Since its founding in 1998 and its official kick-off in 2002, the International Criminal Court (ICC) has had to build its strength and influence without any help-and indeed with strong opposition-from the U.S. “[E]stablished to help end impunity for the perpetrators of the most serious crimes of concern to the international community,” including genocide, crimes against humanity, and crimes of sexual violence such as the mass rapes taking place in the DRC and CAR, it would seem at first glance like an institution that anyone but genocidaires and violent dictators could get behind.  The Bush administration, however, strongly opposed and sought to limit the power of the court. But signs indicate that the U.S. could be warming up to a new level of engagement with the world’s only permanent international criminal court.  The Washington Post is reporting that, “for the first time in nearly eight years,” the U.S. is showing its support for and willingness to engage with the ICC.

This engagement comes in the form of U.S.’s first participation in an ICC conference since 2001. A U.S. delegation will attend as observers to the Eighth Session of the ICC’s Assembly of States, being held November 18-26  at the Hague. State Department Spokesman Ian Kelly has announced that

“There will be an interagency delegation comprising of State Department and Defense Department officials, which will allow us to advance, use and engage all the delegations in various matters of interest to the U.S.”

These interests are not so distinct from the posture of the Bush adminstration: ensuring that U.S. personnel are not subject to the Court’s jurisdiction and advocating for the Security Council’s control of the court.  Stephen J. Rapp, the U.S. ambassador at large for war crimes, announced in Nairobi this week that the U.S. remains “concerned” that U.S. personnel could be hauled before the court.  The U.S. has also made clear that it has no plans to officially join the court in the near future.  While human rights advocates are heralding this engagement as a positive development, the conference will decide matters of vital interest to the U.S., namely, whether the court’s jurisdiction will be extended to cover the crime of aggression.  The crime of aggression-unprovoked military action by one state against another-is a legal term that could potentially be used to describe the U.S. wars against Iraq and Afghanistan. 

So what does this newfound U.S. engagement with the court really signal?  Is it a facet of the Obama administration’s declaration that it will participate more fully in the international order as opposed to proceed unilaterally like in the Bush days?  Or is it U.S. politics as usual, meaning participation in international regimes with a key objective being to shape the system so that it cannot hinder U.S. actions, regardless of whether these actions go against the international grain?  Or perhaps a mix of both?  And is U.S. engagement desirable for the ICC, or would having a lukewarm U.S. on board only hamper the court’s objectives by limiting the crimes and persons under its jurisdiction?  Only time will tell.  But if the recent Nobel Peace Prize for President Obama, along with his reception at the UN General Assembly and climate change meetings is any indication, the world prefers the engagement of even a lukewarm and slightly obstructive U.S. to a U.S. willing to go it entirely alone.

Australian Prime Minister Kevin Rudd gave an emotional apology on Sunday to the victims of a largely forgotten chapter of Western history. Addressing a crowd of about 1000 former child migrants, Rudd issued a national apology for the mistreatment they received from the government when they had been promised a new chance and a new life in Australia decades ago.

Those present at the ceremony were part of the 150,000 poor child migrants sent by the UK to its colonies and former colonies since the late 19th century. The children were often born to impoverished families or to unwed mothers and taken by the state. Although many of the children were not orphans, they were treated as such and many of the parents of child migrants were never told what happened to their children. Once resettled in faraway lands such as Australia, New Zealand, Canada, and South Africa, the children were raised in state and church-run orphanages and foster care facilities. The Child Migrants Programme, which lasted until 1967, was supposed to give the children the chance at a better life. Instead, the child migrants often faced abuse and neglect in their new homes, and with their nearest family being continents away, were left with nowhere to turn for support.

Although the program ended decades ago, the issue re-emerged in the late 1990s with Parliamentary hearings in the UK and attempts in Australia by survivors to track down their real families. Watching the crowd reaction to the Prime Minister’s speech, it is clear that the trauma of those events still resonate with the adult migrants who still live in Australia. It is expected that British Prime Minister Gordon Brown will follow Australia’s lead and offer an official apology on behalf of the UK to the survivors of the Child Migrants Programme early next year while the issue is being closely watched in Canada, where the majority of the migrant children were placed.

