The ICC at 10 Years: Crises of Cooperation, Capacity and Legitimacy

Chelsea Purvis and Awaz Raoof, lawyers who are currently assisting MRG’s Legal Cases Team, report back from a panel discussion in London hosted by the Coalition for the International Criminal Court.

Members of the Coalition for the International Criminal Court (CICC) held a panel discussion on 16 May 2013 at the School of Oriental and African Studies.  CICC Convenor William R. Pace, former ICTY and ICTR prosecutor Judge Richard Goldstone, ICC Deputy Prosecutor James Stewart, and REDRESS’ Interim Director Dadimos Haile presented their thoughts on “Current Challenges Facing the International Criminal Court” on its tenth anniversary.

Three major themes emerged from the discussion.  The first related to the need for more cooperation between the ICC and State governments. Judge Goldstone stressed that the success of the ICC depends on the cooperation of States, which it relies on for the contribution of resources and the enforcement of its decisions.  The non-implementation of the ICC’s arrest warrants against Sudanese President Omar Al Bashir, Judge Goldstone argued, is an example of this dependence.  In addition to the Sudanese government refusing to recognise the jurisdiction of the ICC, various State Parties to the Rome Statute have also allowed President Al-Bashir on their territory without arresting him. However, other countries have warned that they will arrest Al Bashir if he visits their territories, in effect placing significant restrictions on his travel.

The panellists also emphasized the ICC’s need to develop capacity – particularly with regard to victim assistance.  Deputy Prosecutor Stewart, discussing Chief Prosecutor Fatou Bensouda’s plans to improve the ICC, said that the ICC needs to use the most sophisticated investigative tools in order to meet threats to the integrity of its investigations.  Stewart said that the Office of the Prosecutor is committed to supporting victims.  Dadimos Haile elaborated on the challenges faced by victims in accessing the ICC and ways that the ICC can continue to simplify its application process and better support victims.

The most dominant theme of the evening – certainly during the Q&A – was the ICC’s perceived lack of legitimacy in Africa.  Several audience members sharply criticized the panelists for the ICC’s record of bringing cases solely against Africans, and charged the ICC with being a “political court” that did not serve the interests of justice.  Haile responded by asserting that we must be careful to explore the content of allegations by African leaders that the ICC has an “Africa bias.”  We all have a “desire to see the ICC reach its full potential” and explore crimes committed throughout the world, he said.  But, in a salient response to the criticisms from the audience, he reminded the audience that some leaders hide behind this allegation as a way to escape culpability for genocide and crimes against humanity. Judge Goldstone also highlighted the fact that many cases are being referred to the ICC by African States themselves – a point which should not be eliminated from the debate. He further stressed the cornerstone principle of the ICC – that of complementarity – which states that the ICC is a court of last resort to be used only when the relevant domestic authorities are unwilling or unable to investigate the criminal allegations themselves.

Its critics doubtless have a mix of motivations, but the ICC must engage with the criticisms regarding its perceived illegitimacy in Africa if it wants to tackle this pressing challenge over the next decade.  Calls from the audience for a more concerted approach by the ICC to tackling this precise issue were left unaddressed by the panel. The ICC’s investigation of Kenyan President Uhuru Kenyatta and Deputy President William Ruto provides a clear example of why the ICC’s legitimacy is so important, and of the danger of allowing such criticisms to eclipse the underlying issues at stake.  Kenyatta and Ruto are under investigation for crimes against humanity committed during the 2007-2008 post-election violence in Kenya.  The investigation has been controversial, partly because former ICC Chief Prosecutor Luis Moreno-Ocampo referred the cases on his own authority, rather than by referral of the UN Security Council or an ICC statute member State.

During their campaign for the presidency, Kenyatta and Ruto portrayed the ICC investigation as neocolonial, running on a slogan that a vote for them was a “referendum against the ICC.”  Although Deputy Prosecutor Stewart highlighted that Kenya is continuing to cooperate with the investigation, Kenya has now asked the ICC to drop the case.  The African Union (AU) also recently spoke in favor of dropping the investigation, accusing the ICC of “race hunting.”

The collapse of the ICC’s case against Kenyatta and Ruto could be a disaster for the victims of the post-election violence, which killed an estimated 1,500 people, and displaced approximately 600,000 more.  Indigenous peoples like the Ogiek of Kenya were among those attacked and displaced during the post-election violence.  Kenya’s Truth Justice and Reconciliation Commission (TJRC) has found Kenyatta and Ruto among those accused of “planning and financing violence” during the post-election period, but they recommend that no action be taken against them because they are under investigation by the ICC.

