The Human Rights Blog

Liam Kelly holds History of Art degree from Nottingham University.  He writes for newspapers, magazines, and blogs in the UK. He is also an Amnesty International member, human rights advocate, and campaigner with particular focus on the United Nations Arms Trade Treaty. Liam curates the Twitter feed @ArmsTreaty.

This may sound bananas, but there are currently no legally binding, international rules regulating the arms trade. In fact, it is easier to trade guns than it is to trade bananas.

The global trade in arms and ammunition has an enormous human cost. We’re not talking about harmless yellow fruit here; we’re talking about bullets, guns, grenades, bombs, mortars, and missiles, otherwise collectively known as conventional arms. Every day, thousands of people are killed, injured, raped, and forced to flee from their homes as a result of armed conflict, armed violence, and human rights violations and abuses which are perpetrated using conventional arms. The statistics are horrifying.

And just as it sounds bananas that this is happening, it might also sound like we’re talking about distant humanitarian disasters and malevolent, unscrupulous governments in a galaxy far, far away from here. We’re not. The U.S. is the world’s single largest arms exporter, along with the United Kingdom, Russia, China, Germany, and France[1], and despite national regulations, has sent arms to some highly questionable people, as have the rest of this group. These nations, which make up the United Nations Security Council (UNSC) Permanent Five Members, plus Germany[2], are suppliers to human rights abusers, despots, and dictators the world over.

The UK Prime Minister, David Cameron, recently visited Asia accompanied by representatives from leading British defense firms (‘defense firm’ being arms dealer parlance for ‘arms dealer’), touting for business.[3] He was closely followed by Foreign Secretary William Hague who, when asked an uncomfortable question about British arms exports by a journalist in Singapore, replied with a standard diplomatic response;

“We have one of the most rigorous systems of scrutiny. Our arms exports with any other country in the world are at par with the rest of the E.U.”

So rigorous that British Hawk jets were used by the Indonesian military to bomb unarmed innocent civilians in East Timor during the genocide there.[4] [5] [6]

David Cameron’s February 2011 trip throughout North Africa at the height of the Arab Spring, again accompanied by British arms dealers[7], prompted the same rehearsed line. However, inadequate and loophole-ridden national regulations of international transfers of conventional weapons permit arms to be supplied to those flagrantly violating human rights and humanitarian laws. Just as the UK supplied Indonesia with fighter jets, so has it repeatedly supplied dictators like Gaddafi and Mubarak in places such Libya, Egypt, Bahrain, and Saudi Arabia with arms used for repression.[8]

Secretary Hague, however, does have a point; the UK’s system is one of the most rigorous compared to the rest of the world. The problem being, it’s just not good enough.

The catastrophic results of the globally unregulated arms trade

In an average year, small arms kill around a third of a million men, women and children – and leave hundreds of thousands more injured, disabled, and traumatised. Additionally, there are an estimated 300,000 armed killings outside of conflict each year. One person is killed every single minute of every single day by armed violence – in that same minute, 15 new arms are manufactured. Conflict costs African countries $18bn USD every year, and there are an estimated 300,000 child soldiers in the world today, primarily in Africa.[9]

So why does the world pay this terrible price? The simple and sad answer is that the arms trade is worth billions.

Highly profitable arms fuel today’s most violent conflicts. Bashar al-Assad’s Syrian regime continues to receive arms used to commit massacres and war crimes from Russia[10], with Turkey, Saudi Arabia, and Qatar widely suspected to be supplying Syrian rebels who in turn have committed grave human rights violations. Violence rages in the Democratic Republic of Congo, Sudan, and South Sudan, where China is accused of supplying arms in exchange for oil and gas despite UN arms embargos, which have little impact on stopping the flow of arms.[11] The impotency of UN arms embargos has been demonstrated almost every time a UN arms embargo has been placed, severely lacking in both scope and enforceability.

The issue seems to have entered the public consciousness earlier this year after two high profile convictions. First, after a protracted extradition from Thailand, notorious arms trafficker Viktor Bout was convicted and sentenced to 25 years by a U.S. court for agreeing to sell arms to people he thought were Colombian militants intent on attacking American soldiers.[12] The so-called ‘Merchant of Death’ was previously committed to the silver screen in the Hollywood film Lord of War, where he sells and ships arms to dictators and murderers all over the world, fuelling some of the most brutal conflicts in modern history, including those of Liberia and Sierra Leone.