The Australian apology to child migrants is the latest in an increasing trend of political apologies for wrongs committed by the government against their own people. Last year the Canadian government apologized to former students of the county’s residential school program which took aboriginal students away from their parents and placed them in state sponsored schools. Though the program was supposed to encourage integration and assimilation into White culture, in reality the students experienced horrific abuse and substandard education and care as the result of their ethnic heritage. Similarly, Australia apologized last year to the “Stolen Generations”, the term given to Australian Aborigines who were forcibly removed from their homes to be raised in state schools in an effort to “civilize” them. Both programs ran until shockingly recently. In the case of Canada, the last residential school did not close until 1996, while Aborigine children were removed without cause from their families in Australia up until 1971.

These apologies represent a significant change in how Western governments view vulnerable populations and the lasting effects of harmful state policies. To go from official policies of ethnocide to condemnation for such policies in such a short period of time is a drastic cultural shift, and one that these countries are better off for. More than anything, these official apologies demonstrate a basic recognition that such policies and programs hurt people who deserved the protection and respect of the government. In the cases outlined above, these were groups of children who by definition depend on the protection of adults. Apologizing for wrongs committed against them - whether in the name of racial assimilation or poverty alleviation - allows societies to reflect on the choices they have made in the past and how to prevent further abuses in the future. However such apologies also have their limits in usefulness. Even the most well intentioned speech cannot erase the toll that decades or centuries of degrading policies have on a people. True reconciliation cannot be accomplished with an apology alone, but rather an apology can be a useful first step in a much longer process.

As Australia, Canada, the UK, and others contemplate their past, this last point should be kept in mind if there is to be real change in the cultural assumptions, prejudices, and politics that allowed these events to occur in the first place. After all, that is the best way to say that you are truly sorry.

Kai Eide, the Special Representative of the United Nations to Afghanistan, did not mix words.  Addressing the Committee of Development at the European Parliament in Brussels this evening, Mr. Eide began to vent some frustration against NGOs and INGOs.

He was  vague and did not single out any organisation in particular. Instead he said that some NGOs and INGOs are too bent on working on their own particular projects.  The resulting development schemes are  fragmented and do not necessarily take into account overall policy initiatives.  He also said that some INGOs are not be entirely straightforward about development programs that he claims have been successful.

“INGOs don’t want to accept that [in some areas] infrastructure is in place.  It’s madness that they would say otherwise,” he said.

Mr. Eide, who has held his post since March of last year, has had the unnameable task of coordinating the Presidential election which, as we all now know, was mired in scandals and fraud. “There was still a 40% turnout and given the stat of war that is in Afghanistan, that’s not all that bad,” he said.

He then recalled that the Presidential election fiasco needs to be viewed in an Afghan context where anywhere between 80 to 85% of the population are illiterate.  “Many had never even seen a pen,” he said.  All the while, the fateful August 20th day had also recorded the highest level of security incidences against the Afghan people since the start of the war almost eight years ago.

“We knew beforehand that there would be significant fraud,” said Mr. Eide who was the first person to inform President Karzai that he had not won the first round.

The UN special representative is calling for a more cohesive overall and coordinated national strategy that also takes into account the North and West of Afghanistan.  According to Mr. Eide, development initiatives focus almost entirely in the South where most of the heavy fighting is occurring.  Plans made in Paris and Vienna to launch agricultural programs have yet to be implemented.

Mr. Eide announced he will put together a spring conference that he calls a Sovereignty Agenda.  This agenda will focus on security, institution building, economic development, peace and reconciliation, and regional development relations.

In the meantime, he is calling on the Karzai government to tackle the culture of impunity, corruption, and begin delivering state services. “These three areas are key and need focus,” he said.

The Obama administration took a major step today in fulfilling its promise to close the discredited Guantanamo Bay detention center and follow the rule of law with the announcement that five detainees charged with planning the attacks on September 11, 2001 and the USS Cole will be prosecuted by a federal court in the Southern District of New York.   

