The Human Rights Blog

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% [?]

By now, nearly everyone with access to cable has either seen or heard of TLC’s latest “documentary,” My Big Fat Gypsy Wedding.  Originally broadcast on Britain’s Channel 4, TLC boasts that American audiences can now watch the “secret” and “outrageous” lives of Gypsies unfold.

When I first learned that TLC was to air this program, I was horrified, as anyone who reads my blog knows that the plight of Europe’s Roma is very close to my heart.  Initially, I intended to boycott the show entirely as well as write a letter to TLC to express my outrage with the network’s decision to air a program that glorifies stereotypes and misconceptions about Europe’s most discriminated minority group.  However, after considering it might be unfair to criticize the show before watching at least one episode, I decided to hold off on the letter and temporarily rescind my personal boycott.  Now, after watching three full episodes, I feel better equipped to voice my views concerning TLC’s “newest smash hit.”

Much like a car wreck from which you cannot look away, My Big Fat Gypsy Wedding is undeniably mesmerizing.  All of the racial archetypes surrounding the Roma are present – exotic girls dancing seductively to fast paced violin music in colorful “belly dancer-like” costumes, grown men fist fighting and playing dice in the street, and, in general, seemingly uneducated and low class people who inexplicably manage to have of loads of cash on hand for fast cars, extravagant weddings, and lavish first Communion celebrations.  One cannot help but marvel at the spectacle of it all, making it easy to forget that the program is, in actuality, an ignorant, incomplete, and grossly xenophobic caricature of “the Gypsy.”

What to expect when you watch:

Sadly, My Big Fat Gypsy Wedding gives viewers a very limited and exaggerated perspective into the lives of the UK’s Gypsy and Travelling communities.

Within the first minute of the premiere episode, the narrator sets the scene very melodramatically, indeed, explaining to viewers that they will soon be granted access into Britain’s “most secretive community.”  This “us versus them” attitude only advances negative attitudes towards Gypsies and puts viewers on notice that the people they are about to encounter must be very mysterious and cannot be trusted.  A non-Gypsy woman who is a bridal dressmaker specializing in Traveller weddings goes on to explain, “[Travellers] don’t like anyone knowing anything about them at all.”  (The dressmaker appears numerous times each subsequent episode, ostensibly the “documentary’s” resident expert on all things “Gypsy,” providing her insight on Traveller culture and beliefs.)  Finally, after a long series of clips showing scantily dressed teenaged Gypsy girls writhing around on dance floors and literally walking the streets, the narrator very seriously explains that, “the show will explore every aspect of Gypsy life.”  (Here it is important to note that My Big Fat Gypsy Wedding focuses almost exclusively on Irish Travellers, which is a group separate and distinct from Roma Gypsies.  While the program does identify the two groups, it provides no explanation as to the reasons for the difference, so Romani Gypsies and Irish Travellers are thus lumped together, leaving viewers with the impression that the two are indistinguishable.)

My perspective on the show:

Ironically, a Gypsy or Traveller who is interviewed within the first two minutes of the premiere episode best states my opinion of the program, though the quote is meant to promote the show:

“Ninety-five percent of people in this world have had no contact with [Gypsies], and they don’t know anything about them.  The only information they have on Gypsies is what certain tabloids write about them, or what certain television programs put on about them, and that’s the only information.  Ninety-nine percent of it is a load of nonsense.”

Certainly, after having watched My Big Fat Gypsy Wedding, I would have to agree with the show’s own assertion.  Ninety-nine percent of it is a load of nonsense.

Each episode begins in relatively the same way.  Viewers are introduced to a young Gypsy or Traveller girl, who is portrayed as a virginal seductress though totally powerless and without control over her own life.  Beautiful yet pitiably uneducated, she prepares to marry and move hundreds of miles from the only family she has ever known only to cook, clean, and submit to the will of her soon to be husband.  She is innocent and chaste before marriage yet dresses like a Vegas prostitute.  From childhood, she has dreamt of her wedding day and it consumes her thoughts.  Though she may be somewhat disenchanted by the drudgery of her everyday life, she is nonetheless acquiescent and rarely questions her role in society.

