UN Human Rights Chief: Speech laws must strike balance

Chelsea Purvis and Awaz Raoof, lawyers who are currently assisting MRG’s Legal Cases Team, report back from a talk in London by Navi Pillay on hate speech.

Navi Pillay, the United Nations High Commissioner for Human Rights, gave a talk on freedom of expression and hate speech during a recent visit to London. Pillay’s talk, entitled “Freedom of Expression and Hate Speech: What International Human Rights Law Says,” preceded the launch of the Plan of Action on the prohibition of incitement to national, racial or religious hatred, which aims to give States a better understanding of how to implement existing international law to appropriately balance the competing interests of freedom of expression and protection against hate speech.

Speaking to a full house at the London School of Economics in February, Pillay highlighted the need for States to maintain a careful balance between prohibiting hate speech and ensuring freedom of expression.  Their duty to curb hate speech stems from the concern that it can incite violent action. As Minority Rights Group has documented, official tolerance or encouragement of hate speech greatly increases the likelihood of atrocities in a State.

At the same time, free speech is a fundamental right, such that any restriction on the freedom of expression “must remain an exception.”  Moreover, restrictions on speech are often misused.  Pillay’s office has documented “instances where members of minorities are persecuted through the abuse of vague or counter-productive legislation.”  The government of Pakistan, for example, has used blasphemy laws to silence religious minorities.

The law

Pillay provided an overview of the two key international human rights standards governing hate speech: the International Covenant on Civil and Political Rights (ICCPR) and the International Convention on the Elimination of Racial Discrimination (ICERD).

Article 19 of the ICCPR guarantees the rights to freedom of opinion and freedom of expression. Any restrictions on free speech must be “provided by law”, and be necessary for respect of the rights or reputations of others, or for the protection of national security, public order, or public health or morals (Article 19(3)). Under Article 20, however, States are specifically obliged to prohibit two particular types of speech: war propaganda; and hate speech, namely “[a]ny advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.” Through its decisions and comments, the Human Rights Committee (the supervising body of the ICCPR) “seeks to balance these two articles,” Pillay explained, and thereby balance the competing interests of protection against hate speech and the right to freedom of expression.

The prohibitions on hate speech contained in ICERD are broader than those contained in the ICCPR. Article 4 of ICERD requires State parties to take “immediate and positive measures” to eradicate and criminalise (i) incitement to racial discrimination, (ii) dissemination of ideas based on racial superiority or hatred, (iii) acts of violence or incitement to such acts against any race or ethnic group, (iv) the provision of assistance to racist activities, and (v) participation in organisations or activities which promote or incite racial discrimination. Pillay noted that the CERD Committee, which monitors the implementation of ICERD, has “tended to apply the prohibition on incitement more broadly” in comparison to the practice of the Human Rights Committee.

When does speech become hateful?

Pillay next described a major challenge in implementing international law on freedom of expression: the difficulty of distinguishing between hate speech and speech which is “merely offensive”. Pillay reviewed the CERD Committee’s guidance on this issue. Five factors, she explained, help determine whether a statement is hateful: 1) the severity of the statement (including a consideration of who made the statement, its content, timing, the likeliness of harm, and imminence of danger); 2) intent (whether the speaker intended to discriminate); 3) the context in which the statement was made (for example, whether there is a history of violence or persecution); 4) causation (whether the speaker actually caused harm); and 5) whether the speech targets ideas or humans.

Pillay did not explain how best to apply these five factors.  Rather, she stated that we have “a number of slightly different regional and national approaches” to applying them, and that determinations of hate speech must be made on a case-by-case basis.  She added that it is essential to distinguish between forms of speech which should constitute a crime, those which should only give rise to a civil claim, and those which are merely regarded as intolerant or disrespectful. Unfortunately, she did not explain how to differentiate between these legal categories.

Members of Pakistan’s Sikh minority pray for peace at a temple in Hassanabdal. Credit: Jared Ferrie.

Pillay did, however, highlight the problem of defining hate speech by using the example of blasphemy laws (namely, laws prohibiting the defamation of religion). Certain States argue that religious beliefs should be protected from hate speech just as people are. The Office of the High Commission for Human Rights (OHCHR) strongly disagrees, on the basis that human rights law protects individuals and groups, not belief systems. When drafting guidance on hate speech, the Human Rights Council had struggled to come to agreement on whether to prohibit blasphemy. However, on 24 March 2011, the Human Rights Council broke its deadlock via “landmark” Resolution 16/18, which condemned any advocacy of religious hatred that constitutes incitement to discrimination, hostility or violence against people – not belief systems - and called on States to take concrete steps to foster an environment of religious tolerance, peace and respect.

The Rabat Plan of Action

Pillay described the development of a new tool to help States conform their speech laws to international standards. Starting in 2011, the OHCHR held a series of workshops to provide further clarity on the implementation of international human rights standards on hate speech. This process culminated with the adoption of the Rabat Plan of Action in October 2012. The Plan of Action was presented by a group of experts on 21 February 2013 in Geneva, Switzerland.

The Plan of Action sets out a list of conclusions and recommendations for all stakeholders – States, the UN, NGOs, political parties, and the media. In particular, the Plan of Action contains six thresholds that must be met for speech to be criminally prohibited: context, the speaker’s standing, intent to advocate or incite, content, scope or extent, and imminence. It recommends that criminal sanctions be a last resort, and that civil and administrative sanctions and remedies also be considered.

While the Plan of Action provides useful general guidance, it does not clarify how States should categorize certain forms of speech in concrete cases. Neither does the Plan of Action describe when certain sanctions should be applied. In both her lecture and the subsequent Question and Answer session, Pillay acknowledged this lingering ambiguity, questioning the desirability of a uniform approach across States. The Plan of Action does not provide a ‘one-size-fits-all’ solution to dealing with offensive speech. Whether a form of speech constitutes incitement to discrimination must ultimately be decided carefully, on a case-by-case basis.

Protecting minorities

The most valuable contribution of the Rabat Plan of Action is its emphasis of minority rights.  The Plan of Action underscores the danger of States using speech restrictions to persecute minorities.  A “dichotomy of (1) no prosecution of ‘real’ incitement cases and (2) persecution of minorities under the guise of domestic incitement laws seems to be pervasive” across States, the experts find.  The experts criticize blasphemy laws, which certain States use to persecute religious minorities or dissenters.  At the same time, the experts note, minorities often have weak access to justice when they are victims of incitement.  The experts recommend that States provide legal assistance to minorities and other vulnerable groups.

