The Human Rights Blog

Sumbu Chantraine Temo, President of Amnesty International at Stockholm University

“If you want to go fishing, you have to paddle for about four hours through several rivers before you can get to where you can catch fish and the spill is lesser … some of the fishes we catch, when you open the stomach, it smells of crude oil.” – A local fisherman’s description of his livelihood in the Niger Delta.
(Nigeria: Oil Pollution, Human Rights Violations Still Rampant in Niger Delta, News from Africa, Nov. 2010)

THE NIGER DELTA INTRODUCED
Around 30 million people live in The Niger Delta, one of the world’s most polluted regions. The Niger Delta is Africa’s biggest and the world’s third largest river delta containing a vast oil deposit. The local inhabitants have not benefitted of this richness, Despite the fact that Nigeria ranks 7th among the world’s oil producing nations, the local inhabitants have not benefitted at all from the nation’s oil wealth as The Niger Delta is one of the most polluted regions in the world. Since oil production began in the late 1950’s, more oil has spilled across the region each year than was spilled in the Gulf of Mexico in 2010.

For decades, oil spillage, waste dumping and gas flaring have polluted the Niger Delta. Little has been done to clear up the area even though the region has one of the world’s ten most essential wetlands and coastal marine ecosystems. Severe pollution has caused nearly irreparable damage to the soil, water, air and wildlife. Thousands of Nigerians suffer due to this pollution, as most are dependent on agriculture and fishing as their traditional occupations.

Both the Nigerian National Petroleum Corporation (NNCP) and affiliated companies have interests in the Niger Delta. (NNCP is a public organization that takes care of governmental interests in the country’s oil industry.)

Photo by: Jane Hahn for The NY Times

THE OIL INDUSTRY
The oil and gas sector makes 97% of Nigeria’s foreign exchange. It also makes a majority, 79.5 %, of the government’s income. (Report of the Niger Delta Technical Committee, November 2008, pg. 102)

Many locals blame the multinational corporations like Shell for contamination in the region. Although Shell is not the only actor present in the Niger Delta, the company’s contribution to the pollution is, perhaps, one of the most significant. To date, over 1,000 spill cases have been filed against Shell. For example, in 2010, Shell admitted to spilling 14,000 tonnes of oil in 2009. (See Nigeria’s agony dwarfs the Gulf oil spill. The US and Europe ignore it, The Guardian, May 2010) In May of 2010, ExxonMobil spilled more than a million gallons of oil in the Delta in a span of seven days after one of their pipelines ruptured. Though it is relatively easy to identify the parties responsible for the pollution, the legal system in Nigeria is slow and appeals often take years. More often than not, the communities affected by the pollution never see compensation. (See Shell oil spills in the Niger delta: ‘Nowhere and no one has escaped’, The Guardian, Aug. 2011)

Oil spills occur both on the land and offshore, causing damage to both farmland and water sources. Due to such high risks of contamination in both food and water sources, it is dangerous for locals to cultivate the land, fish, or use water supply. This has posed great hardships on the people o the Niger Delta region, as agriculture, fishing and forest products are traditional to their way of life. In fact, UNCP reports that over 60% of the Niger Delta’s inhabitants need the natural environment for their livelihood. (Id.)

Exposure to petroleum can cause everything from skin rashes to cancer and neurotoxicity. A recent United Nations Environmental Programme (UNEP) report from shows that the region of Ogoniland is still contaminated despite the fact that oil production ceased in the region nearly 20 years ago.

CAUSES
One of the major causes of oil waste is gas flaring, which results when oil is separated from the oil pumped out. In 2007, NPR reported that “[g]as flares emit about 390 million tons of carbon dioxide every year, and experts say eliminating global flaring alone would curb more CO2 emissions than all the projects currently registered under the Kyoto Protocol’s Clean Development Mechanism.” NPR also quotes Chris Elvidge, a research scientist with the National Oceanic and Atmospheric Administration, who says, “Nigeria has brought their gas flaring down by about 10 billion cubic meters a year from the mid-1990s, so Nigeria is actually one of the few countries of the world where gas flaring has been reduced. But there’s still a lot of it.” (See Gas Flaring Disrupts Life in Oil-Producing Niger Delta, NPR, July 2007)

Although the Nigerian government has attempted to curb gas flaring since 1984, the deadline set to end the flares (2008) has proved meaningless, as it has become heavily postponed, thus allowing the flaring to continue.