The five detainees in question — Khalid Sheikh Mohammed, Walid Muhammad Salih Mubarak Bin ‘Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali and Mustafa Ahmed Adam al Hawsawi — have already been charged by the military commissions established under the Bush administration, but the change of venue to federal court places their legal fate in civilian hands.  The lack of civilian justice in terrorism cases thus far has been a major issue for human rights groups who questioned the fairness of the military commissions and their ability to meet international legal standards.  

The decision is a big one, and wrought with legal and political risk.  But for now it is being hailed by several rights groups and online commentators, including Human Rights Watch, Human Rights First, and The Constitution Project.  According to the Associated Press, there are still 215 detainees being held at Guantanamo while an estimated 565 have been released since the prison opened in 2002.  Of these, about 65 are considered to be viable for civilian prosecution, meaning that some detainees will still be processed by the military commissions.  This was confirmed when the Justice Department also announced on Friday that five other detainees would proceed with their trials under the military commissions.  However, the fact that this administration is willing to allow some of the most high profile detainees be prosecuted publicly under a civilian judge is a good sign that the US is on the right path to balancing security with human rights in the age of terrorism.    

Further links of interest:

Transcript of Attorney General Eric Holder’s press conference, courtesy of The Globe and Mail  

“Getting Back on Track to Close Guantanamo: How to Get to Zero” — new report by the Center for American Progress  

Interview in Rolling Stone with Tom Andrews, director of the National Campaign to Close Guantanamo on the Justice Department’s decision

At almost the same time that the World Health Organization (WHO) released a report lamenting the many barriers that women face to accessing health care, the United States Congress threw up another such barrier in the form of the Stupak amendment blocking access to abortion.  Fittingly, the WHO report noted that

“The obstacles that stand in the way of better health for women are not primarily technical or medical in nature. They are social and political, and the two go together.” 

The Stupak amendment is a political obstacle to women’s access to health care driven by a social movement against abortion.  As such it represents exactly the type of discriminatory barrier and gender based exclusion that the report highlights and impugns.

What the Stupak amendment does is prohibit federally subsidized health care plans from offering abortion coverage for everything but strict exceptions e.g. incest or threat to the woman/girl’s life.  It also disincentivizes insurance companies from covering access to abortions because it bans the sale of such policies through the proposed national health insurance exchange.  While some argue that supplemental coverage specifically for abortion will remain an option–with critics saying this is doubtful because the insurance companies will view the private market for this as too small to actually provide it–such supplemental coverage would still put a high economic burden on women.  This means that regardless of the options out there women will continue to face monetary barriers to accessing safe abortions.

Critics are calling out Democrats for their lip service to women’s rights and abortion rights and their hypocritical support of the Stupak amendment.  Representative Stupak is defending his amendment by saying it merely repeats current law that bans federal funding for abortions.  But this entirely misses the point–the historic health care reform bill was about changing access to health care and removing barriers, not ahout upholding the status quo.  Lawmakers are not obligated to “uphold” current law through this bill–the bill is new law.  They’re free to make whatever changes they see fit, which belies their orientation: they don’t care enough about women’s access to abortions to help make true access a reality. 

The WHO report and the critique of the Stupak amendment have much in common.  The report opens by noting that “protecting and promoting the health of women is crucial to health and development–not only for the citizens of today but also for those of future generations.” Advocates who oppose the amendment state that “the [Democratic] party chose a course that risks the well-being of millions of women for generations to come.” While Representative Stupak defends the amendment as current law, the truth is that it expands the ban on access to abortions rather than simply maintains it.  It expands barriers to accessing safe abortions because all of the women who participate in the proposed health care system of the near future–the system that was supposed to bring the U.S. out of the dark ages of health care and closer to a position where everyone in the country can actually afford to see the doctor when they need to–would now face the Stupak barrier, and unless we do something so will the women and girls of the next generation.  Not only does the amendment represent a huge opportunity missed for increasing women’s rights and equality and improving their health choices, it entrenches barriers to safe abortions and institutionalizes inequalities, with women and girls getting the short end of the health care stick.