Finally, the Plan of Action reminds readers that States must also use non-legal methods to combat incitement to hatred against minorities and other vulnerable people. The media, for example, plays a major role in combating discrimination. Minorities must be given a space in the media to voice their opinions and views, promoting a better understanding of their groups and sharing their perspectives.

The Plan of Action is therefore a useful and important tool which civil society and other stakeholders can use to best protect minority rights. As the political will to combat hate speech continues to vary across States, and in light of the inevitable ambiguities in the Plan of Action, the challenge of developing national standards in accordance with the precarious international consensus becomes more important than ever.

 

A Pakistani Baha’i’s story

Shobha Das, MRG’s Head of Programmes, recently visited Islamabad. Here she recounts a meeting with a member of the Baha’i faith who told her of his conversion from Islam, and the consequences of his change of faith.

L was born a Muslim in Balochistan, the son of a Baloch mother and a Pathan (Pashtun) father. Balochistan occupies the largest land mass of Pakistan’s provinces, but is home to the country’s smallest provincial population. Though it has vast natural resources (oil and gas, coal, inter alia), it is overwhelmingly poor.

Baloch nationalists have been locked in conflict with the Government of Pakistan for decades over human rights abuses and revenue sharing, and some nationalists want nothing less than full secession. According to Amnesty International, Balochistan is suffering a ‘human rights crisis.’ Armed militant groups endanger civilian lives every day, and government forces are allegedly responsible for an increasing and alarming number of killings and abductions.

Baha’i Centre, Islamabad.

L moved away from Balochistan to the Pakistani capital Islamabad due to the conflict, ‘It was for the sake of my children; I didn’t know how to keep them safe there,’ he says. After an increasing disillusionment with the way Islam was being practiced, L had a series of very intense spiritual experiences. As a result of these, L one day found himself at the Baha’i centre in Islamabad. The religion is not a proselytizing one, but after a few conversations with others in the centre, he was soon convinced of the value of the religion to address the spiritual doubts he has been struggling with. Not long after, he found himself leaving Islam for the Baha’i faith.

What he finds attractive, he says, is the message of human unity. This, to him, is the religion that transcends all others, with its message that ‘god is one, man is one, and all religions are one.’

An image of the Baha’i star, with the symbols of the world’s major faiths represented within it.

On the ceiling of the resource centre is a giant glass image of the Baha’i star, with the symbols of the world’s major faiths represented within it. L has now taught himself to read and write Persian so he can better access the sacred texts of the Baha’i, and he lives with his family in the premises of the Baha’i centre where he tends proudly and successfully to a thriving garden and shows any interested visitors around the library and resource centre.

There are around 200 Baha’is in Islamabad, and perhaps two or three thousand in the whole of Pakistan. I ask if the 200 based in Islamabad use this centre as their place of worship. L tells me that the Baha’is don’t generally pray in congregations, their worship is a personal act of communion with their god.

A banner in the Baha’i centre.

In Islamabad, life for Baha’is is not difficult, L tells me. There is no active discrimination and he is not worried about telling people he is a Baha’i. Here, he wears Western clothes. A thick jumper to keep out the cold Islamabad winter, rugged walking shoes, and outdoor trousers which would be at home on an Alpine summer hike.

When he goes home to Balochistan however, he switches back to his Pathan clothes of salwars and loose tunics; if he wore anything else, he says, he would be asked a thousand disapproving questions, or worse. Further, his family in Balochistan do not know that he is no longer a Muslim. He would never tell them, he says, because they would instantly disown him. His children and wife are also Baha’i but this is never mentioned when in Balochistan. Back there, he says, ‘we all do the namaaz and fit in with the Muslim culture. There is no other way.’

MRG’s Shobha Das with Dr Paul Bhatti, Pakistan’s Minister for National Harmony and Minority Affairs.

Identity papers in Pakistan require that the holder’s religion is stated. L’s identity papers have not been changed since his conversion; he is still shown as a Muslim. If he changed this, journeys back to Balochistan would be fraught with risk – religious minorities in Pakistan are all too aware of recent incidents of buses being stopped in remote areas, passengers being asked for their ID cards, and the minorities thus identified being shot dead. But he would like to have his new religion on his papers. ‘All in good time,’ he says.

However, he says proudly, when he registers for his children’s identity papers, he will declare them as Baha’i. Will they be able to speak more freely of their religious beliefs when they are grown, I ask. ‘Inshallah,’ he says. ‘Inshallah.’

The silent killings

Freddy Batundi, MRG Africa’s Capacity Building Officer, raises the alarm about a dangerous pattern of discrimination towards the Hunde in his hometown of Kitshanga, in the beleaguered eastern Democratic Republic of Congo

Aerial view of Kitshanga after the killings at the beginning of March 2013

The situation in Kitshanga today is “apparently calm”. However, the situation is far from being peaceful; people are struggling to live with the consequences of the killings that were perpetrated on them. More than 202 people were killed during March, more than 227 houses set on fire, and hundreds of families displaced.

The political wars in the DRC which started in 1996 have overshadowed the ethnic killings that are ongoing. I believe something worse is happening behind the scenes, silently. Widespread violence against the Hunde people is taking place, while the whole world is focussed on the recurrent “rebellions against the government” and “looting of minerals in the eastern DRC.”

The MONUSCO camp is on a hill 2 kms away from Kitshanga…they could do better to protect civilian from the killings and from massive property destruction.

Kitshanga is the main town in the Bashali Mokoto sector. It is located in the Masisi territory, North Kivu province, in the eastern part of the DRC. The city is built on the border of two territories (Masisi in the west and Rutshuru in the east) and is located 90 km north-east from the town of Goma, which is the capital of the province.

Kitshanga has an estimated population of about 200,000 households. Until recent events, the Hunde were cohabiting in full harmony with other ethnic groups including Hutu, Tutsi, Nyanga and Nande. The main activity of the town is small businesses, but inhabitants also practice agriculture and livestock keeping.

The incident that happened in Kitshanga at the beginning of March is similar to many others that happened between 1993 and 1998, targeting the Hunde tribe who are mainly located in the Masisi territory. Most Hunde live in Kitshanga because they have left their villages due to atrocities committed against them since the 1990s.

