Tag Archives: human rights

Upcoming discussion of restitution at Stockholm University

Just a quick note to say I will be giving a talk on the right of restitution in two weeks at the Stockholm Center for International Law and Justice. Any TN readers locally-based or passing through are welcome to join!

SCILJ V Rhodri 6 oktober copy 2

International Humanitarian Law more clear and more debated than ever – updated

by Rhodri C. Williams

The immediate inspiration for this post was the fact that the International Committee for the Red Cross (ICRC) recently put online its vast and expanding database on which norms of International Humanitarian Law (IHL) are now deemed to have attained the status of customary international law (CIL), binding on all parties to armed conflicts whether or not they have ratified (or otherwise assented to be bound by) the treaties that give rise to these rules.

The database consists of both a comprehensive listing of the rules now deemed applicable and a compendium of practice, both that which supports the emerging rules and objections against its validity (anyone want to take some wild guesses on what states frequently feature in the latter category?) In the new online version, the practice of some seven further states and a number of international tribunals have been added. The new database constitutes a highly accessible and useful tool alongside ICRC’s additional databases on treaty ratification and application by States Parties.

The good news is that there has been considerable progress in this area. I have written on this blog and elsewhere about the role of soft-law documents like the 1998 UN Guiding Principles on Internal Displacement in consolidating a human rights based approach that has transformed humanitarian action in the post-Cold War period. This transformation has brought new possibilities for advocacy by pairing the cautiously phrased and state-centric provisions of IHL with the less ambiguous and more individual-oriented rules of international human rights law (IHRL).

Moreover, because advocacy for the Guiding Principles has focused on engaging willing states (at the risk of to some extent being co-opted by them), they have been far more successful than most soft-law standards, to the extent of having been incorporated in numerous national laws and policies (compiled by the Brookings Institution here) as well as a groundbreaking regional convention adopted by the African Union. This, in turn, has provided support for customary IHL to more vigorously address areas such as the prohibition against arbitrary displacement (including in internal conflicts), the right of voluntary return for internally displaced persons (IDPs) as well as the state obligation to respect their property rights.

However the new force and reach that a rights-based approach has given to IHL has brought new risks as well. Most obviously, by encouraging humanitarian actors to condemn violations of human rights (such as forced displacement) and demand accountability and remedies (such as restitution), the rights-based approach may create dangerously high expectations on the part of beneficiaries of aid while simultaneously undermining the perceived impartiality of humanitarian actors. In the worst cases – and we do not have to look far to find them – this limits the access of humanitarian actors to vulnerable populations and puts their own security at risk.

As a result, this ongoing retrenchment of the rules of conflict has opened up new policy debates, most recently in the extremely difficult humanitarian arena of the Syrian conflict. The latest iteration came with the 28 April 2014 publication of an open letter signed by 35 eminent legal scholars. The letter noted that 3.5 million civilians – over a third of those in urgent humanitarian need in Syria – are living in areas accessible only from neighbouring countries. However, because Syria has denied consent to humanitarian actors operating in Syria to send cross-border aid, these civilians face a catastrophe.

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One Europe?

by Rhodri C. Williams

As I type this, the points are rolling in for the 2014 Eurovision Song Contest. Its all a little bit surreal. Having done its best to stave off ‘politicization’ of a 2012 contest handed without strings to autocratic Azerbaijan, the organizers of Eurovision are now finding European politics bashing down the door and tracking muddy footprints down the hallway.

At the other end of Europe, it has been another bloody, divisive day in Eastern Ukraine, which is now described by the Guardian as ‘on the brink of civil war’. As mob rule descended on the Eastern city of Mariupol, one local Russian speaking resident described his view of the casus belli as follows: “This is the Donetsk people’s republic! We will destroy the Kiev junta and the Euro-gays! We will win!”