On the other hand, the young Gypsy man is street smart and tough; a hustler who has a lot of cash available even though he is a laborer or migrant worker.  He does not have to answer to anyone and can come as go as he pleases.  He is brash and bold and enjoys drinking and fighting.  From childhood, he was taught to settle his scores “like a man.”  He wears “wife beaters” and baggy pants, has slicked back hair and may be heavily tattooed.  He is worshipped by his mother and female family members and will be the adoration of his future wife. (Of course, there are a few deviations from this basic premise, but each episode can guarantee these characterizations.)

The real “Gypsy Experience:”

What is particularly disturbing about My Big Fat Gypsy Wedding is that this program is, in most cases, the first and only experience American viewers have with the Roma community.  Because Gypsies live primarily in Eastern and Central Europe, American audiences are largely unfamiliar with the plight of Europe’s Roma and have little knowledge of the group’s long and painful history, which is marred by persecution, violence, slavery and genocide.  The treatment they suffer is tantamount to the persecution that African Americans in the US suffered leading up to the Civil Rights Movement.  Once slaves to Eastern Europe’s elite, today’s Roma continue to be victims of race-based violence including beatings and murders, as well as employment and housing discrimination, forced sterilization, extreme poverty and school segregation (as was the case in Oršuš and Others v. Croatia). This past summer, France and Italy implemented controversial Roma expulsion policies, which were hotly debated by world leaders as possible human rights violations.  (SeeFrance begins controversial Roma expulsion, CNN Aug. 2010)

Perhaps the only redeeming aspect of My Big Fat Gypsy Wedding is the account of the perspectives of the Irish Travellers, especially the children, as state authorities bulldoze their trailer homes. Still, such a serious subject is sensationalized.  At one point in the opening scene, the narrator asks, “Gypsies are fighting for their very survival, but how long can the party last?” as young Gypsy girl gyrates across the screen to quick violin music.

Comparisons

My Big Fat Gypsy Wedding has been compared to MTV’s Jersey Shore , which is outrageous and highly entertaining, but certainly not an accurate depiction of the majority of Italian-Americans.  While I am inclined to agree with that characterization to a certain extent, the fact remains that the ramifications of a program like My Big Fat Gypsy Wedding further exacerbate the already dire situation of Europe’s Roma, who are, in reality, concentrated in Eastern and Central Europe. Frankly, I see little difference between a program such as My Big Fat Gypsy Wedding and the minstrel shows of America’s past, which exploited African American culture by perpetuating unfair stereotypes and misconceptions about a group that continues to face discrimination.

Jane Jackson, deputy chief executive of the Rural Media Company, a charity that publishes the Travellers’ Times, had this to say about the show when it first aired on Britain’s Channel 4.

“It’s posing as a documentary.  The voiceover is saying we’re going to let you into the secrets of the traveller community – and it just not true.  It might be true of the particular families in front of the camera, but it’s not generally true. It just confirms prejudices that Travellers are just people who choose not to live in houses.”

Certainly, one would hope that a program like My Big Fat Gypsy Wedding – one that blatantly promotes extreme prejudices and stereotypes about a maltreated minority group that continues to face persecution – would not be tolerated, especially here in the United States.

(Note:  The two-hour premiere of My Big Fat Gypsy Wedding, which aired on June 3 on TLC, delivered 2.2 million viewers and earned the night’s top slot.  Since, then, viewership has increased. See (Ratings – TLC Starts Summer Strong With “My Big Fat Gypsy Wedding” )

What you can do to support protests of My Big Fat Gypsy Wedding:

Boycott Advertisers:  http://thegypsyconnection.blogspot.com/2011/06/help-support-protest-of-my-big-fat.html

How and why you should protest My Big Fat Gypsy Wedding: https://apps.facebook.com/causes/posts/790204

For UK readers:  File a programme complaint with Ofcom:  http://consumers.ofcom.org.uk/tell-us/tv-and-radio/a-specific-programme/

Stop Gypsy Persecution on Facebook:  http://www.causes.com/causes/170001-stop-gypsy-persecution

VISIT:  National Romani Anti-Discrimination Organization http://www.nrado.com

Popularity: 18% [?]

On March 22, 2011, the European Court of Human Rights in Strasbourg, France held a Chamber hearing in the case of V.C. vs. Slovakia concerning a Roma woman who alleges she was forcibly sterilized by a Slovakian state hospital.  While Roma women have made claims of forced and coercive sterilizations by Eastern European countries for decades, this is the first case of its kind to reach Strasbourg.