This is my parents’ home, where I was born. This house was once occupied by the rebel Laurent Nkunda’s troops (2004-2006).

We need to remember that in my country, the rights and the identity of a people are defined in relation to their land, historical origins (native or non-natives), culture, language and membership of a traditional authority (kingdom); and, possibly, to their number (majority or minority).

It is becoming apparent that the recent incident in Kitshanga is not “isolated”, but is part of a larger plan which aims to exterminate the Hunde.

Villagers at the MONUSCO camp, which is just 2km from Kitshanga.

There have been migratory flows (of Tutsi and Hutu from Rwanda) into the Masisi territory, gradually transforming the Hunde people, once a majority, into a fragile minority (as their land it taken with no compensation). Refugees from Rwanda are never relocated elsewhere, in spite of the space available in other provinces or territories in DRC.

There have been a number of mass killing incidents and systematic threats in order to forcibly displace the Hunde from their lands.

There is a systematic pattern of discrimination against the Hunde:

• Identity alienation: e.g. names of villages changed into Rwandan names, prohibition of the Hunde language in public spheres such as schools while other languages are tolerated and cultural groups are banned.
• Political discrimination: the Masisi territory is represented by Hutu and Tutsi at the national assembly. During the elections of November 2011, elections in the Masisi were contentious. Under pressure from the M23/CNDP, the president ordered to co-opt some Hutu and Tutsis to cool down the pressure. No single Hunde was named in spite of the Hunde having the right to political representation.
• Forced internal displacement or exile: as I said earlier, Kitshanga is the only remaining Hunde agglomeration. Most people are forced (by threat, wars and atrocities) to live in Goma as IDPs where they do not have access to schools and other social services and live in severe poverty due to lost livelihoods. The most fortunate go into exile in other provinces or out of DRC.

This was the Médecins Sans Frontières base in Kitshanga

I am convinced that the Hunde ethnic community is in peril if nothing is done. For the last 20 years, the Hunde have been struggling for their survival. But the battle seems to be more or less lost.

What can international organisations do?

1. Lobby international institutions and the UN for protection for the Hunde community, for their increased participation in public life and viable socio-economic stability, and security on their own land.
2. Conduct research to ascertain facts on the ongoing killings against the Hunde people in the eastern DRC.
3. Advocate for an effective UN mission in DRC to protect lives. As it stands now, people are being killed while the UN troops are watching. It is painful to see how people are being snatched from the IDP camps and killed under the UN’s watch.

UK Parliamentary Recognition of Kurdish Genocide in Iraq: What This Means for Minority Groups Today

On the 25^th Anniversary of the Halabja poison gas attack against Iraqi Kurds, Awaz Raoof, a UK lawyer currently assisting MRG’s legal cases team, reports back from the UK’s House of Commons.

Iraqi Kurds in Iraqi Kurdistan. Credit: james_gordon_losangeles

On 28 February 2013, the UK’s House of Commons formally recognised the genocide against Iraqi Kurds, coinciding with the 25^th Anniversary of the ‘Anfal Campaign’ – a programme designed by the Ba’athi regime to systematically exterminate Kurds from Iraq. The House agreed to encourage governments, the EU and the UN, to formally recognise the genocide, believing that this would enable the Kurdish people to achieve justice, and demonstrate the UK’s support for human rights, made all the more important in light of the slaughter in Syria, and the possible use of chemical weapons there.

The Kurds

The Kurdish ethnic minority number between 30 and 40 million people, and are believed to descend from Indo-European tribes which migrated to the Zagros Mountains around 4000 years ago. Today, Kurds are split across Turkey, Iraq, Iran, and Syria, with populations also living in Azerbaijan and Armenia. There are over five million Kurds in Iraq, constituting 20 percent of Iraq’s population

Kurds have a history of persecution and forced assimilation, including by the British during the 1920s. The Ba’athi regime’s campaign of ‘Arabisation’ and extermination of Kurds is often recalled with reference to the Anfal Campaign, which involved their forced displacement, aerial bombardment, chemical attacks, internment camps, torture, extra-judicial killings, and mass graves. The bombing of the city of Halabja on 16 March 1988 with mustard gas and suspected nerve agents resulted in the horrific death of 5,000 people, and injuries to an estimated 10,000 more. Around 180,000 people were killed between 1987 and 1988, although the true scale of the killing between the 1960s and 1990s is unknown. Widows, broken families, thousands of destroyed villages, and physical and psychological scars and illnesses, continue to tell the tale of the horrendous acts committed.

Was this genocide?

The UK Government defended its recent failure to formally recognise the Kurdish genocide in Iraq on the basis of it being “a complex legal question.” And indeed it is. Under Article 2 of the 1948 Genocide Convention, genocide includes the killing of, or causing serious bodily or mental harm to, members of a national, ethnic, racial or religious group, with intent to destroy, in whole or in part, that group. As expected, the law is riddled with technicalities in meeting the various requirements, particularly with regards to proving specific intent (see for example Akayesu (ICTR-96-4) and Krstić (IT-98-33)).

However, the case for political recognition of the Kurdish genocide in Iraq is strong. In 2005, a Dutch District Court characterised the attacks against the Kurds in the 1980s as genocide, followed by a similar decision by the Supreme Iraqi Criminal Tribunal in 2007, and the Iraqi Supreme Court in 2010. Similar conclusions were also reached by non-governmental organisations investigating the matter, supported by evidence obtained from official records of the Ba’athi regime itself. It is therefore no surprise that, in 2012, the Swedish and Norwegian parliaments recognised the acts as genocide.

Why recognition is controversial

The recognition of genocide is inherently political. The International Criminal Tribunal for the Former Yugoslavia and International Criminal Tribunal for Rwanda, which recognised the genocides of Srebrenica and Rwanda, respectively, were products of the UN Security Council, a body which continues to be dominated by the power struggles of its permanent members. The International Criminal Court, which aims to end this issue of ‘selective justice’, has jurisdiction over genocide only if committed on the territory, or by a national, of a consenting state or state party to the Rome Statute, or if referred to it by the Security Council. (Note that the Court does not have jurisdiction over events prior to 1 July 2002.)

Further, genocide – often described as the most heinous crime – is a label which conveys particular moral abhorrence and condemnation, and necessitates questions of blame and responsibility – a particularly delicate area in the field of international politics. This is why instances of alleged genocide continue to fall under the diplomatic radar.

