Programs in International Justice and Society

This commentary was contributed by Hub member Rajesh Sampath, associate professor of the philosophy of justice, rights and social change at the Heller School for Social Policy and Management at Brandeis.

Rajesh Sampath

I am a part of an international group of NGO leaders, activists, scholars, artists and former heads of minority rights divisions of major multilateral institutions. We represent different cultures and countries across the world, mostly from Latin America, Africa, Europe and Asia. Our goal is to articulate the necessary language to capture the nature of enduring sociocultural systems of oppression, marginalization and exclusion, and to conceptualize the human rights platforms that can end the practices informing those systems. In particular, we are seeking an international ban on what is known as Discrimination on the basis of Work and Descent or "DWD." This unique type of discrimination does not fall under existing conventions, declarations and bans against racism and xenophobia, nor does DWD fit rights instruments that protect religious minorities and indigenous peoples.

DWD is linked to birth-based, hereditary systems of social exclusion that force certain groups to take on very specific occupations. For example, the Dalits in India — formerly known as "untouchables" — are forced to perform manual scavenging or burning of dead bodies. In principle, the Indian constitution bans such practices, but Dalits suffer from various modalities of exclusion and human rights violations, including retaliation for caste intermarriage. DWD creates solidarity among diverse groups around the world who also suffer from segregation in social spaces and in the use of public facilities. Such suffering recalls past racialized systems of slavery and Jim Crow segregation in the United States that targeted African Americans, who continue to face the legacies of these horrific systems of oppression.

A number of groups are currently working in solidarity to promote awareness of DWD and the need for a multilateral declaration banning it. They include, in addition to Dalits in India and in diaspora, the following groups: the Roma in Europe; the Haratin in Mauritania, who continue to face a birth-based hereditary system of intergenerational slavery; the Quilombolo, Afro-Brazilian descendants of slaves who today occupy settlements and are fighting for land rights; and the Burakumin, who descend from a feudal system in Japan, akin to caste in India, and struggle for basic rights in the face of ongoing discrimination. Those working on DWD are also attuned to the plight of women, in general, as well as nonheteronormative and nonbinary minority peoples of gender and sexual diversity.

In the West, premodern feudal systems that created hierarchical societies are contrasted with secular, constitutional and democratic societies whose citizens have individual rights based on "liberté, égalité, et fraternité," to use the French formulation. But many countries where DWD occurs today — such as India, Japan, Brazil and many in Eastern Europe — consider themselves to be modern democratic societies.  Nonetheless, ancient discriminatory practices continue to persist and evolve in complex ways that cannot be linked to an isolated dimension of society, such as culture or religion. Furthermore, these practices cut across some of the world's major religions.

Ideally, our group aims to create a global platform that can realize a set of universal human rights to end the practices of DWD in different parts of the world. At the heart of the effort is the search for the right language to express these sociocultural forms of injustices embedded in political economies, and also the "substance" (to use a term from the philosopher Henry Shue) of a set of positive and negative rights, such as the positive right to intermarry or the negative right to be free from discrimination. Our goal will be realized when, hopefully someday soon, the world's multilateral institutions will formally announce a global declaration banning DWD.

• To learn more about this global effort, click on links to the 2019 meetings on DWD that took place in Senegal and New York.
• Register for Brandeis University's new journal, Caste/A Global Journal on Social Exclusion.

On 18 February, a Turkish court ruled to acquit businessman, philanthropist and activist Osman Kavala of his involvement in 2013 protests against the Erdogan government. The decision was hailed by human rights groups and Western allies, who had strongly criticized Kavala's detention and his possible life sentence without parole. In late 2019, the European Court of Human Rights ruled that Kavala's detention violated a number of articles of the European Convention on Human Rights and called for his immediate release. Within hours of being released, however, Kavala was again detained. The new case against Kavala, reports the BBC, relates to a failed coup attempt in July 2016, in which 250 people were killed and more than 1,400 wounded. Since then, tens of thousands of people have been detained, with thousands more fired or suspended from public service. Amnesty International stated, "To have been granted release after almost two-and-a-half years behind bars only to have the door to freedom so callously slammed in his face is a devastating blow for Osman Kavala, his family and all who stand for justice in Turkey."