Advocates are working hard to make sure that the amendment does not pass in the Senate.  Stupak and others are saying opposing the amendment will derail health reform.  Such a position communicates that access to safe and affordable abortions is not considered a crucial part of health care for those making U.S. laws.  As long as politicians continue to think this way, the inequalities that the WHO report highlights will continue to plague and greatly reduce the health of women and girls the world over.

A state news agency in China confirmed today that nine people have been executed for their role in the rioting that overtook the northern city of Urumqi in July. As reported earlier on this blog, the rioting had a long simmering ethnic component to it that pitted the majority Muslim Uighur population against the growing Han Chinese. While there were many causes to the violence, a lot of it has to do with China’s policies towards ethnic minorities who find themselves being even more politically vulnerable than the mainstream population. The three days of violent rioting in Urumqi brought this issue

Though both sides participated, the majority of the violence was blamed on Uighurs. As a result, the security forces focused mainly on Uighurs in the rioting’s aftermath. Though China pledged to apply its justice evenhanded, eight of the nine prisoners convicted in October over the riots had Uighur names. It is unclear whether these nine prisoners are the same that were executed, but it seems likely since the prisoners sentences were confirmed by the Supreme People’s Court which is required for all death sentences.

The news has not received a lot of press coverage so far, perhaps because the confirmation came on the same day Europe is celebrating the fall of the Berlin Wall in Germany. However it does not speak well for the trend of increasing oppressive policies on the part of the government towards ethnic minorities in China. Thus, while the world marks the anniversary of the end of one struggle against oppression twenty years ago, more than anything this news demonstrates that political and economic oppression can take many forms and have many different outcomes.

Tomorrow marks the 20^thanniversary of the fall of the Berlin Wall, which is typically seen as the end of the Cold War. I expect that the blogospherewill be filled with far more in-depth commentary on the subject tomorrow, but for today I would just like to point out one of the articles that is already out there and what it tells us about the future. The Christian Science Monitor carried an interesting editorial yesterday on what lessons can be learned from that struggle as we take on violent Islamic jihad. Though the two situations are different in many ways, there are definitely things that we can take away from the past and apply today. Namely, the fact that such struggles are rarely won on a single battlefield and require pressure from all sides, including human rights. As the editorial notes:

Felling communism in Europe required the moral courage of these individuals and countless others - including brave East German demonstrators in the city of Leipzig who marched despite warnings that they would be killed. Not everyone who stood up for human or political rights in the Soviet zone lived to see the fruits of their labor, but their very stand inspired others to do so.

 

Violent Islamic jihad differs significantly from communism. But like communism, it is based on the falsehood of control without consent. Such a society cannot flourish.

Of course, the Western battle against Communism was not innocent of committing of human rights abuses itself or standing by while allies did, and those abuses often hurt the cause rather than aided it. There are lessons that should be learned from that too. But it is important to note that while World War II gave birth to the modern human rights movement, it was the Cold War that gave us many of the tools, mechanisms, and human rights organizations that we rely on today. When they work properly, they apply pressure to both sides of the equation and give people a voice that they can use to decide their own fate and the fate of their governments. As such, it is likely that human rights activist will need to adapt to new threats on liberty to meet the needs of the voiceless today. 

Though the final victory in that battle may not be as symbolic as the fall of the Berlin Wall, it will have been won on the same principles.  As the celebrations, commemerations, concerts, and memorials go on around the world tomorrow, it is those principles that we should take with us for the future.

Representatives from governments, civil society, and the diamond industry met this past week in Namibia for the Kimberley Process Certification Scheme’s seventh plenary meeting. The Kimberley Process was established in 2003 as a way to regulate the trade of so-called conflict diamonds that came to prominence during the wars in Angola, Sierra Leone, and Liberia. While those conflicts have since ended, a new ones emerge with the same underlying problem of diamonds funding violence. On the minds of everyone attending this meeting was Zimbabwe, where civil society groups and a Kimberley Process review team have found abuse on the part of the government and military in the Marange diamond fields. Funds from this diamond mining goes to support the government of Robert Mugabe and the military, both of which have been accused of further human rights abuses across Zimbabwe.