One of Bout’s regular customers was the former President of Liberia, Charles Taylor, coincidentally the second high profile conviction of 2012. In June, he was sentenced to 50 years imprisonment by the Special Court for Sierra Leone at The Hague for war crimes after his role in arming, aiding, and abetting RUF rebels in Sierra Leone in exchange for ‘blood diamonds,’ contravening UN arms embargos at the time.[13] Taylor directly supplied weapons, moral and tactical support, and encouragement for RUF rebels who committed heinous crimes; murder, mutilation, the decapitation of children, and widespread sexual violence. Many of these crimes could not have been committed were the perpetrators not armed.

But the cases of these two individuals merely scratch the surface of the murky world of the global arms trade. The Viktor Bouts and Charles Taylors of this world are instantly replaced by more arms dealers and war criminals and the endless flow of arms continue to fuel the bloodshed. This tragedy must, and can, be stopped.

Control Arms Campaign

The Control Arms campaign, a global civil society alliance campaigning for a “bulletproof” Arms Trade Treaty (informally know as ATT), is calling for a global, legally-binding Treaty, to control this deadly trade, where none currently exists. Over one million people signed their Million Faces Petition, which was presented to UN Secretary General Kofi Annan in 2006. Then, at the UN General Assembly in December 2006, a huge majority of 153 governments voted in favor of developing an ATT. In 2009, work began in earnest on developing a treaty.[14] The final negotiating conference is now in session, having begun on July 2^nd.

Despite these successes, some governments want to weaken the Treaty by not including ammunition for example, governments such as the United States. After three weeks of the scheduled four, negotiations are not going well. Procedural wrangling and delay tactics have managed to take talks off track, though they have not yet been completely derailed.

Of the world’s biggest arms exporters (the UNSC Permanent Five plus Germany), France, Germany, and the UK have voiced strong support for a robust ATT, which includes all conventional arms and ammunition. The US, influenced by interpretations of the Treaty’s scope by the National Rifle Association, is now siding with Russia and China (and a minority of nations such as Iran, Cuba, and Pakistan) in attempting to water down the ATT.[15] The NRA fears the Treaty will interfere with the Second Amendment, a misguided posture given that the ATT explicitly states it is only intended to regulate the transfer of arms across international borders, not domestically.

Pressure needs to be kept on governments to make sure that they do not weaken the Treaty, to ensure that human rights are at its heart. The demand is simple: no arms for atrocities, no transfer of arms or munitions to places where there exists a risk that they will be used for human rights abuses.

What Happens Next?

As we enter the final week of negotiations, the situation could not be more precarious. A majority of nations are pushing for a strong treaty, with a minority of powerful nations resisting, placing “national interests” above human rights, above human life. The decisions made at the UN in the next few days will directly affect the lives of millions of people affected by armed violence – this is literally a case of life or death.

We are on the verge of what could be one of the greatest human rights breakthroughs in history. But we are not there yet.

Notes:

What’s the deal with bananas and the global arms trade?

Full text of the revised ATT

Popularity: 3% [?]

David Prater, J.D., 2012 The University of Maryland School of Law

After an almost three-decade long civil war, the island of Sri Lanka is confronted with the significant political challenge of reintegrating an ethnic minority separatist group, the Liberation Tigers of Tamil Eelam (LTTE) back into a coherent society connected by state institutions.  However, this is complicated by two issues.  First, the government that successfully ended the war is highly favorable toward the ethnic majority group, the Sinhalese; and second, many in the Tamil community remain recalcitrant about the prospect of submitting to Sinhala majority rule.

By adopting policies of multiculturalism, liberals in the Tamil diaspora and in Sri Lanka can moderate radical chauvinist claims in their respective camps and work toward a more tolerant society.

Sri Lanka’s De Facto Multiculturalism

Photo credit: AP via fbi.gov

Several indigenous ethnic groups claim Sri Lanka as their homeland, but governance of the territory has been primarily contested by two groups, the Sinhala and the Tamil. According to the Sinhalese national mythology, the Sinhalese rulers adopted Theraveda Buddhism after the evangelical mission of the Buddhist Mahinda. The Sinhalese created schools to train Buddhist monks and scholars, teachers, and poets emerged from these learning centers to usher in a golden-age of Sinhalese culture, so the mythology goes.  In the north and east, the Tamil population, primarily Hindu, created the independent kingdom of Jaffna either as immigrants from the Indian subcontinent or as another autonomous indigenous group.

