In 2023, the Summit on Responsible Artificial Intelligence in the Military Domain highlighted the need for military personnel to consider potential biases in data. While this is an excellent place to start, bias is a much broader phenomenon than just biased data.

Prejudice is a political and empirical phenomenon that affects some groups of people more negatively than others. As such, it significantly influences decision-making processes that integrate AI technology. This is why a merely technical understanding of bias undervalues its relevance.

International humanitarian law expressly prohibits adverse distinction — military practices based on color, religion, race, sex, language, national or social origin, political opinion or status, wealth, birth or any other similar criteria like apartheid and other degrading practices. Yet these distinctions often define algorithmic biases. The way AI systems interpret their given data keeps them embedded in social structures and society.

Understanding the extent of this problem helps one consider how algorithmic bias manifests itself across a system’s lifespan, from pre-development to repurposing and retirement. Our example of bias focuses on four phases of the AIMDS life cycle: data set curation, design and development, usage and post-use review. We begin by outlining the fundamental instances of bias at each of these four phases before analyzing the issues that stem from bias, specifically regarding AIMDS and military use-of-force judgments. Since most current use cases occur at the tactical and operational levels, we take examples from decision-making processes involving the use of force.

Bias-induced databases

Data bias is arguably well-documented, with numerous studies recognizing both explicit and implicit versions. Pre-existing bias is ingrained in data sets and social structures, behaviors and attitudes. Developers set specific statistical standards, such as assuming that a particular category or identification group of a population is more likely to represent a threat that may be morally, ethically or legally objectionable, before providing training data to an algorithm. However, relevant information can only be created from raw data through this process of curating datasets.

There is a lack of transparency regarding these data sets and the assumptions they convey, particularly in the military sphere. Bias is introduced by over- or under-representing specific data points. This can be challenging to address and moderate. For example, it is commonly known that darker-skinned individuals misidentify themselves more frequently than lighter-skinned ones due to various types of sampling bias.

Furthermore, developers can program and introduce bias into a system during the data selection, gathering and preparation. This includes pre-processing, which is preparing a data collection for training by eliminating irrelevant data points. Thus, pre-processing runs the risk of adding bias to the data. An algorithm is generally only as good as the data it has devoured, and improper data collection, storage and use methods can produce unfair results.

The creation of targeted kill lists in the context of AIMDS is particularly troubling since this procedure depends on data inputs consistent with prevailing societal prejudices. This data has labels, such as certain traits that indicate terrorism suspects. Such traits most likely include unconscious and explicit previous bias, such as racial and identity stereotypes. The development of an AIMDS, for instance, might be predicated on the biased premise that any pious Muslim is radical, given that the concept of counterterrorism is inextricably linked to their racial and ethnic roots.

Bias-induced models

Decisions and procedures made throughout the design and development phase might intensify data bias. At this lifecycle stage, pre-existing biases combine with technical prejudice originating from technical limitations or considerations. This bias includes internal, frequently opaque processes within the neural network systems and human data processing.

The iterative process of data annotation, labeling, classification and output evaluation throughout the training phase is a helpful illustration of human-steered processes. Human cognitive biases, many of which are unconscious, present themselves when doing these tasks. More fundamentally, bias may also arise from creating human and societal categories amenable to computer processing. In this sense, AI algorithms may also promote prejudice. For instance, they may be over-programmed into too coarse categories; coupled with significant data set variation, they may prevent the AI model from identifying pertinent trends.

Moreover, the indeterminate nature of neural network processing may introduce additional biases, thereby exacerbating pre-existing biases in the data sets. An AI algorithm may display reduced identification rates for classes of data points that occur less frequently in the data collection, as in the case of class disparity bias (CDB). This well-known bias can be actively mitigated by adding synthetic data to the data set.

Over-programming and CDB are two particular cases of bias pertinent to AIMDS. Situations that demand military decisions are ambiguous and marked by turmoil. In these cases, an AIMDS runs the risk of using incorrect categories to accurately identify the scenario or having too few points of comparison to create meaningful categories. One specific issue that has been identified is the shortage of suitable training data, both qualitative and quantitative, for numerous military decision-making scenarios.

Developers must assess the cultural, religious, racial and identity biases that affect the decisions they and the system make. AIMDS are designed to recognize particular groups of people specifically. Notably, when the US Project Maven was developed to support data-labeling operations for the DISIS (Dismantling-ISIS) campaign, its creators had specific identities or people groups in mind. Many people doubt this system is pragmatic in identifying the correct targets. It is essential to consider how many kinds of bias may influence the development and design of these systems, especially when human targets are involved.

Bias-induced application

Emergent bias is combined with previous, technically ingrained prejudice in AIMDS at the point of usage. This stems from the ways specific users engage with AI DSS (decision support systems) under specific use cases. Deploying AIMDS in a use-of-force environment necessitates value-based sensemaking amongst military strategic, operational and tactical decision-makers — all of whom may imbue the system outputs with their value judgments.

Automation bias is a well-known type of bias that developed during this usage phase. It describes human users’ blind faith in the results generated by an AI DSS. This faith can encourage algorithmic bias by permitting judgments that might otherwise have been dubious if made exclusively by people, since a computer is thought to be more dependable and trustworthy. Furthermore, bias in an AIMDS has the potential to be negatively self-fortifying, which can create a cycle whereby the system generates more bias the longer it is left uncorrected. For example, if a system often flags individuals of a specific gender and physical appearance as potential threats, it may perpetuate its bias by supposing that everyone in a neighborhood who fits these traits is a danger actor.

The system perpetuates itself rather than addressing prejudice, particularly when decision-makers promptly fail to recognize the bias. AIMDS may enhance the number of possible targets in military use-of-force decision-making, even if such algorithmic functions could be specific to a commercial setting. Because of this, such systems may begin by recognizing a small number of potential danger actors; their goal is to expand the number by associating and linking an increasing number of individuals. Thus, AIMDS may continue to pick up new skills and get training from human users even while in use.

This process can initiate the learning of new biases and the reinforcement of pre-existing ones. When people engage with the final product, analyze the data and provide feedback to the system, bias can potentially re-enter it.

Essential questions to be asked are: Who is engaged in this process? How is it monitored? By whom? These options are appealing for military decision-making due to the flexibility of continuous learning algorithms, but they are also unpredictable.

The best way forward

One aspect of reviewing AIMDS after usage is examining whether specific systems functioned as the developers intended during the design phase. Another is considering potential future enhancements. We can view this as a discrete stage in the life cycle. It is a continuous action that should be implemented before and after each use case, mainly when continuous learning systems are employed.

Theoretically, this phase could be critical for detecting and correcting biased decision-making errors. However, if we do not push this immediately, the biased results that an AIMDS produces throughout its lifetime will be utilized to support more decision-making processes. Notably, new studies have discovered indications that humans could inherit the systems’ prejudice. Therefore, people may duplicate bias learned from an AIMDS even when they are not interacting with it.

AIMDS run the risk of propagating the effects of algorithmic bias into military use-of-force decision-making procedures. While emergent bias enters the system at the point of application, pre-existing and technical kinds of bias enter it from the beginning and have ongoing influence.

We still have much to do to raise public awareness of these AIMDS flaws, their potentially catastrophic consequences and strategies for mitigating them. Such strategies may include introducing bias reduction techniques and standardizing the processes for creating the systems after usage.

[Lee Thompson-Kolar edited this piece.]

The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy.

The post We Need to Reduce Killer Military AI Bias Immediately appeared first on Fair Observer.

Climate change catastrophically impacts every place on Earth. It exacerbates the degradation of ecosystems, natural catastrophes, harsh weather, rising sea levels, droughts, the spread of disease, land grabs, human displacement and climate conflict. These global effects jeopardize our complete enjoyment of many human rights, such as the rights to life, food, shelter, health care, safe drinking water, culture, employment and development.

We have reached a turning point in the history of DHD. Climate activists have launched several promising legal actions globally, including numerous requests for advisory opinions from international and regional courts and tribunals.

Understanding advisory opinions

The International Tribunal for the Law of the Sea (ITLOS), the Inter-American Court of Human Rights (IACtHR) and the International Court of Justice (ICJ) have all been asked for their advisory judgments about states’ obligations in light of the climate emergency.

The three mechanisms are fully operational. On May 21, 2024, ITLOS published an advisory opinion. It declared that because greenhouse gas emissions contaminate the seas, states have to take all necessary steps to avoid, reduce and limit them. In December 2023, as part of its advisory opinion process, the IACtHR held in-person public hearings and accepted hundreds of amicus papers, and final hearings took place on May 20. Finally, states and international organizations have submitted written comments to the ICJ ahead of its June 24 deadline.

These are historic initiatives. The world looks to these tribunals for direction on what states should do to address the climate disaster. Furthermore, these processes offer a critical chance to strengthen environmental defenders’ safeguards.

Climate protection activism: vital yet targeted

Climate rights activists defend our world from catastrophe in various ways. They peacefully oppose extractive industries, conventional agricultural methods, media, legislation, land management and other strategies. They help us adapt and mitigate climate change through their endeavors.

One study reveals that activists who employ multiple strategies have a higher success rate of up to 27%. Those who use only one tactic “[contribute] to halt environmentally destructive and socially conflictive projects, defending the environment and livelihoods” in 11% of climate conflicts.

Climate rights activists defend human rights in addition to the Earth. “Human rights defenders in environmental matters [strengthen] democracy, access rights and sustainable development,” acknowledged by the Escazú Agreement.

Unfortunately, this valuable service is often met with heinous opposition. These activists are the most frequently targeted climate rights defenders. They suffer many attacks, which often go unreported. These include assault, criminalization, smear campaigns, forced evictions and displacement, intimidation and judicial harassment. Opponents even employ strategic lawsuits against public participation to discourage their activism, or silence them through murder.

These threats inhibit climate rights activists from continuing their brave mission of addressing global warming. The hostile atmosphere opposes international legal norms on free speech and assembly rights. We need states to safeguard these people so they can uphold their commitments to climate change mitigation and human rights protection. Further, we need laws that require states to grant climate rights activists more protection.

To address the unique challenges experienced by climate activists who belong to marginalized groups — namely women, indigenous peoples, the African and Asian diasporas and rural agricultural communities — states should adopt an intersectional or “compartmentalized” approach to these laws. According to Michel Forst, the Special Rapporteur on Environmental Defenders of the Aarhus Convention, this entails “acknowledging that defenders are interconnected.”

Defending the defenders

Fortunately, some members of the international community are defending these activists and their civic space. Lawyers from Robert F. Kennedy Human Rights (RFKHR) group and several international organizations wrote a submission to the ICJ and an amicus brief to the with the goal of advancing the protection and analysis of climate defenders. During the IACtHR proceedings in Manaus, Sofía Jaramillo, the senior staff attorney for Civic Space, gave a presentation to emphasize the connection between environmental defenders and the states’ duties on human rights and the environment. The American legal team petitioned the IACtHR asking the Department of Justice to look into the 2023 murder of climate activist Manuel Esteban “Tortuguita” Páez Terán through legal representation.