Should the ICC abandon its investigation of Kenya, minority and indigenous communities have little confidence in a domestic investigation.  As the TJRC concluded, discrimination against minorities and indigenous peoples in Kenya is “systemic,” and the state has throughout its history “demonstrated no genuine commitment to investigate and punish atrocities and violation committed by its agents against innocent citizens.” Emmanuel Lemis of the Ogiek Peoples’ Development Programme argues, “Internally displaced peoples have hope for justice from the ICC but no confidence in local courts.”

Prosecutor Bensouda has been working with the AU to improve the ICC’s strained relationship with African States.  This is a welcome move, but the panel discussion highlighted that it is vital for the ICC to take further steps to engage directly with its critics and tackle its perceived lack of legitimacy in the region.  Only this way can it help bring justice to communities like the Ogiek in Kenya.  As Lemis explains, “Internally displaced people are still in camps five years down the line, waiting for justice to be done.”

Image of the Ogiek community by Ishbel Matheson

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.

The Arctic: a reality check on environmental health

In the first in a series of articles on the Arctic, Elvira Nurieva, a recent intern at MRG Europe’s office, outlines the worrying environmental changes in the region and explains why indigenous peoples’ knowledge should be considered in strategies tackling climate change.

Is there any evidence that the Arctic – which is currently fueling territorial disputes between Canada, Greenland, Norway, the Russian Federation and the United States – is a wealth of natural resources?

Although the Stockholm International Peace Research Institute reports that scientific data diverges on this issue, an increase in military presence in the Arctic region is being interpreted as a reliable sign of countless resources.

Despite the fact that indigenous communities are predominantly located in remote areas and lack contemporary infrastructure, and are therefore more vulnerable to the negative effects of climate change, they are still a source of knowledge and adaptation strategies. The example of Inuit communities in Canada is illustrative of this.

Map showing the Arctic. Credit: University of Durham.

The Intergovernmental Panel on Climate Change reports that the Arctic experienced a warming trend in air temperature up to 5°C during the 20th century, and sees a continuous decrease in sea ice. Further warming and increases in precipitation are projected for the 21st century. The predicted impact of warming includes: increased melting on Arctic glaciers and the Greenland ice sheet, substantial loss of sea ice and the opening of new sea routes and changes in ecosystems and increased plant productivity.

Other predicted outcomes include changes to visible dynamics in species compositions on land and in the sea, as well as changes in the concentration areas of the Arctic vegetation and loss of some polar species. Changes in sea ice will affect the species inhabiting the area: their patterns of migration, nutritional status and reproductive success as well as their abundance and balance.

The knowledge of indigenous peoples, including Inuit, contrasts with scientific explanations and, as a result, is neglected or ignored by established international, regional and local actors in the development of climate mitigation strategies and policies.

An Inuk pulls aside a snow brick over the igloo door at dusk. Credit: Igloolik. Nunavut. Canada © Bryan and Cherry Alexander / LUZphoto

Inuit groups have developed a strong knowledge base concerning weather, snow and ice conditions and natural resource availability. They learn this knowledge through their experience of surviving off natural resources in the remote harsh Arctic environment. Thus the knowledge, accumulated by Arctic indigenous peoples, enhances conventional science and environmental observations.

Given the facts, the knowledge of indigenous peoples provides an invaluable basis for developing adaptation and natural resource management strategies in response to environmental and other forms of change.

Apart from speculations over an abundance of natural resources and military presence and capabilities in the area, changes in the Arctic’s environment are attracting the attention of the general public. As are drastic weather changes such as rising heat records, “derecho” storms, and severe flooding. Any and all alert us to the looming consequences of persistent ignorance, prompt us to acknowledge the connection between human activity and climate change, and develop mitigation strategies with the participation of all actors, including indigenous communities.

Part 2: Indigenous languages are important but are they useful?

In the second of two blogs reporting from the Expert Seminar on Indigenous Peoples’ Languages and Cultures, Daniel Openshaw, MRG’s Publications Intern, questions why destruction of intangible culture is often overlooked and what incentive exists to learn an indigenous language.

When the Taliban blew up the Buddhas of Bamiyan in Afghanistan in 2001 it sparked international outcry. This was an act of intolerance by a global enemy. The buddhas were massive, tangible representations of Greco-Buddhist art and key examples of 6^th century engineering. It was indisputably a cultural disaster. But according to UNESCO’s endangered languages programme, half of the 6000 languages spoken today, will be lost by the end of the century.

Academics and NGO representatives listen to a panel of experts discussing Indigenous Peoples’ rights to languages and cultures.

Last month I attended the Expert Seminar on Indigenous Peoples’ Language and Cultures at Brunel University. Javier Sanchez, one of the speakers and Director of the National Institute for Indigenous Languages in Mexico, asked participants to imagine how they would feel if they woke up tomorrow and were told that they were not able to use the language they had learned from their parents. This is a situation affecting thousands of indigenous people daily and will inevitably exacerbate UNESCO’s predictions. Is this not a cultural disaster equal to the dynamiting of the Buddhas of Bamiyan?

