The Human Rights Blog

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

If you do a quick Google search about Bhutan, you may quickly discover that it has been rated as one of the world’s happiest countries. In 2006 they were chosen as the happiest Asian country and the 8th happiest country worldwide. Business Week notes, “The small Asian nation of Bhutan ranks eighth in the world, despite relatively low life expectancy, a literacy rate of just 47%, and a very low GDP per capita. Why? Researchers credit an unusually strong sense of national identity.”

However, this happiness and strong sense of national identity does not include the thousands of Bhutanese who were imprisoned, tortured, or forced to flee and who have been living in refugee camps in Nepal. Forced to leave Bhutan in the 1980s-1990s, groups of Nepali-speaking Bhutanese refugees have been living in limbo with uncertain futures.

History
Bhutan has many different ethnic groups, including the Lhotshampa, people of Nepali origin whose ancestors came to Bhutan in the 1890s as government contracts to cultivate Southern Bhutan farmland. The Lhotshampa stayed in Southern Bhutan and were given citizenship in 1958, which was later revoked in the 1980s under the guise that they were participating in anti-national movements. Tens of thousands of Southern Bhutanese were imprisoned, tortured, or fled the country. Some of them were arbitrarily expelled, while others fled in order to escape imprisonment. (See HRW “Last Hope, The Need for Durable Solutions for Bhutanese Refugees in Nepal and India” May 2007)
Although many fled to India, they were not allowed to set up permanent camps and therefore either stayed without documentation in India or moved to East Nepal, where the United Nations Higher Council for Refugees (UNHCR) established seven refugee camps. It is estimated that nearly 105,000 Bhutanese refugees were living in these camps in Nepal, which is approximately 1/6 of Bhutan’s actual population. (See “Bhutanese Refugees – A Story of Forgotten People”)

Bhutanese Refugee Journey:  From a Refugee Camp in Nepal to Freedom in Seattle

Resettlement
As of 2008, nearly half of these hundreds of thousands of Bhutanese refugees have been resettled to third countries, including the United States, Australia, Britain, and other European countries. Resettlement to a third country is considered to be one of three viable solutions for refugees, the other two being returning to their country of origin or settling in their second country (i.e. Nepal and India). In the beginning of 2011, the United States had resettled nearly 35,000 Bhutanese refugees and promised to resettle up to 60,000. However, nearly 71,000 Bhutanese are still awaiting resettlement in the camps in Nepal.

Although there has been inter-camp strife about whether refugees should resettle in a third country or wait for repatriation, many Bhutanese easily chose to resettle in hopes of a better future for their children and families. However, as Human Rights Watch points out, it is not everyone’s goal. “But it’s not everyone’s dream. For many still in the camps – for older refugees, in particular, who remember their lives in Bhutan and still mourn their losses – watching their compatriots leave has been a bitter experience. About 17,000 of the remaining refugees have not sought third country resettlement, many still holding out for repatriation.”

The fact that the United States and other countries have so generously welcomed the Bhutanese into their countries is indeed admirable. However, that should not overshadow the fact that the Bhutanese, wherever they are, have the right to return to their homeland.

Sources
Amnesty International: Bhutan Human Rights
Bhutanese Refugees: The Story of a Forgotten People
Business Week: The Happiest Countries
Human Rights Watch: Last Hope
Human Rights Watch: For Bhutan’s Refugee, There is No Place Like Home

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David Prater, J.D. Candidate 2012, University of Maryland

The International Court of Justice (ICJ) issued a preliminary ruling on July 18^th ordering a demilitarized zone (“DMZ”) around the Preah Vihear Temple on the border of Thailand and Cambodia.  While only a provisional measure, this judgment is a departure from a previous decision regarding Preah Vihear and indicates the Court is shifting its position of exclusive Cambodian control over Preah Vihear to an international or bilateral arrangement where responsibilities are likely to be divided to protect a site, which is recognized to be of “outstanding universal value.”

Background

The Preah Vihear Temple is a flashpoint for violent border confrontations between Thailand and Cambodia. It is the most visible representation of a border dispute dating back to Cambodian independence in 1953.

Constructed in the 9^th century by the Cambodian Khmer Empire, the Preah Vihear Temple is a Hindu temple to Shiva.  Subsequently, Cambodia came under the control of Siam, the predecessor of Thailand, and French Imperial powers.  (The majority of populations in Cambodia and Thailand practice syncretic Buddhism, which incorporates elements of Hinduism and popular religions.)

