Archive for Rohingya

An Unending Crisis: India’s Amendment to the Citizenship Act

Guest Contributor Anant Sangal is currently an undergraduate student of B.A., LL.B. (Hons.) at the National Law University, Delhi, India. He is deeply interested in the issues of constitutional law and human rights law

The sledgehammer of the Indian State is powerful and surreptitious. It is powerful because its impact is realized and is then hard to undo and is surreptitious, because it often acts in the ambit of the Indian Constitution. Most recently, it was cracked hard on the illegal Muslim immigrants from Afghanistan, Bangladesh, and Pakistan. In the first-half of December 2019, the Parliament of India passed a legislation, which sought to amend (“Amendment”, hereinafter), the Indian Citizenship Act, 1955 to provide for the citizenship to the people belonging to certain specified communities from India’s three neighboring countries, that is from Bangladesh, Afghanistan, and Pakistan. 

The new proviso to Section 2 (1) (b) of the 1955 Act reads, “Provided that any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh or Pakistan, who entered into India on or before the 31st day of December, 2014 and who has been exempted by the Central Government by or under clause (c) of sub-section (2) of section 3 of the Passport (Entry into India) Act, 1920 or from the application of the provisions of the Foreigners Act, 1946 or any rule or order made thereunder, shall not be treated as illegal migrant for the purposes of this Act;.

A plain reading of the proviso to the Section will establish this wide and clear that the sole community excluded from the realm of protection of the newly amended statute is the Muslim community. As per the Statement of Objects and Reasons appended to the Citizenship (Amendment) Bill, 2019 and in his speech while tabling the Amendment in the lower-house of the Parliament, the Union Minister of Home Affairs suggested that the Amendment seeks to provide a home to the religious persecuted minorities in either of these three theocratic nations, where Islam is the State religion. Therefore, the primary assumption is that people belonging to only these six communities are persecuted on the basis of their religion and hence, India must act as their homely abode.

The ostensible exclusion of the Muslim community is based on the assumption that they are not persecuted at all in those nation-states, where Islam is the state religion. However, this is far from being true. The Ahmediya and the Shia sects of the Muslim community have faced severe persecution at the hands of the Sunni Muslims in Pakistan and the Rohingyas of Myanmar continue to be widely persecuted by the Buddhists in Myanmar. The 2013 United Nations report states that the Rohingya Muslims are the most persecuted in the world. Therefore, the assumption and the justification the legislation provides for excluding the Muslim community is false and does not have a very strong foundation either. Rather, the new basis of granting citizenship to the illegal immigrants is based on a majoritarian conception. 

The Amendment projects that the true civilizational abode of the Hindus is only India. Therefore, it appears to be yet another step towards solidifying the argument that we hear for long about how the English have England, the Americans have America, but the Hindus do not have Hindustan (India). The Amendment finally seeks to legitimize a majoritarian and an exclusionary idea of citizenship, where a deliberate attempt is made to exclude only the immigrants belonging to the Muslim community from acquiring the Indian citizenship. The real dangers of legalizing something of this kind is while we do not have an established theocratic state but the selective targeting of a selected community helps us inch closer to an undeclared theocratic state, where rights for minorities remain at the whims of the majority.

That said, the founding fathers of the Indian Constitution were torn between choosing the just mode for granting citizenship to the people. The country was reeling under the aftermath of a bloody and a gruesome partition, where the Indian subcontinent was divided into two halves on the communal lines. In that setting, the drafters of the Indian Constitution, the great visionaries they were, decided to side with jus soli as the basis for the grant of citizenship rather than jus sanguinis. Jus soli provides for citizenship on the basis of the place of birth of an individual i.e. the soil, on which such person is born. Jus sanguinis is a much more elite and a racist conception of citizenship, where the citizenship is determined by an individual’s descent or ethnicity of one or both parents.

Operating under the scar of partition, it was surely very progressive to choose jus soli as the basis of citizenship and include the same in Part II of the Indian Constitution. The Indian Citizenship Act, 1955 was in furtherance of this conception itself. However, the successive Amendments to the Act dragged the basis of citizenship from jus soli to jus sanguinis, with religion acquiring a substantive stake in this shift. In 2004, the Act was amended to provide that even if a person was born on the Indian soil but had even one parent as an illegal migrant at the time of her birth, such person will not qualify for the grant of Indian citizenship. I mention that the Amendment was religiously motivated and targeted a specific community because it was introduced to neutralize the heavy efflux of people from Bangladesh, majority of whom are Muslims and happened to give birth to their children in India. The present Amendment is just another step furthering that very idea.