In 1948, an independent Sri Lanka was created with a Westminster unitary proportional representation parliament, thereby assuring the majority Sinhalese the power to constitute a new government without balancing other ethnic group interests on the island.   Through the resources of the Sri Lankan state, the Sinhala sustained their culture and reclaimed the mythos of a Sinhalese dominated Sri Lanka.  Concerned by such displays of majoritarian and authoritarian domination under the Sinhala nationalist parties, several Tamil interest parties consolidated to advance a federal scheme for Sri Lanka.

The Liberation Tigers of Tamil Eelam (“LTTE”) splintered from this Fabian approach to independence and sought to divide Sri Lanka into separate Tamil and Sinhala homelands by force. From 1973 onward, the LTTE represented the pinnacle of Tamil nationalism and established varying degrees of control over parts of Sri Lanka. But in 2009 under President Rajapaksa, the Sri Lankan army waged a brutal final campaign against the LTTE and regained control over the territory formerly controlled by the LTTE.

Given the victory of national government over the LTTE, marginalization of the Tamil in Parliament, and crackdown by government on dissent from both minority political parties and groups; there seems to be little hope to be had from the domestic political situation. Moreover, the resort to armed violence is unlikely to achieve its end as the victory of the national government was conclusive.

For a full report on human rights abuses that occurred during the civil war and the authoritarian nature of Sri Lanka’s current government, read the UN Panel of Exports report.

Therefore, post-conflict Sri Lanka is confronted with the following political problem: how to reconcile the Tamil population to the state dominated by a seemingly chauvinist government unwilling to concede the territorial integrity or their authoritarian majority over the state?

Advancing Policies of Multiculturalism

In Sri Lanka, a policy of multiculturalism introduced by a major political party could marginalize radical Tamil and Sinhalese parties hesitant to negotiate with the state and bring disaffected groups into unified vision for Sri Lankan identity to advance nationalism over communal interests. Moreover, such policies could begin to produce a more tolerant society that values different cultural differences, rather than produce social conflict based on those differences.

The major obstacle is for the Sinhala dominated government to adopt such a policy. This is not impossible given the influence of international donors in Sri Lanka and a nascent liberal movement in Sri Lanka. Joint efforts by these two groups could pressure the government to adopt non-ethnic human rights based reforms based on equal distribution of state resources toward the many cultural groups in Sri Lanka. These efforts could lead to the adoption of the important recommendations laid out by the Sri Lankan Lessons Learnt and Reconciliation Commission, including bilingualism, cross-cultural exchanges, and more robust non-discrimination protections.  Read the full Sri Lanka report here.

The Tamil diaspora could effectively advance this agenda by internationalizing with their significant pull in foreign countries; and advocate at UN organs to pressure the Sri Lankan government to make neutral human rights reforms.

The most obvious strength of the Tamil diaspora community is its ability to internationalize the conflict.  The Tamil diaspora is well positioned to take on this role because of the amount of remittances it sends to Sri Lank and the political pressure the Tamil diaspora can assert in host countries that are major international donor countries. It is estimated that total remittances to Sri Lanka amounted to over $2.8 billion in 2009. These do not include the informal remittances of Tamils during the course of the 2009 war.  The remittances from Tamil were deployed primarily for the benefit of Tamil internally displaced persons much to the distaste of host countries and Tamils alike.  While it is unlikely that all remittances from Tamils abroad to their families in Sri Lanka will be stopped because of many Tamils reliance on those remittances for vital provisions, the remittances toward political causes can be used to tailor the causes of domestic political parties in Sri Lanka, especially the TNA.  Moreover, coordination between Tamil diaspora and Tamils on Sri Lanka could bring the economic value of Tamil remittances to the forefront in Sri Lanka.

Secondly, the Tamil diaspora is a transnational group with strong communities, and voting blocs, in many countries. They have proved eager to petition their host countries to take action in Sri Lanka and call attention to the violations of human rights by the government.  The leaders of the diaspora have proved effective in mobilizing Tamils.  By pressuring host countries that are also donor countries and make concerted efforts at UN organs, the Tamil diaspora can deploy the ‘name-and-shame’ tactic to marginalize Sri Lanka from the international community because of its gross violations of human rights and continued pressure. Finally, the current government has premised Sri Lanka’s future in economic development, especially in the north and east, by foreign corporations. The Tamil can also work against the SLFP’s credibility in Sri Lanka by working to boycott such economic development.  Clearly, Sri Lanka’s dependence on donor countries, remittances, and foreign corporations is a weakness for the current SLFP government that can be exploited and the Tamil diaspora is best positioned to do this.