At this end of Europe, the picture could not be more different, with the Euro-gays sitting rather clearly in the ascendancy as the last minutes of the Eurovision contest roll down. A few minutes back, the astonishing transvestite performer Conchita Wurst of Austria passed the point of no return, taking high points not only from predictable Western countries but also east of the Oder locales like Georgia with rather mixed past records on moving past hetero-normativity.

More sadly, a pair of talented twins who happen to hail from Russia (but probably enjoy fairly little direct responsibility for troop movements on the Ukrainian border) initially drew loud and sustained boos from the crowd every time one of Russia’s few remaining friends in the region tipped them their 10 crony points. By the end the boos seemed to be drowned out by cheers, which indicate a far greater capacity to learn quickly from past mistakes on the part of the Eurovision crowd than the Kremlin regime.

The phenomenon of Conchita Wurst at this moment in European history highlights both the ascendancy of socially liberal values across many parts of Europe and the political division that gapes ever wider between European regimes that can handle individual expression and those that find it threatening. Not that the two never play footsie, mind. Just look at former Eurovision capital Azerbaijan, returned decisively to its draconian ways after the foreign media pulled out and yet all dolled up to assume the chairmanship of Europe’s ever less credible human rights organization, the Council of Europe, in just three days.

And yet, in the afterglow of a Eurovision contest that fell overwhelmingly to an Austrian ‘bearded woman’ who could belt out a power ballad like nobody’s business, the last word is best left to Conchita herself:

Waking in the rubble
Walking over glass
Neighbors say we’re trouble
Well that time has passed

At some point, now or in the future, Moscow will need to decide whether it always wants to be that grumpy neighbor or would rather integrate more meaningfully with a European community it has every claim to be a part of. But Europe would do well in the meantime to be a little more careful about who it welcomes into Conchita’s house.

A little more on the rule of law and development debate

by Rhodri C. Williams

A few weeks back, I wrote about some good news, namely the evidence that rule of law efforts – instilling accountability and legal certainty through support to formal adjudicatory institutions – is central to equitable development. As well as some bad news, that being that said evidence was difficult to measure and therefore of lesser interest to those development donors fixated on checking the log-frame boxes.

Since then, a few more iterations of this debate have crossed my desk, both of which underscored the significance of rule of law to development – and particularly the post-2015 Sustainable Development Goals (SDGs) – and sought to push back on the measurability issue. First was Mo Ibrahim on Project Syndicate with an appeal to African leaders to push for the explicit inclusion of rule of law in the SDG process. Citing concrete cases of local civil society and expert efforts to resolve disputes, title land and prevent corruption, Mr. Ibrahim concludes that:

This is the rule of law in action at the local level, and it is building, often from scratch, a culture in which disputes are settled peacefully and benefits distributed transparently. The alternative – recourse to violence in the face of unequal access to resources – has led to a cycle of political instability in many countries, with the consequent lack of economic development that has come to characterize much of Africa’s recent history.

As the debate on the post-2015 Sustainable Development Goals unfolds at the United Nations this year, it is my fervent hope that African governments will endorse the inclusion within these goals of measurable targets for access to justice. To be sure, the dominant themes that are emerging in the UN discussions – jobs, economic growth, infrastructure development, and poverty reduction – are all still desperately needed across the continent. But the rule of law is a fundamental principle that does more than promote economic growth, and it would be a serious mistake not to include it in the SDG agenda.

In a very similar vein, Namati has circulated an open letter to the UN General Assembly promoting attention to rule of law and access to justice in the SDGs. Like Mr. Ibrahim, Namati notes that rule of law efforts are crucial to securing a broad variety of rights. These range from more civil and political rights concerns like freedom from structural violence (the focus of the Gary Haugen Op-Ed I blogged on earlier) to more traditionally economic and social concern such as access to and secure tenure in land. To quote Namati:

Approximately three billion people around the world live without secure rights to what are often their greatest assets: their lands, forests, and pastures.  Increasing demand for land is leading to exploitation and conflict.  Giving communities the power to manage their land and natural resources would reduce poverty and promote sustainable development.  Securing property rights for all individuals, including women, is necessary to improve financial stability and personal safety.

