Archive for Americas

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. 

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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

 

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.

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

By: Jacquelyn Sieck, RightsViews Staff Writer 

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

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

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

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

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

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

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

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

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

The interview has been edited for clarity.

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

Can you introduce yourself?

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

What brought you to human rights work?

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

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

You’ve never heard anything from the Gambian government?

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

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

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

Do you think The Gambia can learn anything from Argentina?

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

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

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

Are you worried about that in the Gambia?

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

What is reconciliation for you?

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

What are you working on now?

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

By Jalileh Garcia, RightsViews staff writer 

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

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

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

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

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

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

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

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

Berta Caceres

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

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

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

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

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

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

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

The month of March is over, but the struggle for women’s rights in Honduras persists

While Women’s History Month has come to an end, women around the world work every day of the year to have their rights recognized. As such, it is both crucial and necessary to remember this continued struggle beyond thirty days of the year.

During the month of March, Honduran women commemorated the life of Berta Cáceres, as March 2nd marked the three year anniversary of her murder. Cáceres  was an indigenous activist who was one of the most prominent human rights and environmental rights figures in Honduras. Honduran women also protested on March 8th, as part of a larger feminist movement around the world. During these protests, some women were met with force from police officers.

Marcela Arias, a lawyer from the Center for the Rights of Women (CDM) in Honduras is an expert on the current situation of women’s rights in Honduras. She has indicated that “While Honduras is a country that has ratified many international and regional conventions and treaties for the protection of human rights, it fails to materialize said treaties into concrete actions to safeguard said rights.”   

Due its high rates of homicides per capita, Honduras continues to be one of the most dangerous countries of the world. While homicides have decreased in recent years, there is still a sense of insecurity because branches of the police and military are complicit in organized crime.

The complicity in criminal acts is not unique to police forces, but is also seen in cases of government officials such as congressmen, workers of the State, and even the brother of the current president, Tony Hernandez. As such, this allows the persistence of impunity which is evident not only in cases of drug-trafficking, corruption or fraud, but also cases of gender-based violence.

Regarding this, Arias said, “Impunity is something historical in Honduras. We’ve seen it in the past, though it has definitely worsened after the coup d’etat in 2009.” This particularly hurts women– 95% of the crimes against women are never prosecuted and remain unpunished. The high impunity rates can be alarming, as access to justice is crucial for protections against gender-based violence. The International Commission of Jurists has stated: “gaining access to justice for acts of gender-based violence is not only important to secure relief at the individual level, but also to promote change at the systemic level in terms of laws and practice.”

According to the University Institute of Democracy, Peace and Security (IUDPAS) observatory, violent homicides of women in Honduras have decreased from 636 cases in 2013, to 478 in 2015, to 388 in 2017. Despite the decrease in said area, IUDPAS also reports that sexual offenses and injuries increased from 10,712 cases in 2013, to 10,778 in 2015, to 12,189 cases in 2017.  

The government clings to the narrative that homicide rates are decreasing, while failing to address sexual violence accordingly. Arias mentions that when confronted, “the government reverts to a policy of mirage” to justify their inaction. They will revert to mentioning the creation of three State-run programs – such as, Ciudad Mujer, the Intra-Institutional Commission for the Investigation of Femicides, and Spotlight-  that are intended to protect women, yet are questioned about their effectiveness.

To date, the Intra-Institutional Commission for the Investigation of Femicides has helped to increase special forces which aid in the investigation of gender-based crimes. Yet, Arias shared that “some police forces still refuse to go into certain neighborhoods and tell us that if we really want in-depth investigations to go into the neighborhoods ourselves.”

Suyapa Martinez, Executive Director of the Center for the Studies of Women-Honduras (CEM-H), also noted that “this is not an initiative bestowed to us by the government; it is the result of a struggle of the women’s movement that for years has shown before this and past governments that the violence has left a record of more than 6,000 murders of women since 2003.” Martinez also indicated that she struggled being in spaces with government entities due to the country’s lack of institutionality.

Ciudad Mujer was an initiative launched by the First Lady Ana Garcia de Hernandez in March 2017 and is financed by a loan conferred by the Inter-American Development Bank (BID). While it provides care for many women who have been affected by gender-based violence, Arias notes that “the money being invested in Ciudad Mujer takes away from other organizations, as there is no new personnel being trained. As such, public institutions are depleted from resources and personnel and left with less than before.”