However, as noted above, many in the Tamil diaspora remain committed to the goals of the LTTE and remain loyal to the LTTE itself.  But, this is a losing political position in host countries and the credibility of the LTTE was seriously undermined by the decisive victory of the Sri Lankan army.  Fortunately, many youth in the Tamil diaspora and leaders in communal organizations recognize the weakness’ pursuing the dead dreams of the LTTE and have moderated their response. The Tamil diaspora, despite its resource and ability to influence the political future of Sri Lanka, will be ineffective if it cannot adopt a more conciliatory tone toward the state of Sri Lanka and the majority Sinhalese.  Adapting a stance of multiculturalism can in fact achieve just that and mediate the radical claims of the SLFP government; but adopting such a policy in the diaspora will require clear, powerful, and moral leadership.

Conclusion   

A policy of multiculturalism is but one tool of transition in reshaping a country after traumatic political violence.  It is not a solution to all social problems.  Positive social effects produced by this include the maintenance of peace within a state and the provision of more choices for all persons, especially minorities.  This has been true in other societies including Canada, South Africa, and India, and is being used as a tool in other multiethnic states, like Kenya.  Although none of these states have resolved all group contestations, political violence has seriously abated and marginalized groups’ participation in government is vastly improved.  These alone are insufficient to repair much of the damage in Sri Lanka, but it suggests a common ground that moderates the extreme claims of both groups without sacrificing core elements of either side.

Editor’s Note:  Congratulations to the article’s author, David Prater, on his graduation from The University of Maryland School of Law!

Popularity: 4% [?]

Elizabeth Hebert, M.A. Conflict and Dispute Resolution, University of Oregon

Antionette Vlieger’s book entitled, “Domestic Workers in Saudi Arabia and the Emirates: A Socio-legal Study on Conflicts” looks at the conflicts surrounding the controversial relationships between migrant domestic workers and their employees in the Middle Eastern countries of Saudi Arabia and the United Arab Emirates. It is published as a part of the Human Rights and Culture Series published by Quid Pro Books.  Her central research question is “Which factors influence the (emergence and character of) conflicts in the Kingdom of Saudi Arabia and the United Arab Emirates between domestic workers and their employers, the norms of both parties (may) refer to, and the related (im)balance of power?”

Ms. Vlieger outlines the norms in the conflicting societies, discusses the institutions involved with domestic work in the Middle East, household dynamics, and concludes with pragmatic steps forward to bettering the condition of migrant domestic workers in Saudi Arabia and the Emirates. Ms. Vlieger gives more background on her research in the interview below.

1)     How did you originally begin researching about the situation of migrant domestic workers?

The fact that I got to do this research was quite a coincidence. I was researching intercultural communication between lawyers and their clients, when my professor suddenly passed away. The dean transferred me to another department and my new professor asked me to change  my research topic. He proposed something completely dull and I answered that if I’d have to research that for five years, I’d probably jump off the roof somewhere halfway. We decided to think it over for a couple of weeks and that weekend, at the ballet classes of his daughter, he got a request from an anthropology professor: “Something is going wrong in the Middle East with the domestic workers, can you send a lawyer?”  He had my resume in his bag, showing that I had studied, apart from law school, a bit of anthropology, economics, some Arabic and politics of the Middle East. That next Monday I totally agreed with him that I was perfect for the job. I guess that I was a bit naïve when accepting this assignment. It was a lot more difficult than I had imagined: not intellectually but emotionally.

2)     What was the most difficult challenge you faced when trying to access and interview domestic workers? Employers? Government officials?

There were loads of hurdles to take. For instance, most domestic workers are not allowed to leave the house of their employers. At first I could only interview the women who had run away from their employers, but that very much colored my results. I needed a better place to contact the women and I decided to fly to two countries of origin: The Philippines and Indonesia. There, I simply waited at the airport for planes to arrive from Riyadh and Dubai. I also found an office in Manila where domestic workers renew their passports when going back to the same employer. I interviewed these women in the waiting room. Interviewing employers was not so difficult in Saudi Arabia, but it was in Dubai. The original Emirati population has been reduced to 5%, so many of them are fed up with, or actually afraid, of all foreigners. Most government officials wanted to talk to me and I guess being a tall, blue-eyed blond was a benefit. But the legal-religious elite in Saudi Arabia generally refused to talk to me because I am a woman. Also, I never succeeded in gaining access to prisons or deportation centers. I did manage to research the agencies that send the women across the world. In the two countries of origin,I  sent somebody to find out what they would tell her about the working conditions, and then in Saudi Arabia and Dubai I pretended to be pregnant and in need of a domestic worker to hear what they tell employers about the work conditions. According to some researchers, this is not allowed to conceal that you are a researcher, but when dealing with traffickers, it’s the only way to do it. Otherwise they would never have given answers like: “she will be your slave for two years,” while these are very important data.