So, it is not what the label reveals, but rather what it allegedly hides that is the concern. The recognition of the Kurdish genocide does not highlight the similar persecution of Yezidi, Assyrian and Turkmen minorities, or the slaughter of Arab Shi’a groups in Iraq. The characterisation of the situation in Darfur as genocide has similarly been criticised for depoliticising and simplifying the complex power struggle into one of “Arabs” against “Africans”, demonising the former in the process, and constructing a vision of the desired political makeup of (what was then) Sudan (M.Mamdani (2007)). The limitation of genocide to national, ethnic, racial or religious groups also eclipses other forms of discrimination. The use of sexual violence as an instrument of war was recognised with respect to the Rwandan genocide, but not the Jewish Holocaust, it being only later in the 20^th century when States were politically prepared to frame gender discrimination as a legal problem (see Catharine MacKinnon, Genocide’s Sexuality, in Political Exclusion and Domination, (2005)).

Iraqi Kurdish refugees in Damascus, Syria. Credit: james_gordon_losangeles

What recognition means for minorities today

Various crucial psychological, diplomatic and legal consequences flow from the recognition of genocide. First, it begins a healing process for the families and communities affected, which is particularly important if the fate of missing persons remain unknown. Under the Genocide Convention, States have an obligation to punish perpetrators of the crime, thus helping to provide the victims with a sense of justice.

Second, Parliamentary debates can shed light on a State’s failure to prevent the genocide, or even on its dealings with the perpetrators. Several MPs during the UK Parliamentary debate highlighted the UK Government’s arms trade with Iraq during the 1980s, despite the calls from certain MPs to suspend these links. Admissions of this kind can further assist victims with dealing with their loss.

Third, State obligations include the prevention of genocide. The Kurdish people continue to suffer discrimination, including serious violations of basic culture and language rights in Turkey, and torture and even death in Iran and Syria, simply because of their ethnicity, often under the guise of anti-terrorism measures. Recognition therefore places a spotlight on such human rights violations, acting as a word of warning to the current perpetrators, and prompting international action to secure the rights of the victims.

Finally, as bearers of human rights under international law, we individuals are direct stakeholders in the international community. We can strive to prevent the recognition of an act of genocide being exploited by States as an opportunistic tool in international politics. As the UK Parliamentary debate demonstrated, by recognising and remembering acts of genocide, not only do we honour the dead, but we give a voice to the most marginalised and silenced communities. And that includes all minority groups affected by genocide, whether or not the act of recognition directly applies to them.

Through this very article, the debate regarding recognition has been a means of highlighting such forgotten groups. Recognition provides an educational role for society, to learn from past experiences, to explore root causes, and to act early to stop history from repeating itself. It allows us to focus on other mass human rights violations in the world today, whatever label is used to describe them, and to strive to ensure that human rights are guaranteed by states for all individuals, in a global society of respect, acceptance and peace.

This is what the UK Parliament’s recognition of the Kurdish genocide in Iraq means for minority groups today.

Lessons learned in community spirit – a Moldovan visits Kenya

Victoria Apostol, of Promo-LEX Association from the Republic of Moldova, recently visited Kenya on a study exchange organized through MRG’s Global Advocacy Programme. Here she reports back on the minority communities she visited and the valuable lessons learned during her trip.

Learning from others could become a universally recognized solution for the problems faced by many minorities around the world. Exchanging thoughts, ideas, opinions, and even business cards, represents an important and necessary step in promoting and maintaining diversity in this modern world.

Not as simple as it sounds. But learning and exchanging are two processes which require attention, passion and good intentions. Over seven days, myself and four other friends from European organizations had the pleasure to be involved in such a process through a study visit to Kenya, organised by Minority Rights Group International.

Kenya is an amazing and interesting country from a social and cultural point of view; home to a rich diversity of minority communities, all trying to build a democratic country through involving themselves in promoting and protecting minority rights. Additionally, the new Kenyan constitution represents a myriad of new opportunities for the inclusion of the country’s citizens, and in particular for minorities.

Victoria visits Kenya

It all sounds good, however in practice to realise their rights provided for in the new Constitution minority communities need first of all to be involved in elections, not only as voters, but also as electoral candidates. In this sense, we were lucky enough to have the opportunity to observe and participate in preparatory meetings during our trip, which aimed to inform minority communities about their rights according to the new constitution, and how they should take part in the election process.

We visited three communities: Endorois, Ogiek and Maasai. Each of them is unique, but on the other hand, all of them are minorities and have common needs as such.

Endorois land was originally appropriated by the Kenyian government in the 1970s to create the Lake Bogoria National Reserve. The fact that they were evicted from their land affected their life-style and livelihood. Therefore, the main issue for this community is land rights. However, they try to improve their own situation through different socio-economic initiatives and are not waiting around for the state to help them. For example we visited an Endorois honey factory which has double importance for the community. On the one hand it is a source of employment, and on the other it provides an income for all 15 members of the community involved.

The Ogiek community, who live in the Mau forest, near to Nakuru, was the second place we visited. Ogiek are a traditional forest dwelling people, who were also driven from their homes by both the British colonial and Kenyan governments, in order to log the forests and make way for agricultural projects.

We visited two Ogiek schools, both of which are financially supported by parents who farm for a living, whilst most of the teachers work voluntarily. The school buildings are small and rudimentary, but this aspect doesn’t stop the children going to school. Education is of great importance for the Ogiek community, but still there are things which need to be improved. The schools do not have a proper libary, nor enough books, whilst space for school activities is limited.

Victoria with a Maasai woman

The Maasai from Magadi live in one of the hottest places in Kenya, meaning access to water is a real issue for them. This community is distant from any towns which also creates some difficulties in terms of access to health and other services. What struck me most about the visit to the Maasai was how the community endeavours to empower women through community-based activities. For example, women are organized as a distinct group, addressing issues concerning them directly. One of them was even appointed as a community leader, a major breakthrough in this male-dominated traditional culture, while the majority of women are no longer afraid to speak out about their problems.

All these things impressed me in a special way. I enjoyed discovering Kenya and learning from minorities what it means to work in a community; to share the spirit of collectivity; to find the power and strength to fight against cruel injustices; to be optimistic and to exercise democracy together by knowing our rights as minorities and claiming those rights.

