inheritances from times of slavery in the United States have become the foundations for the modern prison industrial complex, in which black men make up 40.2 per cent of the prison population while only making up approximately 6.5 percent of the U.S. population. 

The above chart is from The Sentencing Project: Fact Sheet: “Trends in U.S. Corrections”

Ta-Nehisi Coates deems reparations to the black community a question of citizenship. When the history of mass incarceration is looked at with the recognition that members of colored communities have consistently been treated as second class citizens, this is undeniable. Coates makes the claim that slavery and past plundering cannot be separated from today’s context of mass incarceration and the “logic of enslavement respects no such borders.” This enslavement which overarches over private and public spheres presses  the question: how should the U.S. go about institutional reform when politicians and corporations have weaponized racial discrimination in veiled lines to gain political prowess? Could an unofficial form of truth-telling and truth-seeking place the pressure necessary for institutional reform and justice? Questions of employing transitional justice mechanisms such as truth commissions and reparations in a consolidated democracy then suggest a new approach to these mechanisms to encourage institutional reform. Political strategies have begun to shift and so we must ask “do we feel comfortable with people taking a lead on a conversation in a moment where it feels right politically?”

What the Democratic Candidates Say

With that in mind, as well as the events of the recent presidential debate in New Hampshire, it’s important to note the political stances of the democratic presidential candidates to ask of the intentions and the applicability of criminal justice policies and policies on mass incarceration. The Marshall Project outlines the stances of these candidates. 

Significant to this discourse is the recognition that all democratic presidential candidates oppose the death penalty. Bernie Sanders and Peter Buttigieg would like to eliminate mandatory minimums while Elizabeth Warren and Joe Biden would prefer reducing them. All candidates would like to legalize marijuana while Biden would vote on decriminalizing it instead. Likewise, Sanders believes that those incarcerated should have the right to vote while Biden, Buttigieg, and Warren believe that those incarcerated should only have the right to vote when they have left prison.

 Other topics to consider include the reform of the bail system, use of clemency, and use of private prisons at a federal level. With these stances noted, one must contextualize and recognize how such policies would affect the communities of those most implicated as a result of the systemic racism in place. One must also question why there hasn’t been more discourse on reparations for the years of weaponized racial discrimination that have been enacted through the prison industrial complex and the mass incarceration of people of color.

Non-Violence in Communal War in Central Nigeria

By James Courtright, Staff Writer for RightsViews

On January 30th Dr. Jana Krause came to speak with students and faculty at Columbia’s School for International and Public Affairs about her new book, “Resilient Communities: Non-Violence and Civilian Agency in Communal War.” Her work centers on communal conflict – non-state armed conflict between identity groups – in Plateau state in Nigeria and Maluku province in Indonesia. In both places the violence tended to be simplistically referred to as Christian against Muslim, but upon further investigation she found it was deeply rooted in local political and economic dynamics and narratives. After explaining how communal violence was organized, she then delved into neighborhoods in Nigeria and Indonesia where violence did not occur, analyzing how the choices of civilians and their collective efforts to prevent fighting saved the lives of hundreds of people.

Conflict in Jos

When she first visited Jos, Nigeria in 2010, Dr. Krause had to pass through multiple checkpoints along the road from the capital Abuja before entering a city where half-destroyed houses lined the streets and every major traffic junction was accompanied by a heavy military presence. As she started comparing her interviews with journalistic accounts, data sets, and human rights reports she realized that conflict in the city of Jos and rural Plateau State claimed more than 7,000 lives between 2001 and 2010. This violence, she concluded, was not sporadic clashes – it was war.

Dr. Jana Krause. Photo from her website.

Dr. Krause builds on the work of political scientist Stathis Kalyvas, whose work has advanced the idea that what civilians do in conflict matters. Unlike the journalistic shorthand of “neighbors killing neighbors,” she explained, violence is usually perpetrated by militias formed in surrounding neighborhoods. These militias would mobilize after hearing rumors that their perceived enemies were arming themselves, and then travel to where they believed clashes were occurring or where they had planned to attack. When they arrived in other communities, some residents there would collaborate with militias to identify “the enemy” based on their identity or hyper local grievances. Thus, communal violence results from rumor, threat assessment, mobilization and information sharing, grievances linked to previous violence, and local conflicts.

After delving into these dynamics, she began asking if residents knew an area that was vulnerable and religiously and socio-economically mixed, but where violence did not occur. She was pointed to Dadin Kowa, a community that sits in the southern suburbs of Jos. As she spent more time with residents of Dadin Kowa, she came to better understand how they managed to maintain an uneasy and tense peace while thousands of people were being killed or forced to flee their homes in surrounding neighborhoods.