Since its founding, the Kimberley Process and the diamond industry have been quick to praise themselves, but many of the scheme’s civil society participants have pointed out structural weaknesses and chronic political apathy that prevents the Kimberley Process from effectively stemming the trade of conflict diamonds. Although negative reports about the Zimbabwe diamond trade date back to 2007 and its own review team recommended suspension in July of this year, the Kimberley Process has yet to take action. That is why analysts were looking to see what would happen at this plenary meeting as an indicator not just of the state of the Zimbabwean diamond trade but also of the Kimberley Process itself.

The outcome? Absolutely nothing. Once again, the Kimberley Process has passed on its responsibilities to stop the trade of conflict diamonds. Instead of expelling Zimbabwe from the scheme, which would prohibit any other participants (pretty much the rest of the world) from importing Zimbabwean diamonds, the representatives agreed to give Zimbabwe more time to meet the conditions required of them as a participant of the scheme. It will now re-evaluate the situation in June 2010 to decide whether Zimbabwe should face temporary suspension or expulsion. This is at least the second time that the Kimberley Process has given Zimbabwe an extension, showing once again its lack of political will and inability to fulfill the scheme’s basic mission.

 Although Zimbabwe is claiming that it is making progress in meeting the requirements of the Kimberley Process, most civil society observers disagree. Thus the scheme may be running out of credibility. As it is, Ian Smillie, one of the architects of the Kimberley Process resigned as an official civil society representative in May. In a letter to the diamond industry, Smillie explained his reasons:

“I am leaving because I feel that I can no longer in good faith contribute to pretense that failure is success. I thought in 2003 that we had created something significant. In fact we did, but we have let it slip away from us . . . The KP has been confronted by many challenges in the past five years, and it has failed to deal quickly or effectively with most of them.”

Looking at the events in Windhoek this past week, it appears that Smillie’s assessment of the Kimberley Process was spot on.

Yesterday Maine voters dealt a blow to LGBT rights, with 53% of those who voted in a referendum opting to repeal Maine’s state law recognizing the right of same sex couples to get married.  While New England is considered the region of the U.S. most supportive of the right of same sex couples to marry, the outcome of this referendum whittles the number of U.S. states recognizing this right down to a measly five.  Yesterday’s election day was “a deep and bitter disappointment” for the families in Maine seeking legal recognition and for LGBT advocates and allies around the U.S. who were watching Maine with hope. 

Last week the U.S. was shocked when a justice of the peace from Louisiana refused to marry an interracial couple.  It is hard to believe that such a practice would still occur, living on long after a 1967 U.S. Supreme Court ruling outlawing racial discrimination as an obstruction to the right to marry.  The justice of the peace in question resigned the very same day that Maine voted against gay marriage.  The Governor of Louisiana called the resignation “long overdue” and further stated that his resignation upholds “the will of the vast majority of Louisiana citizens and nearly every governmental official in Louisiana.”  Just as it is disturbing that anyone at all could wish prohibit interracial marriage, it is extremely unsettling that so many Americans continue to believe that they have a right to restrict the marriage of other people on the grounds that the couple is of the same biological sex. 

At one point in time, interracial marriage did not fit into the “tradition” of American marriage or indeed marriage around the world.  It was a fight to remove restrictions to marrying someone considered to be a different race than you.   Many opponents to gay marriage claim that they are defending the “traditional” family by protesting the rights of same sex couples to marry, with this family having a woman and a man at its center. But why does this tradition need a defense in the first place?  Our definitions of family continue to evolve and the law evolves to recognize this and to support family as an important institution within society.  We are much less likely to live in extended families than we were a hundred years ago; we divorce and we re-marry at a frequency unimaginable only a few decades ago; we adopt children from around the world, made possible by globalization; we live with step-children and step-parents in modern “blended” families; we care for aging parents in a multigenerational home because we are living longer.  Our family structure changes and changes significantly as the world shifts around us.  It is curious that those who cling so tightly to marriage as only between a biological woman and biological man cannot see these changes, many of which have already redefined the relationship between family and biology. 