After the legislation was assented to by the President of India, the final stamping authority required for converting any bill into a legislation after the same has been passed by both the houses of the Indian Parliament, there has been a massive public uproar in the entire country. The entire political opposition has been on the streets rallying against the passage of the Amendment and a slew of petitions have already been filed in the Supreme Court of India (the apex Indian court), challenging the constitutional validity of the legislation. The petitions do, and rightly so, question the Amendment to be arbitrary as the classifications drawn by the Amendment are based on the inherent qualities of a human being, which the Indian Constitution prohibits. 

Under Article 15 of the Constitution, while the same is applicable only to the citizens of India, the presence of certain listed categories mandates that discrimination on the basis of the inherent qualities of a person is prohibited by the Indian Constitution, two of which are religion and place of birth. In that sense, the classifications drawn by the new Amendment itself are based on religion and the country of that person and hence, will fall fowl of the equality code of the Constitution. While it is being extensively argued how the limitation of applicability of Article 15 operates against the Muslim illegal migrants itself, it has to be recognized that Article 14, which is applicable to all persons and not just to citizens, will operate on the same principle which forms the basis of Article 15 as well.

As I conclude this article, the Chief Minister of West Bengal, another Indian state bordering Bangladesh, has given a clarion call to conduct a plebiscite on the Citizenship (Amendment) Act, 2019 under the vigil of the United Nations so as to reach the conclusion whether the people of the country support something like the Amendment Act. While I do not believe how valid is the demand for conducting a plebiscite will be, given that the Indian Constitution contains a well-defined and structured procedure for creation of a legislation, however, the repercussions of categorically exiling a community into invalidity will not be feeble, to begin with.

Great Power, Great Responsibility: The Digital Revolution of Human Rights

by Genevieve Zingg, a blog writer for RightsViews and a M.A. student in Human Rights Studies at Columbia University

“Human rights faces a stress test today,” Zeid Ra’ad al-Hussein, the United Nations high commissioner for human rights, said during his World Leaders Forum address at Columbia University’s Casa Italiana on November 14. “The approach which seems to be in the ascendent is a blinkered, blind vision of domination, nationalism, and walled-in sovereignty.”

The teatro grew sombre as al-Hussein’s initial quips gave way to his analysis of the current state of human rights— a field in flux, balanced precariously on the back of a technological revolution that poses both risk and opportunity.

Zeid Ra’ad al-Hussein, the United Nations high commissioner for human rights, spoke at the World Leaders Forum address at Casa Italiana on November 14. // Genevieve Zingg

“The digital universe offers us amazing possibilities for human rights work,” he continued. “We already use satellite imagery and encrypted communications to ensure better monitoring, investigation, and analysis of human rights violations in places where the authorities refuse to give us access.”

Indeed, digital tools have increasingly yielded significant results in the human rights field. In 2015, for example, before-and-after satellite imagery depicted recently disturbed ground that confirmed the existence of a mass grave in Burundi and was used as evidence to implicate authorities in mass killings. Satellite imagery has also been used by NGOs and human rights organizations to expose prison camps in North Korea, the existence of which had long been denied by the government; to trace the locations of attacks by Boko Haram militants in Nigeria; and most recently, to reveal the destruction of 214 villages in Rakhine State linked to the campaign of ethnic cleansing against Rohingya Muslims in Myanmar.

Similarly, human trafficking criminal networks and modern slavery supply chains have been interrupted as a result of data mining, mapping, computational linguistics and advanced analytics. Tech giants like Google have partnered with anti-trafficking organizations to share and analyze data in an effort to identify victims of sexual exploitation. By using data collated from more than 70,000 calls, anti-trafficking organization the Polaris Project was able to identify 8,000 victims in one year alone.

Less technical digital tools have proven themselves just as useful to human rights work. Photos posted to popular social media sites like Facebook and Twitter have been used as key evidence in prosecutions under both national and international laws. For example, last month a Swedish court prosecuted a former Syrian soldier for war crimes largely on the basis of a photograph he had posted to Facebook, brought to the attention of the authorities by other Syrian refugees who had seen the graphic image on social media.

The high commissioner highlighted that digital technology can be leveraged beyond the realm of human rights and used to encourage public participation in social justice initiatives more broadly. As an example, he pointed to the recent online public consultations used to formulate the U.N.’s set of global Sustainable Development Goals.