After Cambodia’s independence from France in 1953, Thai troops occupied Preah Vihear.  In 1962, Cambodia applied to the ICJ to determine which country was sovereign over Preah Vihear.  The ICJ ruled the Preah Vihear Temple to be within the sovereign territory of Cambodia and thus subject to Cambodian control.  However, access to the Temple was nearly impossible from the Cambodian side.  The Thailand side of the border, however, provided direct access to the Temple.  Cambodia has permitted regular access from the Thailand border to Preah Vihear without a visa, provided visitors do not go beyond the Temple.

Since the ICJ 1962 judgment, nationalist movements in Thailand and Cambodia have gained in popularity and moved toward cultural homogeneity within their borders.  In 2008, Cambodia applied to the UNESCO World Heritage Centre to have Preah Vihear inscribed as a World Heritage Site.  Thailand, believing that the two countries should jointly manage Preah Vihear, protested Cambodia’s unilateral application by withdrawing from the World Cultural Heritage Convention.

Low-level border disputes in 2008 continued to escalate and in 2011 the disputes erupted into more intense violence resulting in at least 18 deaths and thousands of displaced civilians along the border.

So, while Cambodian and Thai religious beliefs are more alike than different, the Preah Vihear Temple has become a point of pride for nationalists within both countries.

The Order

Cambodia brought an application to the ICJ under article 60 of the Court’s charter, which permits the court to interpret “the meaning of scope of [a previous  judgment],” in this case the 1962 ICJ judgment. Specifically, Cambodia asked for clarification on the meaning of the ICJ’s order for Thai troops to withdraw from areas “within the vicinity of Preah Vihear.”

The ICJ ordered provisional measures on Cambodia’s application and created a DMZ at Preah Vihear as well as within the borders of Thailand and Cambodia.   Five judges dissented because the provisional measures ordered by the Court went beyond the issues presented in Cambodia’s application and created a DMZ in territories not in dispute.

The scope of the ICJ’s provisional measures can be explained by the unique status of the Preah Vihear Temple and its importance to human rights.

Analysis

The ICJ provisional measures should be read in the context of the Convention Concerning the Protection of World Cultural and Natural Heritage (“the UNESCO Convention”) and the Convention for the Protection of Cultural Property in the Event of Armed Conflict of 1954 (“the 1954 Hague Convention”).

The UNESCO Convention recognizes “the importance, for all the peoples of the world, of safeguarding this unique and irreplaceable property, to whatever people it may belong,” and seeks to protect monuments and sites of “outstanding universal value.”  By inscribing World Heritage Sites, UNESCO brings those sites under the protection of the UNESCO Convention.  Moreover, Article 6(1) of the UNESCO Convention reads:

“Whilst fully respecting the sovereignty of the States on whose territory the cultural and natural heritage mentioned in Articles 1 and 2 is situated, and without prejudice to property right provided by national legislation, the States Parties to this Convention recognize that such heritage constitutes a world heritage for whose protection it is the duty of the international community as a whole to co-operate.”

The 1954 Hague Convention reiterates to sanctity of cultural property “to all mankind” and requires state parties to “refrain[ing] from any use of the property and its immediate surroundings or of the appliances in use for its protection for purposes which are likely to expose it to destruction or damage in the event of armed conflict; and by refraining from any act of hostility directed against such property.”

The Conventions are in direct opposition to both Cambodian and Thai government claims and conduct.  Both sides use Preah Vihear as a symbol to enflame nationalist feelings as a part of the larger border dispute.  Both sides have also inflicted incidental damage on the Temple with bullets and mortars.

But because of Preah Vihear’s inscription under the Convention, its value cannot be reduced to competing Cambodian and Thai claims.  Instead, the value of Preah VIhear is universal for all people – Thai, Khmer, French, South African, etc.  Both Cambodian and Thai armed forces have an obligation to refrain from use of cultural property, which will endanger the property to destruction or damage.

The status of Preah Vihear as an UNESCO World Heritage Site, protected by both the UNESCO Convention and the 1954 Hague Convention, justifies the ICJ’s creation of a DMZ that reaches into the borders of Cambodia and Thailand.  While this decision clearly protects the Preah Vihear, it also protects the human right to cultural heritage.

Article 27 of the Universal Declaration of Human Rights states:

“(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.”