The freedom to marry whom we choose is a human right because the choice of a marriage partner is one of the central choices in a person’s life.  Under U.S. law, we see support for this right in many contexts, such as the freedom to pursue what makes us happy; the rights of privacy in our family homes and that these privacy rights extend to how we arrange our personal relationships; and the right not to be unfairly discriminated against relative to our fellow citizens.  Same sex couples are not different from male-female couples in a way that can justify treating their unions differently under the law.  Some would say they are different because they cannot biologically reproduce, but clearly reproduction is not a requirement for marriage being recognized in law.  For those who rely on the religious heritage of the U.S. to distinguish same sex couples, the separation of church and state will not allow an encroachment of some people’s religious values into a civil recognition of the right to marry. 

While November 3 was a disappointing day for same sex couples in Maine and around the U.S., history remains on their side.  It may take a few more years, but eventually the law will catch up with the right of same sex couples to marry, to sanctify their relationships, to obtain the legal benefits that correspond to legal marriage, and to raise children in an environment that is rendered more stable through these legal entitlements.

Human Rights Watch has landed back in the news, though not in the way that it likes.  For the last few months the organization has endured controversy over its coverage and position on Israel.  First, news broke in July of a fundraising trip that Human Rights Watch undertook to Saudi Arabia where the representatives allegedly highlighted their criticism of Israel as a reason why wealthy Saudis should help fund the organization.  Then in September is was revealed that the organization’s senior military expert collected war memorability, specifically Nazi memorabilia.  Now Robert Bernstein, the founder of Human Rights Watch, is blasting the organization from the op-ed pages of The New York Times and accusing it of anti-Israel bias, or more specifically losing “critical perspective” when it comes to Israel.   

The bulk of Bernstein’s argument is that as a democratic society, Israel should not be subjected to the same treatment as its non-democratic neighbors.  By having the institutions that define a democratic society — a free press, regular multi-party elections, and a vigorous academia — such societies should not be the focus of human rights organizations.  This is because there is a difference between “open” and “closed” societies:

At Human Rights Watch, we always recognized that open, democratic societies have faults and commit abuses. But we saw that they have the ability to correct them - through vigorous public debate, an adversarial press and many other mechanisms that encourage reform.

 

That is why we sought to draw a sharp line between the democratic and nondemocratic worlds, in an effort to create clarity in human rights. We wanted to prevent the Soviet Union and its followers from playing a moral equivalence game with the West and to encourage liberalization by drawing attention to dissidents like Andrei Sakharov, Natan Sharansky and those in the Soviet gulag - and the millions in China’s laogai, or labor camps.

 This reasoning fits the purpose that Human Rights Watch first had when it started as Helsinki Watch in the 1970s.  Back then the world was divided by the Cold War and a monumental battle between democratic capitalism and communism.  At the time it was easy to draw clear lines between human rights protectors and human rights abusers.  The problem is that in reality, players on both sides of that particular battle often played dirty.  The truth of this has emerged out into the open in the twenty years since the Cold War ended, but it is clear that the lessons of those years have not been fully learned.  

Bernstein is correct in that there is a difference between countries such as Denmark and Burma.  But if human rights are universal, then there cannot be a line between who is worthy or scrutiny for their actions and those who are not.  Whether it is political oppression in Zimbabwe, xenophobia in Europe, torture in the United States, or excessive civilian casualties on the part of Israel in Lebanon and Gaza, all constitute human rights abuses and all should be held accountable by domestic and international human rights organizations.  

Israel is an issue that stirs the passions of many, and it will inevitably continue to do so.  In the process, many on both sides of the debate lose perspective about what it is we are talking about.  Although Bernstein lauds the existence of an open society in Israel, part of an open society is the ability of civil society to criticize government action; at the same time, Israel does not act within a vacuum and there are serious issues that need to be addressed on the Palestinian side as well.  It is possible to criticize Israeli action and not be anti-Israel, just as it is possible to acknowledge that Islamic extremism and the violence it promotes is a serious problem without being an Islamiphobic.  In such situations, sticking to clear lines often does more harm than good, and as Scott MacLeod points out, could harm the peace process rather than promote it, which will inevitably lead to even more human rights abuses.