Oil spills also occur due to corroded pipelines. Pipe corrosion is not a new development. In fact, it was first identified as problematic in the Niger Delta fifteen years ago, yet little has been done since to repair old pipes. Shell, for example, has acknowledged their need to improve their pipes and has also admitted that corrosion was a possible reason for half of their oil spills. In 1995, the company started a decontamination programme, but corroded pipes continue to pose a major problem.

Today, Shell (along with other oil companies) try to pin part of the blame on sabotage. For example, on its website, Shell opines that militant groups are behind the major environmental problems. This creates, according to Shell, rancour towards the oil companies on the delta.

In an article in the New York Times, Caroline Wittgren, spokeswoman for Shell in Lagos, explains, “[w]e do not believe that we behave irresponsibly, but we do operate in a unique environment where security and lawlessness are major problems.”

She went on to say that just 2% of the spill was to human error and failure in equipment.

THE OGONILAND REPORT
While sabotage is a legitimate problem in the Niger Delta region, it simply does not account for all of the pollution as evidenced by the sad situation in Ogoniland.

Ogoniland is an area in the Niger Delta spanning around 1,000 kilometres. Oil production in the region began in 1958. However, due to massive public protests, production ceased in 1993.

Despite the fact that oil production ceased nearly 20 years ago, Ogoniland continues to be ravaged by the effects of oil pollution. Current UNEP research (spanning the course of three years) shows that the pipes, despite the long interruption, are still leaking, due to bunkering, illegal extraction of oil, or corrosion. Since Ogoniland is directly connected with the rest of the Delta, the contamination easily spreads to other regions. Additionally, because of the high rainfall in the region, oil is constantly washed into farmlands and creeks. (See UN environmental assessment of Ogoniland, UNEP, 2011) Of course, UNEP recommends that the contamination must be cleaned up as soon possible and that the mess in Oganiland must be prevented to other areas.

If UNEP’s recommendations are followed, Oganiland could potentially be restored in 25-30 years at an estimated to cost $1bn (£614m), which does not include future damages. (UNEP maintain that the cost is only presumed and preliminary.)

Achim Steiner, Executive Director of UNEP, told The Guardian that the UNEP report “offers a blueprint for how the oil industry and public authorities might operate more responsibly in Africa and beyond at a time of increasing production and exploration across many parts of the continent.” (See Niger Delta oil spills clean-up will take 30 years, says UN, The Guardian, Aug. 2011)

Mutiu Sunmonu, managing director of the Shell Petroleum Development Company of Nigeria, maintains that most of the oil spill is still stalled by sabotage. He does manage to point out that Shell is willing to take its responsibility for the pollution and pledges to collaboration with the Nigerian government.

“All oil spills are bad – bad for local communities, bad for the environment, bad for Nigeria and bad for [the company]. Although we haven’t produced oil in Ogoniland since 1993 we clean up all spills from our facilities, whatever the cause, and restore the land to its original state. (See Id.)

SOURCES

www.cehrd.org pg. 157.
Constitution of the Federal Republic of Nigeria, 1999, clause 44
The Petroleum Act of 1969, clause 1
Report of the Niger Delta Technical Committee, November 2008, p102

http://www.guardian.co.uk/environment/2011/aug/03/shell-oil-spills-niger-delta-bodo?INTCMP=ILCNETTXT3487

http://www.amnesty.org/en/library/asset/AFR44/017/2009/en/e2415061-da5c-44f8-a73c-a7a4766ee21d/afr440172009en.pdf pg.11
Niger Delta Human Development Report, 2006, pg. 74, United Nations Development Programme (UNDP)

http://www.shell.com/home/content/environment_society/society/nigeria/conditions/

http://www.nytimes.com/2010/06/17/world/africa/17nigeria.html

UNDP, Niger Delta Human Development Report, 2006
Niger Delta Natural Resources Damage Assessment and Restoration Project, Phase I Scoping Report, May 2006, conducted by Nigerian Conservation Foundation, WWF UK and International Union for Conservation of Nature (IUCN), Commission on Environmental, Economic and Social Policy, with Federal Ministry of Environment (Abuja).
SPDC, Nigeria Brief, The Environment, 1995

http://www.nytimes.com/2010/06/17/world/africa/17nigeria.html

http://postconflict.unep.ch/publications/OEA/UNEP_OEA.pdf

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

Popularity: 5% [?]