The experience was incomparable for me. I realised how wrong it is to assume something about another culture before fully understanding it. Most of all the study visit brought to my attention the many things which we Europeans could learn from African communities, not least for instance how we should appreciate more the education we receive, despite the conditions under which we sometimes study.

I left Kenya wishing to be back as soon as possible to discover more about this country, and more importantly, it set my mind to thinking how I can do something concrete in support of its minority communities.

Catalans: a renewed nationalist movement

Laura Quintana Soms, who interns with MRG’s Street Theatre Programme, explores recent and rapidly changing notions of nationalism in her Catalan homeland

11th September 1714. This is the most important date for any Catalan. It commemorates the siege of Barcelona by the Bourbon monarchy, which led to the loss of Catalan self-rule.  Over time, as this region of Spain became more industrialized, Catalonia  witnessed an increasing number of nationalist movements.

Although Catalan parties had never been clear about their ideas of nationalism and support for a Catalan state, their convictions seem to have changed since 11^th September 2012, when more than 1.5 million people took part in the annual independence day commemoration in Barcelona. People from all over the region traveled to the city waving the Catalan independence flag and shouting “Independència” (‘independence’) or “Catalunya no és Espanya” (‘Catalonia is not Spain’).

11th September 2012 demonstrations in Barcelona. Credit: Meritxell Prat.

Since then, Catalan nationalism seems to have gone from strength to strength, and many political parties are moving towards the idea of a Catalan nation. None more so than the governing Convergència i Unió (CiU), who, after the September demonstration, decided to call an election on 25^th November, although they were only in their second year of a four year term.

The outcome however of the election, with a considerable turn-out of 69.56%, has been a disaster for the CiU, who lost 12 seats. Despite these negative results for the main party, the elections showed that most Catalans support a nationalist movement, because the three main parties advocating the independence of Catalonia (CiU, Esquerra Republicana de Catalunya and Candidatura d’Unitat Popular) gained a majority in the Parliament (74 out of a total of 135 seats).

However, the pro-independence movement is full of contradictions. While the region’s government agreed to hold an independence referendum by 2014, at the same time they asked the Spanish central government for a bailout of 9 billion euros. The Catalan government seems to blame the central government for the economic problems that the region is suffering, whilst the central government opposes Catalan secession and the referendum, labeling it as ‘unconstitutional’.

So what nowadays is considered a nation, and why have the parties changed their stance?

One of the main scholars in the study of nations, Anthony D. Smith, defined the ‘nation’ as, ‘a named human population sharing an historic territory, common myths and historical memories, a mass public culture, a common economy and common legal rights and duties for all members, complemented by a common language, the feeling of belonging to a community and a desire for self-government’. With this definition in mind, it seems that Catalonia can be considered a ‘nation’, as it ticks all the boxes necessary to be defined as such.

However, what has caused the shift in opinion of both the people of the region and the political parties is the concept of ‘national identity’ and not the concept of ‘nation’. In the literature of ‘nationalism’ most scholars such as Hans Kohn, Peter Sahlins, Montserrat Guibernau, John Hutchinson or Thomas Hylland Eriksen, have discussed this concept.

Friedrich Meinecke divided national identity into ‘civic’ or ‘ethnic’. Throughout history scholars have addressed this dichotomy and nowadays, generally speaking, the concept of civic could be quoted as ‘political, territorial and rational’. On the other hand, the ‘ethnic’ concept of national identity could be understood as ‘cultural, organic and inherent’.

Applying this theory to the Catalan context we can see a transition from a ‘civic’ national identity towards an ‘ethnic’ notion of it. This could be caused by the current economic crisis that this region, and the state within which it sits, is suffering, with six million people unemployed. But it could be also caused by the policies that the Spanish government is putting into practice in education, health and economy.

Although the causes are not clear, what it is true is that Catalan parties and society are moving towards a more ethnic- based concept of national identity of ‘us’ highlighting ‘our’ culture, ‘our’ past, ‘our’ language, ‘our’ traditions, ‘our’ story, and ‘our’ history. The notion of ‘us against them’ is growing and thus the tension between the Catalan and Spanish governments is heightened.

If this change affects how Catalan parties perceive immigration will be discussed in a future post.

‘Don’t be vague, go to The Hague’

MRG’s Head of Programmes, Shobha Das, is in Nairobi helping to set up our new Somalia Gender Project. Along with what seems like the rest of the country’s electorate, she tuned into the first televised presidential debate ahead of Kenya’s hotly anticipated March 4 elections.

Kenya had its first televised presidential debate this evening and the whole country seemed to be watching; for over 3 hours…

An impromptu gathering of voters discusses the elections while shielding from the afternoon sun

It was an impressively organised event. All candidates got equal chances to speak, the moderators did a very competent job of maintaining the pace and flow, and they even managed a discussion about the International Criminal Court (ICC) indictments (Uhuru Kenyatta and his running mate William Ruto will face trial in The Hague in April for planning and funding the 2008 post-election violence) without any outbursts.

Kenyatta insisted he wasn’t going to change his mind about running for office. He said he was confident that if he won, the case would not ‘interrupt the business of government’. Raila Odinga asked wittily that he didn’t understand exactly how a country could be run by Skype from The Hague. He added that there had been such chaotic discussions leading up to the indictment that finally someone had thrown their hands in the air and said, ‘Don’t be vague, go to The Hague.’

Ironically, just as Kenyatta was getting heat for being indicted, Odinga was also getting the heat for NOT being indicted. Many seem to believe that he too was responsible directly, in some measure, for the deaths that resulted in the post-election violence. Neither of them rose to the occasion brilliantly, but Odinga seems to have come off a little better, going by Facebook postings, media sound bites, and the reactions in the bar I was sitting in.

Many foreign diplomats in Kenya are saying that if Kenyatta wins, it will affect the country’s relationship with the international community. Britain has echoed Obama’s statement that it’s not about who wins, but the process. However, in a slightly self-contradictory manner, the British envoy to Kenya said that it is the policy of Britain and other European countries not to have contact with ICC indictees. Kenyan officials have formally written to the EU to seek clarification of what exactly this means.

Some Kenyan NGOs have expressed fears about Kenyatta and Ruto contesting the elections. They argue that the country will be leaderless if the two have to head off to The Hague in April to face trial. There is a fear that the president may then defy the ICC, which will bring a whole different set of consequences.