RFKHR has co-hosted several events, including a virtual side event on the IACtHR advisory opinion procedure and a webinar on climate defenders. On May 3, World Press Freedom Day, RFKHR highlighted climate journalists’ risks on social media and specific incidents involving climate defenders on the Civic Space Case-Tracker. The tracker has brought attention to the continuous persecution of Ugandans who are participating in protests against the East African Crude Oil Pipeline (EACOP).

The ICJ and IACtHR processes are still underway. The oral hearings are scheduled for late 2024 or early 2025. After concluding its public hearings on the advisory opinion, the IACtHR is anticipated to release its conclusion next year.

Through these actions, the tribunals and courts will have an unmatched opportunity to advance their jurisprudence in this area, fortify the safeguards for climate defenders and confront the global warming emergency. These rulings will do more than just elucidate the responsibility of states concerning climate change and human rights. The precedent they set will shape public policy and climate litigation for posterity.
[Lee Thompson-Kolar edited this piece.]

The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy.

The post Tribunals Challenge Climate Peril and Can Really Aid Activists appeared first on Fair Observer.

Recently, the Office of the United Nations High Commissioner for Human Rights discovered iris scans in refugee camps and artificial intelligence-driven lie detectors installed at international borders. Social media is being used to surveil refugees and citizens. Customs and Border Protection from the US Department of Homeland Security uses an AI tool called Babel X, which connects a person’s social security number to their location and social media. Robodogs, autonomous robots that can move on four or even two legs, are being deployed as force multipliers on the Mexico–US border. These are just a few of the unregulated, uncontrolled experimental initiatives that are quickly taking root. Technological advancement makes migration more nightmarish than ever before.

Frontex aerial surveillance highlights the life-saving potential of drones and aircraft, which can help those in maritime crises. Saving lives at sea ought to be the priority; a startling 25,313 people have perished in the Mediterranean since 2014. As it turns out, however, these deaths were caused by Frontex’s connivance, which “is in service of interceptions, not rescues.”

More than 7,000 international students may have been unjustly deported due to a flawed algorithm by the UK government. They were erroneously accused of cheating on English language exams, with no evidence provided against them.

How can human rights professionals improve the dignity of individuals crossing international borders? How can they expose the reality of this terrible situation? How do migrants oppose these experiments? This piece examines some of the profound effects of ABG technologies on human rights with a human rights-based approach (HRBA).

ABG militarization and border AI

Racist and xenophobic sentiments against refugees, asylum seekers, migrants and stateless persons are increasing. These can be fuelled by the AI-driven militarization of borders and border governance. This involves tactics and policies that violate human rights, like pushbacks, extended immigration detention and refoulement. Border pushbacks are operations that prevent people from reaching, entering or remaining in a territory. Immigration detention is the practice of detaining migrants, especially those suspected of illegal entry, until immigration authorities can decide whether or not to let them through. Refoulement is the practice of deporting migrants, often refugees or asylum seekers, back to their country or another.

UN agencies provide a wealth of information about the grave injustice and threats to human rights that migrants face at international borders. Threatened rights include freedom of movement, prohibition against collective expulsion and refoulement, the right to seek asylum and many others. In these situations, borderless algorithmic technologies are used to further security goals. They highlight and create new avenues for human rights problems.

The goal of ABG must be to respect human rights. This strategy should be based on two main objectives. First, it should comprehend how poorly-planned algorithmic governance of border movement management strategies may result in unprotected human rights. Second, it should evaluate how newly-emerging technology may exacerbate pre-existing issues.

States use new algorithmic technology to identify individuals in transit near land, maritime and external borders, such as the European Union and the Schengen Zone. This technology includes ground sensors, surveillance towers, aerial systems, drones and video surveillance. AI has enabled tasks like movement detection and distinguishing between people and livestock. New ABG initiatives have repurposed technology for military or law enforcement applications, creating robodogs. States and regional bodies are using AI to forecast migration patterns, processing information from social media, Internet searches and cell phone data.

However, these efforts are primarily focused on stopping border crossings rather than assisting migrants. This has raised apprehensions among civil society groups, academia and international agencies. When used in a securitized approach to border regulation, these AI technologies could potentially violate human rights, like the right to asylum or the ability to leave one’s country of origin. The UN Working Group suggests that drones for maritime surveillance can help detect and maintain a safe distance from search and rescue activities, allowing migrants to reach secure harbors.

In 2021, the UN Special Rapporteur on the human rights of migrants released a study highlighting the use of pushbacks as a form of punishment, deterrent or targeting system. Migrants face significant danger at borders due to pushback policies, tactics, physical barriers and advanced monitoring technology. EU-funded pilot projects like iBorder Control focus on automated deception detection systems, face-matching tools, biometrics and document authentication apparatus. The Trespass program offers real-time behavior analytics that could uncover hidden intent through on-site observations and open-source mining.

Internalized borders and algorithmic risk assessments

As part of a goal to internalize borders, some states are attempting to identify individuals with irregular status through transformative digital technologies. This can happen years after the individual’s initial entry into the nation. Investigative journalists show that some immigration enforcement agencies have accessed databases of other state institutions, which are typically protected from law enforcement by firewalls. These agencies have attempted to identify people with irregular immigration statuses, putting them in danger of deportation or incarceration.

Certain states allegedly utilize data brokers to obtain information about things major and minor: prior employment, marriages, bank and property records, vehicle registrations, even phone subscriptions and cable television bills. Academics and civil society organizations have demonstrated the chilling impact that digital border technology may have on individuals exercising their rights. These include rights to housing, healthcare and education. If they are discovered, migrants may face severe repercussions.

According to reports, many migrants abstain from using record-keeping services that are essential to their family’s wellbeing, including child welfare, healthcare and legal systems. They avoid these out of concern that law enforcement may access their information and use it to detain, prosecute and deport them.

Algorithmic risk assessments are used in border administration, such as assigning higher risk classifications to visa applications and referring them to human decision-makers. These assessments are also used in states to decide whether to detain migrants. Concerns about human rights arise when AI assessments are applied in detention decisions.

Algorithms need large datasets to train. They may contain biased and discriminatory information due to overrepresentation or underrepresentation of certain groups, particularly the categories of gender, race and ethnicity. The algorithm’s weighting of input data and the results it generates also contribute to algorithmic discrimination. Researchers in the US have found that some algorithms may lean toward high-risk classifications in detention decisions, potentially leading to the detention of low-risk migrants. This is because algorithms’ apparent impartiality and scientific character may corroborate human officers’ prejudices, which can lead to discrimination against certain groups and stereotypes.

States may use technology like voice and facial recognition reporting software, digital ankle shackles and electronic monitoring to substitute traditional incarceration methods. However, the UN Committee on the Protection of the Rights of All Migrant Workers and Members of their Families notes that these automated actions may have unfortunate consequences. They could further stigmatize migrants, lead to burdensome requirements, cause detentions and prompt a growth of algorithmic detention regimes. Specific methods may impede people’s freedom of movement and enhance monitoring, even if they are not considered confinement.

Role data and the future

AI technologies and those employed generally in the ABG context rely heavily on data. Input data is entered into them directly, and additional data is produced as a byproduct of its deployment. The data types many states store and use include fingerprints and facial images obtained for visas and travel authorization; data from social media accounts; automated border control technologies like e-gates and smart tunnels; monitoring health data; educational records and employment status. Commercial corporations, international organizations and other states too may gather shared data.

The EU Artificial Intelligence Act to Regulate Artificial Intelligence aims to exclude current interoperable databases on criminal records, immigration and asylum from the usual safeguards offered for high-risk AI applications. Access to these facilitates merging immigration databases with data gathered for criminal proceedings. This raises several potential human rights risks, like violations of the rights to equality, privacy and freedom from discrimination. Rights to life, liberty and security are in jeopardy as well if indiscriminate data sharing leads to detention and deportation.

There are few formal regulations governing the design and deployment of digital technologies used at borders. AI is broadly unregulated as well. Despite this, the use of ABG technologies does not occur in a regulatory vacuum. States must uphold international human rights law. Governments and businesses must abide by the UN Guiding Principles on Business and Human Rights.

However, when using digital border technology, noncompliance with these duties creates protection gaps. Firsthand accounts of those impacted by ABG technologies must be prioritized when implementing an HRBA framework for migration and ABG technology regulation. There need to be discussions between affected communities and policymakers, academics, technologists and civil society about the risks of using new technologies that protect human rights. Mobile communities should continue to have conversations about creating and using digital border technologies — before their deployment, not after.

[Lee Thompson-Kolar edited this piece.]

The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy.

The post New AI Programs Compromise the Rights of Helpless Migrants appeared first on Fair Observer.

Russia proposed an international treaty on cybercrime

In 2017, Russia proposed the convention the stated goal of addressing “the problems and threats posed by crimes in the sphere of information and communications technologies.” The UN General Assembly narrowly decided to develop it through UNGA Resolution 74/247 in 2019, with 79 votes in favor from a cross-regional grouping primarily from Africa, Northern Africa, Asia and the Middle East; 60 votes against including the European bloc, Australia, New Zealand, Republic of Korea, Japan, the United States, Paraguay, Panama and Tonga; and 33 abstentions mainly from Latin American states and some others.

Of course, cybercrime poses a severe risk to human rights. But is a legally binding UN treaty a reasonable or practical course of action? UN human rights bodies and civil society organizations have extensively documented the widespread misuse of cybercrime laws. States abuse them to target journalists, human rights defenders, whistleblowers and technologists, imposing unwarranted restrictions on expression and justifying disproportionate surveillance powers.

UN Resolution 74/146 acknowledges the misuse of cybercrime legislation to target human rights activists, endangering their safety and impeding their work against international law. This abuse occurs at local and national levels, causing significant harm. How much greater would the problem become if abusable legislation were elevated to international law?

To achieve credible level of legislative harmonization, every signatory state must create new laws and alter current ones before the UN can develop any universal instrument. This approach risks triggering a legislative race to the bottom due to the diverse backgrounds of UN member nations, many of which have a history of abusing cybercrime laws and violating human rights. To make matters worse, the fact that negotiations took place in UN offices in Vienna and New York restricted transparency and limited opportunities for public interest actors to participate.

A dangerous document

The process proceeded despite these worries and the fundamental differences between the nations, including on the convention’s core goal, interspersed with ever louder protests from civil society organizations. UN member states began the final round of negotiations to adopt the agreement in late January 2024.

Before the meeting, Global Partners Digital and over a hundred civil society organizations sent a joint statement to the Ad Hoc Committee on Cybercrime (AHC), outlining the minimal standards necessary to ensure that the draft convention does not jeopardize cybersecurity or human rights. The statement raises three severe issues with the draft convention. One of the main concerns is the range of offenses it covers. Some passages in the text define offenses as any crime containing a digital element, which exceeds the generally accepted definition of cybercrime. This ambiguity could lead to the convention being interpreted and implemented in a manner that fosters prejudice or persecution. Research conducted by the Association for Progressive Communications and Derechos Digitales has charted the ways states have applied ambiguously worded cybercrime laws to suppress opposition voices and criminalize human rights advocates, from a transgender influencer in Nicaragua who was expelled due to her social media posts to an Egyptian human rights activist who received a two-year prison sentence for a video she made about sexual harassment.