Because of the universal value of the Preah Vihear, the right to share in the benefits of Preah Vihear is a right of all people.  While the DMZ around Preah Vihear in Cambodia and Thailand protect this human right for the time being, the ICJ’s opinion also points toward an internationalization of the area in order to protect both the Temple itself as well as the human right to enjoy the cultural benefits of the Temple.

The unique location of the Temple means it is most easily accessed from the Thai side of the border, even though the Temple remains on Cambodia territory.  So, it is likely that any long-term solution to the border dispute, which protects the Preah Vihear and the human right to access the Temple, will require an internationalization of Preah Vihear and the area surrounding it.   Officials of the Association of Southeast Asian Nations (“ASEAN”) have tried to negotiate an international zone before and Thailand has similarly made motions toward internationalization of the area.  It is clear that the ICJ’s preliminary measures push Cambodia and Thailand toward the negotiating table for internationalization of the area.  Moreover, the preliminary measures not only move toward the internationalization of the Preah Vihear Temple area, but also subordinate state claims of Cambodia and Thailand in favor of protecting the universal human right to cultural heritage.

For more information, please read the following:

Thailand to Comply With Cambodian Temple DMZ Imposed by UN, Bloomberg, July 18, 2011.

Popularity: 8% [?]

One year has passed and still no word on human rights lawyer, Nobel Peace Prize nominee, and Chinese dissident Gao Zhisheng.

On February 4, 2009, Gao Zhisheng was abducted from his home by Chinese authorities following the successful escape of his family from China to the United States. As of February 4, 2010, Gao’s status is still unknown, as the Chinese Communist Party continues to withhold information about his whereabouts. Yesterday, Gao’s wife, Geng He, published a heartfelt yet thought-provoking letter in the Washington Post expressing her fears and grief but also urging the United States government to act.

While Gao’s current situation remains grim, his life story and human rights work is tremendously inspiring. As such, I would like to share the story of Gao Zhisheng with hopes that you, too, will be touched by his life and his work, and will help spread his story and message to the world.

The Story of Gao Zhisheng

Born into extreme poverty and literally raised in a cave, Gao Zhisheng spent his early life working in coal mines and struggling to survive. After seizing an opportunity to serve in The People’s Liberation Army, Gao joined the Chinese Communist Party (CCP) and subsequently taught himself the law, passing the bar exam in the mid-1990’s.

Gao quickly rose to prominence in the Chinese legal community and was soon named one of China’s Ten Best Lawyers for winning lucrative medical malpractice and corporate law cases as well as handling an ample portfolio of pro bono work.  However, Gao’s true passion could be found in his strong moral convictions and belief in the rights and freedoms of all people.

Soon, Gao, himself a Christian, listened to his heart and began separating himself from the CCP.  Despite the risks involved, Gao fearlessly challenged the CCP’s oppressive policies and human rights abuses by taking on purely human rights legal work.  Gao stood up against the coercive implementation of China’s “One Child Policy,” defended Falun Dafa practitioners and underground Christians against religious persecution, appealed the conviction of Chinese professor and internet journalist, Zheng Yichun, who was jailed for articles that criticized the CCP, and defended Christian minister Cai Zhuohua, who was imprisoned for printing Bibles without a permit.   Author’s note: (The free exercise of religion is greatly curtailed in The People’s Republic of China. For example, “unregistered Christians,” including Chinese Orthodox Christians and Roman Catholics in communion with Rome, as well as those who adhere to Falun Dafa and Tibetan Buddhism are strictly prohibited from practicing their faith in mainland China.)

In 2005, Gao bravely and publically renounced his attachment with the CCP, calling it “the proudest day in my life.”

As a result of his statements and open letters to Chinese President Hu Jintao, which criticized the CCP’s cruel treatments of Falun Dafa practitioners, Gao was arrested and given a suspended sentence for “incitement to subversion.”

This sentence did not deter Gao’s efforts, though.  The following year, Gao sent an extremely detailed and candid open letter to the United States Congress, which included very serious allegations of human rights abuses, religious persecution, extreme pollution to the environment, a purposely degraded justice system, and unabashed greed at the hands of the CCP. Gao wrote:

“It is widely agreed that for any legal government, its nature and basic moral standard must be to protect the values embodied in the constitutional law. What we’ve seen in China is just the opposite. This regime has become the obstacle for people to defend their basic rights, and has always gone all out to trample on China’s constitution. People’s constitutional rights have become an eternal snag. As a single exception, the only law that the communist regime treats with any seriousness is ‘the constitutional law ensures the permanent reign of the Chinese Communist Party in China.’” (Gao Zhisheng’s Open Letter to The United States’ Congress, 2007.)