In my last blog I discussed the importance of preserving and promoting cultural rights (including linguistic rights) and the inseparability of these with land rights. I finished by noting how the African Commission of Human and Peoples’ Rights ruled in favour of the indigenous Endorois in Kenyabased on cultural integrity, but how the definition of this term did not include peoples’ right to language. Language and culture are obviously interlinked, but at the seminar Dr Mark Harris of Adelaide University highlighted that they must be seen as individual rights. In some cases of Aboriginal land rights in Australia, land claims are embedded in language and the lack of indigenous languages has led to restrictions on land rights.

An Ampilatwatja elder sets up camp in the bush to demand their rights to land and self-determination. Credit: Rusty Stewart

This is a recurring issue throughout the seminar. Language rights are important, we were sitting in a room full of people who understood this importance, but not everybody does. Referring to my previous question regarding whether the loss of language is akin to the destruction of the Buddhas of Bamiyan, the lack of public concern on this issue would suggest not. There is both opposition to and, more dangerously, widespread apathy towards indigenous languages. It is possible that we will be able to preserve them (in the history books) but promoting them will be much more difficult. What is the incentive?

Indigenous languages are important, but are they useful? Major world languages are useful; of the UN’s 6 working languages, French is the international language, English is the international language of business and Chinese is hot on its heels whilst Spanish, Arabic and Russian are spoken across many states. There is a real incentive to spend a lot of time and effort learning these languages. At the seminar it was addressed that learning an indigenous language as either a second language or alongside a first helps the learning of third, fourth and fifth languages, but still, this might seem an unnecessary hurdle to someone who wants to learn a language as a gateway to opportunity. The problem of incentive is not limited to non-indigenous people. In Norway, perhaps through past forced assimilation but nevertheless, the Saami are integrated into Norwegian society, in the main speak Norwegian as their first language and feel they have no need to learn Saami. They lack incentive.

When I introduced this question of incentive at the seminar Dr Harris suggested that it was simply a question of securing the right for indigenous communities to learn- or not to learn- their mother tongue and for wider society to recognize this right.  Incentive to choose to learn as opposed to not learn came in the form of responsibility. At the heart of the matter this is true. It does come down to a sense of pride in one’s language and responsibility to promote its longevity. But is this enough? People have a responsibility to throw litter in the bin in order to protect and promote the visual appeal of their environment, but not everybody does. Responsibility can be a strong incentive and can be used to persuade people to act in a certain way- look at Mao’s China- but in terms of learning a language and the considerable dedication involved, I’m not sure it’s enough (definitely not outside of indigenous communities) to learn an indigenous language.

Javier Sanchez gave a more optimistic answer to the question of incentive. He recounted how there used to be no incentive to learn one of Mexico’s 364 linguistic variants. However since a change in legislation to promote indigenous languages in 1993 there are now intercultural universities, indigenous media broadcasts and the use of indigenous language in civic and public life. Perhaps this is the incentive people need both within and outside of indigenous communities. If, for example court hearings were heard in Saami, then there would be demand for Saami speaking lawyers. If there were Innu TV channels then there would be demand for Innu-aimun speaking presenters. Dr Sheila Aikmen of the University of East Anglia also suggested that bilingual education, which is fairly widespread, should be available to all, not just indigenous peoples, as this in itself can be marginalizing.

The Expert Seminar and work of the Expert Mechanism are indications that the cultural and linguistic rights of indigenous peoples need to become more prominent. In my view, incentive is the key and it is slowly emerging. A new law is going through the motions in Ukraine that would allow court cases to be heard in minority languages, such as Crimean-Tatar; this is just one example cited in this year’s ‘State of the World’s Minorities and Indigenous Peoples’ to be launched in June. Destruction of language is in large a passive process towards an intangible culture. Bringing the issue to the international stage is an optimistic beginning but there is a long way to go before it is seen in the same way as active destruction of tangible culture.

Part 1: How to Skin a Porcupine

Daniel Openshaw, MRG’s Publications Intern, reports back from the Expert Seminar on Indigenous Peoples’ Languages and Cultures. In the first of two blogs he discusses the importance of cultural rights and their inseparability from rights to self determination and land.

I have no idea how to skin a porcupine, but then I do not speak Innu-aimun, the language of Canada’s indigenous Innu. Innu-aimun has specific terms describing how to kill and prepare porcupine, for which there is no equivalent in other languages. Those who don’t speak Innu-aimun will be able to guess, they might hack away at the rodent, trying to avoid being pricked by one of its sharp spines until it resembles a steak, over time even cultivating methods resembling those that Innu have been using for centuries. However, there will be no efficient way of explaining these processes to others if Innu-aimun ceases to exist. This cultural wealth and ancestral knowledge will be lost…at best assigned to the history books with the useful words assimilated (‘borrowed’) into more dominant languages, at worst, forgotten.