Interestingly, Namati not only note that inclusion of rule of law in the SDGs would be perfectly consistent with many previous UN statements and resolutions, but also rebut the measurability issue head on as one of their central advocacy points:

Where legal empowerment efforts take hold, the results are visible and quantifiable.  Women in Bangladesh who challenge the practice of illegal dowries are reporting greater cash savings.  Due to the work of community-based paralegals, grievances in Liberia are being resolved more equitably, resulting in greater food security. Prisoners in Kenya have returned to jobs and families after successfully appealing their sentences.

The emphasis on “visible” as well as “quantifiable” strikes me as astute. One of the unsatisfying aspects of sheer quantification is that it can be blind to context. Measuring the number of judicial decision referring to international human rights standards is fine, for instance, but do the rulings properly apply the standards or misinterpret them to abusive ends? And who is to be the judge of that, and on what criteria? And in either case how many such decisions actually survive appeal?

Sustained engagement with a particular development setting is not a guarantee of good analysis, but provides an opportunity for sensitivity to context and local dynamics that would not otherwise arise. The results can provide visible evidence for those minded to see it, but whether this will always be quantifiable is another question.

COHRE archive back online

by Rhodri C. Williams

Its been some time since the mysterious demise of the Centre on Housing Rights and Evictions (COHRE), the protean Housing, Land and Property (HLP) rights NGO that inspired and spun off so many others. One of the most direct successors to COHRE, the Global Initiative for Economic Social and Cultural Rights (GI-ESCR) was early out in placing a selection of COHRE reports and manuals in their resource library. However, COHRE itself, evicted from the web, had ceased to exist as completely as if it had never existed.

Having stumbled across a fully functioning COHRE website this morning on precisely its old, familiar URL, I am happy to announce that the org is back as a resource, even if it is no longer an active force. The site itself is frozen in time in Summer 2011 (when one might wish all of time had frozen), complete with welcomes from its then-Chairperson and Director, and a seemingly complete archive of reports and resources, including my original 2008 salvo on housing rights in Cambodia (here in pdf).

I should note that I have heard more about the demise of COHRE since I blogged on it two years ago, but have been told these things in confidence, which I do not intend to breach. Whatever the circumstances that brought COHRE down, all the involved parties appear united by a desire to focus on the positive aspects of their experience, which is itself quite a legacy. That said, if the mysterious benefactors who brought COHRE back online want to come forward, they are welcome to do so here.

Chile and the unfinished business of justice and reparation

by Clara Sandoval

Dr. Clara Sandoval is a qualified lawyer and a Senior Lecturer in the School of Law at Essex University. She is the Director of the Essex Transitional Justice Network and Member of the Human Rights Centre as well as the Advisory Board of the Human Rights Clinic. She specializes on the Inter-American human rights system, transitional justice and reparations.

Forty years have passed since the coup in Chile and we are still waiting for justice and reparation for the majority of Pinochet’s victims. As a result of the dictatorship in Chile, there were more than 200,000 exiles, more than 38,000 survivors of torture (according to the Valech Commission) and roughly 3,000 persons subjected to enforced disappearance or extra judicial killings (according to the Rettig Commission).

Don Leopoldo García Lucero, his wife Elena and their three daughters are some of those victims. He was detained in 1973 in Santiago, passed through various detention centres (among them El Estadio Nacional, Tres Alamos and Chacabuco) where he was subjected to torture (physical and mental) and other cruel, inhuman or degrading treatment. In the summer of 1975 he was expelled from the country by decree. He arrived in the UK with his family as refugees. Since 1973 his life and that of his family has been on hold. He lives in London in social housing with his wife.