How to avoid or forestall violence?

While many community leaders across Jos strove to avoid violence during this painful decade, Dadin Kowa’s leaders were arguably the most successful. One of the main reasons for this, Dr. Krause argued, was that both Christian and Muslim community leaders and everyday residents painstakingly created a broader identity as ‘being a resident of Dadin Kowa’, overcoming the fractious Berom Christian and Muslim Jasawa political agendas. From early on there was a tacit agreement, and later a more formal one, between religious leaders that they would preach to their respective congregations to avoid violence. People were still politically polarized, but when it came to violence, leaders constantly stressed a deeper fealty to their shared humanity and their neighborhood of Dadin Kowa.

Women’s groups also played a key role. At one point, tensions at the market became so serious that women began to travel out of the neighborhood to buy their vegetables and staples from their own religious group, dividing the community further. As tension at the market became a serious hindrance in their lives, women across the religious divide began meeting and sharing their stories, fears, and aspirations. As Dr. Krause writes in her book these meetings “fostered determination that their neighborhood would not be devastated by clashes.”

However, creating a unifying identity was not enough in and of itself. Dr Krause pointed out how civilians consolidated social control of the neighborhood. Women’s groups and other informants would pass information about suspicious activities or rumors to community leaders, who at times used open threats and even violence against people in the community to maintain order.

Young men in the community were told that under no circumstances were they allowed to go and fight with groups outside the community, and at the first sign of trouble they should return home. A clear communications network was built by community leaders so whenever trouble appeared on the horizon leaders on both sides of the religious divide could call and coordinate their actions to calm tensions. Mixed youth patrol groups were even created to guard the neighborhood and coordinate with the military and police.

In addition to dense networks built within Dadin Kowa, to deter attacks leaders in the community engaged in extensive negotiations and coordination with leaders in neighboring communities as well as the police and military. They even paid thinly veiled bribes to facilitate good relations and regular police patrols. For example, some of the women’s groups cooked lunch for the soldiers in order to maintain good relations. Both Christian and Muslim community leaders from Dadin Kowa went to mosques and churches in neighboring suburbs of Jos and publicly presented their agreement not to fight in Dadin Kowa.

In at least one case violence was averted by the actions of a single individual. In January 2010 when two external Christian militias threatened Dadin Kowa a community leader identified as Timothy in Dr. Krause’s book went out and single handedly negotiated with the militias, telling them that they would not be allowed into the neighborhood and no one would collaborate with them. He slowed their advance until they could hear the gunshots of the military nearby, and the militia turned around without harming anyone in Dadin Kowa. Timothy had lived through the Nigerian civil war in the 1960s and understood the dynamics of how violence happened and how and when to intervene.

In some cases, peace was only maintained with the credible threat of violence. One of Dr.  Krause’s interviewees, a Christian resident of a nearby neighborhood identified as Abraham, revealed that not only was the agreement not to fight in Dadin Kowa well known outside the neighborhood, it was also understood that the agreement would be enforced with violence. “If the boys from outside want to overcome them, then the Dadin Kowa boys will fight them,” Dr. Krause quotes Abraham saying in her book. “If you go there to fight, they will kill you. That’s the agreement.”

However, Dr. Krause stressed that Dadin Kowa was not an oasis of harmony during these episodes of violence. The community was tense as people fleeing violence sought refuge and leaders struggled to exert control over rebellious youth. Tensions within women’s groups over rumors and unfair burdens of labor also created problems. In some cases, as in the January 2010 episode mentioned previously, people in Dadin Kowa agreed it was the fateful intervention of a single person which averted catastrophe.

What can Dadin Kowa teach the world?

After her presentation Dr. Krause was asked about the implications of her work for practitioners. She responded by saying that we need to complicate the “islands of peace” idea that non-violence is isolated from outside forces. Instead, she pointed out, Dadin Kowa was deeply enmeshed in the conflict environment and political dynamics. The leaders of Dadin Kowa who were most effective at averting violence were those who understood exactly how the violence was organized because they had seen it before. Before foreign organizations rush in to “sensitize” people about conflict dynamics, she continued, it is important to recognize that foreigners arriving and starting programs has its own political and economic implications for the community and its neighbors.

While her findings from Nigeria and Indonesia shared some basic similarities, Dr. Krause stressed that knowledge of local contexts should be foremost in the minds of outsiders seeking to work on these issues. She concluded her talk by pointing out that in both Dadin Kowa and Indonesia non-violence is less connected to pacifist attitudes but a desire to survive and partly results from direct threats of violence and coercion against those most likely to engage in killings. Acknowledging this uncomfortable reality is essential in designing local and international peace building efforts.