This example highlights a recurring theme that emerged at the Expert Seminar on Indigenous Peoples’ Languages and Cultures, organised by Dr Alexandra Xanthaki from Brunel Law School in collaboration with the UN Office of the High Commissioner for Human Rights, which I attended in March. Majority cultures have a longstanding history of dismissing and assimilating indigenous cultures and languages that are often differ radically from the mainstream.

A panel of expert speakers and OCHCR representatives gather during the Expert Seminar on Indigenous Peoples’ Languages and Cultures

Academics and indigenous representatives from around the globe attended in order to aid the development of a study by the Expert Mechanism on the Rights of Indigenous Peoples at the behest of the UN Human Rights Council under resolution 18/8 of September last year. The aim of the study is to investigate the role of languages and culture in the promotion of the rights and identity of indigenous peoples.

The seminar emphasized the importance of preserving and promoting cultural rights and also important issues standing in the way of this. Professor Elsa Stamatopoulou, former Chief of the UN Permanent Forum on the Rights of Indigenous Peoples, summed up the conundrum: human rights are seen as the weak part of international law and within these rights cultural rights are seen as the weakest, as illustrated by the make-up of the ICESCR which covers Economic rights (E) and Social rights (S) from articles 1 through to 14 and then tags on Cultural rights (C) as a vague afterthought in article 15. Things are improving with the introduction of UNDRIP, which although legally non-binding has achieved almost universal recognition and indicates a step forward to recognizing what Professor Stamatopoulou referred to as ‘the essentiality of cultural rights’, not simply as a luxury secondary to a person’s right to food and water.

Maasai child in front of traditional hut. Credit: Kibuyu

‘If you don’t have a traditional culture or speak a traditional language then you are a slave’ – a Swahili proverb that emphasizes that the right to maintain one’s culture is fundamental to one’s right to self-determination. Lucy Mulenkei, head of the Indigenous Information Network, further illustrated this through the displacement of Maasai in Kenya.

When they are displaced, for whatever reason, it is almost certainly a non-indigenous person who has decided they must be displaced and they might be moved to areas where traditional materials are unavailable to build traditional huts in traditional ways. Perhaps without malice but definitely with indifference, decision-makers have not taken into account the cultural rights of indigenous peoples and in doing so have denied the Maasai part of their identity.

Cautious optimism did prevail at the seminar, especially because of recent developments in the recognition of cultural rights, often in conjunction with land claims. Dr Jeremie Gilbert of Middlesex University highlighted the Inter-American Court of Human Rights’ (IACHR) 2001 landmark ruling in favour of the Mayagna community of Awas Tingni, Nicaragua. Logging permits had been granted on indigenous land by the state without obtaining the free prior and informed consent of local communities. The IACHR recognized Awas Tingni land as property of the Mayagna peoples on the basis of traditional use and occupancy, equal to the social integrity of the community.

Traditional Maasai huts. Credit: J. Czliao

Dr Kristin Hauser of the British Institute of International and Comparative Law also highlighted how the Supreme Court of British Columbia had allowed traditional culture to be heard on a equal footing to anthropological and scientific evidence in the case of a land dispute involving the Tsilhqot’in first nations peoples of Canada. Given the evidence, the judge stated that 50% of disputed land should have been awarded to the indigenous community but as this was an ‘all or nothing’ claim, no land could actually be awarded. Nevertheless, the recognition has been heralded as a victory.

Furthermore, MRG has been involved in the case of the Endorois in Kenya, semi-nomadic pastoralists who were evicted from their ancestral land in the 1970s to make way for a national park. Here the African Commission on Human and Peoples’ Rights (ACHPR) took the rights to religion, culture and access to natural resources, together to be equal to the right to cultural integrity and used this to award the Endorois land rights and posthumous compensation; a positive step but one that two years on is yet to be implemented.

These cases illustrate the inseparable nature of cultural rights and land rights, further emphasizing the essentiality of cultural rights. This will be explored in MRG’s ‘State of the World’s Minorities and Indigenous Peoples’ to be launched on June 28^th, which this year focuses on natural resources and extractive industries.

However, what is striking is the lack of acknowledgment of linguistic rights in the ACHPR definition of cultural integrity. This is a cause for concern as Dr Mark Harris of Adelaide University pointed out; Aboriginal land claims in Australia are often imbedded in language, a discussion that will be continued in my next blog…

London play highlights Chagossians’ plight

MRG interns John Lubbock and Sofia Nazalya found A Few Man Fridays at the Hammersmith Riverside Studios in London to be more than just a theatrical performance. The three-hour-long play represented a formidable campaign for the rights of the Chagossians, whose story is still not widely known.