Many survivors from the Srebrenica massacre in 1995 are still living in the temporary housing they were relocated to more than 20 years ago, reports The Guardian. On 11 July 1995, forces under the command of the Bosnian-Serb general Ratko Mladi entered Srebrenica, a predominantly Muslim city in eastern Bosnia. They rounded up all Bosniak men of military age and murdered what is estimated to be more 8,100 individuals. More than 20,000 civilians were also expelled from Srebrenica for the purposes of ethnic cleansing. The director of a group providing psychological support to Bosnian refugees described the challenging conditions under which many survivors continue to live — in cramped quarters, on few resources and with little available work. She also noted that this population has a transgenerational transfer of trauma, with children born and raised in the same camps as their survivor grandparents.

The Sudanese Transitional Government recently signaled that it may turn over deposed President Omar Al Bashir to the International Criminal Court to face trial for war crimes, crimes against humanity and genocide committed against citizens of the Darfur region between 2003 and 2008. It has been more than a decade since the ICC issued two warrants for Al Bashir's arrest, and a number of ICC member states have neglected to detain him when he traveled onto their territory. International legal commentator Mark Kersten ponders what will happen next in regard to Al Bashir. Will he stand trial in The Hague, which might humiliate Sudanese authorities, or alternatively in his home country? Will he be prosecuted by the ICC itself, a domestic jurisdiction or perhaps a specially constituted hybrid court? Kersten concludes, "[w]hat is remarkable is that there is a genuine conversation about the best means to mete justice in Sudan. It is no longer about when it will happen but how." A podcast by The Economist suggests that just getting Al Bashir into court might do wonders for the ICC's reputation, tarnished through its inability to bring government leaders to justice.

The United States has imposed a travel ban on Sri Lanka's army chief, Lt. Gen. Shavendra Silva, and his immediate family members, prohibiting them entry into the country. According to the Twitter account of the U.S. Secretary of State, Silva is excluded due to alleged extrajudicial killings during Sri Lanka's civil war. Silva led the 58th division of the Sri Lankan Army during the final stages of the war, a unit the U.N. accuses of committing human rights violations on a wide scale. Thousands of Tamils who surrendered to his division vanished without a trace. These sanctions are the first international action brought against Sri Lanka in response to the brutal 26-year-long civil war. Shortly after the travel ban became public, Prime Minister Mahinda Rajapaksa indicated that Sri Lanka would no longer abide by a 2015 U.N. resolution, calling for accountability for alleged excesses carried out by Sri Lankan troops and reparations for victims.

The plight of foreign fighters and their families was recently addressed in a statement of mandate by the U.N. Special Rapporteur on the promotion and protection of human rights while countering terrorism. The statement stresses that "the urgent return and repatriation of foreign fighters and their families from conflict zones is the only international law-compliant response to the complex and precarious human rights, humanitarian and security situation faced by those women, men and children who are detained in inhumane conditions in overcrowded camps, prisons or elsewhere in Syria and Iraq." It mentions in particular the situation of "women and girls who have been forcibly kidnapped, coerced into slavery, subjected to sexual exploitation and harm on joining or being associated with non-state armed groups, groomed online and recruited to marry, provide sexual or household services to their husband or labour for the organization." Furthermore, the statement of mandate notes that children should always be considered as victims and given the special protection afforded by the Convention on the Rights of the Child and international humanitarian law. It is thus a "moral failure" for countries not to return children to their territories. The statement commended Kazakhstan on this score — in May 2019, the country returned 516 persons, mostly women and children, from both Iraq and Syria.