There were many references in the debate by all candidates to the new constitution and the importance of implementing it fully and immediately. They all spoke of the need to make Kenya a country for all its citizens. Though there was some time spent on discussing the question of ethnicity and politics, this seemed mostly about ethnic voting patterns. All candidates said citizens should not vote by ethnicity of candidates, but their campaigns appear to be highly ethnicised. Almost everyone I’ve spoken to in Nairobi has said they will vote according to ethnicity.

The loudspeakers on this campaign van blare political messages to the streets

The debate on ethnicity turned for a moment to the question of inequality. One candidate, Martha Karua, addressed this but not in a very positive way. Her position was that there were poor in every community and that there were no structural or systemic connections between ethnicity and marginalisation. Karua is the only woman candidate and while many women I spoke to said she would be good for the country, they said they’d nevertheless vote for someone from their own community; partly because they felt Karua has no chance of winning, but also because they said that was what was ‘expected’ of them.

The issue of corruption came up in the debate but apart from the predictable platitudes on how it should be rooted out, nothing substantive emerged. People on the street were, in conversation with me, comparing candidates for their levels of corruption to decide whom to vote for if they were undecided. One was 50% corrupt, but the other was only 25% corrupt. One had grabbed a lot of land to make his millions, the other had grabbed only a little land and made fewer millions. So the one with less corruption and land-grabbing would get their vote (usually if they were of the right ethnicity).

Sadly, very little direct reference was made to minorities or indigenous peoples in the debate. Resource-based conflicts were mentioned a few times, and one candidate seemed interested in giving pastoralists better access to water and grazing land – that was as close as it got to the issues MRG is working on in Kenya.

There will be a second debate in 2 weeks, perhaps minority issues and land rights will feature more in that. MRG will be following the situation closely. In the meantime why not check out our most recent publication on the upcoming elections: Taking diversity seriously: minorities and political participation in Kenya.

Alternative State of Nature: at the crossroads of economic growth and indigenous-sensitive development

In response to the publication of MRG’s State of the World’s Minorities and Indigenous Peoples, which in 2012 focused on natural resources and land rights, Elvira Nurieva, a recent intern with MRG’s Europe Office, reflects on how business is affecting vulnerable communities around the world.

In the ‘state of nature’, without a ‘common power’ or government, people are doomed to a life ‘solitary, poore, nasty, brutish and short’, according to Thomas Hobbes (1588–1679). In the absence of laws designed to restrain individual behavior, human beings are likely to regress to the ‘natural condition of mankind’ and attack each other.

With the creation of local, regional and international human rights institutions, has humankind significantly progressed from the ‘state of nature’? Indeed, is it possible to clearly identify a line between the ‘state of nature’ and societies with the ‘rule of law’?

One might point to some incremental progress: less arms, and more communication in conflict resolution, perhaps. Anything else? The development of international and domestic standards, recognizing the rights of marginalized and vulnerable communities? Surely! But experts point out that their proper implementation is still lacking.

Perhaps someone could simply dismiss this question by focusing on its philosophical dimension. However, the hard evidence of compelling case studies easily brings it back to reality. The examples given in this post, and also captured in a recent MRG report, State of the World’s Minorities and Indigenous Peoples 2012, reflect how short-term thinking and profit-obsession are taking over the longer-term benefits of empowerment through development.

A young girl in Papua New Guinea. Credit: Stephan Bachenheimer/World Ban SB-PNG02

Despite international treaties and UN declarations, indigenous and tribal peoples continue to not fully exercise their right to internal self-determination, nor participate in decision-making in the natural resource development that affects their livelihoods, culture and identity. With a few exceptions (for instance, in Canada, the Environmental Stewardship Unit of the Assembly of First Nation and in Russia the Sakhalin Energy company agreement), indigenous communities are often not consulted at all on development projects and their impacts.

Due to aggressive natural resource exploitation on traditional and ancestral lands, all too often justified in the name of ‘national interest’, indigenous and tribal peoples are subject to evictions and involuntary migrations that damage their spiritual, cultural and physical wellbeing (see Survival International’s report, Progress Can Kill).

In the article Natural Resource Development and the Rights of Minorities and Indigenous Peoples, Dr. Corinne Lennox reiterates that such policies constitute grave violations of the human rights of minorities and indigenous peoples. To illustrate the ugly side of the current reality, let me present two geographically different, but similarly harrowing case studies from Kenya and India.

In Kenya, the Endorois, a semi-nomadic pastoralist community who have inhabited the shores of Lake Bogoria and the Monchongoi forest for centuries, were evicted from their land in 1973 to make way for a Game Reserve. And it is only with the case of the 2010 Centre for Minority Rights Development (Kenya) and Minority Rights Group International (on behalf of the Endorois Welfare Council) v. Kenya, that the violations of Kenya’s government were condemned and the property rights of the Endorois to their land were upheld.

Importantly, Kenya’s key argument at the hearing of the African Commission on Human People’s Rights (ACHPR) was formulated on the principles of a so-called participatory democracy, which gives supremacy to the benefit of the national interest rather than the demands of a single community. The Endorois community and their advocates won the case by contending that the right to development involves the community on an equal footing, which leads to the empowerment of its members by increasing their choices and improves their welfare. However, the Endorois people are still waiting for the implementation of the ACHPR decision.

Likewise in India, there have been numerous cases where tribal peoples, numerically and politically weak (constituting 8 per cent of the Indian population) were displaced from their lands due to dam construction, despite their persistent non-violent protests and meetings with local authorities.

A documentary film, A Narmada Diary, captures the years of such a struggle to prevent the drowning of 37,000 hectares of fertile land and forced eviction of over 200,000 Adivasis, the area’s indigenous peoples. The film shows the pain of each member of the community during days of hunger strikes, and the proactive attitude of steadfast female representatives of the community at the official meetings. Though sad, the documentary underlines the enduring spirit of this community, standing tall like their sacred tree on the flooded traditional land.

Lessons for international development

The lesson that government officials, policy makers and private sector representatives all over the world perhaps may learn from these stories is underscored in Richard Cronin’s and Amit Pandya’s assessment for Washington security think-tank, The Stimson Centre. ‘Fishermen are relocated to areas without fisheries, forest people must leave entirely or take insecure jobs as plantation workers, and farmers often have to learn to grow new crops on less fertile land.’