3)     How did benevolent employers react to your research?

The employers vary the way people in our own countries vary. There were employers who warned me: “It is very important what you are doing, but please be careful of the government. There is too much money at stake, they don’t want you to ruin their image.” Others agreed that the research was necessary, but thought it was ridiculous that an outsider was doing it. I always replied that as soon as they would actually address the problems themselves, I would be happy to step back. Many simply denied the existence of a problem, or they said the root of the problem was the domestic workers themselves. Some suggested places to research and others simply admitted to being too afraid of the government to say anything about it. One women in Saudi Arabia was very surprised about my research results, about the lies told by the agencies and about the lack of freedom of the domestic workers, partly due to the severe poverty back home. This lady actually went to Indonesia herself, to stay with the family of her domestic worker, to learn more.

4)     Why do you believe there has been an increase in awareness surrounding the issues of migrant domestic workers, particularly in the Middle East?

I am not altogether sure that there has been an increase in awareness compared to the size of the problem. Although I have no quantitative data to support this, I think the problem is growing, not diminishing.  And as it is growing, it draws more attention. Both governments are trying very hard to cover it up. Workers who create problems are instantly deported. Newspapers can’t write about it. I tried to say something about it on the radio, to publish something in the papers, but all in vain. Especially Dubai is doing a lot of window dressing: they built this fantastic center for trafficking victims and show journalists around. But they don’t recognize anybody as  a victim and then publicly claim there is no problem. Dubai thrives on foreign investments, both dirty and clean. They are well aware of the importance of maintaining the brand of Dubai. Saudi Arabia is already struggling with its image, in light of the origins of Al Qaida and the position of women in the country. They play it rough: If, for instance, Indonesia is complaining too much about the treatment of the female workers, the government threatens to stop funding mosques, to stop delivering oil, to stop issuing visas to pilgrims heading for Mecca. Indonesia has the largest Muslim population in the world, (so) that it a serious threat. Also, there is so much money going around in the human trafficking business that many people are paid to keep their mouth shut. I (too) was threatened: “Are you sure you want to get home alive?” In light of all this, the fact that awareness increases is a miracle and I think it can only be explained by the growing size of the problem.

5)     What do you think of using a trafficking framework when discussing the situation of domestic workers?

I have used several frameworks to discuss this problem: human rights, women’s rights and workers’ rights, access to justice and power balances. But you are right, I paid a lot of attention to the trafficking framework because I noticed a problem there that in my eyes needs to be addressed. The Palermo Protocol on trafficking prescribes national governments to criminalize and prosecute trafficking. But the business of human trafficking has grown tremendously and the amounts of money going around in it are astronomical. In countries such as Indonesia and the Philippines, both poor countries, the average salary of a government employee is very low and therefore most of them can be bribed easily. In the Middle East, the money flows opposite of how it flows in the West, not from citizens to the government in the form of taxes, but from the government to citizens. Oil money is used not only to oppress the population, but also to bribe them. So in the oil-rich Middle East, the system is not corrupt, but corruption is the system. This means that traffickers will not be prosecuted there either: they actually form part of the government. I wanted to draw attention to the fact that we all agree that we cannot leave the fight against drugs to, for instance, the Colombian government, as the drugs mafia is too rich and powerful compared to that government. But at the same time we do leave the fight against human trafficking to national governments, while that mafia is just as rich and powerful. So I feel it is necessary to discuss the issue of domestic workers in a trafficking framework, to draw attention to the fact that the international flows of migrant workers need to be monitored at an international, not at a national level.

Antoinette Vlieger is a professor at the University of Amsterdam. Her book, Domestic Workers in Saudi Arabia and the Emirates: A Socio-legal Study on Conflicts is available in paperback, hardcover, Kindle, Nook and Apple. Full info and links available is at Quid Pro Quo and Amazon.

Popularity: 4% [?]

David Prater, J.D. Candidate 2012, The University of Maryland School of Law

On February 3, 2012, the International Court of Justice (“ICJ”) handed down its decision in the Jurisdictional Immunities of States Case (Germany v. Italy, w/Greece Intervening).   Germany won the case.