Adrian Jackson’s play serves in part to address this lack of awareness of the people of Diego Garcia, a small island in the Chagos Archipelago, in the British Indian Ocean Territory, and epic struggle following expulsion from the island to make way for a US military base. The continued refusal of the UK to allow the Chagossians to return has seen the case taken to the High Court in London all the way to the European Court of Human Rights.

The play follows Prosper, a Chagossian searching for the identity of his mother and encountering the history of his people who he has become separated from. His attempt to put together the pieces of the past and find his mother provides a sympathetic personal prism through which to understand the Chagossians’ quest to return to their motherland.

Even at three hours, the play never became monotonous or dull, and actively encouraged the audience to take action to bring attention to the cause. The following is an exchange of thoughts between us on the event.

JL: The first thing that came to my mind was the African proverb which Marwan Bishara had previously used to describe the Arab Spring; ‘when elephants fight, the grass gets crushed, and when elephants make love, the grass still gets crushed’. Diego Garcia is a great example of two states conspiring together for mutual benefit while completely ignoring the fundamental rights of a group of people who they probably considered too small to do anything about it. In the end however, I felt that it was quite a hopeful story, because it shows that even though they are a tiny group of people, they can do something about it, and even though it’s taken 40 years, they might win and be allowed to return.

Chagos islanders demonstrate after law lords verdict

SN: Still it’s rather astounding to know that it’s been 40 years and their story is still quite unknown. I read a review of the play last week that started off highlighting this – most people, including the reviewer, had no idea who the Chagossians are, or much less where the Chagos Islands are.

JL: I imagine that probably more people have heard of Diego Garcia as a result of its use in extraordinary rendition flights and possible torture by the US military. The lack of awareness on colonial history is something I have been thinking about since I left school; at some point I realised I had studied all this history, but the story I was given was ‘in 1066 England began when we were invaded by French Vikings, then we had a couple of civil wars, invented democracy and then nothing happened for a few hundred years until the First World War began’. It’s a transparently colonial narrative of history with all the unflattering parts edited out. I think we should be made to learn about colonial history in school. I know you studied it in Singapore.

SN: Yeah, I’m not saying education in Singapore was informative at all on human rights issues, but there definitely was that consciousness of colonial history, not only of Singapore but the region. I thought ultimately the play did a great job of raising how serious the problem is, how it’s connected to people living in the UK and just how things that seem far removed from us really aren’t at all. Ultimately it’s a real eye opener, and I know it definitely moved a lot of people in the audience, and the post play Q&A discussion with the panellists answered a lot of questions to do with the legal proceedings and where the case is at currently.

JL: I was shocked by a few things raised by the play and the discussion. In the play, I was shocked by the fact that when the US effectively bought Diego Garcia, they asked for it to be ‘wiped clean’ and ‘sanitised’. They could have re-employed the people on the island and allowed them to continue their way of life to some extent, as they had been previously employed by the coconut processing company there before. And as mentioned in the Q&A discussion, even though the UK government acknowledges that they abused the rights of Chagossians, they are still trying to fight them in the courts to keep them from returning.

SN: I think the denial of their right of return can be blamed on lack of political will. Even though the UN Declaration on Indigenous Peoples is a relatively new progression, I think the fact that it exists shows how far we’ve come in terms of awareness of the need to respect and promote the rights of minorities and indigenous peoples. The fact that the expulsion happened 40 years ago shows the readiness at that point in time to exploit a situation where a group had weak legal protection and little recourse to justice.

JL: Definitely. That’s shown by the fact that the UK denied them the same rights enjoyed by citizens of other territories which were colonial possessions: the right for second and third generations to attain British citizenship even though they won that right in 2002.

SN: Yes, and the argument now seems to concentrate on things that really just seem to miss the whole point – for instance how marine conservation and the presence of the US air base are used as justifications to deny Chagossians the right of return. The situation is certainly complicated, but in the end it doesn’t approach it from a human rights viewpoint: that ultimately, the base that exists (which was the cause of their expulsion and violation of rights) is not a reason to fail to address the Chagossian cause. And the justification of protecting marine biodiversity is a mere greenwashing of the situation.

JL: David Snoxall, the Coordinator of the Chagos Islands All-Party Parliamentary Group, said that if the European Court decides the case is admissible, it is likely that the UK will have to let them return. The fact that they aren’t asking to go back to Diego Garcia but some outlying islands 140 miles away means they can’t possibly be a security concern, so you do wonder what could possibly be the reason for the UK continuing to obstruct the right of return. The UK could save itself a lot of trouble and money by facilitating their return, and also try to right a historic wrong which it created in the first place.

SN: Yes, and MRG has supported the Chagossians’ cause including submitting a shadow report with respect to the Sixth Periodic Report of the UK to the UN Human Rights Committee.