The convention risks allowing law enforcement to share information excessively within and outside national borders. This increased sharing could result in prosecutions or extraditions due to the convention’s broad scope and lack of specific safeguards, such as requiring prior judicial authorization and transparency measures. Despite arguments that the convention isn’t intended as a human rights pact, several participating governments have rejected implementing adequate protections for these powers. As a consequence of its broad reach, individuals such as security researchers, journalists, activists and whistle-blowers may find themselves lacking necessary safeguards and potentially even facing criminal charges.

On the second-to-last day of negotiations, a coalition of civil society organizations, business representatives and technical experts published an open letter urging states not to endorse the convention due to its fundamental flaws. Negotiations were then suspended on the final day of the session and are scheduled to reconvene in New York later in 2024, with the aim of finalizing the agreement by the 78th session of the General Assembly, ending in September 2024. The decision to suspend negotiations was influenced by significant differences between the parties involved, possibly compounded by rising public criticism of the pact from a diverse array of stakeholders.

Where do we go from here?

The draft treaty presents several issues. It lacks protections for human rights and grants States the ability to monitor and obtain personal data from individuals outside their borders. Additionally, it requires computer corporations to collaborate with law enforcement on alleged criminal investigations. Since it fails to specify that accessing computer systems without the intent to steal, damage, or infect with malware should not lead to prosecution, it poses a threat to security researchers. If left unchanged, the draft treaty would significantly harm global cybersecurity.

The current hiatus in discussions provides a crucial opportunity to raise public awareness about the dangers inherent in the draft and advocate for a narrowly limited convention with robust language to prevent its potential misuse for repression, persecution and surveillance. Negotiating nations should not endorse the convention unless a more restricted, human rights-respecting approach can be achieved. If ratified in its current form, the treaty will greatly impact international criminal laws and grant law enforcement broad new powers to investigate crimes both domestically and internationally. Numerous studies have already suggested alternative strategies that respect human rights while combating cybercrime. Given the risks associated with proceeding with this flawed and potentially dangerous treaty, the time may have come to discuss these alternative ideas.

[Anton Schauble edited this piece.]

The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy.

The post The Draft UN Cybercrime Convention: A Threat to Human Rights appeared first on Fair Observer.

The well-documented crimes against the Palestinian people since October 7, 2023 are indescribable. Approximately 28,000 people have been killed so far, with at least 10,000 of them being children. To put it another way, that’s one Palestinian child dead every 15 minutes. Under the debris, many more people remain missing; the majority are thought to have perished.

According to the ICJ judgment, the Israeli military, not Israeli Prime Minister Benjamin Netanyahu’s administration, should be held accountable for crimes under Article II of the Genocide Convention. This implies that Netanyahu’s hands are clean. Yet substantial proof shows that his cabinet meticulously planned the Palestinian holocaust long before October 7. The Israeli military is organized into a command organization; Israeli troops and pilots carried out the illegal orders given by the Netanyahu administration.

The commission of genocidal crimes

South Africa argued that the Israel’s crimes “are genocidal in character because they are intended to bring about the destruction of a substantial part of the Palestinian national, racial and ethnic group,” citing Article II of the Genocide Convention. The alleged crimes include the murder of Palestinians in Gaza, severe physical and psychological abuse and living circumstances designed to endanger their physical survival.

The nature and conduct of Israel’s military operation in Gaza also suggest this intent. Israel’s failure to guarantee or supply the besieged and blockaded Palestinian people with food, water, medicine, fuel, shelter or other humanitarian aid drove them to the verge of starvation. All of the activities may be attributed to Israel, which is committing genocide in clear violation of the 1948 UN Convention on Prevention and Punishment of the Crime of Genocide and has failed to stop it from happening. 

Individuals who perpetrate acts of genocide or any other crimes listed in Article III will face consequences, regardless of their status as legally appointed authorities, public servants or private citizens. The Constitutionally Responsible Rulers (CRRs), or civilian politicians, are the principal perpetrators of the genocide against Palestine. In the ruling, which refers to Article IV, the ICJ urges the Netanyahu administration to act on behalf of the State of Israel and to stop and punish those who are accused of committing crimes of genocide: “The State of Israel shall take all measures within its power to prevent and punish the direct and public incitement to commit genocide in relation to members of the Palestinian group in the Gaza Strip.”

South Africa urges the ICJ to take action on Israel’s proposed Rafah attack. On February 12, 2024 — the day that South Africa made their request — Israeli soldiers struck 14 homes and three mosques in the heavily populated city of Rafah. Several people were killed and hundreds of displaced families were forced to evacuate. The next day, on February 13, South Africa requested the ICJ examine if more emergency measures are necessary to safeguard Palestinians. This came in light of Israel’s intention to expand its attack in the Gaza Strip towards Rafah.

Over one million Palestinians have sought Rafah as a sanctuary from the onslaught that has transpired since Hamas rebels assaulted Israel on October 7. The Genocide Convention and the ICJ’s January 26 order would be gravely and irrevocably broken by an Israeli assault on the city. The central question in South Africa’s case — whether or not there has been genocide in Gaza — has not yet been decided by the court. However, it acknowledged that Gaza’s Palestinian population had a right to be shielded from acts of genocide. South Africa is requesting that the court impose more sanctions on Israel, claiming that the country has already disregarded the ruling that was issued a few weeks ago. In the end, South Africa is requesting a proclamation that would save Palestinian lives.

The criminality of the international legal system

The ICJ ruling suggests that Netanyahu’s cabinet and other CRRs listed in Article IV are innocent. Netanyahu, Yoav Gallant, Itamar Ben-Gvir, Israel Katz, Bezalel Smotrich and other CRRs are the architects of the genocide. Yet the ICJ has given them the task to prevent and punish. The ICJ has appointed the CRRs in Netanyahu’s cabinet to take all measures within their power to prevent and punish public officials, private individuals and military personnel who are engaging in direct and public incitement to commit genocide. (These same rulers are working on behalf of the State of Israel and meticulously planned a genocide against Palestinians before October 7.) It is not thought that Israel’s Netanyahu coterie of CRRs “who have blood on their hands” will be subject to prevention or punishment.

Although the ICJ had many verbal criticisms of Israel, the peace movement ignores that the court did not create any legal barriers or obstacles to stop the ongoing crimes against Palestinians. One such crime is Israel’s plan to generate starvation in the Gaza Strip. There has never been widespread famine as it is happening in Gaza right now. Although food security was unstable before the conflict that started on October 7, less than 1% of children experienced severe acute malnutrition. Nearly every Gazan regardless of age is in danger right now, wherever they are in the region.

Additionally, the criminality of the international legal system is at issue. Israel now has the de facto green light from the ICJ to carry out the genocide, and the country began escalating its slaughter one week after the ruling. There are currently more Israel Defence Forces (IDF) personnel being deployed in the occupied West Bank, and crimes are being perpetrated there as well. IDF commanders in Gaza have ordered soldiers to set fire to non-combatants’ homes for the sole purpose of collective punishment. Plans to create a coherent network of Jewish colonies in Gaza were proposed within a few days following the ICJ ruling.

In response to Netanyahu, US President Joe Biden’s administration has decided to freeze financing for the UN Relief and Works Agency (UNRWA). The UNRWA provides food, shelter, healthcare, education and other necessities. As a result, this move is expected to lead to a collapse in social services, rising death, destruction, displacement and famine for the 5.9 million Palestinian refugees registered with UNRWA in East Jerusalem, the West Bank, Gaza, Jordan, Lebanon and Syria.

The Netanyahu-led Israeli Government has been accused of plausibly genocidal acts against Palestine by the Republic of South Africa, and the ICJ’s provisional measures order has given it a mandate to take all measures within its power to prevent and punish those who have committed genocidal acts. Does this seem incongruous? From a perverse legal perspective, the ICJ ruling suggests that Netanyahu’s cabinet, which was “appointed” to carry out the “prevent and punish” mission, cannot be held accountable for any “genocidal acts.” Essentially, this conflicting mandate — which was meant to save the Gaza population — gives the administration a reason to “prevent and punish” Palestinians for allegedly carrying out crimes of genocide against Israelis.

The Likud coalition administration, which was primarily in charge of organizing a comprehensive genocide strategy with the US’s collaboration before October 7, is not challenged politically in the ICJ judgment. It was anticipated that this vote would help spark a fresh round of illegal actions by the Netanyahu administration. Netanyahu had previously said that the slaughter was still happening on January 26: “We will not compromise on anything less than total victory … We are continuing until we eliminate Hamas…”

Pertinent questions in a grim future

The bogus celebration of a phony victory at The Hague has temporarily calmed the world’s fury. Israel’s genocide will persist as long as the US and its top justice at the ICJ continue to use fresh, deceptive rhetoric and postpone measures to keep the rest of the world away. 

The ICJ concedes that the State of Israel may have committed war crimes. Still, it vehemently rejects South Africa’s interim proposals, such as a ceasefire, which would have served to temporarily halt the continuous atrocities against the Palestinian people. Does the ICJ not consider this a criminal act that would undoubtedly cause many Palestinian civilian deaths? This means that while there are hollow and vacuous accusations made against the State of Israel, Netanyahu’s genocide remains essentially unaffected.

War crimes and conflicts have always been started by civilian politicians throughout history. The government that is determined to carry out genocide against the people of Palestine is the source of the illegal orders that the Israeli military has been obeying. And now that the ICJ ruling has been made, Israel’s CRRs can assign responsibility to the Israeli army.

Ironically, the Netanyahu coterie will be able to tighten its grip on the Israeli protest movement and single out Israelis who have firmly opposed the massacre thanks to the ICJ’s prevent and punish mandate. The judgment made on January 26 is temporary, and it may take years before the entirety of South Africa’s case is taken into consideration. That includes a definitive determination of whether or not Israel is engaging in genocide.

The only realistic way to put an end to this humanitarian crisis is through an immediate ceasefire. That should also clear the path for diplomatic negotiations to recognize and establish the state of Palestine. Considering Israel’s unwavering resolve and its influential supporters, this scenario sounds unlikely. But again, some weeks feel like decades. Even if the past 16 weeks have brought about unspeakable pain, loss and damage, they have also witnessed a significant change in support for the Palestinian cause.

Over 25% of Palestine’s population is in danger of starving as a result of a humanitarian crisis that has forced over 80% of the people into displacement. The ICJ’s verdict indicates this change in momentum. South Africa’s act of moral commitment, the isolation of Israel and its supporters — including the US and the UK — in international fora and the ongoing peace protests taking place across the world are hopeful signs for the future.

South Africa’s latest request for emergency measures must be granted at once. It is about time Israel’s supporters heeded the call of the times and instilled some common sense in Israel, both for the country’s sake and the benefit of all humanity.

[Lee Thompson-Kolar edited this piece.]

The post South Africa v. Israel: Killer Administration Gets Off Easy appeared first on Fair Observer.

The bench of five judges penned four separate opinions, introducing confusion. Nevertheless, it multi-vocal result undoubtedly fits the temperament of the Indian Constitution. Chief Justice of India Dhananjaya Chandrachud, deserves praise for instituting a bench that allowed such colorful and varied arguments during a hearing.