Sumbu Chantraine Temo, President of Amnesty International at Stockholm University.

Exotic fruits and world-class wine labeled from South Africa are popular in the European market.  More and more wineries claim that their wine is grown and harvested in conditions that conform to human right norms and fair labor practices; however, reports from NGO’s such as Human Rights Watch (HRW) and The South African Human Rights Commission allege the opposite.

South Africa is the seventh largest wine-producing country in the world.  The country’s vineyards are concentrated primarily in Western Cape, known as the “Paradise of South Africa,” a province internationally recognized for its vast wine production.  Six of South Africa’s nine wine regions are located there.

South Africa’s emerging wine export industry accounts for 2.2% of the country’s GDP and generates over $3 billion a year for the South African economy.  In 2009, the export value for wine in Western Cape reached $700 million US dollars. According to the South African Wine Information and Systems, the wine industry supports employment opportunities to over 275,000 workers, most of whom are unskilled (58%).

A recent report by HRW indicates that despite the fact that wine is a profitable industry in South Africa, farmworkers in Western Cape reap little benefit from the flourish in business and rather suffer human rights abuses at the hands of farmers, including uninhabitable living conditions, illegal evictions, and exposure to chemicals and pesticides.

Living conditions unfit for human habitation

In August 2011, HRW published a comprehensive report entitled, Ripe with Abuse: Human Rights Conditions in South Africa’s Fruit and Wine Industries, which includes 260 testimonies from Western Cape’s farmers.  (See REPORT:  Ripe With Abuse, Human Rights Watch, August 2011)  Sinah B.’s testimony is one of them.  She revealed that the farm’s security guards, in an attempt to drive families away, threatened her and her children with dogs and guns in the middle of the night.

“They came at night at 1 or 2 in the morning; slammed on doors, took children over 18 who didn’t work here to the police station… Security would come with dogs and guns at night. It happened a lot of times … [about] three times a week for two to three years.” (HRW report, pg. 52)

40 year old Isaak S. worked on the same farm for a decade. During this time, he and his family lived in a pig stall, which has remained unchanged since he moved to the farm – with no toilet or improvements to the condition of the stall. (HRW report, pg. 46)

Sol C. tells a similar story.  He worked the farm for nearly 20 years until he became disabled in 2010.  Evicted from shacks numerous times following his accident, he and his wife eventually moved into one of the farm’s outhouses.  Landowners simply covered the toilet holes and he and his wife have remained there ever since.

These stories illustrate the biggest problem that South Africa’s land laborers face:  access to safe, stable housing, which is a basic human right recognized in Article 25 of the Universal Declaration of Human Rights as well as the International Covenant on Economic, Social and Cultural Rights (ICESCR).  As Article 25 of the UDHR states, “everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.”

Evictions

In addition to living in very poor conditions, farmworkers also face the constant threat of illegal evictions.

Between 1994-2004, more than 930,000 farmworkers – including dwellers – were evicted from their farms, despite the fact that laws exist that are meant to protect farmworkers from being illegally and unfairly removed from their homes.

In a documentary entitled, “Beneath the Surface, Fruit and Wine Workers in the Western Cape,” Siphokazi Mthathi of HRW reports on the living conditions of the region’s land laborers.  Though inhabitable housing and the harassment are well documented by the government and NGO’s, little efforts have been made by the South African government to curb these illegal activities or strengthen current laws.

To evict a farmworker, the farmer must follow specific regulations stated in the Extension of Security of Tenure Act (ESTA), which also defines who qualifies as a farmworkers.  For example, the ESTA outlines specific situations where a farmworker may not be evicted.  Specifically, “[a] long term occupier is someone who has resided on a farm for more than 10 years and is over 60 years of age or who cannot provide labour to a land owner as a result of ill health, disability or injury. Long term occupiers’ rights of residence may not be terminated unless they have:

1.  intentionally and unlawfully harmed any other person occupying the land, 2. intentionally damaged property of a farmer engaged in behaviour which threatens others occupying the land, 4. assisted other unauthorised people to establish new dwellings on the farm, 5.  breached a condition or term of their residence with which they are able to comply, but have not done so despite being given one month’s notice to comply. (For example: when an occupier allows unauthorised people to reside with them)  6. such a fundamental breach of the relationship between the farmer and themselves that it is not possible to restore this relationship. (For examaple: if the farm worker assaults the farmer.)”  (See A Guide to Tenure Security Rights on Farms, pg. 4)

In South Africa, farm dwellers also have the right to due process under the law before they are evicted.  Procedurally, in order for a landowner to legally evict a farmer, the landowner is require to warn the workers and deliver an eviction order to the court.  Any attempts to evict are illegal without the court order.  However, according to HRW, less than 1% of farm worker evictions are done so legally.

