Courtesy of Enough: The Project to End Genocide and Crimes Against Humanity

With Sudan’s voting period now over, and preliminary assessments on the conduct of elections out from the U.S., and international and domestic observers, many policy questions still remain. The White House statement released Tuesday, found here, was certainly more forthright than prior equivocations on what the administration expected of the exercise, but fell short of issuing any final judgment on the process.

Enough’s John Prendergast and Omer Ismail recently sat down with Jimmy Mulla of Voices for Sudan for an engaging policy discussion over the implications of U.S. policy toward Sudan’s elections and how the Obama administration should proceed. Sudan’s election, the three policy experts emphasized, was not just a means to an end, but an important exercise unto itself, one that was meant to empower the Sudanese people with deciding who would govern their country:

Some in the international community argue that taking the deeply flawed elections in stride paves the way for a smoother southern referendum on self-determination next year. By permitting Sudan’s ruling National Congress Party its victory, the NCP will be less inclined to meddle with South Sudan’s milestone vote next January, so the quid pro quo argument goes.  Prendergast, Ismail, and Mulla disagree:  http://www.enoughproject.org/blogs/implications-us-policy-toward-sudan-elections

Courtesy of Iran Human Rights Documentation Center

Thank the Mothers in Your Life with a truly special gift this year for Mother’s Day by making a donation in her name to the Iran Human Rights Documentation Center. With any size gift, you can thank her and show your support for women in Iran and worldwide.

Your gift will help IHRDC collect evidence of violations of women’s rights in Iran .

Soon after the 1979 revolution, women sought to change the discriminatory laws enacted by the fledgling Islamic Republic. Over the last 30 years, the movement has developed into one of the most sophisticated civil movements in Iran . Activists have demanded equal rights for women in marriage; equal rights to divorce; an end to the practice of polygamy and temporary marriage; the right to pass on nationality to their children; equal dieh (compensation for bodily injury or death); equal inheritance rights; equal testimonial rights; and the removal of all laws that discriminate against women,  including stoning sentences issued in cases of adultery.

Women’s rights activists were targeted leading up to and following the June 12, 2009 presidential election in a concerted effort to cripple the movement. Prominent activists were forced into exile or imprisoned. Defense attorney Shadi Sadr was imprisoned and forced into exile. Writer and activist Aida Saadat was also forced to leave after being beaten in a Tehran street on her way home from a lengthy interrogation. The Iranian government continues to threaten, arrest and imprison not only veteran activists but less prominent supporters. Women’s rights activists remain in prison. Others are now fleeing Iran .

The women of Iran and the rest of the world deserve better. Help them by making a donation using the button below.

Visit our website at: www.iranhrdc.org

By Justin La Mort
Courtesy of The Council for American Students in International Negotiations

The promise to “never again” allow the crime of genocide is often made, although promises alone were not enough to protect the victims in Srebrenica and Kigali.  Legal concepts such as universal jurisdiction and the Responsibility to Protect are being used, or at least considered, as ways to uphold this promise, but the Genocide Convention still remains the main means of protection.  One of the Convention’s tools of prevention and punishment is the criminalization of “direct and public incitement to commit genocide.”  The meaning of these seven controversial words will help decide where the international community draws the line between preventing the crime of crimes and protecting the fundamental right of free speech.

The claims of genocide are increasing, while advocates are pushing for expanding the Convention’s boundaries.  No one wants to allow the next genocide.  No one wants to allow perpetrators to escape punishment.  This does not mean that in striving towards “never again” we sacrifice free speech as a casualty of war.  Freedom of speech is “the indispensable condition of nearly every other form of freedom.”  A vague or overly expansive interpretation of incitement will be abused and misused by dictators in silencing artists, journalists, and genuine political opposition.  A limited, well-defined interpretation will still allow for the intended purpose of prevention and punishment of genocide, yet respect the basic tenets of free expression.

The upcoming appeal of Rwandan musician Simon Bikindi, who was charged with incitement to genocide in various contexts, including direct calls to action, implicit appeals, music composition, and failure to prevent radio broadcasts of his songs, will allow the International Criminal Tribunal for Rwanda (ICTR) to clarify the elements of incitement to genocide.  Based upon a review of the genocide jurisprudence and the lessons learned from the American experience, I propose the following test: whether the speaker directly, seriously, and publicly urges the commission of genocide in the near future and that the message is reasonably likely to produce such action.  Explicitly incorporating an imminence standard will permit incitement to genocide to serve its intended purpose of prevention while safeguarding freedom of speech.

This analysis is divided into six parts.  Part I reviews the background of Simon Bikindi whose case has the potential to elucidate the incitement to genocide standards.  Part II tracks the development of international law in response to the Holocaust and Rwandan genocide, while Part III examines nearly a century of U.S. experience in balancing speech and security.  Part IV canvasses the proposed tests leading to Part V, which explains why the proposed imminence test should become the accepted standard.  Lastly, Part VI details the test’s application in Bikindi’s appeal.

To read the complete article, please see:

Justin La Mort, THE SOUNDTRACK TO GENOCIDE: Using Incitement to Genocide in the Bikindi Trial to Protect Free Speech and Uphold the Promise of Never Again.

The Interdisciplinary Journal of Human Rights Law (IJHRL) is a peer-reviewed, scholarly journal designed to address international human rights issues more broadly. The first volume of the IJHRL was ranked #8 among top international law reviews on ExpressO rankings. The journal explores political, philosophical, and legal questions related to international human rights from diverse perspectives. It strives to create a more thoughtful polity better able to make informed choices about ethical foreign policymaking.