JL: That they were never consulted about their eviction is significant to note. They weren’t told they were going to be deported until shortly before it happened, they were intimidated in order to make them leave, tricked into leaving the island and not allowed to return. Even in the feasibility studies about the right of return in 2002 they were never asked what they wanted. That lack of dialogue shows there is still a serious problem with how the UK treats minorities.

SN: Definitely. I also felt that the use of different media techniques in the play was highly effective. The oral and video recordings of Chagossians, some of whom have recently passed away, the occasionally surreal scenes, the double narrative of the protagonist Prosper and his struggle, and the dramatisation of the past – they all culminated in a moving and cohesive artistic portrayal of reality.

JL: Yeah, I think the play served to give them a voice, to try to make them visible rather than just mute colonial servants like Man Friday who Robinson Crusoe has to teach to speak.

SN: Yeah I liked the part in the beginning when one of the actors talks about their language, and how Chagossian Creole isn’t a Pidgin or a colonial language but a language of freedom, a language that was born out of years of survival and struggle.

JL: The play does a great job of illuminating their culture and affecting sympathy for such a unique group of people, who have suffered such an injustice. It’s impossible not to sympathise with so basic a desire as wanting to return home.

While some may express ‘doubt that justice can now ever be done ‘ for the Chagossians, we think that change is partially up to us. You can be part of this change by signing this petition for the US Government to redress wrongs against Chagossians. Twenty-five thousand signatures are needed by 4 April 2012.

Development with identity

Beth Walker, MRG’s Commissioning Editor, looks at the increasing impact of natural resource exploitation on minority and indigenous peoples, and champions their resistance to, and right to benefit from, development projects on their lands

Over the past weeks, Tibetan villagers stopped a Chinese company from mining a holy mountain on the Tibetan Plateau, pushing $300,000 worth of equipment into the Nu River after negotiations with the local government collapsed; in the Philippines, an alliance of indigenous groups took to the streets to protest the recent rush of gold mining, after the government handed 60 per cent of Cordilleras province over to companies as mining concessions; and in Namibia, Himba and Zwemba indigenous groups are demanding their government ends forced land grabs to make way for the construction of the Orokawe Dam, and respects their rights under international law.

These incidents are indicative of large-scale resistance against governments and companies who are increasingly ignoring community rights in the rush to secure natural resources on their lands. These communities are not necessarily “against development”, but they demand the right to benefit from development projects, and also to determine their path. As indigenous protestors in the Philippines are chanting, they are ‘not anti-mining’ but want ‘mining for the people.’

Testimony from MRG’s partners, and reports trickling through from community organisations, show that far too often, minority and indigenous groups reap few of the benefits and suffer more of the negative impacts of such projects. Last week, I attended the launch of a new report produced by the Gaia Foundation at the UK Houses of Parliament that reinforced this. The report warns that the rapid growth of mining, oil and gas activities is leading to large scale “land grabbing”, threatening communities and destroying local food and water systems.

Speaking at the event, Teresa Anderson from the Gaia Foundation said, “The catalogue of devastation is growing. We are no longer talking about isolated pockets of destruction and pollution. In just 10 years, iron ore production has more than doubled, coal has risen 45% and metals like lithium by 125%. Across Africa, Latin America and Asia, more and more lands, rivers and aquifers are being devoured by mining activities.”

The surge in mining worldwide is fuelled by the rising price of metals and oil, and by foreign investment and commodity speculation. This has acted as an incentive to exploit new areas and less pure deposits, says the report. Companies are now moving into remote areas of the Amazon rainforests for oil and gold, into South Africa for coal, and combing India’s forested tribal belt for bauxite. More aggressive technologies are now being used to extract materials from areas which were previously inaccessible, as seen with the Alberta tar sands in Canada.

“Land grabs for mining, tourism, biofuels, dam construction, infrastructure projects, timber and now carbon trading are all part of the same process, turning farmers into refugees on their own land,” said Henk Hobbelink, co-founder of GRAIN International, an organisation that supports community farmers and social movements.

While there was agreement among the MPs, activists, economists and lawyers gathered at Westminster that communities should have the rights to control decisions about development projects on their land, there was less consensus on how this should be achieved. How can communities hold international companies and the governments they collaborate with to account?

Improving the transparency standards of companies that extract natural resources can reduce corporate corruption and conflict, argued a representative from Global Witness, pointing to the example of initiatives such as the Extractive Industries Transparency Index. But for many, voluntary initiatives are not enough.

“Experience has shown that light touch regulation of companies results in large-scale human rights abuses,” argued Richard Solly, coordinator of London Mining Network. “There needs to be stricter government oversight over the activities of such companies operating abroad.” “We need a tribunal to hold companies to account, an equivalent of the International Criminal Court for companies,” said Deborah Doane, director of the World Development Movement.