According to the HRW report, many landowners have found illegitimate, but unfortunately effective, methods to evict farm dwellers.  By blocking electricity or cutting of the water supply, landowners can easily drive farmworker away.  Others simply allow new workers to move in without providing an eviction notice to the current resident farm worker.  Despite the fact that these eviction methods are illegal, they have become the norm because South African authorities by and large do not enforce the law and landowners in violation of eviction laws are not sanctioned.

As an ESTA inspector explained in the HRW report:

“If I lose my job here today, I still have a place to stay and so does my wife.  If a farmworker loses his job today, he loses his place to stay and so does his family.”

Health and safety concerns

Lack of access to safe and secure housing is not the only hurdle South African farmworkers encounter.  Testimony gathered in HRW reports show that farmworkers also face health and safety threats in the workplace.

According to HRW, most of the farms in Western Cape do not provide drinking water or toilet facilities on or near the fields.  Furthermore, farm workers are regularly exposed to injurious pesticides without proper safety equipment, which causes rashes and even acute intoxication.  Despite the fact that the South African Occupational Health and Safety Act promulgates that workers should be provided with “suitable respiratory protective equipment and protective clothing,” many farm workers in Western Cape continue to be exposed to health hazardous poisons and chemicals.  These farm dwellers allege that they have developed conditions such as asthma and chest pain as a result of direct contact with these pesticides.

Recent developments and responses to HRW’s report

According to a November 2011 article in the Wall Street Journal entitled, “Becoming Truly South African,” Professor Solms, a neuroscientist turned wine maker, explains that the HRW report only represents the minority of South African farmworkers.  He explains, “The most important thing for people in our industry to face up to is that what the Human Rights Watch report describes is happening.  But it is not the norm, nor the average situation. What I would say is that it is a minority. That is not to excuse it. There is no excuse.”

In order to help break the cycle of extreme poverty among farmworkers, Solms, along with Richard Astor, created a trust for their farmworkers, which was funded by the winery’s profits.  The trust pays for housing, education, health care and music lessons for the workers and can be used as a model for other wineries.  (See Becoming Truly South African, Nov. 11, 2011, WSJ.com)

In October 2011, Andries Burger, member of the Cape’s Winemaker’s Guild, told the Financial Times that despite the fact that even one report of human rights abuse against farmworkers is too many,, the HRW’s decision to maintain the anonymity of the wineries in question raises concerns because it does not allow for actions to be taken against wineries that treat their workers poorly.  As Burger explains, “the problem is that not naming the farms in question has been counterproductive, because how can we rectify it? Let’s name and shame, I say.”

According to the Financial Times, HRW’s reasoning for keeping the identity of offending wineries confidential is as follows:

“Human Rights Watch said it did not want to name or locate its informants for fear of reprisals, and would not even specify which of their more horrific reported examples were wine rather than fruit farms. This, unfortunately, has given those too complacent or mean to bring their workers’ living conditions into even the 20th century, as well as the Western Cape government, the perfect excuse for continued inaction.” (See Cleaning Up the Cape, Oct. 21, 2011, The Financial Times)

Finally, Su Birch, CEO of Wines of South Africa, which is responsible for the promotion of all South African wine in export markets, claims that the HRW report is bias.  According to The Guardian, Birch stated that “most of the farm workers interviewed were identified by unions and NGOs, who have a vested interest in presenting the worst of cases.” (See South African wine industry rooted in human misery, says report. The Guardian, Aug. 22, 2011)

While she admits that some farmworkers live in poor conditions, she maintains that it is a small group that is not representative of the entire South African wine industry.

“For every poor house on a farm, I can show you loads of good ones and some exceptional ones. Wine farmers are currently providing housing for over 200,000 workers, which represents an investment of billions of rands. Our industry is working hard to correct the wrongs of the past, and we accept that there is much work to be done. Even one case of abuse is one too many. But ‘ripe with abuse’? I don’t think so.”  (See South African wine industry rooted in human misery, says report. The Guardian, Aug. 22, 2011)

Decide for yourself!  For more information, please read the following:

Becoming Truly South African, The Wall Street Journal, November 2011

South African wine industry rooted in human misery, says report. The Guardian, Aug. 22, 2011

REPORT:  Ripe With Abuse, Human Rights Watch, August 2011

A guide to TENURE SECURITY RIGHTS ON FARMS, Lawyers for Human Rights.