By Deval Desai
Courtesy of The Council for American Students in International Negotiations

The potential of Economic and Social Rights (ESR) as a tool to ensure the inherent dignity of all has been, to use a popular phrase, “detained for questioning.” Over the last sixty years, debate has centered on arguments denying the justiciability and judicial enforcement of Economic and Social Rights. However, the former UN High Commissioner on Human Rights, Louise Arbour, recently stated that “[i]t is now widely recognized that there is nothing inherently non-justiciable about economic, social and cultural rights.” The enactment of an Optional Protocol on Economic, Social and Cultural Rights, detailing an international “communications procedure” for violations of ESR supports Ms. Arbour’s contention. However, scholars, nation-states, and courts themselves still argue against the idea that ESR are justiciable rights capable of being adjudicated by courts. Even where objections to ESR’s justiciability are overcome, arguments are still made in favor of limiting the scope of judicial oversight, oft times by the courts themselves.

In this paper I reconsider scholarly approaches to justiciability. The language of legitimacy is miscast. The idea that the (nominally) elected government only, and not the courts, has the absolute and exclusive legitimacy to decide on questions of resource allocation is a sham: the worse off a polity, the less democratic agency its citizens exercise. The already delegitimated character of poor governments justifies judicial intervention in distributive questions in democratic terms as an exercise of the will of the people to serve the common good. Traditional arguments against the justiciability of ESR are based in a concept of democratic deficit; traditional arguments in favor of ESR are made in terms of a comparative analysis to civil and political rights (CPR). This is based in the concept of the indivisibility of rights, making such comparisons appealing. However, that conceptual framework cannot be applied in an effective manner to countries where there is insufficient democratic agency for meaningful democracy, whether due to poverty, mismanagement, or corruption.

In this paper I use the democratic legitimation argument to support judicial intervention and engage with the democratic deficit problem itself. Part I of the paper will sketch out the recent arguments for and against the justiciability of ESR from the point of view of scholars, governments, and courts. Parts II and III will examine the question of legitimacy of governments and courts to deal with this issue and argue that, if breaches of ESR affect polities’ ability effectively to participate in elections, a government’s legitimacy must be questioned. Part IV will look at the implications of this on governments, NGOs, and judiciaries, and argue that, this being the case, it is inappropriate to exclude the judiciary from a role in ESR enforcement (in the wide sense of the word), and, further, that they should have a positive role. Part V will conclude that, given the calculus of contrasted legitimacy between government and judiciary, this argument has implications for both poor countries and rich countries with a substantial poor population.

To read the complete article, please see:

Deval Desai, “Courting” Legitimacy: Democratic Agency and the Justiciability of Economic and Social Rights.

The Interdisciplinary Journal of Human Rights Law (IJHRL) is a peer-reviewed, scholarly journal designed to address international human rights issues more broadly. The first volume of the IJHRL was ranked #8 among top international law reviews on ExpressO rankings. The journal explores political, philosophical, and legal questions related to international human rights from diverse perspectives. It strives to create a more thoughtful polity better able to make informed choices about ethical foreign policymaking.

AMNESTY INTERNATIONAL PUBLIC STATEMENT
25 March 2010

Amnesty International welcomes Bangladesh’s ratification of the Rome Statute of the International Criminal Court on 23 March 2010. The ratification follows more than a decade of campaigning by Amnesty International and other civil society groups since Bangladesh signalled its willingness to do so by signing the Rome Statute on 16 September 1999.

Bangladesh is the 111th state to ratify the Rome Statute and the seventh in Asia to do so, joining Afghanistan, Cambodia, Mongolia, the Republic of Korea, Timor-Leste and Japan.

By ratifying the Rome Statute, Bangladesh has demonstrated an important commitment to international justice and working to end impunity for genocide, crimes against humanity and war crimes.

The ratification by Bangladesh could have a significant impact in Asia, particularly on Nepal and Indonesia, which has promised to ratify the Rome Statute. Amnesty International hopes that Bangladesh will encourage these and other states in the region to do so and to join it in sending a high-level delegation, either as states parties or as observers, to the Review Conference on the Rome Statute scheduled to take place in Kampala from 31 May to 11 June 2010.

The Rome Statute sets a high-standard for states in investigating and prosecuting crimes under international law. Bangladesh will need urgently to re-examine the law establishing International Crimes Tribunals, which it plans to set up to try people accused of crimes committed during Bangladesh’s independence war. This will be to ensure that the law it applies and the procedures it uses are fully consistent with the Rome Statute and other international law.

Ratification of the Rome Statute is, however, just the first step.

Second, Bangladesh must enact effective implementing legislation defining genocide, crimes against humanity and war crimes as crimes under international law in accordance with the strictest international law definitions. This will enable it to prosecute persons regardless of rank for those crimes, whenever and wherever they were committed. That legislation needs also to provide for full cooperation with the International Criminal Court.

 Third, in order to ensure such cooperation, it must also ratify the Agreement on the Privileges and Immunities of the International Criminal Court (APIC) so that the Court and its officials can visit Bangladesh.

Fourth, Bangladesh should enter into agreements with the Court providing for relocation of victims and witnesses.

Fifth, it should enter into an agreement with the Court providing for the enforcement of Court sentences in Bangladesh and in prison facilities which meet international standards.

Amnesty International hopes the government of Bangladesh will now rise to the expectations generated by the ratification of the Rome Statute to enhance human rights protection in the country and elsewhere.

For more information, please see:

Amnesty International – Bangladesh: Important Step Forward for International Justice – 25 March 2010