Facing such irreversible damage, it is hard to see how natural resource exploitation can claim its main objective to be generating more funds for anti-poverty programs. When such programmes subject rural inhabitants and politically marginalized groups to death - cultural or physical - then the toolkit for stable economic development should be reconsidered and disproved approaches to natural resource exploitation recast.

In today’s industrialized world, life can indeed mirror Hobbes’ ‘state of nature’ and show us as ‘poore’ (with finite resources), nasty (with myopic policy makers) and brutish (with an aggressive development agenda). The international laws and rights instruments designed to protect the most vulnerable lack the ‘common power’ to enforce the protection they might give. Hobbes lived in a time when very little was known in European societies about the ways of life practiced by indigenous communities; incredibly, the assumed superiority of national ‘development’ over the rights of minorities continues today, with indigenous and fringe groups facing violence and eviction over land and resources.

The good news is that there is a silver lining. With the recognition of alternative, indigenous-sensitive development policies, and development of proper environmental impact assessment, humankind can make a breakthrough from the bondage of the single development paradigm and short-term thinking.

Sri Lanka: Caught in the crossfire

Alex Singer, volunteering for the Conflict Prevention Programme at Minority Rights Group International, attended the Commonwealth Journalists Association’s (CJA) launch of Frances Harrison’s new book: Still Counting the Dead – Survivors of Sri Lanka’s Hidden War. A former foreign correspondent for the BBC, Ms. Harrison has cultivated an extensive career in Southeast and South Asia. As of 2011, she has been appointed Head of News at Amnesty International. The following is a reflection on the political turmoil surrounding the bloody end of Sri Lanka’s 30 year armed conflict and the search for truth in the voices of its victims.

I swore never to be silent whenever and wherever human beings endure suffering and humiliation. We must always take sides. Neutrality helps the oppressor, never the victim. Silence encourages the tormentor, never the tormented – Elie Wiesel

As I hesitantly took my seat, with my Houses of Parliament “visitor pass” draped around my neck, the meeting room began filling up with international diplomats, journalists, researchers, Members of Parliament, writers and community representatives.

On the 19^th May 2009, the government declared a military victory against the Tamil Tigers, putting an end to a 30-year period of armed conflict in Sri Lanka. The focus of this launch was on the events that took place during the last five months of the armed conflict between the Liberation Tigers of Tamil Eelam (LTTE), who were fighting for a separate Tamil state, and government forces.

Caught in the middle of this crossfire were the subjects of Ms. Harrison’s book, the “ordinary citizens” of Sri Lanka. Specifically, ethnic Tamils were the target of mass violations of international humanitarian and human rights laws. The book seemed to challenge the audience with testimonials from these citizens, exposing what took place during a “media blackout,” in which massive human rights abuses in the final stages of the civil war slipped unnoticed through the international community’s agenda.

A common theme in this book, and during tonight’s discussion, is the question of what constitutes truth. Ms. Harrison’s chapters, each revealing the story of individual survivors, are interlinked delicately by the motif of human struggle in a period when “the rest of the world looked the other way.”

The death toll for this five-month period is estimated to be 40, 000, yet the numbers of dead have yet to be officially confirmed, and to this day, none of the underlying issues of the conflict have been resolved.

Meanwhile, the audience continued to chatter and exchange business cards. After a resounding call to attention from MP Steve Pound the room fell into a respectful silence. Ms. Harrison was strategically placed at the center of a six-person panel, which included Chairwoman Rita Payne (President of the CJA), Mr. Vidar Helgesen and Minister Erik Solheim (facilitators in the Norwegian-brokered Sri Lanka peace talks in 2002), MP Steve Pound of Ealing North, and MP Siobhian McDonagh of Mitcham and Morden. After Ms. Payne introduced the speakers, she asked Ms. Harrison to explain why she wrote this book, to which she simply responded that she, “felt a need to find out what happened during those final five months of the war.”

Initially, Ms. Harrison had wanted to construct a chronology of events between November 2008 and May 2009. Although she had been in touch with a senior member of the LTTE before writing, she was still unsure of the level and detail of the violence. However her project quickly evolved into a study of “what it was like” in northern Sri Lanka during the final months of the armed conflict, and how victims experienced that period in vivid detail, without relying on the details and dates of what bombs fell and where.

Ms. Harrison wanted to capture where the victims came from, and details of their daily lives. She wanted to contrast the pre-chaos life with the turbulent last months of the civil war. She wanted each story to draw the reader in, so that they may identify with the victim as an individual. This was clear from an excerpt she read to the audience about a Tamil doctor who risked his life under relentless fire, to save members of the community. Other stories involve nurses, journalists, combatants, and more.

What I found most compelling about Ms. Harrison’s talk was her emphasis on the role of the witness as the bearer of truth. To her own surprise, during these interviews, she discovered details that were not being documented or reported on. While tracing the sensations and aspirations of her interviewees, their experiences overlapped facts presented in the 31 March 2011 report by the UN Secretary-General’s Panel of Experts, whose mandate was to advise the Secretary General with regards to the alleged violations of international humanitarian and human rights law in the final stages of armed conflict.

Additionally, she found that the accounts in her book matched details of the witness testaments in the Sri Lankan government’s Lessons Learnt and Reconciliation Commission Report (although the Commission’s status as an impartial Truth and Reconciliation Commission is questionable).

Ms. Harrison was wary that, although this search for victim-centered truth is powerful, it is complicated by a government that refuses to credit the truth of the victim’s experiences. The majority of Sri Lankan journalists and human rights activists have been silenced, by force or by threats. This hurts the victims, who seek proof and public support of their individual traumas.

On a policy level, the Government’s unwavering defense of their stance that there were “zero-civilian casualties”, allowed political and military officials to give up all responsibility for harm inflicted on the victims, under the guise of a humanitarian operation. Given the media and popular support for the Government, the human rights abuses recounted by the victims during the final phases of war have not been properly documented nor have they been brought to justice.

This failed reconciliation was emphasized by Mr. Solheim’s solemn observation that the Government has yet to reach out to the Tamil community and the victims post-armed conflict in a meaningful way.