Justice Chandrachud’s argument

The Supreme Court made a sincere attempt to recognize as many rights as were feasible within the parameters of their jurisdiction. Chandrachud deserves special recognition for his dissenting opinion. In it, the chief justice tried his best to elevate a civil union between two people to parity with the status of marriage. Chandrachud emphasized the functional and operational aspects of Articles 19(1)(c), (e), (a), 21 & 15(1) of Indian constitution. He acknowledged that marriage cannot be declared a fundamental right; rather, it is an issue for the parliament to decide. The court is also unable to recognize the marriage rights of members of the LGBTQIA+ community within the current legal framework.

The court considered whether such a right may have been created by the Special Marriage Act, 1954. Building his arguments on the cases of Navtej Singh Johar v. Union of India, Shakti Vahini v Union of India, National Legal Services Authority v. Union of India and Justice K.S. Puttaswamy & Anr. vs. Union of India & Ors., Chandrachud underlined that the act’s wording is not clear enough to establish this reading.

In his detailed ruling, Chandrachud provided broad guidelines for defending the civil union between members of the LGBTQIA+ community. These guidelines include educating the public about the group’s rights to prescribing the standards, such as opening a joint bank account, ration card, etc. In a nutshell, Chandrachud went all out to grant the civil unions of members of the LGBTQIA+ community status equivalent to marriage, including adoption rights.

The majority vs. Chandrachud

To concisely summarize Chandrachud’s methodology, we should apply an approach based on Alan Dershowitz’s book, Rights From Wrongs: A Secular Theory of the Origins of Rights. Every asserted right is thought to have roots in an earlier injustice. Germany is one example: The current German constitution is centered on human rights and upholds them as fundamental. Germany learned from its horrific Holocaust and built a more stable society that upholds human dignity.

Throughout his ruling, Chandrachud underlined the marginalization that the LGBTQIA+ community experiences due to insensitivity. As restitution for previous wrongs, they were granted equal status as a civil union, complete with all the benefits.

However, the majority judgment, led by Justice Ravindra Bhat, did not support Chandrachud’s stance. Justice Hima Kohli and Justice PS Narasimha concurred. The basic structure of constitution includes the separation of power; so, they argue, it would be erroneous for the court to establish an institution legally or morally comparable to marriage on its own authority.

Bhat underlined unequivocally that, as much as the court can set a legal precedent, a right does not always translate to a positive legal obligation. In other words, the state is not required to establish the socio-legal framework to support the right to civil unions simply because they exist. The political branches will have to choose the best moment to repair this, as the judicial branch is incapable of doing so.

Examining the verdict

I examine this verdict from legal, moral and sociological angles. From a legal perspective, the judgment is entirely valid, as it closely adheres to the fundamental tenets of the Indian constitution.

From a moral perspective, we must first ask, “Why does a court exist?” This addresses its ethical obligation. As I previously stated, a court is crucial in providing a voice for those who go unheard in a democratic nation. The ethical requirement for an impartial arbitrator to dispute an individual’s rights against the state is what gave rise to the entire concept of judicial review.

The judgment somewhat succeeded in this area: It elevated the conversation about LGBTQIA+ people and their rights to a public forum where it will be discussed across the nation. Even if the verdict did not provide the intended outcome, a conversation about the voiceless can start creating a path to that goal. A dissenting position may soon become jurisprudential.

From a sociological perspective, the question is whether the verdict is widely accepted by the LGBTQIA+ community and the affected legal diaspora. Although there have been conflicting comments about the ruling, most LGBTQIA+ community members are discouraged. Several leading legal blogs have criticized the judiciary for failing to protect LGBTQIA+ groups’ marriage rights.

This criticism is unfair. The supreme court has performed remarkably, to the extent that was legally feasible.

[Lee Thompson-Kolar edited this piece.]

The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy.

The post Supreme Court of India: No Unlimited Right to Marriage appeared first on Fair Observer.

Boys struggle in Afghanistan’s new educational environment

The Taliban have received international criticism for preventing women and girls from attending secondary schools and universities. Still, their severe effects on boys’ education in Afghanistan have received less attention. Due to the Taliban’s harsh educational practices, which have resulted in the exodus of qualified teachers and regressive curriculum modifications, boys are suffering too. There is a greater fear of going to school, a decline in attendance and a loss of optimism for the future. Consequently, the Taliban run the risk of producing a lost generation.

Since assuming power, the Taliban’s impact on boys’ education in Afghanistan is detailed in the Human Rights Watch report entitled “Schools are Failing Boys Too.” The report highlights regressive curriculum changes, an uptick in corporal punishment, and the dismissal of female teachers, posing a threat to Afghan boys’ education. While global attention has focused on the Taliban’s bans on girls’ and women’s secondary and higher education, the substantial harm inflicted on the male education system has garnered less notice. The report’s author contends that the Taliban’s actions seriously undermine both boys’ and girls’ education in Afghanistan, potentially leaving behind a lost generation without a quality education and jeopardizing the nation’s educational foundation.

Between June and August 2022 and March and April 2023, Human Rights Watch remotely interviewed five parents and 22 boys in grades 8 through 12 across the provinces of Kabul, Balkh, Herat, Farah, Parwan, Bamiyan, Nangarhar and Daikundi. The Taliban, in a sweeping move, dismissed all female teachers from boys’ schools. This action left many boys with incompetent instructors or no professors at all. Boys now endure a surge in physical punishment, including public beatings for minor infractions like owning a cell phone or getting a haircut. The Taliban’s removal of subjects like athletics, English, the arts and civics has led to a decline in educational quality.

Worsening economic and humanitarian challenges in Afghanistan are forcing boys to leave school and aid their families. In a landscape with limited mental health care, boys experience rising anxiety, depression and other mental health issues. Though the Taliban hasn’t explicitly barred boys from school beyond the 6th grade, their actions still threaten the education of all children. Afghanistan’s breach of international law, specifically the right to education for all children, is evident. The Taliban’s systemic discrimination against women and girls adversely affects boys, reinforcing negative gender stereotypes and intensifying financial pressure to support their families.

Women and girls’ right to education from an Islamic perspective

The Taliban have made education worse for all children. Still, their exclusion of women and girls from post-primary education is particularly abhorrent.

In Islam, women’s education is regarded as a fundamental and sacred right, aligned with key principles outlined in the Universal Islamic Declaration of Human Rights. Adopted by the Islamic Council of Europe on September 19, 1981, this declaration upholds the sanctity of various rights, including life, property, religion and the intellect. Rooted in the Holy Quran and international human rights law, these cardinal rights, particularly the right to education, are essential to the deen (faith). The Quran emphasizes the significance of intellect (al-aql) as a divine endowment, allowing individuals to make moral decisions and strive for harmony (Q 17:70, 95:4, 2:30–34, 33:72). Reason serves as the basis for distinguishing right from wrong. For girls, education is not only integral to their faith but also pivotal in expanding knowledge, fostering critical thinking, and molding them into exemplary Muslims and community members. It empowers women and girls to harness the blessings bestowed upon them by Allah.

Education is a divine commandment for both genders. The Quran and Hadith leave no doubt that women, like men, must pursue knowledge. With over 800 references to ilm (knowledge) and its derivatives, the Holy Quran underscores its value. Allah commands both men and women to seek knowledge and punishes ignorance. “Read” (iqra) is how the very first revelation to Prophet Mohammed (peace be upon him) begins: “Read in the name of your Lord, who formed humanity from a blood clot (Q 96:1–5) A basic principle of Quranic interpretation is that when a commandment is revealed, the feminine gender is likewise encompassed by it, regardless of whether the masculine version of the word is employed. Ignoring this principle undermines fundamental Islamic tenets for women, including prayer, fasting, pilgrimage and almsgiving. The Hadith and Sunnah affirm the obligation for men and women to pursue higher education. By keeping women and girls from going to school, you are stopping them from carrying out Allah’s sacred mandate and interfering with their eternity.

The Taliban’s educational policies violate international law

The Taliban not only defy the laws of Allah, but they also violate the laws of man by denying education to their citizens. The Taliban regime must not overlook its international obligations under international human rights law and customary international law. Afghanistan became a party to the UN Convention on the Elimination of All Forms of Discrimination Against Women in 2003. According to this convention, countries must eradicate stereotypes about gender roles from all levels of education and society.

Corporal punishment in schools also violates children’s rights, causing dehumanization, needless suffering and detriment to their growth, academic performance, and mental health. The UN Committee on the Rights of the Child emphasizes every child’s right to an education in a violence-free environment, and international law prohibits all forms of corporal punishment. Afghanistan, having adopted the UN Convention on the Rights of the Child in 1994, is committed to ensuring children’s rights to safety, education, and protection from violence.

There are relatively few policy options to deal with the Taliban’s stringent restrictions or prompt behavioral change. The group has shown resistance to international pressure. The Organization of Islamic Cooperation (OIC) and Muslim-majority countries have called on the Taliban to lift their bans, but no tangible changes have occurred, and the likelihood of increased OIC involvement remains uncertain.

International sanctions, thus far, have yielded no apparent results. Afghanistan’s dire situation struggles to garner attention amidst the international focus on issues in Ukraine and Gaza. It’s crucial for the global community to persist in highlighting the Taliban’s mistreatment of oppressed Afghan women and girls.

If the international community is not more forceful, options for Afghanistani children are indeed slim. For example, while online learning offers a secure option for studying at home, millions of Afghan women and girls in remote areas lack internet access.

Governments concerned about the matter must exert pressure on the Taliban to lift their discriminatory ban on women’s and girls’ education and cease depriving boys of a safe and high-quality learning environment. The Taliban cannot flout Quranic directives on the right to education while adhering to an un-Islamic and regressive interpretation. Concrete steps, such as rehiring all female teachers, aligning the curriculum with international human rights law standards, and prohibiting corporal punishment, are indispensable.

The repercussions of the Taliban’s assault on the educational system are palpable now and will cast a long shadow over Afghanistan’s future. The urgent need for an international response to Afghanistan’s education crisis demands both swiftness and effectiveness.

[Anton Schauble edited this piece.]

The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy.

The post Afghanistan’s Children Need a Change to the Taliban’s Educational Policies appeared first on Fair Observer.

These approaches actively empower hate and neo-fascist political actors, facilitating the unchecked spread of propaganda and conspiracy theories. These platforms profit substantially from the high engagement generated by troubling and emotive content, boosting their advertising revenue. Moreover, corporations directly receive large payments from populist neo-fascists and other malevolent actors globally. To compound matters, they provide these individuals access to their algorithms and customers’ private information, a practice I find particularly unethical and anti-democratic.

neo-fascism erodes democracy, sanctions racism and bigotry, and rejects essential liberties and rights. Its proponents question the impartiality and universality of legal, scientific and educational systems. They promote a nationalist agenda and relativize or even reinstate fascist principles, laws and practices from the interwar years. This global phenomenon sparks extensive and varied debates.