Case Facts:

V.C. is a Roma woman and Slovakian national from Šarišská Poruba, Slovakia.  At the time of the sterilization, she was approximately twenty years old.  She has a sixth grade education and is unemployed.

According to her complaint, V.C. gave birth to her second child in 2000 via caesarian section at the Slovakian Ministry’s University Teaching Hospital in Presov.  While hospitalized at Presov, V.C. alleges that she was segregated because of her ethnic origin and placed in a “Gypsy room,” which was separated from the white patients.  It is also alleged that she was made to use separate bathroom facilities.

Hospital records indicate V.C. requested to be sterilized after being told by physicians that a third pregnancy would likely result in a ruptured uterus.  However, V.C. claims that the sterilization procedure was performed without her full and informed consent.  She alleges that while in the pain of the final stages of labor, doctors asked her if she wanted to have more children.  After responding in the affirmative, she was then informed that if she had another child, it would die.  V.C. states that it was at that time when she signed the consent form, without having knowledge or understanding as to the consequences of sterilization.  (See European Court of Human Right’s 2009 decision as to the admissibility of V.C.’s 2007 application)

V.C. claims that her ethnic origin played a key factor as to the way in which she was handled and the medical advice and treatment she received.  The Slovakian government denies all of the allegations, stating that V.C. was treated in the same manner as the white patients and that the medical advice provided was not based upon her ethnicity or skin color.

In 2006, V.C. filed civil complaint against the hospital staff, but ultimately the Presov Regional Court dismissed it on appeal.  The Court found that the sterilization was lawfully done, that it was a medical necessity and that V.C. had given her consent.

As indicated in the European Court of Human Rights’ Press Release issued by the Registrar of the Court on March 22, 2011, “[t]he applicant’s sterilisation has had serious medical and psychological after-effects. Notably in 2007/2008 she showed all the signs of being pregnant but was not (known as a “hysterical pregnancy”). Treated since 2008 by a psychiatrist, she continues to suffer from being sterilised. She has been ostracised by the Roma community and her current husband has left her several times due to her infertility.”

Slovakia’s History of Forced Sterilizations:

The practice of “Roma sterilization” dates back to the 1970’s when the Communist regime in Czechoslovakia regularly used forced or coercive sterilization measures to “control” the Roma population.  Roma women who participated in the procedures were given a government financial incentive as encouragement.

According to written comments submitted in 2009 to the UN’s Committee Against Torture by the Centre for Civil and Human Rights, “60% of the sterilisation operations performed from 1986 to 1987 were on Romani women, who represented only 7% of the population of the district. Another study found that in 1983, approximately 26% of sterilised women in eastern Slovakia (the region where the Applicants reside) were Romani women; by 1987, this figure had risen to 36.6%.  In 1992, a report by Human Rights Watch addressed the practice of coercive sterilisation in Czechoslovakia, noting that many Romani women were not fully aware of the irreversible nature of the intervention and was forced into it because of their poor economic situation or pressure from authorities.”  (also citing Statistical Evaluation of the Cases of Sexual Sterilisation of Romani Women in East Slovakia, 1990)

Although the Communist regime collapsed in the early 1990’s, the sterilizations continued.  Procedurally, they varied from hospital to hospital but the results were the same.  According to a 2001 Open Society Institute report, Finnish nurses noticed unusually high occurrences of sterilization and ovary removal in female Roma asylum seekers from Slovakia seeking refuge in Finland.

The “Body and Soul Report”

Perhaps the most influential and widely circulated report concerning the forced sterilization of Roma women in Slovakia came in 2003 when the Center for Reproductive Rights released Body and Soul:  Forced Sterilization and Other Assaults of Roma Reproductive Freedom.  For three months, the Center for Reproductive Rights, based in the United States, and the Centre for Civil and Human Rights, based in Slovakia, conducted interviews with more than 230 Roma women throughout eastern Slovakia.  “The interviews revealed numerous instances of coerced, forced and suspected sterilization of Romani women, along with physical and verbal abuse, racially discriminatory standards of care, misinformation in health matters, and denial of access to medical records.”  The Report culminated in a criminal investigation into the sterilization of Roma women.  However, it was eventually discontinued on the grounds that no wrongdoing had been committed.

The following 2003 documentary from Journeyman Pictures provides a comprehensive overview of the recent history of forced sterilization of Roma women in Slovakia.  Slovakian human rights attorney Barbora Bukovska, who gave comments in Strasbourg last month and who has been instrumental in bringing such cases to light, is highlighted in the film.