The victim’s desire to tell the truth, and be believed, became more disheartening when the international community turned an apathetic and uninformed eye away from the situation. What was so unique about the last stages of the Sri Lankan armed conflict, which could inspire such apathy in the international community?  Mr. Helgesen and Mr. Solheim explained that, although there were pictures transmitted through the web and television, no foreign media was allowed onto the Island.

I was intrigued by Mr. Pound’s description of the last months of the civil war as a “war fought in secret.” It was difficult to ignore the shock in Mr. Pound’s face as he explained how effective the war propaganda was, to the extent that it disarmed journalistic insight.

Although it truly was hard to gage what was going on, the international community is responsible in part for this inertia. Mr. Pound aptly interjected that, “whatever happened in Sri Lanka carried on with a tacit approval of the international community.”

Those in international government and media bodies, who did have access to what was going on, did not want to act for other reasons: the fact that Sri Lanka does not have natural resources, nor were they against the fall of the LTTE.

Although there is a huge Sri Lanaka diaspora community of protestors in Zurich, London and Oslo—all of which are very powerful—very few organized protests have taken place that were not pro-LTTE. This fact does not, however, take away from the countless Sinhalese and non-Tamil Sri Lankans who have intervened to promote the Tamil civilian plight. Both Mr. Pound and Ms. McDonagh tried to decipher truth from the heavy emotional atmosphere surrounding the events, admitting that the degree of emotion in the community was so high that it was hard to get the “pure” truth.

Apart from the many questions which are still to be answered post-armed conflict, there is a pall of uncertainty of how Sri Lanka is to proceed. Although the evening provoked sentiments of disappointment and outrage about missed opportunities, the unprecedented and unimaginable abuses experienced by the victims remains immortalized in Ms. Harrison’s writing. She hopes some sort of truth-telling process will emerge from the dark period, which will finally allow the victims to move forward. Even those who escaped, who she hesitates to call “lucky,” cannot return to a stable life.

Ms. Harrison is proud her book can voice the truth of the victims, but the more the truth-telling process is delayed the prospect of long-lasting peace remains tenuous.

Latvia’s ‘aliens’

Julia Babahina, MRG’s former Fundraising Intern who was born into a Russian family from Latvia, reports from a very personal perspective on the current situation of the Russian minority in her country. Almost a third of Latvian Russians are given non-citizen/alien status, which has drawn widespread criticism from international organisations. The rejection of a referendum in February 2012 to amend the Latvian Constitution to include Russian as an official language proved once again the ethnic split in the country.

Latvia’s citizenship policy, which assigns almost a third of Latvian Russians non-citizen/alien status, prohibits non-citizens from taking part in many aspects of society, such as seeking employment, travelling abroad, or voting during national elections. Even though the Latvian government ratified the Framework Convention for the Protection of National Minorities on 6 June 2005, there is still a considerable part of the Russian population who cannot freely participate in Latvian economic, political and cultural life.

The policy has been severely criticised by the Council of Europe, the United Nations Human Rights Council (UNHRC) and the Organization for Security and Cooperation in Europe (OSCE). Knut Vollebekk, OSCE’s High Commissioner for National Minorities, recently said that all children of non-citizens who were born after Latvia’s independence from the Soviet Union in 1991, must be granted citizenship automatically.

According to data from the Population Register of the Office of Citizenship and Migration Affairs in Latvia, as of 2011, 27.3 per cent of the Latvian population are Russian and 34.6 per cent of these are designated as ‘non-citizens’ or given ‘alien’ status. According to the Citizenship Law of Latvia, a non-citizen ‘is a person who, in accordance with the Law on the Status of those Former U.S.S.R. Citizens, do not have the Citizenship of Latvia or that of any Other State, has the right to a non-citizen passport issued by the Republic of Latvia.’

An “alien’s passport” of Latvia. Credit: Tina Remiz (http://www.fotovisura.com/user/tinaremiz/view/krievi)

Being born into a Russian family from Latvia myself, I have been granted citizenship through my father, whereas my mother was a non-citizen until 2006. My uncle and my grandmother are still non-citizens. I asked my grandmother how it feels.

‘It is heartbreaking and unfair. It is like you have been born into a family and they don’t accept you as their child. The state, the government, and society is the family, and we, non-citizens, are unwanted and alienated children.’

Though all the members of my family were born in Latvia and have lived there for most of their lives, they have no right to vote or work in many state-employed organisations and often have trouble crossing the border. For many Russians in Latvia it is a matter of principle not to apply for citizenship as they think it is absurd given the fact they were born in the country.

Tatjana Zdanoka, one of Latvia’s nine members of the European Parliament and a Latvian Russian, argues that if the Russian community is under-represented in society it is discriminated against, and has urged the international community to support Baltic Russians to claim their rights. Thanks to Zdanoka’s and others’ hard work, in 2007 non-citizens were allowed to benefit from the Schengen Agreement.

On May 2011, 122 recommendations were made to Latvia during the Universal Periodic Review (UPR) at the UNHRC in Geneva. The Latvian government rejected seven of these recommendations, including Russia’s recommendation to eliminate the system of non-citizenship. Russia claimed that Latvia’s refusal proved that it does not recognise the severe human rights problem in the country and stated that it violated international human rights law. The Ministry of Foreign Affairs of Latvia replied that Latvia meets its international obligations in terms of minority rights and held that the non-citizen system is purely an internal affair.

Latvians voting in the February 2012 referendum on whether to introduce Russian as a second official language. Credit: Pablo Andrés Rivero

The Russian government then suggested Latvia accept the human rights recommendations laid out during the UPR so that the call for a referendum, initiated by the Russian speakers’ movement in February 2012 to make Russian language a second official language, would be avoided. The referendum was an unsurprising consequence of people’s dissatisfaction with minority rights in Latvia. Even though 75 per cent of citizens voted against introducing Russian as an official language, it showed the existence of an ethnic divide in Latvian society.

According to Rita Izsak, the UN independent expert on minority issues, the referendum did not prove the superiority of one community over another, but demonstrated that the Latvian government should bring the two communities together and assist them in overcoming fear, mistrust and historical prejudices. However, Latvian nationalists claimed that the referendum was Russia’s attempt to weaken Latvia’s independence.

Today, when Latvian integration issues threaten to polarise the country even further along political and ethnic lines, it is time for the Latvian government to realise that the country’s ethnic diversity does not weaken, but strengthens the country. Latvian integration policies should bring Latvians and Latvian Russians together for a brighter future.