A rising tide

In 1977, the defeat of Nazi fascism in World War II and the overthrow of the final fascist dictatorships in Europe (Portugal, Spain and Greece) dealt a blow to right-wing extremism. The prevailing belief in Europe and the United States was that nationalist, anti-liberal, and anti-democratic ideologies were history. The collapse of the communist bloc led many to assume that liberal democracy would dominate. However, understanding the factors that fueled the neo-fascist movement is crucial. These factors created an environment where it could impact governance and gain substantial electoral influence in Europe and the Americas.

A new political culture is rising, marked by the growth and promotion of prejudice. This shift is fueled by the impact of neo-liberal policies and the sensationalization of the media. The media’s focus on sensational stories has heightened public worry, paving the way for the acceptance of authoritarian measures. This phenomenon is termed surveillance capitalism and has called into question the roles and responsibilities of a welfare state.

Critical scholars, examining social media’s impact on politics and society, have long recognized its detrimental effects on democracy. A stark conflict exists between the public good and the interests of platforms like Facebook. Whistleblower Frances Haugen, part of Facebook’s civic misinformation team, exposed the company’s consistent prioritization of its financial gains over public welfare in October 2021. “Facebook over and over again chose to optimize for its interests like making more money,” he revealed. Facebook is “tearing our societies apart and fuelling ethnic violence all over the world.” However, this insightful criticism applies to all significant social media sites, not just Facebook. 

A powerful tool

In 2022, Vlaams Belang, a populist neo-fascist party in Belgium’s Dutch-speaking north, allocated €1.17 million for online advertising, primarily on Facebook, Google and YouTube promotion. Their spending spree didn’t halt, as from January to May 2023, they’ve already invested €709,924. If this trend persists, they’re poised to become the second-highest spender on EU online political advertising. This strategic spending enables them to target anti-democratic propaganda, anti-LGBTQI+ views, racist dog whistles and misinformation. Current polls indicate they’re now the largest party in northern Belgium.

Similar patterns emerge across Europe, exemplified by the pivotal role of social media in the ascent of neo-fascists in Italy. Italy’s extreme right, led by Matteo Salvini and Giorgia Meloni, shelled out €209,385 to Facebook from August 2022 to the September 2022 general elections—less than their Belgian counterparts but still the highest among Italian political parties.

Tom Van Grieken, leader of the Vlaams Belang, holds the top spot for social media ad spending among politicians in Europe.  He argues that this social media spending is necessary because he and his fascist party do not receive a fair hearing in the “biased” mainstream media. However, evidence contradicts this, as mainstream media covers his party and its views. Despite this coverage, a democratic backlash rightfully ensues against their reprehensible rhetoric. Van Grieken is accurate in asserting that social media enables disintermediation. It also facilitates micro-targeting, allowing these parties to tailor their propaganda to specific audiences, avoiding scrutiny from journalists asking pertinent democratic questions.

Populist neo-fascism is a destructive force in both the Global North and South, leveraging social media extensively for its harmful propaganda. These platforms play a pivotal role in fascist attempts to fuel ethnic violence and spread deceitful narratives. In 2021, the territory’s health ministry implicated Facebook in a systematic repression of Palestinian voices on Facebook and Instagram. This repression escalated during Israel’s military campaign against Hamas, resulting in 219 deaths in Gaza, including 63 children. In Israel, 12 people, including two children, lost their lives. Meanwhile, in Brazil, a government operation dubbed the Office of Hate served as the conduit for former President Jair Bolsonaro and his propaganda machine to disseminate hateful content and lies, utilizing WhatsApp and various social media channels for this purpose.

A way forward

Politicians enjoy unrestricted access to social media backdoors and algorithmic power through the tech oligopolies that control social media. Despite claims of moderation and regulations by these platforms, they prove ineffective in curbing hate speech, myths, disinformation and conspiracy theories. Populist neo-fascists benefit greatly from these shortcomings. Recently, Elon Musk, the new owner of Twitter, essentially demolished its moderating capacity, leading to a sharp rise in hate speech that circulated on the site and the money generated from it.

Political theorist Jan-Werner Müller advocates for a clear separation between democratic and anti-democratic groups on social media platforms. In the post-World War II era, social responsibility theory offered a framework and goal in the post-World War II era that positioned journalism as an essential democratic actor. This theory insisted on better representation for marginalized communities and minorities. It called for social media platforms to facilitate democratic discourse, hold the powerful accountable and responsibly exercise their access power. Social media firms need to acknowledge their social and democratic responsibilities, cease profiting from hate and misinformation and take action. To begin, they must reject funding from neo-fascists and prevent their access to platforms’ algorithms and users’ political and personal information.

[Beaudry Young edited this piece]

The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy.

The post The Truth About Neo-Fascism on Social Media appeared first on Fair Observer.

This widely accepted standard is the cornerstone of the 1951 UN Convention relating to the Status of Refugees (UNCSR) and the international legal system governing human migration. The government so blatantly broke this agreement that the Court felt compelled to state so. The UK government has indicated that it will merely legislate Rwanda’s status as a safe third country. Additionally, it will withdraw from several international agreements that require it to uphold the non-refoulement principle. This will let it ignore the law and its bothersome requirements.

The UK’s externalization of asylum

British Prime Minister Rishi Sunak may have made these remarks as a political ploy ahead of the country’s next election. After all, immigration control has been one of the most contentious political issues of our day, if not the most. As an electoral tactic, it has successfully fanned xenophobic concerns while offering no substantive answers to the migration problems in the UK’s asylum externalization.

Some could argue that this kind of deliberate illegality is nothing new. Liberal-democratic constitutional governments have long been known for their flaws. These include extreme hypocrisy, breaking norms, weaponizing migration ideals and dehumanizing migrants’ standards — the same ones they are obligated to uphold. This may occur visibly or more covertly. It has mainly been the case when they deal with people who, in their view, belong beyond the purview of their legal frameworks.

When we take a broader view of the UK situation, we see that the asylum and immigration mess results from more extensive issues. These may also be seen in the EU’s agreements with Turkey, Libya and Tunisia. Further, the issues appear in the EU’s attempts to distance itself from the violations of human rights, drownings and other tragedies that occur within its borders.

After the Supreme Court rejected the Rwanda plan, Suella Braverman, the sacked home secretary, increased the pressure on Sunak to disregard human rights legislation. Recognizing that there is little hope of halting the boats within the current legal framework, Braverman has asked for revisions to her own Illegal Migration Act to resuscitate the Rwanda deportation system. Braverman’s politics are not limited to the UK; they are prevalent throughout Europe, Oceania and the Americas.

Erica Feller, a former United Nations High Commissioner for Refugees (UNHCR) Assistant High Commissioner for Protection, highlighted the broader threat such politics pose to refugee protection. Refugee protection is a global concern and a common trust. It means that it is a shared responsibility, not an individual one. Unless it is shouldered widely, it may be borne by none as a normative standard.

Until recently, the duplicity of these liberal-democratic states was accompanied by a persistent (though flimsy) conviction that the law’s constraining force was still necessary. The law has always been put to the test, twisted and molded, and its principles have been stretched, distorted and abused. But there was still an underlying belief in the liberal legal orders that the law’s prohibitions and authorizations would matter. They would play a crucial role in how we treat others and ourselves. 

To guarantee states’ commitment to some hard-won European refugee protection principles, this role was used for executing governmental authority and as an instrument for setting its lawful boundaries. In my view, some of the democratically elected political leaders, as well as the UK’s public opinion and their electors, have lost this dual understanding of the law’s purpose. Rather than being seen as an essential component of effective governance, the law’s regulating and restraining role seems increasingly to be a barrier and blow to it. This is especially true in immigration control, where legislative limitations on the government’s authority are being violated or legislated over.

Sunak is, in fact, in excellent company. The Italian government’s detention has likewise demonstrated a great deal of passion for disobeying the boundaries of the law, and it reacts angrily to courts’ attempts to enforce them. To some extent, the EU has also started to play the same game. The regulatory power of the law is diminished each time enduring legal precepts are codified into new procedures and reception directives.

Good governance vs. immigration control

This rejection of the law as a tool of authority, limiting force and regulatory ideal seems to stem partly from the definition of good government being established within the framework of immigration control. A liberal constitutional framework prohibits good government from being defined by convenience or efficiency, nor can it include any governmental goal that most people find acceptable. In the age of globalization, liberal constitutional democracy has been under attack from the inside. The perspectives of illiberalism, populism and authoritarianism have attacked it further. We demand that normative standards of freedom, equality and human dignity constrain the goals and actions of the government. That is the yardstick by which we judge, or ought to consider, the goodness of each government action and its underlying goal.

It is worth emphasizing that we did not choose these principles randomly. Despite potential hypocrisy in liberal legal systems and their problematic application, we deliberately incorporated these principles into our constitutions. We have seen firsthand the devastation that results from simultaneously deregulating political power and concentrating it in the hands of a minority.

For immigration control, however, good governance is defined in a way that denies the cultural, ethnic and religious richness and diversity that characterize our political communities. Governments like the UK’s even view that as a threat. The pursuit of universal equality and human dignity is no longer what good governance means in this regard. Instead, the purpose of government is to serve “us” at all costs. It makes no difference whether this cost comes in the form of invaluable human lives lost or a more intangible cost to the values by which we live — this is ultimately the price we must pay to protect what is right, and “right” is now what benefits us rather than the ethereal concepts of equal human dignity.

This form of ethnonationalist thought has probably never wholly vanished from the political and judicial spheres following World War II. Instead, it has consistently existed in the background, patiently awaiting an opportunity to resurface in the European shared political consciousness since the first European migration crisis was heralded. 

The fallacy of Anglo-American human rights principles

Since then, ethnonationalism has undoubtedly grown in visibility, audacity and boldness in the demands it makes of the government. Along with it, we have witnessed the rise of a new kind of deliberate illegality, a rejection of the law, which is viewed as both a regulatory ideal and a tool of political power. This logic leads to inhumanity and human suffering, as seen in the recently revealed immigration program by former US President Donald Trump. His commitment to resurrecting and extending programs like family separation, Muslim bans, mass deportations, militarized borders and enormous mass detention camps is consistent with his criticism of the law as a restraint on governmental power.

Sadly, Germany has also shown itself to be vulnerable to the perils of similar reasoning. German Chancellor Olaf Scholz remarked that the nation should finally stand firm in deportation — that Germany being tough does not make it heartless. Scholz would do well to embrace the law as a restricting factor and a tool for policy-making, even if it happens to forbid the exact toughness he aims to impose. This would prevent inhumanity from becoming the pattern for Germany’s immigration policies.

Will the Rwandan deal be stopped?

The UK Supreme Court has declared its own government’s “cash for humans” agreement with Rwanda to be highly unethical and illegal. The continuous attempts to externalize asylum and indefinitely detain asylum seekers are violations of non-refoulement and the UNCSR. Thousands of torture survivors are stuck in the massive asylum backlog, unable to reconstruct their lives or recuperate. The UK government should concentrate on eliminating this backlog before enacting cruel policies that violate their moral and legal obligations. 

The agreement was fierce and misguided, especially because Rwanda has a history of grave human rights abuses. These include torture, arbitrary incarceration and the suppression of free speech. The arrangement with Rwanda and the Illegal Migration Act ought to be scrapped by the new home secretary, James Cleverly. Only then will decency prevail.