The Grand Chamber of the European Court of Human Rights (ECtHR) recently ruled in N.D. and N.T. v. Spain that Spain violated neither the prohibition of collective expulsions nor the right to an effective remedy of the two applicants. N.D. and N.T., nationals of Mali and Côte d'Ivoire, were apprehended in 2014 while climbing over the fence which separates Morocco and the Spanish enclave of Melilla, located in the northwest corner of Africa. They were then handcuffed and handed over immediately by the Spanish police to Moroccan officials. EU law requires any migrant arriving — regardless of the circumstances — to be transferred to mainland Spain where they can access lawyers, translators and medical personnel. Spain defended the deportations, saying they were legal under an agreement signed with Morocco in 1922. While the ECtHR had initially condemned Spain over the two men's case and concluded that the rapid returns were in violation of the European Convention on Human Rights, the recent Grand Chamber ruling overturned that decision following an appeal by Spain.

For more details about the case and differing interpretations of the judgment, read two posts in the Verfassungsblog:

• "A Painful Slap from the ECtHR and an Urgent Opportunity for Spain" by Carols Oviedo Moreno.

• "A Restrictionist Revolution? A Counter-Intuitive Reading of the ECtHR’s N.D. & N.T.-Judgement on ‘Hot Explusions’ at the Spanish-Moroccan Border" by Daniel Thym.

The U.N. Human Rights Committee has been the most active U.N. treaty body on the topic of the environment and climate change over the past year, contends Greta Reeh in a new EJIL-Talk! blogpost. The committee has not only addressed issues concerning the interface between human rights and the environment more often than ever before, but it has also very quickly expanded its jurisprudence from a mere notion of possible implications of environmental degradation on the right to life in its General Comment No. 36, to expanding this notion in relation to other rights of the International Covenant on Civil and Political Rights, to ruling on the lawfulness of a deportation of a climate migrant. There were also progressive strides made in the language used to describe international environmental shifts. In its concluding observations on the initial report of Cabo Verde, for example, the committee used for the first time the term "climate change" in a set of concluding observations. In her post, Reeh outlines both the bold steps the committee has taken and also the dissents that have slowed them down

Humans are not, of course, the only creatures suffering from climate change. Many animals migrate along set routes in search of food and breeding grounds, and a rapidly changing environmental puts them at risk. Maximizing the protection of such species was the focus of the recently concluded Conference of the Parties to the Convention on the Conservation of Migratory Species of Wild Animals. The U.N. Environment Programme deputy chief stated, "[a]s we face the unprecedented crisis of species loss, 2020 is an important year to step up action to conserve species, protect ecosystems and make meaningful progress towards achieving the sustainable development goals. We must seize every opportunity we have, and [this convention] is a critical milestone in enabling biodiversity to flourish on this planet."

The Court of Justice of the European Union has issued an advocate general's opinion indicating that only those recipients of defective breast implants — made by French manufacturer Poly Implant Prothes — whose surgeries were performed in France are eligible for compensation. This opinion came after a German patient sought compensation for faulty breast implants from PIP's French insurer, Allianz IARD, in a German court. A 2010 scandal revealed that 300,000 women across 65 countries had received implants from PIP filled with an industrial silicone rather than medical-grade silicone. The PIP implants were withdrawn from the market in 2010 after complaints from surgeons and a French healthcare watchdog, and the company’s founder and president was jailed for four years and fined 75,000 euros for his role in the scandal. Despite the gravity of the fraud, the CJEU advocate general considered that, under current EU law, it is up to member states "to regulate insurance policies applicable to medical devices used on their territory." The Court of Justice is expected to issue its ruling later this year.

A delegation from the Inter-American Commission of Human Rights was denied entry into Venezuela in early February, after having informed the Maduro government of their upcoming visit. The Panam Post reports that the commissioners were waiting to board their plane when they were turned away by Copa airline staff. According to an IACHR press release, the delegation had planned to observe the human rights situation in the country on the ground. It also announced that it would meet with victims of human rights violations and their relatives, and with civil society organizations on the border between Colombia and Venezuela. Amnesty International stated that the Maduro regime seeks "to evade international scrutiny and hide the grave human rights violations and crimes under international law being committed by the authorities under his command in Venezuela."

