Archive for Asia and the Pacific

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. 

Suffering , Grievability and Covid-19 – An Indian Nightmare

By Guest Contributor Yash Karunakaran. Yash is an alumnus of the University of Illinois at Urbana Champaign College of Law and the National Academy of Legal Studies and Research (NALSAR). He is currently an advocate practicing before the Supreme Court of India and the Delhi High Court. He is also involved with a civil society organization that helped arrange for travel, food and medicine for migrant workers stuck as a result of the Covid-19 lockdown in India. This organization has filed Petitions before various Courts challenging state restrictions placed on the return of migrant workers.

The primary weapon used to counter epidemic outbreaks within the Indian subcontinent has, for the past 123 years, remained the 1897 Epidemics Act. The legislation grants special powers to State Governments, allowing them to make their own regulations to counter the spread of disease. This piece analyses the colonial history of the Indian response to epidemics, highlighting how it colours the manner in which the Indian State operates to this very day.

The colonial era response to disease, i.e., of executive highhandedness and a lack of concern for the poor, has seemingly been replicated by various parties in power both pre, and post- independence. Even today, the Indian state chooses to use excessive coercive force as a manner by which it can create or regulate a certain form of social behaviour. When we look back at the British era response to Cholera, we see how the Cholera-induced deaths of white soldiers and generals during the siege of 1857 led to the growing suspicion that it was spread by the local camp followers – all of whom were all indigenous civilians. These individuals mostly hailed from the lowest echelons of Indian society and were hierarchically ranked the lowest within the military. These individuals were treated as a different class of citizens, who barely deserved any care or attention.  No efforts were made to introduce medical care or hospitalization for the indigenous population. 

The closest the East India Company came to intervening in civil life was an attempt to study the link between Hindu pilgrimages and the spread of the disease, thereby resulting in the Company regulating the sanitation of such sites. European observers of the 1817-1821 outbreak noted one aspect of the disease that would be of particular significance for the subsequent history of disease in the subcontinent – its predilection for the poor and the undernourished.

This act of valuing a certain class of lives while barely caring for the other has not left us; it is alive in the approach taken by the Indian Government towards wage labourers and migrant workers during this period of lockdown. Judith Butler, in her writing on Precarious Life, spoke of how specific lives are never apprehended as injured or lost, if they were not apprehended as having been lived in the first instance. For a life to be ‘injurable’, i.e., that it could be neglected or destroyed, we accept the fact that such life is not only finite (that it shall certainly end in death) but that it is also precarious. This precariousness implies that life requires various social and economic conditions that need to be met. Thus, living in a society, the value of one’s life is always in the hands of others. The value of life is drawn from the fact that in the absence of care, it may be lost. Thus, grievability exists for a life that matters. In the absence of this ‘grievability’, there is something that isn’t a life, or rather, there is no life. In such a ‘no life’, it would be a life that has never been lived, therefore there exists no regard nor testimony, and such life is ungrieved when lost.

During the Cholera epidemic, there existed no respect or value attributed to the lives of the indigenous. No steps were taken to set up a civil medical association nor were basic healthcare systems made available to them. Applying Butler’s approach here, the only grievable life was that of the British or at most the lives of those indigenous who served as foot soldiers for the Company. This approach was continued by the British India Government in the subsequent Bombay Plague Outbreak, where they claimed  in the absence of a vaccine against the disease, there was nothing that they could do to help the indigenous. However, this was only half true; even though there was no vaccine, steps could have easily been taken to avoid the rapid spread of the disease within indigenous settlements. Basic steps (proper identification of the source of disease, effective quarantine) were already being practiced in civil lines and in British Settlements, but no move was made to try and set up these systems in rural areas (or rather, areas without British residents). It was only when concerns were raised that the industrial workforce was dwindling due to indigenous labourers falling ill, that the British Indian Government was forced to act. The Epidemic Diseases Act, drafted during the time of this plague, became an instrument of colonial domination and control.