Access to Medical Records - K.H. and Others vs. Slovakia

Perhaps one of the most difficult hurdles Roma women faced in filing suit against state hospitals for forced sterilization was gaining access to their own medical records.  In 2002, eight Roma women in Slovakia attempted to retrieve their medical records after finding they were unable to conceive after undergoing caesarian sections.  The women wished to establish cause as to why they were unable to conceive.  After the hospitals refused to release their records, the women filed a civil suit in Slovak court.  However, their requests were denied and the Court held that the records were the property of the hospitals and not the women.

In 2004, the eight women filed suit against the hospitals with the European Court of Human Rights.  In April 2009, the Court ruled that denying the women access to their medical records was in violation of Article 6 paragraph 1 and Article 8 of the European Convention on Human Rights. Specifically, the Court held that access to medical records is a right to private and family life and that those persons wishes to make photocopies of their own medical records should be allowed to do so without providing reason as to their purpose or objective.  The applicable articles of the European Convention on Human Rights states:

Article 6 paragraph 1:

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly by the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

Article 8:

1.  Everyone has the right to respect for his private and family life, his home and his correspondence.

2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Human rights attorney Barbora Bukovska said this in response to the ruling:

“This case indicates the complicity of the Slovak Government in the practice of forced sterilization of Romani women.  Originally, in spring of 2002, we were able to access and copy medical records of our clients. But as soon as the hospitals realized we were seeking access to medical records on forced sterilizations, they halted the access. The Slovak Government, instead of rectifying the situation, supported the hospitals in their position and over the years, denied their responsibility for the violations. All of this in order to prevent forcibly sterilized Romani women from finding truth about their sterilization surgeries and seeking compensations for them.”  (See Press Release, Centre for Civil and Human Rights, April 2009)

A.S. vs. Hungary

While V.C. vs. Slovakia is the first case of forced sterilization against Roma women to be heard by the Human Right’s Court, legal precedence nonetheless exists.  In 2004, A.S. vs. Hungary was submitted to the UN’s Committee on the Elimination of Discrimination against Women (CEDAW) alleging that a Hungarian Roma woman was forcibly sterilized in a Hungarian hospital while being treated after her unborn child died in the womb.  According to its findings communicated in 2006, CEDAW found that the woman signed a consent form to perform a caesarian section to remove the dead fetus, but that included within the consent form was a “barely legible” handwritten note that read:

“Having knowledge of the death of the embryo inside my womb I firmly request my sterilization.  I do not intend to give birth again; neither do I wish to become pregnant.”

After the procedure but before leaving the hospital, A.S. asked the doctor when she could try to have another baby.  “It was only then when she was informed as to the meaning of “sterilization.”’  (See CEDAW’s findings, 2006.)

Ultimately, CEDAW found that Hungary violated Convention on the Elimination of All Forms of Discrimination against Women, specifically articles 10 (h), 12 and 16 paragraph 1 (e) which state:

Article 10 (h):

States Parties shall take all appropriate measures to eliminate discrimination against women in order to ensure to them equal rights with men in the field of education and in particular to ensure, on a basis of equality of men and women:

(…)

(h) Access to specific educational information to help to ensure the health and well being of families, including information and advice on family planning.

Article 12:

1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health- care services, including those related to family planning.

2. Notwithstanding the provisions of paragraph 1 of this article, States Parties shall ensure to women appropriate services in connexion with pregnancy, confinement and the post-natal period, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation.

Article 16, paragraph 1 (e):

States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women:

(…)

(e) The same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights.

United States’ response:

In regards to forced and coercive sterilization, Chairman of the Helsinki Commission, United States Congressman Christopher Smith (R-NJ) stated, “as a matter of justice for the victims and truth about the past due to all the people of Slovakia this practice should be condemned as a grave human rights violation.”

The European Court of Human Rights is not expected to rule in the matter of V.C. vs. Slovakia for several weeks.  After their decision, either side may appeal the seven-judge ruling to the Court’s Grand Chamber.

For more information, please read the following article on NPR:  Court Hears Claim of Forced Roma Sterilization, Associated Press.

Popularity: 7% [?]