Because of this letter, Gao was arrested by Chinese authorities and held for 50 days where he endured unthinkable tortures,  despite the fact that China ratified the UN Convention Against Torture over twenty years ago. After being forced to publicly confess to a variety of crimes and sins, Gao was finally released on the condition that he refrain from speaking about his ordeal and that any violation of this “agreement” would result in further tortures in front of his family and death.  Of course, Gao courageously defied the communist regime by revealing his tortures in a writing entitled, “Dark Knight, Dark Hood and Kidnapping by Dark Mafia (My account of more than 50 days of torture in 2007)” (translated) Author’s note:  (The horrors that Gao endured are so brutal that I will not begin to describe them here.  I encourage you to read Gao’s story, though, if you are so inclined.)

From many accounts, it appears as though Gao and his family started to formulate a plan to leave China beginning in the latter part of 2008.  By the close of January 2009, Gao’s wife, two children and sister had escaped from China to the United States via Thailand while Gao remained behind. On February 4, 2009, over ten police officers dragged Gao out of his bed and from his home.  He has not been seen since.

Since Gao’s disappearance last year, human rights activists, the Canadian government, and foreign journalists have pressed the Chinese government for information concerning Gao’s whereabouts, but the CCP remained silent.  China’s first official statement concerning Gao came last week, when Ma Zhaoxu, spokesperson for China’s Foreign Ministry said, “[Gao] is where he should be.”

Yesterday, in her letter to the Washington Post, Gao’s wife wrote, “[n]ow I wait, helpless, certain that my husband is being tortured and wondering whether I should actually hope that he has already been killed.”

What Gao Zhisheng life-work means to me

As a budding human rights lawyer, Orthodox Christian, American, and human being, I truly believe that Gao Zhisheng is the archetype of courage, strength and personal sacrifice. I am convinced that I could never be as brave as Mr. Gao, who willingly endured, and perhaps continues to face, torture and persecution both in the name of freedom and for the rights of others.  By defending the lives and beliefs of China’s pastors and practitioners, writers and rural farmers, dissidents and doctors, unborn children and underrepresented minorities, Mr. Gao defends each of us.

I pray for Mr. Gao and his family and I also implore everyone to please remember Mr. Gao and to share his story with everyone you know. The time has come for all Americans to break the silence and take a stand against China’s countless abuses against our fellow human beings.

To end this post, I would like to quote the words of Franklin Delano Roosevelt, just as Mr. Gao did so aptly at the close of his 2007 letter to the United State Congress:

“In the future days, which we seek to make secure, we look forward to a world founded upon four essential human freedoms. The first is freedom of speech and expression–everywhere in the world. The second is freedom of every person to worship God in his own way–everywhere in the world. The third is freedom from want–which, translated into world terms, means economic understandings which will secure to every nation a healthy peacetime life for its inhabitants–everywhere in the world. The fourth is freedom from fear.”  (Franklin D. Roosevelt)

Popularity: 2% [?]

Early last week, Hong Kong’s Immigration Department denied the temporary employment visas of several key Shen Yun crew members, resulting in the forced cancellation of Shen Yun’s Hong Kong shows. Understandably, this information was extremely disappointing, not only for Shen Yun’s cast and crew, but also for the people of both Hong Kong and mainland China, who viewed the upcoming shows as a positive step in bringing freedom of expression through classical Chinese music and dance back to China. These visa denials come at a very pivotal time, as pro-democracy protests in Hong Kong reached new heights this month.

This past Wednesday, I had the opportunity to cover two emergency conferences held in Washington, DC regarding the implications of this surprise decision, during which several United States Congressmen voiced their concerns over the visa denials and the continued suppression of artistic freedom and human rights by the Chinese Communist Party.

If you would like to learn more about Shen Yun’s visa denials and read what the Congressmen had to say, please read the following article that I wrote on Examiner.com, which covered the media conference at The National Press Club and the congressional conference on Capitol Hill.

Suspicion surrounds forced cancellation of Shen Yun’s Hong Kong shows

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