Spotlight is spearheaded by the United Nations and the European Union and seeks to highlight violence against women and girls while also empowering said community. It was launched in Honduras in February 2019, making Honduras the first country in Latin America to launch the program. The entire program has gotten $564.4 million dollars in financing. This is helpful for the sake of victims. Yet, it is worrying as there is no guarantee that the money allocated to Honduras will be used entirely for the purposes of helping women, as an alarming number of Honduran officials have been accused of money laundering or abuse of authority in the past, many of whom are still not in prison for said crimes.

The continual institutional difficulties that pose a threat to women’s rights in Honduras reveal that the situation women in Honduras face goes beyond perpetrating a “culture of machismo”, which a recent New York Times opinion article diagnosed as the root of the problem. It also lies in institutional decay, the failure to prosecute gender-based crimes, corruption and impunity.

Therefore, it is crucial that we understand that these are the complex systems that women deal with every day in the struggle for the recognition of women’s rights in Honduras. Perhaps the most powerful statement is that despite said conditions, their hard work persists.


By Jalileh Garcia, RightsViews Staff Writer. Garcia is also from Honduras. 

Sanctuary Law – Can Religious Liberty Protect Immigrants?

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

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

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

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

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

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

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

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

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

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

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

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

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


By Kyoko Thompson, by RightsViews Staff Writer

FGM- A Human Rights Issue?

As awareness of female genital mutilation (FGM) grows in the United States, activists are increasingly trying to reframe the practice as a Human Rights issue. That was the message Maryum Saifee, Aissata Camara, Maryah Haidery, and Shelby Quast passionately imparted when they spoke to a packed room of Columbia students and community members last week.

According to the World Health Organization, FGM includes “all procedures that involve partial or total removal of the external female genitalia, or other injury to the female genital organs for non-medical reasons.” The practice, which takes many forms, is done to control women’s sexuality, has zero health benefits, and can lead to lifelong health issues, including increased risk during childbirth, trauma, and even death. While FGM is more common in Asia, the Middle East and Africa, it is also practiced in North America, Europe, Latin America and Oceania. The WHO estimates that over 200 million women around the world have been cut.

While FGM has been practiced for centuries, there has recently been a renewed interest in the issue in the United States. In 2017, a federal prosecutor in Michigan brought charges, using a 1996 law passed by congress banning FGM, against two doctors and a clinic manager for performing the practice on at least seven girls. After hearing the arguments, the judge ruled that the Federal law banning FGM was unconstitutional because congress did not have the power to make the law in the first place. The case will be brought to a higher court later this year.

Shelby Quast is America’s Director of Equality Now, an NGO that strives for gender equality, and has been involved in the case. She says that while she was disappointed with the judge’s ruling, “the case brought media attention. It’s not just happening ‘over there’, it’s here too. The case has allowed survivors to elevate their platform, and it’s not over yet.”

One of the main themes the activists spoke to was their effort to re-frame the issue. For too long FGM has been thought of as a cultural practice or a medical issue, and as a consequence many human rights groups have avoided taking up the cause. Maryum Saifee, a SIPA alumni, FGM survivor, and career diplomat with the US Foreign Service, urged those gathered to think about the issue more as a form of gender-based violence or as a part of the Me Too movement. “When people ask if we should prosecute the doctor or those involved” she said, “I think, ‘if this were incest, we wouldn’t be having this conversation.’”

Maryah Haidery is an activist, a survivor of FGM, and a member of the Sahiyo organization which seeks to end the practice among the Dawoodi Bohra community of Western India. She said some activists are reluctant to take up the issue because they are afraid it would offend Islamic religious leaders, who are, incorrectly, assumed to be the perpetrators of the practice. However, as she, pointed out, FGM is not condoned by the Qu’ran, and despite popular belief, there are numerous religious decrees by learned Imams denouncing the practice.  “Human rights must apply to all humans,” she said, “not just those in the West.”

While the activists all spoke to the need for a wider conversation about FGM, they also warned against the inclusion of anti-Muslim or anti-immigrant messages in the struggle. “We don’t want a backlash against our community,” said Haidery. “That’s one reason I was reluctant to speak out at first. These are our mothers, they are not monsters.”