At issue before the ICJ was the immunity of Germany from the judicial process of Italy (and Greece) for forced labor, deportations, and massacres committed by German armed forces during the Second World War.   The Court held that the long standing principle of immunity of states from the judicial process of foreign domestic courts could not be abrogated even when the substantive claim before the foreign domestic court involved gross violations of human rights on the territory of the forum state by organs of the foreign state acting in their official capacity.

This decision comes at a time when a significant obstacle for the successful conclusion of on-going stalled armed conflicts is the immunity of armed forces for violations of human rights committed during the course of the armed conflict.   By declining to abrogate foreign sovereign immunity, the Court likely had an eye toward allowing states the freedom of action to successfully negotiate peaceful resolutions to armed conflicts, rather than prolong peace in hopes of achieving an all victory in order to forego responsibility for the acts of armed forces during the course of the armed conflict.

Background

The Second World War was a global conflict.   Almost no territory was left untouched by its effects.   The atrocities committed during the war spawned the current international legal order and was the genesis of the human rights movement.

In Italy, German armed forces forced Italian civilians into slavery and deported them to Germany to work in factors.  In Greece, German armed forces committed a massacre against Greek civilians thought to have an affiliation with Greek partisans.

During negotiations to formally end the war after Germany’s unconditional surrender, Germany agreed to undertake various reparations schemes to compensate victims of the Third Reich’s odious policies while Italy and Greece agreed to waive all claims of it civilians arising from the war.  However, the claims of numerous victims were invalidated by Germany’s compensation commission for a variety of procedural and substantive reasons.   In particular was one Mr. Ferrini, who was forcibly deported from Italy to Germany and forced into manual labor.  Germany claimed Mr. Ferrini was detained as a prisoner of war and was excluded from the competency of their reparations scheme.

Mr. Ferrini brought suit in Italian domestic courts against the state of Germany for the injuries, mental and physical, suffered by him during his forced deportation and subsequent labor in Germany during the course of the war.  Germany declined to participate in the adjudication because Germany insisted that the state of Germany maintained immunity from the judicial process of Italy.  Generally, a state is immune from the judicial process of foreign domestic courts when it commits sovereign acts.  However, when a state acts in a commercial capacity or on the territory of the foreign forum’s territory, the state can be subjected to the judicial process of a foreign domestic court.

In its holding, the Italian court declined to honor Germany’s immunity from judgment of its courts and proceeded to hold Germany responsible for the damages suffered by Mr. Ferrini.  To satisfy the judgment, Italian courts executed on several German owned properties within Italy that were used by Germany for cross-cultural purposes.  Germany brought an application to the ICJ to resolve the dispute between Germany and Italy regarding Germany’s immunity from the judicial process of foreign domestic courts.

The ICJ held that the exercise of jurisdiction by Italian courts and the execution of those judgments was a violation of international law.  The ICJ reasoned that states retain their immunity for the acts of their armed forces committed on the territory of a foreign state during the course of an armed conflict.   This judgment severely restricts the rights of states to adjudicate gross violations of human rights that occur on their territory.

Please see video: Nazi massacre village fights for compensation

Analysis

The ICJ’s opinion in the Jurisdictional Immunities of the State should first be placed in its proper historical context.  No country was left untouched by the Second World War and conduct comparable to those committed by Germany at issue in the Ferrini case were committed by virtually every country.  For instance, the United States used uncompensated forced labor of German POWs and civilians after their occupation of Germany.  This does not suggest some form of moral equivalency between the regimes, but rather suggests that if the ICJ were to allow claims from over 60 years ago to be resurrected against states who committed gross violations of human rights virtually every state would be subjected to trial proceedings in every far-reaching jurisdiction across the globe.  This would severely strain international diplomacy and the comity enjoyed between states.

Secondly, the ICJ opinion should be placed in its contemporary context.  Current armed conflicts in Israel, Iraq, and Afghanistan have resulted in gross violations of human rights by both opposing forces.  If the ICJ were to permit the abrogation of sovereign immunity, regardless of treaty provisions waiving all claims, for gross violations of human rights committed by armed forces the effect would likely be to prolong the conflict until one side could claim a victory sufficient to suppress any claim against the state.  In fact, issues of immunity were central to the United States decision to withdraw from Iraq.  Read more about the Haditha massacre and immunity of armed forces here.