Popularity: 9% [?]

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

On October 4th, the UN Security Council failed to pass a resolution denouncing the Syrian government’s ferocious oppression of opposition protesters.  Both China and Russia decided to veto the resolution, recalling memories and revealing traces of the Cold War battle between democracy and authoritarianism.  Further, China especially, fears and loathes the interference of the Western world into the internal affairs of other nations.

China and Russia feared the resolution, which condemned “grave and systematic human rights violations,” would allow the West and NATO to use this as an excuse to bomb Syria, as they did with Libya.  The UN passed a similar resolution denouncing Libya.  The resolution proposed tough sanctions on Syria if they failed to end their brutal crackdown on political protesters within 30 days of its passing.  The United States, E.U., and Canada have already imposed unilateral sanctions on Syria and have called for President Bashar al-Assad to give up his authoritarian rule.

This crisis is not the only time where the use of the veto power by one of the five permanent members of the UN Security Council (the United States, China, Russia, France, and the United Kingdom), has stymied human rights efforts.

Background: Syrian Dissidence

Syrian dissent began to emerge in March of 2011, following in the footsteps of other Arab Spring uprisings throughout the Middle East.  Beginning with Egypt and Tunisia at the end of last year, the Arab Spring, or the Arab Revolutions, involve civil strikes, demonstrations, rallies, and protests of a multitude of grievances including dictatorship rule, human rights abuses, unemployment, and corruption.  In Syria, the movement began in March when protests erupted in major cities.  In reaction to the protests, President al-Assad sealed off the city of Deraa after five citizens were reportedly killed by state security forces.  The protests continued amid government concessions and reform of the President’s cabinet and high ranking officials, as the President failed to lift an emergency ban on protests and pointed the blame of the deaths on alleged violent participants and foreign influence.  The President further cracked the whip and deployed soldiers to take over cities in which the protests continued. 
Security forces have continually fired upon protesters and the UN reports that over 2900 citizen protesters have been killed since March.  Teachers, civil workers, hospitals and colleges have all been targeted in attempt to squash the protests, including the beheading of a Syrian woman searching a morgue for her activist brother.  The protests have continued to grow despite the reactive human rights abuses by the Syrian government.  The opposition even created the Syrian National Council, a representative body comprising of 115 different dissident groups.

The sanctions implemented against Syria have crippled its economy, specifically its tourist sect, which has become virtually non-existent.  But, the Syrian President holds steadfast and refuses to concede his power.  The UN resolution was an attempt at a potential final blow to the President’s unwavering will, but Russia and China have blocked the proposal.  In fact, Syrian officials have issued threats of suicidal attacks, claimed to be already in place, on the homelands of any Western nation, which tries to physically interfere with the internal affairs the nation.  Similar threats were made to those who choose to recognize the Syrian National Council.  Although Russia claims the veto was used to give the Syrian government a last straw ultimatum, the Russian and Chinese vetoes will have the effect of prolonging human rights abuses in Syria.

The Veto Power and its Use During Human Rights Crises:

Article 27 (3) of the UN Charter gives the Security Council P5 members the power to veto any Council resolution. This power arose out of a concern for protecting the major world powers’ sovereignty and a fear of the world powers abstaining from UN participation.  The power also causes a threat to resolutions before they are even voted on as the draft of a resolution must also be approved by the P5 and other security councils must often politically concede points in hopes of passing a proposed resolution.  Proponents of the veto fear a world without it: the international community would be free to act unpredictably and stomp on the sovereignty of nations.  But this criticism ignores the fact that the other 10 members of the council are elected and serve only two-year terms.  Also, if the veto power was eliminated the resolutions would still only pass with a majority vote.  Historically, the predecessor to the UN, the League of Nations, failed, among other reasons, for the lack of permanence and assurance of participation of the main world powers, specifically the then Soviet Union.  Both the modern and historical reasons for the veto power are obsolete, yet it has had the unfortunate consequence of delaying the prevention of human rights abuses.