Part of the problem is that FGM is still thought of as something that only happens in Africa and Asia, but in fact over 500,000 women in the United States are thought to have undergone the practice or at risk of being cut. “It was treated as an African issue, but it is not just Africa, it is a global issue,” Aissata Camara, the co-founder and executive vice president of the There Is No Limit foundation and FGM survivor, pointed out. “FGM affects black women, brown women, white women, rich women, poor women, Muslim women, Christian women, immigrant women – everyone is affected.”

As an example, the speakers pointed to Rene Bergstrom, who was three years old when a Christian doctor in the American mid-west removed her clitoris. As she recently wrote in The Guardian, “I witnessed Christian religions declaring masturbation a sin, some Christian leaders and doctors recommending circumcision to prevent it, physicians carrying out the practice and our American culture first accepting this form of sexual abuse and then denying it ever occurred.” While reliable data is hard to come by, it is likely that some other white American women have also undergone the process.

Looking to the future, the speakers all highlighted the importance of good laws. “Laws can bring the issue to the fore and puts it under the spotlight where it becomes much harder to defend,” explain Quast. “But it’s also very important that the laws work for the communities involved instead of targeting them.” Haidery revealed that in her conversations with mothers in the Dawoodi Bohra community many say privately they don’t want their daughters to be cut, but it is instead communal pressure that leads them to go through with the process. “Having a law against it gives these women an out,” she says. “They can just say, ‘I wish I could have my daughter cut, but I don’t want to go to jail.’”

There is still much to be done when it comes to ending the practice of FGM. Towards the end of the conversation, the activists urged audience members to educate themselves on the issue and pursue creative solutions. Camara mentioned she was working with salon owners and make-up artists to come up with ways to bring the issue up with their clients. “Knowledge is power,” she says. “Educate yourself. Break the silence. Find your talent, and join in.”


By James Courtright, RightsViews Staff Writer

Sterilization of People With Disabilities: Acknowledging the Past and Present History, Rhetoric, and Effects of a Harmful Practice

In the first week of 2019, a story about an Indigenous woman in Arizona giving birth while having been in a vegetative state for the past 14 years hit international headlines. It came as no surprise when investigators announced that they were looking into a “possible sexual assault.”

A person in a vegetative state, by definition, cannot consent to sex because they are non-responsive to stimuli and lack self-awareness. This woman, disabled and reliant on healthcare providers to support her quality of life was instead abused and assaulted with no recourse to defend herself.

This case is one of many that demonstrates the serious issues of sexual assault that face disabled people around the world today. According to disabilityjustice.org, people with disabilities (PWD) are three times more likely to be sexually assaulted than someone who is not disabled. 83% of women with disabilities (WWD) will be sexually assaulted in their lifetime. Understanding the severity of sexual assault of PWD is vital to developing solutions to better protect the human and bodily rights of these individuals. Unfortunately, however, this problem has created another equally harming one: the sterilization of PWD, and especially WWD.

Sterilization Map from 1929

Sterilization is the surgical or non-surgical practice of ending an individual’s reproductive ability. Consensual sterilization is a relatively common practice among individuals who for personal or health reasons desire a permanent method of birth control. However, forced or nonconsensual sterilization is also a far-too-common (and still vastly legal) practice, and disproportionately inflicted upon PWD.

In 2017, Catalina Devandas Aguilar, the UN Special Rapporteur on the Rights of Persons with Disabilities, released her annual report to the General Council, focused thematically on the Sexual and Reproductive Rights of Women and Girls with Disabilities. In the section entitled “Harmful and Forced Practices”, Aguilar highlights the forced sterilization of WWD worldwide, citing this as a “widespread human rights violation” that “disproportionately [subjects] [WWD] to forced and involuntary sterilization for different reasons, including eugenics, menstrual management, and pregnancy prevention,” as well as perceived protection from sexual abuse. Aguilar calls for the global community to recognize the human rights of WWD and end the harmful practice of nonconsensual sterilization.

According to the report, although the international human rights bodies have declared that sterilization of PWD is a form of discrimination, violence, torture, and other cruel and inhuman or degrading treatment, it is still legal and applied in many states worldwide. Often, this is because of court and guardian enforcement of social perceptions of PWD as either asexual or hyper sexed—either way, they are deemed unfit for parenthood, incapable of possessing sexual pleasure or desire, and would be too “burdened” by sex education or contraception use and menstrual management.

Women with disabilities are disproportionately affected by sterilization because of the fear of pregnancy and monthly menstruation. WWD are sterilized at three times the rate of the general population, meaning that of the over one billion PWD in the world today, the 1/5 of the world population that is a WWD faces serious threat of forced sterilization.