[Lee Thompson-Kolar edited this piece.]

The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy.

The post The UK’s Ruthless Immigration Compromise Means Refoulement in Rwanda appeared first on Fair Observer.

However, this protection is not always extended to individuals displaced due to climate change. In this piece, I advocate for the addition of a new protocol to the 1951 UN Convention relating to the Status of Refugees to recognize environmental migrants, displaced by the effects of climate change, as refugees.

Who is a climate refugee?

The term “refugee,” originally defined as crossing an international border for protection from violence, conflict, war or persecution, is culturally evolving due to climate change. The 951 UN Convention relating to the Status of Refugees, along with the additional 1967 Protocol relating to the Status of Refugees, characterizes refugees as persons facing persecution due to race, religion, ethnicity, nationality, social membership or political opinions who are unable to return to their country of origin. As of May 2023, the the office of the UN High Commissioner for Refugees (UNHCR) estimates there are 110 million registered refugees worldwide.

However, this figure does not include people uprooted by climate change, whose numbers are growing.

The 1991 Intergovernmental Panel on Climate Change gave a clear warning: Displacement would be the worst consequence of climate change. Today, millions flee due to rising sea levels, food shortages and severe weather such as heat waves, cyclones, droughts and floods, which can devastate whole towns and regions. An average of 23 million people are displaced from their homes annually. According to the UN , up to 1.2 billion people may be forcibly displaced by 2050. As climate change displacement increases, the discussion for protections for climate refugees becomes urgent. 

These statistics cause us to rethink the current use of “refugee,” as well as governmental protections awarded under international law, humanitarian aid, global environmental crisis solutions, healthcare, job training and urban development. Although “refugee” is a heavily politicized term, it is reasonable to include those whom the repercussions of climate change affect. They, just as much as other refugees, are fleeing for their own safety.

The UN claims that, “environmental degradation and climate change disasters increasingly act together with the drivers of refugee movements,” in its 2018 Global Compact on Refugees. However, the document is worded to avoid attributing legal “refugee” status to those displaced due to climate change. The practice of the UNHCR it to attribute such status to environmental migrants only when the adverse effects of climate change interact with armed conflict and violence. Furthering the discussion in 2020 with a series of “Legal Considerations,” the UNHCR still does not endorse the term climate refugee. Instead, they refer to these individuals as “persons displaced in the context of disasters and climate change.”

Many countries lack the infrastructure to manage significant influxes of displaced people, putting additional strain on government budgets. To successfully integrate environmental migrants into society without limiting funding for other programs, these states require help from the international community. To obtain this help, they need to classify environmental migrants as what they are: refugees.

The principle of non-refoulement

But it is not just a question how states or the international community “should” classify climate refugees. International law already requires states to protect these persons. Why? Simply put, under the principle of non-refoulment, it is illegal to return migrants to a place where they will be in danger.

Several international agreements establish the obligation of non-refoulment:

— The UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984.

— The UN Convention for the Protection of All Persons from Enforced Disappearance, (ICPPED), 2010.

— The Inter-American Convention on the Prevention of Torture, 1985.

— The American Convention on Human Rights, 1969.

— The EU Charter of Fundamental Rights.

To uphold the non-refoulement principle, states must address protecting climate refugees, including ensuring various human rights-based protection mechanisms are in place. Governments must understand their responsibility under international law to assist the UNHCR in protecting climate refugees and act swiftly to meet their needs urgently.

While non-refoulement requires states to protect people who are in danger, the status of climate refugees will not be assured until they are explicitly recognized under international law as refugees. Until then, states may take advantage of legal ambiguity to shirk their international and moral obligations.

What can we do to help refugees?

Humanitarian groups depend on your attention and assistance to supply water, food, shelter and medical treatment to refugees and internally displaced people. But we must take steps to build resilient, sustainable and adaptable mechanisms of support over the long run. The present uncoordinated, unprepared international framework is ill-equipped to offer climate refugees the protection they need. The system should develop solutions based on evidence from communities affected by the phenomenon.

We must standardize administrative and legislative frameworks to allow entry and accommodation for temporary, long-term or permanent climate refugees, allocating funds and resources appropriately and evaluating each migrant’s protection needs and asylum status.

International policymakers must work together in creating legal frameworks, offering financial support, distributing resources fairly and guaranteeing sustainable livelihoods for climate refugees. Lawmakers should also implement preventive measures such as allocating resources to effectively build infrastructure adaptive to changing weather patterns and ecological hazards. 

By establishing both clear legal standards and clear practical procedures, the international community will be able to help those in need more effectively, something which will only be more direly necessary as time goes on. I hope the UNHCR will adopt an additional protocol to the UNCSR on climate refugees for the start of a new age in refugee protection.

[KeAmber Council edited this piece.]

The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy.

The post Climate Refugee Protocols And the Right Of Non-Refoulement appeared first on Fair Observer.

Human dignity is the guiding premise for dealing with this calamity and all others resulting from it. We cannot allow questions of political consideration, blame or revenge to distract from our commitment to this fundamental value. But the requirement to uphold human dignity only has absolute application if it also has universal application, and vice versa. This is the prerequisite for the possibility of democracy, the rule of law and human rights. Human dignity must be upheld at all costs and under all circumstances. So, just as we cannot forget the innocent Israelis whose lives were taken away at the hands of Hamas terrorists, neither can we forget the innocent Palestinians who were slain by Israel.

Since 2007, Israel has arbitrarily imposed a naval and commercial embargo on the Gaza Strip, placing it under quarantine. Israel made three military incursions against Gaza in 2009, 2012 and 2014. 1,434 Palestinians were killed in 22 days (December 27, 2008–January 18, 2009), including 1259 civilians and 288 minors. 30 children died among the 103 Palestinians between November 14 and November 21, 2012. Between July 8 and August 26, 2014, 1,462 civilians—including 551 children—were slain. According to Richard Falk, the Special Rapporteur for the Occupied Territories of the United Nations, 40% of Gaza’s male residents have visited Israeli prisons. In Israel, administrative detention allows for an accusation for six months without any charges.

As Israel prepares to launch an offensive of unprecedented proportions against Gaza, the numbers will doubtlessly become more shocking still.

How do Palestinians get caught up in the violence?

Young Palestinians in the Gaza Strip make for easy recruitment for the Hamas military forces because more than 50% are unemployed.

Out of a population of 5 million in Palestine (of whom 2 million live in the tiny Gaza Strip), the United Nations Relief and Works Agency for Palestine Refugees (UNRWA) today cares for more than 800,000. On May 24, 2023, the UN Special Coordinator for the Middle East Peace Process, Tor Wennesland, pleaded with the Security Council that “swift action is needed to prevent outbreaks of violence between Israelis and Palestinians and to avert an imminent food crisis,” to no avail. So, hunger and desperation deepen in Gaza, fueling extremism.

As with its founding in December 1987 at the start of the first Intifada, Hamas’ election win in 2006 cannot be separated from the radicalization of Palestinian society in response to the Israeli embargo. Hamas maintains a robust network of philanthropic organizations within a humiliated and defenceless populace. 

How Israel has sought to punish Gaza

In retaliation for Hamas rocket attacks, Israeli assassination squads have killed the militant group’s top officials. Since then, its leaders have fled to Qatar. In a news conference, the head of the Israeli Air Force bragged that his organization had carried out between 80 and 100 extrajudicial targeted killings with a “90% success rate.”

But Israeli reprisals extend much father than killing Hamas leaders. It has engaged in an inhumane program of collective punishment.

When the Nazi troops advanced through Eastern Europe and into the Soviet Union, they were notorious for destroying such towns and burning them to the ground, killing everyone in them—man, woman, and child—as a form of collective punishment whenever they encountered the slightest resistance from smaller villages. Such collective punishment has long been considered a war crime, violating the UN Convention on the Prevention and Punishment of the Crime of Genocide, customary International Humanitarian Law rules and the UN Charter, which based its laws of war on the Nuremberg Tribunal established after World War II, specifically lists it as such.

For years, Israel’s IDF has disregarded international law and carried out similar, albeit more targeted, criminal acts, destroying homes and frequently killing innocent women and children if suspected Palestinian terrorists were thought to have resided there. This strategy was used even though the alleged “terrorist” had previously been apprehended or eliminated.

Israel’s leaders have launched a fierce, vicious, and genocidal campaign of collective punishment against the entire Gaza Strip and its 2.3 million trapped residents. This includes cutting off food, water, electricity, and, as a result, sewer and water treatment systems.

The military is preparing to impose a full siege on the prisoner enclave of Gaza, according to Israel’s so-called “Defence” Minister Yoav Gallant, who also declared, “We are fighting animals, and we will act accordingly.” According to the Gaza Health Ministry, 900 Palestinians already perished in the first few days of Israel’s reprisal against Gaza, including 450 children. Despite his unintentional grimly ironic double entendre, Gallant’s brutal language is clear, and his policy is an epic war crime of genocidal proportions.

It is revolting to hear Gallant use rhetoric reminiscent of the Nazi soldiers who surrounded the walled-off Warsaw Ghetto prison camp where over 500,000 Polish Jews were imprisoned before being burnt and blown up in a final orgy of explosives and cannon fire.

Israelis have suffered terrible crimes at the hands of Hamas fighters, but these do not excuse Israel’s impending response of collective punishment. The initial Israeli bombing and shelling in Gaza left horrific scenes. True, Israel does have the humanity to bury most of the dead victims, many of whom were probably children and elderly civilians, rather than leaving them bleeding out in the street like the victims of Hamas did. But innocents are dead all the same.

US military aid to Israel

On October 12, 2023, in Philadelphia, a sizable, grey four-engine jet with the recognizable fat, squarish fuselage of a military C-17 lumbered eastward. This was almost certainly the first of many such enormous US military cargo planes headed for Israel and was packed with heavy weapons, bombs and other horrors created by the sick minds of engineers in the US arms industry. These industrialized killing tools are bad enough in the US military’s arsenal, even for Americans. Still, they should never be given as a gift to a nation that intends to use its overwhelming power to end the lives of countless civilians as a form of collective punishment for the actions of fighters they have no control over. This is especially true for people in Gaza who are entirely at Israel’s mercy and unable to escape their walled-in and fenced-in open-air prison there.

Suppose the US doesn’t intervene to stop this Israeli war crime before it ramps up. In that case, it will be fully complicit in this potentially enormous atrocity by Israel and its military. It is vital to persuade the US to stop providing Israel with military support before any attack on Gaza. The collective punishment of Gaza will be swift and severe to finish the killing job before the US, most likely acting behind the scenes, can force it to halt. The residents of Gaza may not be able to control the armed terrorists and Hamas leaders who dominate them. Still, the US citizens can prevent the US government from arming Israel more so that it can commit these and other war crimes. 