The Act was often used to prevent the gathering of protestors in large numbers, prohibiting railway bookings, locking down areas where protests were simmering, imprisoning freedom fighters, and so on and so forth. The response to this legislation was of course, one of distrust and riot – the 1900 Plague Riot of Kanpur being one such example. Again, most individuals targeted under the law were those hailing from the economically or socially weaker sections of society. Rarely were any of the urban elites subjected to such treatment (with the exception of a few freedom fighters). Further, the planning of major Indian cities was done in a manner so as to safeguard the urban elite from disease

While India is no longer a suzerain subject, this cultural context of domination behind the Act still plays a part in how it is currently being used to implement the Covid-19 lockdown. The justification given for this sudden lockdown is that if it were to be forewarned, workers would carry the disease back to their districts of origin, thereby escalating the crisis at hand. However, one may then ask – what about those citizens stranded in foreign locations that were flown back to India? Further, when the extended lockdown was announced, the underlying assumption was that citizens could ‘just stay home’ and be ‘heroes’. How would this logic apply to workers who are now stranded on city streets, evicted from their places of work but now also unable to head home?

 The implementation of the lockdown without these considerations shows not a lack of planning, but rather a calculated cost the state is ready to pay. The lives of lakhs of migrants have been weighed against the danger Covid-19 poses to the urban elite. 

These lives are of no concern to the Government, they are what Butler calls the ‘ungrieved’, those who have a life not lived, and where there is no concern or grief when such life is lost. That is why it is so easy for the state to impose such a costly lockdown, because such lives do not often make the news the same way in which widespread deaths of middle or upper classes persons in an urban setting would (i.e., lives that are traditionally considered ‘grievable’).

There exists a need to counter the apathy we have towards the plight of those less fortunate than ourselves. This requires that we be empathic towards daily wagers and migrant workers, on the backs of whom our roads have been paved and our cities have been built. It is natural to understand the desire to return home in times of crisis, and to be surrounded by those we know, and it is incorrect to paint this desire as an attempt by the ill-informed to spread disease. 

The response to epidemics in the Indian context have always been at the cost of the socially and economically backward. There is a need to break away from this chain and value the lives of all citizens equally. Unfortunately, with the current state of things, and the manner in which states are treating migrants, this goal remains a distant dream.

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. 

Indigenous Environmental Justice: A Need for Substantial Recognition of Indigenous Voices

 By Guest Contributor Sakshi Aravind, a PhD student at the University of Cambridge. She works on Indigenous environmental justice in Australia, Brazil, and Canada. 

In the last week of May, the mining colossus Rio Tinto blasted the 46,000 years old Juukan Gorge rock shelters in Western Australia (WA) during its operations in Brockman 4 mines. The caves were of profound cultural and spiritual significance to the traditional owners, the Indigenous Puutu Kunti Kurrama (PKK) peoples, while also carrying immense historical and archaeological value. Rio Tinto had obtained ministerial consent from the state Minister for Aboriginal Affairs to carry out the blasts under Section 18 of the obsolete WA Aboriginal Heritage Act, 1972 (‘Heritage Act’). In response, the destruction of these culturally significant sites evoked shock and anger around the world. There were calls for addressing the deficiencies in the law, which does not make provisions for consultation with traditional owners or review of the ministerial consent in light of subsequent discoveries. Following this PR backlash, Rio Tinto attempted to recover with apologies and clarifications, although these went in vain. Rio Tinto’s specious regrets were as wicked as its attempts to attribute the blasts to certain ‘misunderstandings’.

Overhead view of the Rio Tinto mining at the Juukan Gorge rock shelters. // Source: Venture magazine

As I have argued elsewhere, these blasts are not a single event of destruction. They are an ongoing process of festering the wounds of settler colonial capitalism, which have never been allowed to heal. The destruction of Juukan Gorge is irreversible damage and an incommensurable loss to the traditional owners of western Pilbara. Further, they reveal a pattern of systemic erosion of Indigenous rights and identities. Rather than an exception, Rio Tinto is only emblematic of the noxious extractivism that has been foundational to the expansion and sustenance of capitalism and colonialism around the world. 