These are big questions that need more discussion and debate. The impact of natural resource development on minority and indigenous groups will be the topic of MRG’s 2012 annual report – State of the World’s Minorities and Indigenous Peoples. This publication, due in July, will tell the stories of minorities who are being adversely affected by developments on their lands, and the strategies they are using to secure their right to development.

One concrete example that emerged from the discussions in Parliament was given by Hobbelink from GRAIN international. He has set up a website to document cases of land grabbing by foreign investors for food production; the site now documents more than 400 large land deals totalling nearly 35 million hectares, roughly the size of the Netherlands. This kind of information is a powerful tool that can be used to help communities resist destructive projects and control development on their own land.

A journey of firsts for Endorois women

Giulia di Mattia, MRG’s Programme Assistant, reports back from a trip to the African Commission in The Gambia with a group of indigenous women from Kenya.

In a landmark decision in February 2010, the African Commission on Human and Peoples’ Rights declared the expulsion of Endorois from their ancestral lands illegal and found that the Kenyan government had violated certain fundamental rights of the indigenous community, protected under the African Charter on Human and Peoples’ Rights.

Since the adoption of the decision, representatives of the Endorois community have attended African Commission sessions to pressure for the implementation of the ruling. At the 50^th session in October 2011 five Endorois representatives, four women and one man, travelled to Banjul, The Gambia.

For the women it was a journey of firsts. The first time they had ever had a passport, boarded a plane, travelled outside of Kenya and left their families behind. Sarah, Elizabeth, Christine Chebii and Christine Kandie, in traditional Endorois costume and jewellery, were embarking on a brand new adventure.

Christine Kandie and Sarah

The women gave out an incredible energy. Excited to be outside of Kenya for the first time, they expressed how proud they were to represent their community and how thankful they were to have obtained passports. They were eager to take pictures to take back to the community and spoke about the need to provide the same kind of opportunities for other women in the community.

Interestingly they pushed MRG to search for funds for a gender project, about education, FGM and early marriage, which would allow them to become more independent. If the project is for the whole community, then men will always be prioritized, they said candidly. For example, one of the women was told that if women travel they are sexually assaulted, so men travel to protect women.

During the session, Fatuma Zullo, from the Kenya National Commission for Human Rights, addressed the African Commission specifically mentioning the need for implementing the Endorois decision. During the break, where the real advocacy work takes place, the women thanked Commissioner Zullo for her intervention on the Endorois case. Zullo, who has been working closely with the community, was happily surprised to see that the Endorois representatives were women.

Christina Kandie delivering the Endorois statement

On 25 October, Christine Kandie delivered the Endorois statement to the Commission. Kandie addressed the Commission about efforts made by the community to negotiate with the Government of Kenya on the implementation of the decision but stressed that the community did not want the case to be passed to the African Court, but wanted instead to give the Government more time. The Chair replied directly to Kandie (a rare sight in itself) that the Endorois case is a priority for the Commission and that they will work to see implementation.

This work was carried out under an MRG’s project funded by the Baring Foundation, which aims to build the capacity of the Endorois community and implement the decision of the African Commission.

Is this just the beginning of the revolution for Libya’s Berbers?

Sofia Nazalya, MRG’s communications intern, looks at the revolution in Libya and its effects on the indigenous Berbers and questions if more should be done to ensure that this long oppressed group are not left behind.

Many of the rebels who fought in Libya’s Nafusa Mountains against the Gaddafi regime were not only fighting for democracy and fundamental freedoms, but also for their rights as indigenous Berbers, or “Amazigh” (a literal translation would be “Free Man”), as they prefer to be called. The united front held by the Nafusa rebels, many of them Amazigh, against the armed forces secured the area surrounding the Tunisian border, which led the way to the advance on the eventual victory in Tripoli. However these significant contributions made by the Amazigh forces in the revolution seemed to be quickly forgotten, evidenced by  the lack of representation of the Amazigh in the interim government recently announced by the Transitional National Council.

Amazigh woman who were forced to flee to Tunisia during the fighting. Credit: Magharebia

However, since the downfall of the Gaddafi regime indigenous Berber have begun to experience a greater amount of freedom in their cultural practice, a cultural revival of sorts – the teaching of Tamazight, the Amazigh language, previously banned, is now embraced in newly available language courses, whilst the airing of radio broadcasts and other cultural initiatives such as the restoration of old Amazigh houses has begun in a bid to preserve their way of life.

The Amazigh, who make up 9% of the Libyan population, have a long history of oppression dating back from the time of the Romans. In Gaddafi’sLibya, Amazigh texts, names and symbols were prohibited, suppressing the indigenous community’s identity and way of life. Arbitrary arrests, detentions and torture of Amazigh activists were part of Gaddafi’s vision of a pan-Arabic, ultra-nationalistic Libya. He even went so far as to state in several occasions that Amazigh identity was nothing more than a colonial invention and that all North Africans were Arab and nothing more.