Traditional roles for women emphasize the importance of their existence as sexual beings intended for reproduction, connected to “heteronormative” and “phallocentric” interpretations of sex. Perceptions of asexuality lead to beliefs that WWD don’t have sexual or reproductive needs/rights. This contradicts empirical studies that show that PWD have the same needs with regards to sexuality and relationships as any other “able” person.

The supposed asexuality of WWD leads to the paternalistic rationalization of sterilization for “their own good.” In the landmark 1927 case Buck v Bell, Supreme Court Justice Holmes famously upheld the sterilization of involuntarily institutionalized 18 year old Buck in his quoted opinion: “three generations of imbeciles is enough.”

Even today, court rulings will justify sterilization orders to prevent the birth of a child with a disability by a WWD—regardless of if the condition is hereditary. In January of 2018, Washington state started negotiations over a form that would make it easier for a guardian (NOT the disabled person) to file for sterilization in the courts. Reporting on this, the ACLU believes that “creating this form will streamline the process and increase the number of guardians requesting the sterilization of those under their power.”

This is not to mention the warped argument that sterilization can prevent sexual assault—a view that in reality only protects the perpetrators and the aftereffect of rape: pregnancy. This argument suffers more from perceptions of WWD as being incapable caretakers or burdens than from true protection from assault.

Many PWD are infantilized, largely because most are dependent on caregivers, parents, and guardians for many aspects of their lives. This creates an immense power imbalance when it comes to decision making regarding issues of sexuality and reproduction. It is not uncommon for parents to sterilize their child for their own convenience, under the guise of protection.

In 2007, the  “Ashley Treatment” was a case in which young Ashley’s parents subjected their disabled daughter to a hysterectomy, breast bud removal, and hormone growth treatments to freeze her body in a childlike state. This was upheld by a bioethics committee because it was for “her own good”.

“Protecting people from themselves” is not far off from the eugenic rhetoric of the early 20th century, a movement that popularized the sterilization of PWD to prevent the “degeneration” of the white race. Not only is sterilization a system of sexuality control, but it is also deeply rooted in racialized and gendered constructs of human value. Between 1927 and 1957, 60,000 Americans were sterilized by virtue of being “feebleminded,” thanks to the eugenic concepts of Francis Galton, who in 1865 argued that “human mental qualities” could be manipulated and controlled through selection. The production of disability has undoubtedly been a raced, classed, and gendered cultural process—and with it has come the violation of the rights of PWD everywhere.

“Feeblemindedness” was used as a substitute term for any person that threatened the white, heteronormative structures of domination. For example, 1912 intelligence tests at Ellis Island determined “widespread feebleness” among Eastern and Southern European immigrants. Other people determined feebleminded were homosexuals, blacks, poor women “unfit to be mothers,” and “degenerates.” Sterilization of men and women was popularly practiced during chattel slavery and still today many Indigenous women are forcibly sterilized, most noted recently in Canada. The US and Canada both possess histories of the coerced sterilization of indigenous women, not to mention the fact that indigenous women are more likely to be sexaully assaulted, like the woman in the nursing home who faced the double oppression of being being both disabled and indigenous.

The continued practice and legal support of sterilization of WWD starkly contrasts most feminist or human rights-promoting rhetoric on violence against women in other areas of reproduction. We hear endless support for the right to abortion and reproductive control for women, but arguments for stopping sterilization of women with disability are almost entirely absent from the mainstream discourse. Likely, this lies in the fear that supporting not sterilizing WWD threatens the traditional messaging of pro-choice abortion rights. Thus, forced sterilization is pushed to the bottom of the advocacy platform for fear of jeopardizing the highly politicized feminist movement.

However, advocating against sterilization is as equally about choice as advocating for abortion. It is about the choice of consent, the choice of motherhood, and the choice of bodily control. This is where reproductive rights fails and reproductive justice takes over. Reproductive justice, coined by the SisterSong Collective, recognizes “not only a woman’s right not to have a child, but also the right to have children and to raise them with dignity in safe, healthy, and supportive environments.” As an intersectional approach, reproductive justice encompasses race, class, gender, and ability, thus creating space for a feminist movement that centers around all bodies, not just mainstream bodies. Including WWD in mainstream feminist and human rights discourse is our next crucial step. That is the true reproductive justice movement and the direction to go if we are to protect all women.


By Rowena Kosher