Several days later, the Maduro government submitted a "self-referral" to the International Criminal Court, requesting the Office of the Prosecutor to initiate an investigation into crimes against humanity allegedly committed in its own territory. According to ICLMedia, the Venezuelan government specified that the said crimes were committed "as a result of the application of unlawful coercive measures adopted unilaterally by the government of the United States of America against Venezuela, at least since the year 2014." This is the second referral received by the OTP relating to the situation in Venezuela. The first was submitted in 2018 by a group of State Parties — Argentina, Canada, Colombia, Chile, Paraguay and Peru — and it related to alleged crimes committed in the context of demonstrations and related political unrest. The OTP will need to determine whether there is any overlap between the crimes referenced in the two referrals. 

The European Commission has announced a partial suspension of Cambodia’s preferential trade status with the European Union due to the country's failure to address serious human rights concerns. After conducting a year-long review, the EU's preliminary conclusions are that Cambodia is systematically violating the right to freedom of expression, restricting other civil and political rights and failing to ensure labor rights. The Asia Director of Human Rights Watch explains, "[t]he trade preferences unilaterally granted by the EU are based on the requirement of adherence to international human rights standards. [Prime minister] Hun Sen has publicly and defiantly refused to take steps to address the EU's concerns, even launching a sham treason trial against the leader of the opposition in the final stages of the EU's deliberations, leaving the EU with no choice but to take this action."

Several days following this European Commission announcement, Cambodia was praised by the U.S. ambassador for opening its port to the more than 2,500 passengers and crew of a cruise ship that had been turned away from five other ports of call. The lack of protective measures taken by both authorities and those disembarking — following the ship’s claim that nobody on board was infected by the coronavirus — was later called into question when at least one passenger screened positive. Some fear that Cambodia’s decision to accept the passengers and crew has the makings of an epidemiological disaster.

A recent commentary by Charlie Loudon, published at the Oxford Human Rights Hub, describes how the international system is failing child victims of sexual abuse by United Nations peacekeepers. He notes that disturbing cases have involved peacekeepers from Sri Lanka, Uruguay, France, Pakistan and other countries, who are implicated in crimes in Haiti, the Central African Republic, the Democratic Republic of Congo and elsewhere. Loudon outlines the absence of litigation for these cases, obstacles to accountability and redress, and the need for reforms in the policies, practices and legislation in both “troop-contributing countries” and the U.N.

Two new books address important legal aspects of environmental change and degradation:

• Matthew Scott of the Raoul Wallenberg Institute is the author of "Climate Change, Disasters and the Refugee Convention" (Cambridge University Press, 2020). The book is concerned with refugee status determination in the context of disasters and climate change. It demonstrates that the legal predicament of people who seek refugee status in this connection has been inconsistently addressed by judicial bodies in leading refugee law jurisdictions, and it identifies epistemological as well as doctrinal impediments to a clear and principled application of international refugee law.
• Jason Rudall of Leiden University has published "Compensation for Environmental Damage Under International Law"  (Routledge, 2020). Inspired by recent litigation, this book identifies and critically appraises the manifold and varied approaches to calculating compensation for damage caused to the environment. It examines a wide range of practice on compensation — in general and specifically for environmental damage — from that of international courts and tribunals, as well as international commissions and regimes, to municipal approaches and other disciplines such as economics and philosophy.

The 2019 volume "Migration Issues Before International Courts and Tribunals" (pdf) (National Resource Council of Italy, edited by Giovanni Carlo Bruno, Fulvio Maria Palombino and Adriana Di Stefano) is now available for viewing and download. To note just one of the interesting volume chapters, the first is by Carola Lingaas, titled "Judicial Responses to the Migration Crisis: The Role of Courts in the Creation of a European Identity."

Lingaas contends that the jurisprudential pillar is commonly overlooked in the perception and assessment of migration. She writes, "[t]his chapter aims to (partially) fill that gap by examining if and how the European regional courts contribute to the construction of a European identity, based on shared European values. … In taking a foremost human rights-based approach to analysing the treatment of migrants, this chapter seeks to advance knowledge and insight into the role of the European Court of Human Rights and, to a lesser degree, the Court of Justice of the European Union for the construction of a (perceived) European identity. Based upon ostensible differences between 'us' and 'them,' this European identity is contrasted to the one of the 'others' from beyond Europe."