If states were permitted to abrogate their obligations under treaty and custom for legal claims arising from an armed conflict, then international peace and security between states would be tenuous.  However, the result permits states to sail the rights of their civilians down the river to negotiate what is the best resolution for states, and not the civilians to whom the state is purportedly responsible.

On another matter, the Jurisdictional Immunities of the State opinion appears to leave the ICJ’s most ambitious human rights doctrine – convergence – in limbo.  The convergence doctrine holds that a state’s obligations under international human rights law are not suspended when the state enters into an armed conflict.  In the Armed Activities Case (Democratic Republic of Congo v. Uganda), the ICJ held that an occupying power had obligations not only as the occupying power under the Fourth Geneva Convention but also had obligations under any treaty in force before the occupying power took effective control of the territory.   Under the principle articulated by the ICJ in the Jurisdictional Immunities of the State, civilians in formerly occupied territory can have no recourse through domestic courts for human rights violations committed by foreign armed forces during an armed occupation.  These disputes can only be resolved through bilateral negotiations between states.

Conclusion

In the Jurisdictional Immunities of the State Case, the ICJ handed down a decision that weighed heavily in favor of state interests over individual human rights claims.  While the effects of the decision conform to traditional principles of international law that emphasize a ‘community of nations’ over the rights of individuals, the decision sends a strong signal to human rights activists that the ‘humanization’ of international law is far from assured and that state interests continue to seriously impede the full aspiration of the human rights movement especially to those most vulnerable to violations, persons living in areas of conflict and occupation.

Popularity: 6% [?]

Paul Scrom, J.D. Candidate 2012, Hofstra University School of Law

Recently, several pieces of legislation were introduced in the United States Congress aimed at preventing internet piracy and protecting intellectual property (“IP”).  Specifically, the Protect IP Act (“PIPA”) and the Stop Online Piracy Act (“SOPA”) were the two leading attempts at limiting the Internet.  The bills seemed almost guaranteed to pass until a tremendous amount of protest by internet users and internet companies greatly influenced Congress to delay voting on the bills and convinced lawmaking proponents of the bill to cease their support.  During the arguments over the bill, opponents quickly drew comparisons to the Internet censoring structures of Iran and China, two countries infamous for their internet regulation surmounting to human rights violations.  The same could be said for PIPA & SOPA, but one main difference is that the American bills at least mask censorship of speech by claiming their only goal is to stop piracy and protect IP rights.  But, there is a conundrum:  there are both human rights in IP protection, and in freedom of speech and expression.

Human Rights Issues Concerning Internet Regulation

The Universal Declaration of Human Rights provides for rights to freedom of speech and expression, along with intellectual property rights.  In Article 19 the rights to speech and expression are materialized:

Everyone has the right to freedom of opinion and expression: this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Although the Internet did not exist in 1948, when the Declaration was created, the Internet is still a form of media and a frontier in the context of this article.  The laws of any country which limit the freedom to receive and impart information on ideas through the Internet are surely in violation of this fundamental human right.  Article 27 of the Declaration seems to deal directly with intellectual property.  There are two sections to Article 27:

1. Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
2.  Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

Laws such as SOPA & PIPA have a curious task in balancing these two provisions.  How do you balance the individual’s right to protection of moral and material interests stemming from authoring scientific or artistic creations, if everyone has the right to freely participate in the cultural community and to enjoy and share in the arts and benefits of scientific advancement?  The Internet is a medium in which millions of people are creating art and advancing science every single second, participating in a cultural community (Art. 27-1).   Ironically, it may be necessary to limit the medium in order to protect such creation of the individual (Art. 27-2).  Further, the Internet is a river in which the water of ideas constantly flows, and setting up a dam to protect individual creators (Art. 27-2) will consequently impinge upon the right of others to express and hold opinions and receive information (Art. 19).  Countries like China and Iran are highly criticized because the regulatory infrastructures are far from sympathetic toward the rights found in Art. 19 and Art. 27-1.

China and Iran: Arbitrary and Disproportionate Internet Censorship

Photo credit: slashgear.com

China’s “Great Firewall” is the strongest and largest censorship structure of the Internet currently, with Iran’s filtering software right behind it.  The two countries use firewalls and other software to block online speech which it finds immoral or threatening to their system of fear they worked so hard to use to control their citizens.  China not only stymies unapproved content, but the country targets individuals and restricts them from using the Internet altogether.  In fact, a Chinese citizen can easily be arrested for writing a single email complaining about the government.  Both countries participate in this imprisonment of cyber dissidents, clearly violating the human rights embedded in the sections of the Declaration discussed above.  The governments use internet censorship to stop the infiltration of outside, specifically western, media and politics, and to monitor speech internally.  The two governments use a filtration system which requires all websites to register through the government and gain permission on its content.  Although it is well known that the two countries perpetuate abuse through their regulation of speech, the level of the abuse is hard to discern because of the censorship itself.