Fortunately, this extreme form of oppression will not feature in the new Libya. However, what has the Arab Spring really brought to the table for the Amazigh? Can they expect nothing more than the ability to speak and learn their language and open cultural centres without fear of persecution and not much else? Is it a realistic notion to envision a Libya where adequate political representation and indigenous rights are constitutionally protected? The National Amazigh Libyan Conference (NALC) certainly seems to think that constitutionally protected rights is more than just an aspiration, seeing that their publicity campaign centres around this pertinent issue.

With the overthrow of Gaddafi and the establishment of indigenous advocacy groups such as the NALC and other Amazigh cultural groups, the future for the Amazigh seems more optimistic than it has ever been in Libya. A future of continued marginalization seems inconsistent with the spirit of democracy and freedom the Arab Spring took flight from. However as so many revolutions in history, the story hardly ever ends there, and often it is the rights of minorities that seem to be sacrificed or forgotten. A new hyper-nationalist Libya would put Amazigh rights at risk and put the Arab Spring several steps backwards. Only time will tell, though rigorous monitoring, international attention and ongoing advocacy will help ensure that the Amazigh are not forgotten.

Nubians in Kenya have right to nationality. Time to implement the African Union decision

Mohamed Matovu, from MRG’s Africa Office in Kampala, Uganda, reflects on an historic decision to end statelessness for some of Kenya’s most vulnerable children.

The African Committee of Experts on the Rights and Welfare of the Child in an historic decision, has found the Kenya government in violation of the rights of Nubian children when it denied them citizenship.

This decision is ground-breaking on a number of fronts; it’s the very first decision by the Committee and it’s also a first in Kenya with regard to minority children’s’ rights.

The Institute for Human Rights and Development in Africa (IHRDA) and Open Society Institute, who lodged the case on behalf of Nubian children in Kenya, should be applauded for this landmark achievement.

Even when the facts of this case seemed all too crystal clear to warrant any third-party intervention, the Kenya government was not willing to negotiate with the Nubian community.

Credit: UNHCR/Greg Constantine

Picture this. A community is forcibly relocated from their ancestral land, against their own volition, to a foreign land, and settles in the new land for decades to come. But when they want to make legal their stay in their new-found ‘home’ they are asked questions about their ‘origin’ or are referred to as ‘foreigners’. What can best describe such action if not utter discrimination?

The very first Nubians are said to have arrived in Kenya, from the Nuba Mountains in Sudan, in the 19^th Century after forced evictions by the British colonial administrators. In fact, some Nubians participated in the anti-colonial struggles that eventually saw Kenya attain independence.

Since then, subsequent Nubian generations have been born and bred in Kenya and know not of any other place as home. But the government, for reasons best known to them, has denied Nubians their right to nationality and has failed to protect them against statelessness.

As a result of this blatant government action, an estimated 13 per cent of Nubian adults are still stateless in Kenya, according to Open Society Institute, with average household income at a paltry US$4 per day and unemployment at about 70 per cent.

The world is not short of national, regional and international legal frameworks protecting the right to nationality, and yet we continue to see governments abusing or selectively applying it for political reasons.

From using the right to nationality to purge political opponents, as has often been the case in several southern African countries, including Zambia and Botswana, to disenfranchising communities, as is the case of Nubians in Kenya, over 12 million people around the world continue to have their movement restricted due to lack of identification, whilst others may suffer detention without trial.

The situation becomes worse for minority and indigenous groups who, on top of missing out on all the basic indicators of human development, like access to health and education, also suffer social exclusion and exploitation.

Minority Rights Group International, through its internationally acclaimed global ranking, Peoples Under Threat, has identified Nubians as amongst the minority groups facing a real threat of internal displacement. They are also likely to suffer discrimination based on religious lines as the majority of Nubians are Muslims – who constitute a religious minority in Kenya.

The decision may have been handed down but it is early days to celebrate as governments that perpetuate these rights violations are not always in any hurry to implement decisions from other legal entities, be they regional or international.

Over a year ago, the African Commission of Human and Peoples Rights found the Kenyan government in violation of the rights of Endorois community, a semi-nomadic indigenous group, when it evicted them from their ancestral land around Lake Bogoria, Rift Valley province. To date, the government is reluctant to implement the decision.

The African Union should devise mechanisms to ensure that states respect their decisions and fully implement them to the letter, otherwise it will be very difficult for it to shed the accusation that it’s a ‘toothless pet dog’.

Read the Committee’s decision:
http://www.ihrda.org/wp-content/uploads/2011/09/002-09-Nubian-children-v-Kenya-Eng.pdf
.

Read more about Nubian people in MRG’s report Kenya: Minorities, Indigenous Peoples and Ethnic Diversity.