However, al-Hussein warned that such powerful digital technology also poses severe risks to human rights defenders, social justice advocates and political activists. Digital tools are frequently used to facilitate violent crackdowns on human rights, increase governmental repression of civil liberties, and enhance authoritarian grips on social and political control.

Safwan Masri, Executive Vice President for Global Centers and Global Development, moderates the question and answer session with the audience. // University Programs

Common methods used to restrict rights and freedoms include the censorship of online opinion and expression, blocking access to information, and closely monitoring digital activity. Countries including the United Arab Emirates and Ethiopia have hired programmers to develop hacking and surveillance tools and frequently use commercial spyware to target dissidents, monitoring their messages, calls, and whereabouts. Moroccan journalists have been secretly surveilled by government-deployed malware; a human rights group in Bahrain has been targeted with spyware sold to the Bahraini government by a firm in the U.K.; and the United States government collects vast amounts of metadata through a wide variety of surveillance programs, most notably the NSA. Egypt has banned dozens of websites in a growing censorship crackdown, while China employs some 40,000 “Internet censors” to block and remove any content critical of the Communist Party and the Chinese government. Globally, 27 percent of all internet users live in countries where people have been arrested for publishing, sharing, or merely “liking” content on Facebook, and authorities in 38 countries made arrests based on social media posts over the past year, according to the World Economic Forum.

Digital surveillance and online censorship threaten several fundamental human rights and the core freedoms meant to underpin liberal democracies. First, the right to privacy is explicitly enshrined in the International Covenant on Civil and Political Rights (ICCPR), ratified by 167 states to date, which says that “no one shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence.” Second, free speech is protected under Article 19(1) of the ICCPR, which states that “Everyone shall have the right to hold opinions without interference,” while under Article 19(2), “Everyone shall have the right to freedom of expression; this right shall include the freedom to seek, receive and impart information and ideas of all kinds…through the media of his choice.” The same rights to freedom of opinion, expression, privacy, and information are protected by similar wording in the Universal Declaration of Human Rights.

“Any measures to restrict access to, block, or remove content from Internet sites on the part of governments wielding counterterrorism policies or any other reason must comply with international human rights standards,” the high commissioner told Columbia students at the World Leaders Forum event. “They should be proportionate to the threat, demonstrably necessary in their most precise details, as minimally restrictive as possible, supervised by public bodies, and defined by laws derived from public consultation.”

A Columbia University student asks Zeid Ra’ad al-Hussein a question during the question and answer session. // University Programs

Where, one might wonder, does this leave private tech companies? Companies like Google, Facebook, and Apple are put under severe pressure as governments increasingly demand that they regulate content within certain jurisdictions. Apple’s recent decision to disable access to VPN services in its Chinese App Store was criticized as making the company complicit with Chinese censorship, while both U.S. and U.K. spy agencies have come under fire for tapping undersea fiber optic cables to harvest data for surveillance purposes, a practice enabled by laws that require telecommunications companies to comply with domestic and international surveillance requests. India, Pakistan, Turkey and Russia top the list of governments that most frequently request sites like Twitter and Facebook remove “blasphemous content” and provide user account information— requests that are usually quietly complied with.

“When a company supplies data to a state in contravention of the right to privacy under international law, that company clearly risks becoming complicit in human rights abuses,” al-Hussein argued. “The rights which we hold to be inalienable offline must also be protected online.”

With significant advances in digital technologies like artificial intelligence and the increasing commercialization of software that uses biometric data including fingerprints, face, voice and iris recognition, a vast number of new problems will face the field of human rights. In creating this digital universe, the consequences of which are largely unknown and often unpredictable, the high commissioner warns that human rights and needs must be a central focus. With great power comes great responsibility— as digital power grows, so too does our responsibility to protect the fundamental rights and freedoms of humankind.

Genevieve Zingg is currently pursuing her Master’s degree in Human Rights Studies at Columbia University, focusing on human rights in the context of armed conflict, counterterrorism and national security. She is interested in refugees and migration, foreign policy and international politics, international criminal and humanitarian law, and intersectional issues of race and gender. She holds a B.A. (Hons.) from the University of Toronto and has professional experience working in Geneva, Athens, Paris, Brussels and Toronto. Connect with her on Twitter @GenZingg. She is a blog writer for RightsViews. 

Human Rights Futures

By Ayesha Amin, a blog writer for RightsViews and a M.P.A. candidate at Columbia University School of International and Public Affairs

Is the human rights movement on the road to nowhere? Last Thursday, the Arnold A. Saltzman Institute of War and Peace Studies at Columbia University hosted a book launch and panel discussion on “Human Rights Futures,” edited by Stephen Hopgood, Jack Snyder and Leslie Vinjamuri. The book brings together 15 mainstream human rights scholars and their critics to debate alternative futures for the human rights movement.