Besides the current situation in Syria, the veto power has thwarted attempts at improving human rights in Burma, the West Bank and Gaza Strip, Zimbabwe, Kosovo, and Rwanda, among others.  In 2007, China and Russia also vetoed a resolution, which sought to release thousands of political prisoners, stop the use of sex as a tactic of suppression, and slowly implement democratic reforms.  Although the Burmese Military Junta held power since 1962 and perpetuated such abuses since, China and Russia felt the UN had no say in the internal affairs of the country and it did not pose a direct threat to world peace.  It is important to note that the resolution managed a majority of votes from the Council at the time.  Also, the U.S. has continually used its veto powers to prevent investigation into alleged human rights abuses occurring in the contested areas of Palestine and Israel.  For example, in 2001, the U.S. vetoed a resolution, which sought to deploy un-armed, neutral monitors to the West Bank and Gaza Strip, which were then occupied by Israel.  Despite reports from Amnesty International and Human Rights Watch, the U.S. refused to abstain or vote in favor of the proposed resolution for a neutral investigation because of biased politics.  China and Russia also vetoed a resolution proposing sanctions on Zimbabwe for their human rights abuses in 2008.  Lastly, the threat of a veto has also been cited as the cause behind the inaction of the Council during the genocides in Sudan, Darfur, and Rwanda.  It has been a common theme that the world often regrets its inaction after the fact, and yet the veto power persists.

Eliminating the Veto:

The veto power has often been criticized and many have proposed alternatives to it, and even supported its destruction.  The veto represents an old, arbitrary, and unfair imbalance of power, which exists only because of the way in which the UN was formed.  The world powers following World War II knew their presence was necessary and was offered permanent placement on the council, along with the veto power, as a result.  Some argue the 1950 UN General Assembly resolution, “Uniting for Peace,” which grants the immediate review of matters in which one of the five members exercised their veto power.  Uniting for Peace has been claimed to fix the veto problem, but it has been used only 10 times, causing most proposed Security Council resolutions to die when vetoed never to be resuscitated.

Unfortunately, the veto power has yet to be eliminated, most likely due to the incredibly difficult procedural obstacle to do so.  The Security Council can only be reformed by a UN Charter Amendment, which requires a 2/3 super-majority vote of all members of the UN, including all P5 members.  The P5 members have the power to veto the elimination of their own veto power, an unlikely scenario.  It seems as though only outside pressure and influence could be the only hope to overcome the difficult hurdle to lessening the significance of the veto power.  The delay in and lack of action against human rights abuses begs for a reevaluation of the Security Council, which is most recently evidenced by the situation in Syria.  This is not a new idea, but one that deserves reconsideration as protesters and civilians in Syria are persecuted by their strong hand government.

Popularity: 6% [?]

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

The Appeals Chamber (“the Chamber”) of the International Criminal Court (“ICC”) rejected the appeal of Kenya on an application challenging the admissibility of the case against six prominent Kenyans following the contested 2007 Presidential Election.  In so doing, the Appeals Chamber affirmed that the principal of complementary jurisdiction required Kenya to investigate the same conduct and same persons indicted by the ICC. 

However, the Appeals Chambers did not establish a bright-line rule that an investigation at the ICC and a national investigation must always investigate the same person and same conduct.  Instead, the Appeals Chamber held that because the ICC proceedings were at such an advanced stage, Kenya’s investigation should have investigated the same person and conduct.  By considering the respective stages of proceedings at the ICC and Kenya, the Chamber implicitly judged the unwillingness of Kenya to pursue an investigation and prosecution in the case by the “unjustified delay in the proceedings, which in the circumstances is inconsistent with an intent to bring the person concerned to justice.”  This implicit judgment better achieves the purpose of complementary jurisdiction but blurs the line between the two-step analysis of Article 17(1) established by the Chambers in Katanga.

Background

Kenya is a formal British colony in the Horn of Africa region.  It is a multi-ethnic society whose diversity was exploited by British imperial powers to agitate relations among the various indigenous groups in order to conquer and exploit the natural resources of the land.

An anomalous Kenyan nationalist coalition successfully negotiated independence in 1964, but subsequent leaders employed the resources of the colonial administration-cum-state to the benefit of favored families and ethnic groups.  In 1972, Daniel Arap Moi ascended to the Presidency and ruled the country for thirty plus years.  As reforms were slowly pushed through, Moi was prohibited from seeking re-election in 2002.  The opposition National Rainbow Coalition (“NARC”) candidate, Mwai Kibaki was elected in 2002.  In 2005, a new opposition was formed to prevent the ratification of a new constitution.  The Orange Democratic Movement (“ODM”) succeeded in voting down the Constitution and formed itself as a political party.