Most of the US’s international aid to Israel, since the creation of the Jewish state, is military. An eye-popping $260 billion in aid has been provided to Israel to control the Palestinians living under its forced occupation. That assistance has been provided without conditions, even after Israel sunk a marked US Navy ship, boarded a Turkish ferry in international waters, killed an American teen for documenting their act of piracy, shot and killed an American woman reporter who was covering a Palestinian protest in the West Bank or, most recently, invaded Gaza and killed thousands of people.

Israel’s forced transfer of the population of the Gaza Strip will amount to a war crime under international law. The military offensive will significantly raise the death toll. The best way to ensure Israel’s security is to restore the Palestinian people’s dignity, not, as Interior Minister Eli Yishai of Netanyahu’s administration proclaimed during the bombardment of the Gaza Strip, to “to send Gaza back to the Middle Ages.”

Further, Israel won’t pay attention to the tepid remarks of US leaders who bemoan their war crimes. They won’t start listening until US help is wholly cut off. And that will only take place if American citizens demand it. So, let’s refrain from wasting time protesting war criminals. Let’s pressure international leadership to stop providing help rapidly, lest they become passively complicit in these war crimes. The cost of abandoning Palestine is unfathomable.

[Anton Schauble edited this piece.]

The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy.

The post Want to Stop War Crimes? Cut Off Aid to Israel Now appeared first on Fair Observer.

On July 17, 2023, Conservatives approved the so-called Illegal Migration Act, the cornerstone of right-wing UK Prime Minister Rishi Sunak’s campaign promise to “stop the boats” sailing across the English Channel. The bill has received royal assent and become domestic law. According to the act, anyone who enters the UK illegally after passing through a nation without persecution loses their right to seek asylum in the UK. No matter how compelling their situation is, they are prohibited from requesting refugee protection or making other human rights claims.

The act further mandates their deportation to another nation, where, despite Conservative claims, there is no assurance that they will have access to protection. It effectively establishes extensive new detention powers with little judicial control.

Racism-induced legislation

The government’s persecutory, racism-induced legislation won’t stop the boats. What it will accomplish is locking up tens of thousands of people at great expense, sending them to live in uncertainty forever, punished like criminals just for trying to find refuge. The House of Lords ultimately rejected proposed amendments providing for fewer time restrictions on the detention of unaccompanied minors, improved rights for victims of modern slavery and six-month delays in migrant deportation.

The Conservative government’s centerpiece legislation will stop most individuals from seeking asylum in the UK without authorization. It will send them back to their home country or a third country deemed “safe,” like Rwanda.

The act’s passing came at the same time as a barge meant to carry migrants and refugees docked near the southern coast of England on Tuesday. The government has justified the usage of barges, which maintains that they are a less expensive option than hotels. A record 45,755 persons crossed the English Channel in tiny boats last year, mostly from France. Around 12,000 people have come this year, which is about the same as in 2022.

Opposition politicians, as well as observers and civil rights organizations at home and abroad, have attacked the act to deport asylum-seekers as brutal, cruel and ineffective. The passing of the measure, according to UN High Commissioner for Human Rights Volker Türk, poses “very serious legal concerns” and creates “a worrying precedent for dismantling asylum-related obligations” that other nations may follow.

At the earliest, deportation flights to Rwanda won’t begin for a few months; even then, their legality will depend on the Supreme Court’s decision later this year. A £140 million ($180 million) first agreement between Britain and the East African nation was reached last year, but the legal process has stalled the program. One year ago, the European Court of Human Rights issued a last-minute decision that prevented the first scheduled flight for the deportation of Rwandan migrants.

Dumping IRL & IHRL Obligations

Following its obligations under international law, the UK has long offered asylum to needy individuals—a tradition of which it has every right to be proud. This new legislation severely weakens the legal edifice that has shielded so many people, placing refugees at severe risk and violating the UK’s IRL and IHRL obligations.

Regardless of whether asylum applicants are individually at risk of persecution, they may very well have experienced human rights violations, including human trafficking or modern-day slavery. Persons excluded by the new act may have other well-founded claims under international human rights and humanitarian law; these are now prohibited from accessing protection in the UK. This includes unaccompanied and separated children. Removal under these conditions violates international law, due process rights, family and privacy rights and the best interests of the children involved.

Most people who leave conflict and persecution lack formal documentation like passports and visas or cannot get them. Rarely do they have access to safe and legal routes. The 1951 UN Convention relating to the Status of Refugees (UNCSR) acknowledges that refugees may be forced to enter a nation of sanctuary illegally. Many thousands of asylum seekers can now be expected to stay in the UK forever in hazardous legal positions if there are no workable removal agreements with third countries or there is insufficient practical capability to remove large numbers of asylum seekers. They risk being used and abused, jeopardizing their rights to health, employment and a reasonable quality of life.

In addition to posing severe legal issues from a global perspective, the act creates a troubling precedent for eliminating asylum obligations that other nations, including those in Europe, may be tempted to follow. This would bring inestimable harm to the overall international system for protecting human rights and refugees.

The UN shares the UK government’s concern over the increasing number of asylum-seekers who take perilous boat crossings of the English Channel and applauds ongoing efforts to improve the functioning of the current asylum system through quick, equitable and efficient case processing that enables the integration of individuals determined to require international protection and the prompt return home of those without a valid reason to remain. Unfortunately, the new legislation will seriously erode this achievement.

Regardless of their legal status, method of arrival or any other distinction, all people who leave their place of origin in search of safety and shelter abroad are entitled to the full respect of their human rights and dignity. The UK has a history of upholding its obligations under international refugee and human rights law. Such unwavering dedication as it had shown is more important than ever right now.

The international community must urge the UK government to reaffirm its commitment to human rights by repealing this law and guaranteeing that refugees, asylum-seekers, migrants and stateless persons have their rights upheld, protected and fulfilled without prejudice and in a manner consistent with the UNCSR. Asylum and human rights claims should be processed swiftly and fairly, reception conditions should be improved and there should be more accessible and available safe travel routes.

[Anton Schauble edited this piece.]

The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy.

The post How the UK’s Illegal Migration Bill Squares With International Refugee Law appeared first on Fair Observer.

In some form or another, discussions over whether a UCC is desirable and feasible date back to our country’s founding and long before. The Constitution of India included the UCC in Article 44 of Part IV, Directive Principles of State Policy (DPSP). The provision reads, “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.” This constitutional mandate is a statement of intention, not something enforceable in courts of law.

Background of the UCC debate

The idea of a single civil code was first discussed in India during the British colonial era. In October 1840, the Lex Loci Report emphasized the importance of uniformity in codifying Indian law related to offenses, evidence, and contracts. It argued that the personal laws of Muslims and Hindus should not be codified. The Queen’s Proclamation of 1858 guaranteed complete non-interference in religious matters, preserving diversity and respecting multiculturalism. As a result, family law continued to be governed by specific codes in different towns and cities, while criminal laws were standardized nationwide.

However, during the post-colonial period (1947-1985), influential figures like Jawaharlal Nehru and B.R. Ambedkar advocated for a uniform civil code during the formulation of the Constitution. Despite resistance from religious fundamentalists and limited public awareness, the UCC and the DPSP under Article 44.

In a recent report titled “Reform in Personal Laws” published by the 21st Law Commission of India between 2016 and 2018, retired Supreme Court Justice Balbir Singh Chauhan expressed the view that implementing a UCC is neither necessary nor suitable at this time. He argued that the simple existence of diverse family laws does not constitute discrimination but reflects the strength of a vibrant democracy. The report further highlighted that many countries are embracing recognition of cultural differences through plural laws rather than pursuing “flat uniformity.”

One of the fundamental principles of the Constitution of India is secularism. Many religions have coexisted for millennia in the varied, cosmopolitan country. According to Article 25, everyone is free to proclaim, openly practice and spread their religion as long as doing so does not interfere with public morality, order or health. Article 26 further specifies that all denominations are free to do their own business in religious concerns. To safeguard many Scheduled Tribes’ unique cultures and identities, Articles 371A–371I restrict Parliament’s ability to interfere with their customary laws and practices.

We value the efforts of the 22nd Law Commission to address regressive and patriarchal legislation, promote gender equality and respect multiculturalism. Legislative modifications within each code of family law are necessary to ensure freedom of religion and multiculturalism for people of all genders, living in diverse family structures, without compromising their right to equality. This remains true even without imposing a single code on all.

Constitutional principles of secularism and equality

Article 44 of the DPSP mandates a uniform civil code, but Article 37 stipulates that the principles of the DPSP “shall not be enforceable by any court.” However, they are “fundamental in the country’s governance.” This shows that even though our Constitution recognizes that a UCC should be applied in some way, it does not impose specific requirements for its implementation.

The basic constitutional principles of India are reflected in many provisions. Article 15 prohibits discrimination based on race, caste, gender, or place of birth. Article 25 guarantees freedom of conscience, profession, practice, and promotion of religion, with reasonable restrictions related to public order, health, and morality. Article 25 (2) establishes rules for secular activities in relation to religion, social welfare, and reform. Article 26 empowers citizens to establish and manage religious institutions, while Article 27 forbids the State from collecting taxes to support a specific religion. Article 28 allows religious instruction in educational institutions. The term “secularism” was incorporated into the preamble through the 42nd Constitutional Amendment Act. The Supreme Court recognized secularism as fundamental to the diversity guaranteed under the constitution in S.R. Bommai v. Union of India. 

Among the states in India, Goa is the only one that has a uniform civil code in the form of a common family law. The Portuguese Civil Code, which is still in use today, was first implemented in Goa during the 19th century and remained in place after the state’s liberation from the Portuguese Empire. Goa’s progressive UCC allows for equitable distribution of wealth and income between spouses and children, regardless of gender. Every birth, marriage and death must be registered voluntarily, and divorce is provided for under various provisions. Muslims who register their marriages in Goa are prohibited from practicing polygamy and Triple Talaq (instant divorce). All assets and wealth acquired during a marriage are jointly owned by both spouses. In case of divorce, each spouse is entitled to half of the property, and in the event of death, the surviving spouse also receives half. Children cannot be completely disinherited by their parents; they must inherit at least half of their parents’ possessions, which must be divided equally among them.

However, the code has some shortcomings and is not precisely uniform. For instance, under certain conditions outlined in the Codes of Usages and Customs of Gentile Hindus of Goa, Hindu men have the right to practice bigamy if the wife does not bear a child by the age of 25 or a male child by the age of 30. For other communities, bigamy is illegal.

India must have a national conversation

The codification of personal laws specific to Hindus, Muslims, Christians and Zoroastrians in India does recognize their constitutional right of equality, which encompasses a range of rights related to diversity, identity and individuality. No universal family law applies to all Indians and is accepted by all of the religious communities that coexist in India. However, most of them agree that UCC may become desirable when the people of India achieve full educational empowerment, and it could significantly enhance and strengthen Indian nationhood. Different people have different ideas on when and how it should be formulated. Political and intellectual leadership ought to work to forge a consensus rather than utilize it as an emotional issue to advance their political interests.

Political and intellectual leaders should work towards forging a consensus on this matter rather than exploiting it as an emotional issue to further their political interests. The fundamental issue which Indian civil law has yet to address is how to treat every human being with respect. This is not solely about protecting minorities or maintaining national unity.