The panel conversation was moderated by Andrew Nathan, professor of political science at Columbia University, and included four contributors to the book: Jack Snyder, Belfer Professor of International Relations at Columbia University; Shereen Hertel, editor of the Journal of Human Rights; Alexander Cooley, director of the Harriman Institute at Columbia University; and Leslie Vinjamuri, director of the Centre on Conflict, Rights and Justice at SOAS, University of London. Other panelists included Aryeh Neier, co-founder of Human Rights Watch (HRW) and president emeritus of the Open Society Foundations; Sarah Leah Whitson, executive director of HRW’s Middle East and North Africa Division; and Sarah Mendehlson, former U.S. Ambassador to the U.N. Economic and Social Council.  

The International Criminal Court in 2010 // josef.stuefer // Flickr

The discussion between these human rights experts quickly zeroed in on the growing strategic backlash against the human rights field. This phenomenon takes many forms, from the rejection of the International Criminal Court by some countries in Africa to the delegitimizing of activists as “foreign agents” in Russia and creation of counter-norms in President Putin’s defense of “traditional values” against multiculturalism, feminism and homosexuality. Typically viewed as a problem confined to authoritarian and transitional states in the Global South, recent events in the U.S., U.K. and Europe demonstrate that the West is not immune. As Whitson described it, the present moment we find ourselves in is “bad, apocalyptically bad, with a unique feature of being cheer-led by an authoritarian White House.”

The panel was asked whether this represented a historical regression, or just the usual arm wrestling between governments and their critics? The “spiral model” in theories of human rights promotion, after all, anticipates some degree of backlash. Cooley argued that what makes the current backlash different is that it is not confined to the international human rights architecture. It is geopolitical in nature and aimed against the global governance architecture established in the 1980s and 90s. Mendehlson, from her experience at USAID and the U.N., agreed, adding that it is not just human rights groups under attack, but also environmental and humanitarian groups. “We are seeing the entire business model of external funding to local groups being questioned, and often under the cover of sovereignty.”

Protestors march against Trump in Melbourne // Corey Oakley // Flickr

What has caused this backlash? Mendehlson thought the overly legalistic approach of the international human rights movement had resulted in a disconnect between the efforts of international organizations and local populations. “Elevating the local voice is critical,” she said. Vinjamuri queried whether international human rights organizations, especially those headquartered in the United States, engendered a degree of suspicion among the local population. These organisations are often seen as representing the long arm of the U.S. government, closely aligned with U.S. foreign policy and potentially also with its intelligence agencies.

The growing localization of universalistic human rights language is one of the alternative approaches to human rights advocacy considered in the book. It reduces the risk that human rights advocates will be labelled “handmaidens of imperialism.” Whitson said she had observed this process first-hand. “Over the past 15 years, Human Rights Watch has spent time becoming local organizations in the countries we are working in.” As a result, HRW now spends less time convincing local audiences of its neutral credentials and more time on the important work of rights advocacy.  

The relationship between international and local groups is also more nuanced now. Neier described it as symbiotic. Hertel observed that local groups strategically use their alliance with international organizations to their advantage, focusing on where the expertise and resources lie.  

Columbia University hosted a book launch and panel discussion on “Human Rights Futures” in November. // Ayesha Amin

The panel ended with some final observations on how the human rights movement should adapt to our new reality. For example, how can we achieve human rights in places where the old playbook of “legalism, moralism and universalism” is not available to us, or no longer works? Synder argued that the necessary conditions for successfully achieving human rights outcomes are peace and democracy. His prescription for struggling human rights advocates today? Engender mass social movements in connection with a progressive political party.

Neier thought Snyder overstated the connection between democracy and human rights. He observed that in countries at the point of democratization, ethnic nationalism often becomes a more significant force than it was previously. “It is not accidental that the democratization of Myanmar has been accompanied by horrendous abuses against the Rohingya,” he said. What is required is to have respect for human rights principles baked into the transition process, because the aftermath might be too late.

Ayesha Amin is a New Zealander currently pursuing her Master of Public Administration degree at Columbia University School of International and Public Affairs concentrating in International Security Policy. She holds a graduate degree in international relations and human rights, an L.L.B., and a B.A. in economics. Her interests include contemporary critiques of human rights, corporations and human rights compliance, and the right to self-determination. Ayesha is a blog writer for RightsViews.