In 2007, ODM leader, Raila Odinga, and President Kibaki campaigned in a rigorous and disputed election.  International and domestic observers reported widespread irregularities in the election.    Disregarding these observations, the Kenyan Election Commission declared President Kibaki the outright winner.

Massive violence followed, largely along ethnic lines, which the British previously exploited.  Over 1,000 were killed and numerous cases of rape were reported.  Only through the intervention of former U.N. Secretary-General Kofi Annan were Odinga and Kibaki able to negotiate a unity government and save Kenya from dissolving into civil war.

As part of the negotiation, Kofi Annan sealed six names in an envelope and promised to deliver them to the U.N. Security Council and the ICC Prosecutor, Luis Moreno Ocampo, if Kenya did not pursue the prosecutions.  These six Kenyans, William Samoei Ruto, Henry Kiprono Kosgey, Joshua Arap Sang, Francis Kirimi Muthara, Uhuru Muigai Kenyatta, and Mohammed Hussein Ali, are high-ranking members of the Kibaki and Odinga political organization.

At his own motion, Ocampo launched an investigation into the post-election violence in Kenya and subsequently indicted the six Kenyans also known as the “Ocampo Six.”

The Judgment

The decision of the Appeals Chamber of August 21, 2011 came after a long series of procedural moves by Kenya to exempt the Ocampo Six from the jurisdiction of the ICC. The objections at issue in this appeal related to Kenyan’s own investigation of the case.  Under Article 17(1)(a) of the ICC Statute, the Court decide a case is inadmissible when, “the case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.”

Kenya sought to have the Prosecutor’s case against the Ocampo Six deemed inadmissible because Kenya was conducting an investigation into the same conduct, but not necessarily the same people.  Kenya argued that Article 17(1)(a) only required that a State investigate the same conduct and not the same person, because it was unreasonable to assume that the ICC and State party always had the same information relevant to the alleged crimes and that a State party could likely be investigating another suspect.

Analysis

In the Katanga decision, the Appeals Chamber held that determining whether a case was inadmissible under Article 17(1)(a) was a two step analysis that considered: 1) whether there are ongoing investigations or prosecutions; and, if this question is answered in the affirmative, then 2) the unwillingness and inability of the state to carry out the investigation.  Factors to consider when determining the unwillingness and inability of a state to carry out on investigation or prosecution are described in Article 17(2) and include a) the prosecution or investigation was undertaken to shield the person for crimes within the jurisdiction of the court; b) there has been an unjustified delay in the proceedings inconsistent with an intent to bring the person to justice; and c) the proceedings are not conducted independently or impartially, and were being conducted in an matter inconsistent with an intent to bring the person concerned to justice.

In the Ocampo Six decision, the Appeals Chamber held that to satisfy the first question (whether there are ongoing investigations or prosecutions) a State must be investigating or prosecuting the same person for the substantially same conduct because the proceedings regarding the situation in Kenya were at such an advanced stage.   However, this conclusion blurs the clean two-step analysis created by the Court in Katanga.

The existence of an ongoing investigation or prosecution is a wholly objective one:  Is there, in fact, an investigation?  Kenya argued it unequivocally satisfied this question.  The Court, however, disagreed because Kenya was not investigating the same person and should have been doing so at this stage of the proceedings.  But the Court’s reasoning implicitly considered the qualitative substance of the Kenyan investigation and its delay in proceedings.  Secondly, the Court also considered whether the Kenyan investigation was “carrying out steps directed at ascertaining whether these suspects [the Ocampo Six] are responsible for substantially the same conduct as is the subject of the proceedings before the Court.”  Moreover, the Statute itself only explicitly considers a State’s investigation or prosecution of a person in Article 17(2).

Conclusion

The Court’s considerations are directed toward the quality and genuineness of Kenya’s investigation –not whether there is simply an investigation.  The Court adopted a process where the quality of a State’s investigation or prosecution is always subject to the Court’s consideration, and rightfully so.  Continued reliance on the Katanga case’s two-step analysis, as opposed to the Ocampo Six holistic approach, would permit States to immediately stall ICC investigations by merely opening unsubstantial investigations or prosecutions.

This latest decision regarding the Ocampo Six can be considered a purposive one, which better combats impunity and promotes accountability for perpetrators of gross violations of human rights.

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