Chile has adopted important measures to deal with the legacy of mass atrocities, particularly in the area of reparation and memory, but most of them were for the benefit of the next of kin of those disappeared or killed. Meanwhile, justice (meaning the investigation, prosecution and punishment of the perpetrators of those crimes) and adequate, prompt and full reparation for torture survivors and their next of kin, those in exile and those victims who are both exiles and torture survivors remain an unfinished business.

Chile began its transition to democracy between 1988/90, and thirteen years later, in 2003, the Valech Commission was established to identify the survivor victims of torture, and only in 2004 some reparations were put in place to deal with the harm caused to torture survivors and their next of kin; these were primarily designed to provide redress to those living in Chile and not those in exile like Mr. García Lucero. In contrast, truth-seeking and reparation for victims of disappearances and killings took place just after the return to democracy at the beginning of the 1990s.

The investigation, prosecution and punishment of torture perpetrators remain a challenge in Chile. Very few cases are being investigated; the punishment of perpetrators is not proportional to the gravity of the crimes, and Chile lacks a specialized system (as it has for disappearances and killings) to investigate torture cases.

Furthermore, in Chile there are various obstacles to justice: the amnesty law remains in place (despite the judgment of the Inter-American Court in Almonacid Arellano v. Chile ruling it was contrary to human rights), and in particular, there is a law that decrees that all information that was collected by the Valech Commission remain secret for 50 years. However, this information is of extreme importance in the investigation of torture cases which occurred during the dictatorship given the difficulties to identify perpetrators without being able to cross-reference information with other persons who were detained in the same places and at the same time.

This is why the litigation against Chile in the case of Don Leopoldo García Lucero, his wife Doña Elena and their three daughters was important to REDRESS and to me as one of its lawyers. Victims, particularly torture survivors who are permanently disabled (like Don Leopoldo) and were unable to move on after what happened to them, and are in exile with their families, are extremely vulnerable people who have a right to justice and reparation, but face multiple barriers to making them a reality.

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Reparations for Chile’s exiles: upcoming guest-post on the Inter-American Court decision in García Lucero

by Rhodri C. Williams

Earlier this Fall, I had the pleasure of being invited to lecture at the Essex Transitional Justice Network’s 2013 summer school, which focused on land issues in transitional settings. I also stayed on for a seminar on land and traditions that got me back together with some familiar leading lights on HLP questions and acquainted me with a number of others. The EJTN has been doing some very interesting work at the frontiers of the transitional justice discourse, including research on economic and social rights approaches to TJ, rehabilitation as a form of reparation and, most recently, a book on corporate accountability in transitional settings.

As a human rights practitioner frequently (and rightly) accused of being a frustrated academic, the seminar was a good reminder of how many other people believe that the strain of trying to keep a foot in both camps is more than compensated for by the synergies that can result. One of the more impressive examples I encountered during my stay in Colchester was the work of ETJN Director Clara Sandoval, who is also not only a Senior Lecturer at the University of Essex Law School, but also a frequent practitioner. Recently, as a consultant for Redress, she helped to bring the case of Leopoldo Garcia Lucero v. Chile before the Inter-American Court of Human Rights.

The Garcia Lucero case involves the claim of an 80 year old torture survivor who was held for a year and a half in Chilean prison camps before being expelled in 1975. Since then, Mr. Garcia Lucero has struggled to make a new life in London, one among some 200,000 Chileans forced out by the Pinochet regime. Physically disfigured and permanently disabled, he sought an “effective remedy and full and adequate reparation for what happened to him” before the Inter-American Court.

In the decades since Mr. Garcia Lucero was victimized, the Chilean experience of transitional justice has come to be seen as a model in many respects. However, as Clara Sandoval noted in a BBC interview, efforts to provide reparations to victims of the Pinochet regime have been accompanied by relatively few convictions of perpetrators and largely excluded exiled victims, exacerbating their vulnerability. Meanwhile, with the recent commemoration of the 40th anniversary of the Pinochet coup, painful new revelations such as the failure of the Chilean courts to protect ordinary citizens continue to emerge.

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