Elsewhere, First Nations in Canada have suffered repeated setbacks in their fight for rights over land and sovereignty against mining companies. While treaty rights and Constitutional rights have guaranteed a certain degree of Indigenous participation in decision making, categorically, often Indigenous sovereignty must concede to economic benefits. The recent blockade by Wet’ suwet’ en people in British Columbia against the construction of the Coastal GasLink pipeline illuminates the challenges of fighting for traditional territories against the combined forces of the State and private corporations. 

Brazil has also witnessed relentless destruction of forests and Indigenous territories by mining companies under the aegis of the Federal government, with little or no recourse to legal remedies. To put it plainly, the status of Indigenous rights, sovereignty, and environmental justice have been continually eroding in settler nations.  

The ‘duty of consult’, i.e. the obligation to consult and accommodate Indigenous interests in policies and decisions that affect them, has often been conflated with Indigenous environmental justice. It is said to embody aspects of participation and recognition within Indigenous rights framework. Jurisdictions like Canada, with an advanced constitutional recognition of Indigenous rights, have contributed significantly to the jurisprudence around duty to consult. Australia trails far behind in this respect. However, the legal frameworks of settler-colonial nations have only allowed for ‘consultation’ and not unequivocal consent. This approach blatantly fails to address the question of Indigenous self-determination and sovereignty over land and territory, some of which have been better articulated in international rights instruments such as The United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”). 

The UNDRIP in 2007 was a notable political gesture from the state bodies in coming together and recognising the questions of indigenous differences and vulnerabilities. Despite criticisms for its inadequacy or watered-down provisions, the UN Declaration made substantial provisions for adhering to the ‘distribution-recognition-participation’ paradigm of environmental justice amongst other measures for political empowerment.The UN declaration: recognises obligation towards indigenous rights as an extension of the existing Human Rights obligations (Art 1); protects the First Nations from all forms of discrimination based on identities (Art 2); re-asserts the need for indigenous self-determination (Art 3); protects the communities from forceful dispossession from Indigenous land (Art.8 and Art.10); right to free and prior informed consent in any economic/military activities on indigenous lands (Art. 29, 30, and 32). Hardly any of them have made their way into domestic legislation in either Australia or Canada. 

As a consequence, Indigenous communities may be heard, but only as a matter of procedural necessity. First Nations continue to be denied the power to veto extractivist projects over their land and resources. Such denial has grave implications for the idea of Indigenous environmental justice. Achieving justice in settler colonial contexts demands truth and reconciliation. These values can only be accomplished by providing an apparatus for substantive Indigenous voices and representation in the social, political, and economic process. In Australia, the Uluru Statement from the Heart and the proposal to amend the Australian constitution to enshrine Indigenous voices in the Parliament is a significant step towards reformulating the idea of justice within a settler State.

Courts have attempted to achieve Indigenous environmental justice through means available to them. For instance, I have argued that in Gloucester Resources v Minister for Planning (Gloucester Resources), the New South Wales Land and Environment Court focussed on the testimony of Aboriginal elders, their connection to the land, and cultural heritage. Although Gloucester Resources was primarily articulated as a climate change litigation launched against the commencement of a coal mine, it had vital contributions to Indigenous environmental justice. While specific case laws cannot realise the idea of Indigenous environmental justice, they demonstrate the significance of ‘listening’ to Indigenous communities to achieve it. The blasts in WA have now provoked us to revisit what justice means. And we must revisit it in settler nations, mindful of the fact that they are established on the dispossession, displacement, and erasure of Indigenous peoples. 

Indigenous environmental justice cannot reconcile with extractivism and capitalism, which operate in cahoots with the State and perpetuate the erasure of Indigenous identities. Extractive economies thrive on the severing of Indigenous ties with land and environment. These exploitative idioms of capitalism cannot be remedied with mere ‘duty to consult’, just as the incommensurable loss of Juukan Gorge cannot be restored with trifling apologies or paltry compensations. Australia at this hour needs more than a review of heritage laws. It needs to acknowledge that the nation’s past and present are caught in toxic tangles of settler colonialism and capitalism. The redemption lies in accepting and acting on constitutional reform enshrined in Voice, Treaty, and Truth.