In these troubled economic times, both in the US and abroad, more and more individuals have taken to begging or panhandling. With the growing numbers of beggars in Europe, particularly among the Roma, or Europe’s “Gypsies,” Finland’s Ministry of the Interior working group proposed a controversial ban on beggars late last month, which would criminalize those who beg for money in Finland’s streets. The proposed ban comes on the heels of reports indicating that Helsinki’s panhandler population has tripled in the past two years due, in part, to the migration of Romanian and Bulgarian Roma to Finland via Norway. 

Many international human rights advocates tout the begging ban as a step in the right direction towards curbing human trafficking and forced child-begging, which are inextricably linked to begging in Europe. For example, Europe’s GRETA – The Group of Experts on Action against Trafficking in Human Beings, supports the ban, explaining that it would allow authorities to initiate investigations as to whether the beggars are working for themselves or victims of exploitation.  Likewise, Finland’s Minister of the Interior, Anne Holmund, cited the link between begging and human trafficking when she recently spoke about Finland’s need for the proposed ban.

“Begging can involve issues such as the exploitation of children or characteristics linked with human trafficking when people are forced to beg. In such cases the matter is much more serious.”

However, not everyone agrees that the criminalization of begging is the proper tool for combating human rights abuses.  Earlier this year, Romanian Ambassador to Finland, Lucian Fatu, told Finland’s largest newspaper, Helsingin Sanomat, that while begging is not acceptable, it is not a crime.  Last week, Tuomas Ojanen, the University of Helsinki’s Professor of Constitutional Law explained that “[m]eans other than a prohibition on begging should be pursued to deal with the human rights issues related to the poverty of, and systematic discrimination against, Roma people.”

Finland is not the first country to attempt the criminalization of begging.  Last year, Bangladesh, which is one of the world’s poorest countries and is, according to a COP15 report, the most vulnerable country to climate change, enacted a begging ban to combat Dhaka’s estimated 100,000 beggars, many of whom are “climate victims.” Last month, the city of Chennai, India also enacted a begging ban, which criminalizes begging but also provides rehabilitative services for those who violate the law.

Here in the United States, well-established legal precedence exists which upholds the constitutionality of begging as a First Amendment freedom.  For example, in the 1990’s when New York City attempted to enforce a state statute that effectively banned begging, the Second Circuit of the US Court of Appeals ruled that begging is communicative activity conveying an individual’s indigency, which falls under the protection of the First Amendment.  That is not to say, however, that all forms of begging are permitted in the United States as the courts clearly allow narrowly-tailored laws that prohibit aggressive panhandling; begging which intimidate or create a hostile environment for pedestrians, tourists, and business patrons.  Though controversial, anti-panhandling legislation is passed frequently in the US, the lastest case of which comes from Seattle where just this spring, anti-panhandling legislation passed in a 5-4 vote, despite sharp criticism from the Seattle Human Rights Commission, the NAACP, the ACLU and Real Change News.  Seattle’s new law makes aggressive panhandling a civil offense punishable by fine or community service and bans aggressive solicitation that involves intimidation.

While anti-begging legislation has seen mixed results in varying degrees, anti-begging campaigns, which do not criminalize begging, have seen success in their efforts to curb human trafficking and forced child labor.  For example, the ”Begging Handicaps my Future” campaign, initiated in August 2008 by Terre des Hommes and the Organization for Security and Cooperation in Europe, has helped over 400 children in Kosovo escape exploitation as child beggars.  Artur Marku, Head of Mission of the Swiss organization in Kosovo, explained that child beggars do not benefit directly from the money they earn; rather “they give it to their parents or persons who organize the begging. The children come predominantly from the minority Roma, Ashkali and Egyptian communities.”

Honduras’ capital city of Tegucigalpa also led a successful campaign to rescue children and adolescents from street begging. The Honduran Institute of Childhood and Family, along with the police and the district attorneys locate groups of child beggars and relocate them with families or relatives who promise to uphold the child’s rights.  Parents who force, rent out, or otherwise allow their children to beg are prosecuted.  This system appears to be successful due to the fact that the beggars themselves, here minors, are not criminalized.  Rather, those who exploit the work of the beggars are the ones who are punished under the law.

For more information about the linkage between begging and the human trafficking and abuse of children, I invite you to peruse the following report by Human Rights Watch (HRW), which was written this past spring.  The reports documents the child-beggars in Senegal, known known as talibés, who are systematically forced to beg on Senegal’s streets.

“Off the Backs of the Children” - Forced Begging and Other Abuses against Talibés in Senegal

Popularity: 7% [?]