China’s and Iran’s main goal in internet censorship is to regulate speech in order to suppress dissidence and ensure control through fear.  The United States Congress’ attempt at censorship is aimed at protecting IP, but the fear is that the bills are too broad and even any amount of censorship would inevitably lead to a system like China’s and Iran’s where the government can pick and choose which speech is made available.

SOPA & PIPA: A Road to Another “Great Firewall?”

The human right to protection in one’s IP is uncontroverted; everyone deserves protection for their individual innovations and contributions to entertainment, the sciences, and more.  SOPA & PIPA have the right intentions, but will likely have the wrong effects.  Such effects will inevitably lead to the squelching of speech not subject to IP protection, but subject to protection as a human right.  Thus, the bills need to balance such squelching with IP protection, the two human rights at issue.  When the bills are analyzed, it is clear that they fail in sufficient IP protection, and go too far in squelching the freedoms of speech and expression.

One main illustration of this imbalance is that although SOPA & PIPA claim to only target foreign sites which infringe on IP, the bills require compliance and liability on third party U.S. sites as well.  Not only will this result in suppressing foreign sites from entering U.S. internet domains out of fear of being subjected to lawsuits for what users or subsidiaries post on their sites, but U.S. sites have a positive duty to monitor content and would be subject to liability (under SOPA at least) if they do not act on infringing content.  This will inevitably lead to startup companies, whether foreign or domestic, and individual users, deciding to not enter the market or post on sites out of fear of violating the act, squelching potential speech.  This is particularly problematic for sites such as Youtube and Facebook, which are engines of free speech and allow for user generated content. The bills are overbroad as sites would be in violation of the bills for “enabling or facilitating” infringement.  How far does the definition of enabling or facilitating go?  Practically, the existence of the Internet itself enables and facilitates infringement.  Youtube and Facebook would have to take positive steps to monitor millions and millions of domestic and foreign users.  They would be subject to the lawsuits and potential criminal sanctions associated with bills if they fail to do so.  This would result in the suppression of both speech and the mediums of speech themselves.  Craigslist, Google, eBay, personal sites of musicians, fan sites of celebrities, and other millions of sites that enable the spread of information, speech and business will inevitably be targeted for infringement claims under the broad nature of the bills.

Also, the mechanism for censorship under the bills is exactly the same mechanism used by the Chinese: DNS blocking.  DNS, or Domain Name System, is the identification protocol for anything connected to the Internet.  The bills will block the particular DNS which supports or facilitates content in violation of IP rights.  This is a wholesale technique which will block other speech under the particular DNS that is not in violation of the bills.  This is concerning because the U.S. has promoted similar legislation in other countries, particularly Russia, which now use the legislation to suppress political dissidents, rather than to protect IP.  Although there is some evidence of China’s and Iran’s use of their anti-piracy laws to censor speech over the Internet, they do not need to use such laws to do so since their censorship laws are so blatant.  But in Russia, the government has used laws similar to PIPA and SOPA to target anti-government dissidents.  Once these bills are passed, the United States runs the risk of allowing the government to abuse, whether discretely or not, their newfound censorship powers.

In conclusion, bills such as PIPA and SOPA are too risky.  The potential for grave and far greater abuse of our Art. 19 and Art. 27-1 rights, rather than protecting violations of our Art. 27-2 rights, justifies the overwhelming protest over the bills.  For now, the bills have been tabled, but not thrown out.  The risk of falling into a censorship system eerily similar to China’s and Iran’s, is not worth the minor potential protection of IP these bills have.  In fact, many critics of the bills believe they are far too focused on enforcement.  The Internet is too dynamic and ever changing to think that DNS blocking and some fear is powerful enough to sufficiently protect IP rights.  Many think that the fix to IP violations over the Internet is to be found in the business realm.  The true path is to focus on user friendly, clean, and intuitive services, such as Netflix and Spotify, that give users incentives to pay for content at a reasonable price.  There seems to be a disparity in how much money proponents of the bills, such as the movie and music industry, want out of their products and what the consumer is willing to pay.  But, from a human rights perspective, the risk seems too great to justify the benefit.

Popularity: 8% [?]