Stranded in Near Statelessness: The Coronavirus and Nepali Migrant Workers

By Kelly Dudine, staff writer for RightsViews 

Men, women and children spend days in an open field, hungry, thirsty, exhausted, and abandoned. Unable to stay in India due to job loss following the Coronavirus pandemic, and prevented from traveling back to their homes in Nepal amid fears of spreading the virus, these Nepali migrant workers and their families are stranded at the Nepal-India border in a form of temporary statelessness.

“How many days can children go without food or water? How many days? This is a human rights violation,” says Maggie Doyne, Co-Founder of the BlinkNow Foundation.

The non-profit is among many local and international organizations responding to the growing humanitarian crisis in Nepal, including the Nepalgunj Medical College, ODA Foundation, Mottey Gang, Nepal Red Cross, and NYEF – Kathmandu Chapter, among others. 

Stepping in where the State is failing to meet the needs of its people, relief efforts are establishing food distribution banks and providing essential care services to thousands of returning migrant workers. Beyond the borders, hundreds of thousands more are stranded overseas in equally grave circumstances, anxiously waiting to be allowed to return home.

Nepal is struggling to respond to the pandemic in a way that meets human rights standards, and there are doubts on whether its economy and healthcare systems can absorb the influx of citizens returning home from foreign countries. Both immediately and in the long run, Nepali migrant workers and the families who rely on their remittances for survival face increased risks of joblessness, homelessness, and extreme poverty.  

While the current situation in Nepal is dire, the coronavirus only exacerbates the abuses already experienced by this community. Migrant workers around the globe consistently experience extreme exploitation and abuse. The coronavirus further exposes the harsh realities of the migrant worker economy, and emphasizes that both home and host countries are not doing enough to protect the hundreds of thousands of men, women, and youth who make up the migrant workforce. 

Global Context: The Plight of Migrant Workers

The global migrant worker economy is massive: in 2017, there were around 164 million migrant workers globally, almost half of whom were women, and in 2018, global remittances reached a record-high of $689 billion. Yet, even before the Coronavirus pandemic, it was rife with challenges and human rights abuses. 

Many countries, particularly in Southeast Asia, support and promote the export of labor as an economic strategy to drive development. Despite this, the very existence of the migrant worker economy is fraught with contradiction. On one hand, migrant workers are prized because their home countries greatly benefit from remittances and in turn host countries receive cheap, under regulated labor. On the other hand, migrant workers are often disrespected and devalued in both host and home countries. 

Globally, migrant workers experience discrimination, low or unpaid wages, poor work and living conditions, insufficient social protections, and precarious legal statuses. In the Gulf States, for example, the kafala system limits the rights of migrant workers by tying worker visas and legal statuses to their employers. It is not uncommon for migrant workers to have to give up their passports, experience restrictions on their freedom of movement, and face imprisonment for leaving a job without the employer’s permission. Migrant workers are also often victims to fraudulent and deceptive recruitment practices, leaving them in exploitive work environments and trapped in overwhelming financial debt.

In response to the needs of this vulnerable labor force, various international labor and human rights mechanisms have sought to establish a foundation of legal protections for migrant workers, including the UN International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, and the International Labor Organization (ILO) Migration for Employment Convention and Migrant Workers (Supplementary Provisions) Convention. However, these treaties often have low levels of ratification, which makes them harder to enforce and implement. The UN Convention, for example, has only been ratified by 20 states. Nepal has not ratified any of these international treaties.

Female migrant workers are especially vulnerable. Economic discrimination and oppressive patriarchal norms are key motivators for migration, and many women resort to illegal migration to circumvent social barriers, which leaves them outside the realm of state protections. Women often take on low-skilled jobs, work in the garment sector, or provide domestic care work, which is a largely unprotected sector of employment. According to the ILO, migrant domestic care workers around the world often have no access to social or legal protections, and many are vulnerable to extreme labor exploitation and gender-based violence in their host countries. In 2013, the ILO Convention on Domestic Workers entered into force, aiming to increase protection of domestic workers, including their right to receive fair wages, limited working hours and adequate rest, and the choice of where to live. This convention, however, also has a low level of ratification, with only 29 State Parties. Nepal has not joined the Convention. 