Therefore, any proposed UCC should be preceded by a process that is democratic, consultative, participatory and transparent, in line with the spirit of the DPSP, considering the complex landscape and the contradictions and conflicts that must be taken into account. The Law Commission might provide a draft of the proposed UCC and give all stakeholders plenty of time to ponder over it. The Law Commission could contribute by drafting the proposed UCC and allowing stakeholders ample time for contemplation. The government should initiate a dialogue on the UCC, in line with the principles of the constitution, across all communities, making them more gender-sensitive while keeping fundamental principles such as equality, non-discrimination, personal autonomy and agency, inclusivity, fairness, and secularism at the forefront to eliminate all forms of discrimination.

[Anton Schauble edited this piece.]

The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy.

The post Explainer: What Is the UCC Indians Are Talking About? appeared first on Fair Observer.

The Price of America’s Complacency in the Face of COVID-19 Is Survival

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On April 30, the UN Human Rights Council (UNHRC) categorically stated that under the International Covenant on Civil and Political Rights (ICCPR) — the human rights treaty of the UN — governments are not allowed to deviate from their human rights obligations and commitments while combating a global pandemic. This statement was released after a majority of officials served notices to the UNHRC about the declaration of state emergencies and the restrictive measures that undermined their human rights obligations under the ICCPR. Nonetheless, all restrictive measures enforced to combat the pandemic must meet the IHRL framework and comply with the purposes and principles of the UN agency.

Moreover, the UNHRC asserted in its statement that many other countries had imposed similar restrictive measures without formally notifying the UN body about the derogation of certain human rights. The UNHRC advised states against neglecting their obligations under international human rights law by resorting to excessive emergency actions.

COVID-19 Pandemic and Human Rights

There are several non-negotiable human rights principles enshrined in the IHRL framework. These include the right to life; no torture and slavery; a fair trial before a court of law; no imprisonment for breaches of contractual obligations; freedom of thought, conscience and religion; and the right to recognition as a person. Consequently, Article 4(1) of the ICCPR states:

“In [a] time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.”

This does not mean that other human rights obligations can be shelved during a public health emergency against the principle of legal proportionality of restrictive measures. But there is a set of laws that consist of both procedural and substantive legal requirements. States have to meet these guidelines while combating the COVID-19 disease without eschewing their human rights obligations under the IHRL framework.

On the other hand, UN Human Rights High Commissioner Michelle Bachelet has underscored that balancing “the economic imperatives with the health and human rights imperatives during the COVID-19 pandemic is going to be one of the most delicate, daunting and defining experiences for all leaders and all governments. Their place in history will be decided by how well or how badly they perform over the coming months.”

Pre-Derogation Measures by States

As a general rule during health emergencies, states must announce the human rights provisions from which they have decided to relax and inform other nations through the UN secretary-general about their intentions. However, if states decide to extend the duration or geographical coverage where the derogation of rights takes place, they must issue additional notifications.

Similarly, there is a need for immediately notifying officials in case of the termination of derogation. Pragmatically speaking, emergency measures can only restrict other human rights according to the “extent strictly required under the exigencies of the situation.” This must be as outlined in the General Comment No. 29 under Article 4 of the ICCPR.

These steps consider the duration, location and scope of measures imposed during a state of emergency. However, countries must ensure that enforced measures are necessary, legitimate, non-discriminatory and proportionate to the emergency situation. These steps were incorporated in the Guidance on Emergency Measures and COVID-19 issued by UN High Commissioner for Human Rights on April 27.

Derogation Under Regional Human Rights Frameworks

Guidelines for regional human rights protection (RHRP) are complementary pillars of the IHRL framework to protect and promote human rights. Similar derogation provisions are incorporated in the RHRP framework. For example, Article 15 of the European Convention on Human Rights (ECHR) is based on the draft Article 4 of the UN Draft Covenant on Human Rights, which later became Article 4 of the ICCPR and Article 27 (1) of the American Convention on Human Rights (ACHR).

But the protocol of derogation cannot be used if a state is simply unable to guarantee the fulfillment of human rights under the ECHR, the ACHR and the RHRP. In other words, a country cannot hide behind the option of relaxing human rights policies under exceptional circumstances if it is unable to even uphold them during normal times. On the contrary, a state is obliged to announce the measures taken that might involve the relaxation of its requirements under the RHRP.

Yet in March and April, several European countries notified the secretary-general of the Council of Europe about their plan to derogate from their human rights obligations as per the ECHR. Despite this, they had to resort to emergency powers within the IHRL framework while responding to a health emergency like COVID-19. In addition, emergency powers must be temporary, with a vision of restoring normalcy at the earliest.

Second Wave?

It is evident that there is no clarity about the number of governments complying with the requirements of the derogation protocol under the ICCPR while dealing with the pandemic. There is every chance that the novel coronavirus will soon result in a second wave and once again derail life as we know it. This would lead to repeated lockdowns, and human rights would be part of the conversation.

It is clear that states have to be on their toes to fulfill their IHRL obligations. During this crisis, governments must avoid instances of sidestepping their human rights requirements. Such violations must be probed and the culprits brought to justice.

The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy.

The post COVID-19: Balancing Health Emergencies and Human Rights appeared first on Fair Observer.

Today, there are 65.6 million displaced people in the world, including asylum seekers, irregular migrants, returnees (individuals who are willing to return to their countries of nationality) and internally displaced persons. While Europe is often in the headlines, it is not the only region dealing with a mass inflow of people.

India has been a regular host of refugees since its foundation. As of 2014, more than 200,000 refugees were living in India, according to the UN Refugee Agency (UNHCR). People have come to the country from around the world — from Afghanistan, Bangladesh and Myanmar to Eritrea, Iran and Iraq. India has hosted refugees from Tibet since 1959; refugees from Bangladesh since 1971; Chakmas, a Buddhist ethnic minority from the former East Pakistan, since 1963; and refugees from Sri Lanka since 1983, 1989 and 1995 due to the civil war. Conflict in Afghanistan since the 1980s and Myanmar’s instability of the 1990s prompted further waves of migration.

Despite this, India has hosted refugees since 1971 without any specific law in place. The refugee influx, which has risen steadily since 2005, could increase due to the ongoing instability in the region.

A New Bill for Refugees in India

The Indian government has developed various strategies to offset these new surges of refugees. One of them is to amend the existing Citizenship Act, 1955 and the proposed Citizenship (Amendment) Bill, 2016, which is awaiting further deliberations without any deadline as of now. In a positive move on refugee policy in India, the bill aims to extend citizenship by fast-tracking the naturalization process to individuals belonging to Buddhism, Christianity, Hinduism, Jainism, Zoroastrianism and Sikhism, which are considered minority religions in their countries of origins such as Afghanistan, Bangladesh and Pakistan.

India hosts around 9,200 refugees from Afghanistan, out of which 8,500 are Hindus. There are also more than 400 Pakistani Hindu refugee settlements in Indian cities, mainly in the states of Gujarat and Rajasthan. Other groups who have received refugee status comprise indigenous tribes such as Buddhist Chakmas and Hindu Hajongs from Bangladesh.

The bill fits with the government’s move to make religious persecution as the principal ground to confer citizenship. But the same proposal does not apply to other refugees or migrants belonging to Muslim communities in these countries.

No Space for Muslim Refugees

The proposed bill, pushed by the right-wing Bharatiya Janata Party government, seems to forget that Muslim populations are also seeking asylum in India. For instance, Ahmadiyya Muslims who follow a 19th-century prophet, Mirza Ghulam Ahmad, face persecution in Pakistan and Bangladesh as they contest the official sect of Sunni Islam. Similarly, Hazara refugees, who are mainly found in Afghanistan and Pakistan, are persecuted for being Shia. In Myanmar, Rohingya Muslims face the wrath of right-wing Buddhist extremists and the military. In Sri Lanka, Tamil Muslims are also discriminated against by hardliners who want to impose Buddhist supremacy.

All of these communities have taken refuge in India. But according to the new bill, they will not be granted refugee status.

India has been actively holding talks with Bangladesh and Myanmar to deport around 40,000 Rohingya refugees presently residing in India illegally, and state governments have been asked to constitute a task force for the purpose. There are around 14,000 Rohingyas who have registered with the UNHCR in India, making the rest of their population illegal and liable to be deported to Myanmar.

Who is a refugee in India?

The new bill deliberately uses the term “migrant” to deprive these refugees in the sense of international refugee law, which is enunciated in the 1951 UN Refugee Convention with its Additional Protocol of 1967. The bill also infringes upon the right to equality, which is guaranteed under Article 14 of the Constitution of India that prohibits discrimination on the grounds of race, religion, caste, creed, sex or place of birth, and other fundamental freedoms with reasonable restrictions that are equally available to refugees.

India has still not signed the international refugee law based on the UN Refugee Convention with its 1967 Additional Protocol. While India respects the various human rights UN treaties consisting of nine core human rights treaties, it deals with refugee status without any uniformity of law and policy. For example, India grants full protection and assistance to asylum seekers and refugees (non-Muslims) from Sri Lanka and Tibet, helping them to get documents with a range of legal benefits. On the other hand, refugees from Myanmar, Palestine and Somalia get very little aid and assistance from the UNHCR.

However, the UNHCR estimated in September 2014 that there are 109,000 Tibetan refugees, 65,700 Sri Lankan, 14,300 Rohingyas, 10,400 Afghan, 746 Somali and 918 other refugees who are registered with the agency in India. As of 2015, only 39 Syrian refugees and 20 asylum seekers were registered.

These refugees have been living in unauthorized makeshift camps and rented houses in and around New Delhi. They bear the hostile behaviour of the local police and population, and the government in many cases deports them against their will. The Indian government does not officially recognize these refugees, but it allows the UNHCR to extend de facto protection to those who do not receive recognition under Indian law, including Muslim refugees.

Regional Treaty under the SAARC

The current bill is unconstitutional as it must include the religion of Islam along with other faiths in its ambit, or it must have a religion-free migrant or refugee definition.

India could redefine a model of global standing for refugee issues in the world if only it chooses a different path. For example, it could use the auspices of the South Asian Association for Regional Cooperation to consider the 2004 South Asian Declaration on Refugees and the Eminent Persons Group’s  proposed National Model Law, which formulated an ideal law on refugees with global human rights standards.

This law is based on international conventions and the 1984 Cartagena Declaration on Refugees. The key elements are the expanded definition of a refugee, the refugee determination test, the inclusion of ethnicity and sex criterion, and dual citizenship. Moreover, India could evolve a regional approach to enunciate the rules and regulations for protecting the refugees in South Asia.

The absence of national legislation on refugees has placed refugee rights in a vacuum, and such rights are regarded as privileges that can only be claimed by those refugees who are politically advantageous for the power structures in the host country. The UN Refugee Convention could be considered as the basis of domestic refugee law, but India may have its modifications and changes in tune with its national requirements wedded with the principles of constitutionality. Therefore, India has to go for a refugee law for maintaining territorial integrity; for securing the porous borders; for ensuring homeland security; for evading international pressure in the name of refugee rights; and for establishing its high benchmarks of respecting international human rights.

The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy.

Photo Credit: Aoshi VN / Shutterstock.com

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