Additionally, states that benefit from remittance-driven economies promote policies and protections to help to increase the export of labor by making it more attractive to potential migrant workers. However, in practice, the enforcement of such policies is lacking, which leaves citizens abroad vulnerable to abuse.

Simply put, a market like the migrant worker economy, which functions on the backs of thousands of exploited and neglected people, will never be resilient to shocks or crises like the Coronavirus, nor will it thrive in the long run. 

Nepal’s Migrant Workers

Migrant workers provide an economic lifeline for the Nepali economy. Many young people travel abroad to find employment, earn an income, and provide for their families back home through remittances. According to a recent report by the Nepal Ministry of Labour and Employment (NMLE), remittance inflows reached 26.9% of Nepal’s national GDP in 2017, making the country the fourth highest remittance recipient in the world. More than 3.5 million migrant labor permits have been issued to Nepali nationals over the last nine years, with migration concentrated in Malaysia and the Gulf States. India is another leading receiver of Nepali migration; however, due to open borders, there are limited records of migration flows and little information on how many Nepali citizens live and work in the country. 

The NMLE report also indicates that many Nepali migrant workers have negative experiences abroad. Between 2013-2016, 12,090 complaints were filed with the Department of Foreign Employment (DOFE), which included requests for repatriation, assistance in repossessing passports, and rescue from the destination country. 

The International Organization on Migration states that young Nepali women are increasingly traveling abroad to seek job opportunities. India is thought to be the leading receiver of women migrant workers, followed by the United Arab Emirates and Malaysia. In the latter countries, Nepali women typically take on cleaning labor or domestic care work.

In the Gulf States in particular, abuse of women migrant workers is reported to be rampant, leading the government of Nepal to enact various bans over the years on women migrant workers traveling to those areas. Most recently, in 2016, Nepal implemented a ban specifically restricting domestic care work in those states. This move, however, has been criticized for potentially causing more harm than good. Without addressing social policies and economic disparities at home, which are often triggers for migration, the ban is said to be doing little more than forcing women workers to migrate through unsafe channels, and to be less protected by the government while abroad. Additionally, despite concerns, more than 20,000 women were permitted to travel to Gulf States for other jobs in 2017, while an untold number of women left Nepal without documentation to avoid the ban. 

Fraudulent recruitment practices are a critical challenge in the migrant worker economy, which often trap migrant workers in desperate situations and leave their families with insurmountable financial debts. Over the years, the government of Nepal introduced various policies to address these practices, including the introduction of an information management system to increase transparency and policies to minimize recruitment fees. However, a report on these policies conducted by Amnesty International found that little progress has been made in addressing the causes of abuse nor in holding those responsible to account.  

Furthermore, a review of Nepal’s migrant labor policies conducted by the ILO in 2017 showed that while Nepal’s legal frameworks promote employment abroad as a “safe and decent prospect for potential migrants,” implementation of the policies have been lacking. Among these are the National Labour Policy of 1999, Foreign Employment Act of 2007, and the Foreign Employment Policy of 2012. The report shows that while the policies aim to increase protections for Nepali citizens working abroad, they have received limited enforcement. It also notes that Nepal’s national laws do not include regulations around recruitment of migrant workers, and as described above, Nepal is not a State Party to many relevant international legal mechanisms which could help to increase the legitimacy of Nepal’s protection policies. 

The Coronavirus Pandemic and the Growing Humanitarian Crisis in Nepal

The vulnerability of Nepali migrant workers, the dependence on this labor for economic growth, the shock of the Coronavirus, and the lack of support for returning nationals is contributing to a growing humanitarian crisis in Nepal. 

In response to the Coronavirus, the government of Nepal ordered a mandatory lockdown in early March, cutting off travel to and from the country, effectively leaving thousands of Nepali nationals stranded at their country’s border or overseas. Migrant workers began reporting that their precarious positions abroad were becoming a matter of life or death; poor living conditions and lack of access to healthcare increase public health risks, companies are withholding past pay, workers are losing their jobs without unemployment insurance or residency rights, and many Nepali citizens find themselves penniless, homeless, and alone, sleeping on the streets of foreign lands. 

The situation at the neighboring border with India is equally challenging. Closed borders and bridges have forced some to swim across the Mahakali river to enter Nepal, while others have  been held on crowded buses or left in forests for days waiting for COVID-19 testing, often without food or water. When they finally reach quarantine centers, they face discrimination, overcrowding, and a lack of basic sanitation and essential care services. 

The situation will only increase in severity, as an estimated 400,000 migrant workers are waiting to return to Nepal. This is a staggering number when considering the country’s resource constraints. Nepali doctors warn that the country’s already weak healthcare system may not be able to keep up with the pandemic, and there is limited job opportunity to support everyone in need of employment. 

Nepal is among the many South Asian countries that are grappling with reintegration plans. Governments that typically rely on exported labor are now facing the immense task of reincorporating workers into the home economy, which remain largely shut down due to the pandemic. Experts warn that such mass movements of people can pose health and safety risks and lead to increased social unrest. 

In the long run, Nepal’s economy is expected to take strain, threatening businesses and workers alike. A report by the World Bank estimates that economic growth in Nepal will fall to 1.5 – 2.8%, largely due lower remittances from abroad and a decrease in trade and tourism caused by the Coronavirus. Low-income people are projected to be hit the hardest, as food and housing security is threatened, which could reinforce inequality within the country.

Ultimately, while Nepal has greatly benefitted from risky exported labor, the care and compassion for those workers has been limited. The failure of Nepali authorities to repatriate its citizens abroad may even violate international human rights law, which protects the right of all people to return to their country of citizenship. Additionally, the lack of essential services provided to repatriated citizens upon return to Nepal violates their human rights to food, water, shelter, and healthcare. 

Looking Ahead: An Opportunity for Change

The efforts of local actors to address the needs of returning nationals provides some hope for immediate relief. Among them, a new campaign started by Nepali influencers, called Nyaano Swaagat, or “Welcome Home,” aims to combat the discrimination and stigma experienced by migrant workers, and to provide important resources, including tools to manage mental health and wellness. By focusing on maintaining the dignity of the men, women and children who are returning home, the campaign advocates an important shift in the perception of migrant workers and the government’s treatment of its own citizens. 

Campaigns like this should remain strong post-coronavirus to combat perceptions of migrant workers and keep advocating for changes to the global migrant worker economy. 

Additionally, national policies need to be more than just reactive; they must be transformative. With the Coronavirus casting a much needed light on the plight of migrant workers, now is the time to establish a stronger enabling environment that better protects and supports citizens abroad at all times, not just times of crisis.

The ILO has issued a list of recommendations to help governments design coronavirus policy responses that ensure the protection of migrant workers. Leveraging these recommendations, Nepal must work to assist workers in returning home safely, and provide quality care and support when they arrive home.

When thinking long term, the World Economic Forum suggests that digitization can make migrant workers more resilient to future shocks. Recommendations include leveraging ‘know your customer’ (e-KYC) systems and linking digital remittances to savings or pension accounts that can support families in times of need. Additionally, countries like Nepal can strengthen protections for migrant workers in contracts with both host countries and the private sector.

Nepal should also make the protection of migrant workers more systematic and explicit by ratifying all relevant international human rights treaty bodies and allocating budget and resources for their implementation. Additionally, social and economic policies that encourage job growth in Nepal could help to stem the need for labor migration, allowing families to stay together and support Nepal’s development from within. 

Without real structural changes to improve the resilience of this labor force, the coronavirus will be just one shock of many to come, and countries like Nepal will remain exposed and vulnerable to future humanitarian crises.

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.

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.   

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.

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.