Category Archives: Law

Social media: the new frontline in the fight against hate speech

Tom greyscale cropTom Clarke, MRG’s Media Intern, talks about the growing impact of online hate speech and the problems facing those who hope to combat it.

Social media is lauded for its ability to disseminate information; fuel social change and protest movement; influence the powerful, and empower the marginalised. It’s fast becoming an essential component of NGO activity for all these reasons; but despite the praise, social media has a dark side.

A recent MRG Council seminar focused on the topic of hate speech. Speakers were invited from Article 19 and Index on Censorship, inter-faith organisation Faith Matters, the Holocaust Memorial Day Trust, and Gypsy-Traveller support organisation Families and Friends of Travellers.

All participants highlighted the increasing role of social media in propagating hatred. Fiyaz Mughal, Director of Faith Matters, spoke about the shocking level of Islamophobia on Twitter in the UK. Matt Harris, of Index on Censorship called social media a ‘game changer’ in terms of hate speech; reports from Pakistan, Saudi Arabia and the United States confirm that the problem is international.

Sticks and stones? The impact of online hate

Online hate has many effects, causing untold suffering to individuals; worsening inter-community relations and increasing marginalisation. Faith Matters and other organisations point to its effect on ‘cumulative extremism’. More worryingly, social media can also incite real physical violence against minorities.

Two Rohingya Muslim girls displaced by the conflict in Burma

Hate speech on social media aggravated tensions during Kenya’s post-election turmoil in 2007, and provoked inter-ethnic riots between Macedonians and Albanians in Skopje in 2011. Online speech activity also as fueled the violence in Burma’s Rakhine state across 2012 and 2013.

In Sri Lanka, vitriolic Islamophobic campaigns on social networks accompanied the recent attacks against the country’s Muslim population. Social media activity was also implicated in the communal violence between Hindus and Muslims in India earlier this year.

The ‘wild web’: applying the law to the digital world

How can we combat online hate? The first approach is legislation. Hate speech laws exist in many countries; Article 20(2) of the International Covenant on Civil and Political Rights obliges states to prohibit hate speech when it amounts to “incitement to discrimination, hostility or violence”.

The internet is no longer the ‘lawless wasteland’ that it once was – individuals can be held accountable. Nevertheless, it’s exceptionally difficult to apply ‘real-world’ legal criteria online. Individuals can conceal their identity; blocked material can easily be hosted elsewhere; and the viral nature of content makes it hard to track and trace. Hate speech laws vary widely across countries, and aren’t uniformly applied; hardly ideal given the transnational nature of the web.

Media self-regulation: part of the problem or part of the solution?

Another option is for internet service providers (ISPs) and social media platforms to police hateful content themselves. Progress here is uneven. ISP’s have the right to block entire domain names, though to do so is lengthy and unwieldy. Facebook and Google signed a recent pact to combat internet hate, which Twitter notably opted out of. Last year, Jewish students in France had to pursue Twitter through the courts in order to block an anti-Semitic group.

Online operators need to work harder. More effective means of enforcement, enabling users to flag hate-speech and lifting/easing anonymity policies would be positive steps forward. There’s a notable absence of industry-wide initiatives focusing on this issue. Even so, media regulation doesn’t exist in a vacuum. Ordinary law provides a backdrop – and for hate speech, ordinary law is a shaky foundation.

Freedom of speech vs protection of minorities

Any prohibition of hate speech – either through law or self-regulation – can also easily run afoul of freedom of expression. Aside from the obvious ethical issues, a UNESCO report emphasises the dangers of pushing ‘unwanted’ opinions underground, making them impossible to counter. Matt Harris voiced fears that censoring content can give undue credibility to extreme individuals and groups.

Who watches the watchmen?

There are even more sinister concerns – legal and censorship powers can easily be abused. As Index on Censorship reports, attempts to tackle social media hate speech in India have been marred by politically motivated arrests and removal of anti-government material.

Such powers can also be used to persecute already marginalised groups. One speaker at the Seminar highlighted the suppression of pro-Rohingya articles in Burma’s press under hate speech laws. Other examples include Roma in the Czech Republic who have been prosecuted under defamation laws.

An alternative solution: counter speech

Almost all the speakers at the Seminar agreed that any prohibitive measures should only be part of a larger response. They, and many others, advocate for an alternative – counter speech.

Counter speech means raising awareness, improving education and building the capacity to speak out against hate speech. NGOs and campaigns like the No Hate Speech Movement and the Stop Racism and Hate Campaign are working towards these ends. Chris Whitwell of Families, Friends and Travellers talked about his own organisation’s efforts to challenge misconceptions and stereotypes about Roma and Gypsies in the media.

Counter speech has its own problems. Marginalised groups often lack capacity or motivation to engage in such activity. Counter speech is also inadequate when it comes to highly volatile situations. Nevertheless, in the long-term this approach is essential to eliminate the culture of permissibility that allows hate speech to thrive online.

Moving forward

How and when should we combat online hate speech? Whose responsibility is it to police this sort of behaviour, and when should we prohibit it outright? Can social media play a positive role? There are no easy answers to these questions – but they are questions that must be asked. As noted by MRG in an earlier blog post, the events of Rwanda in 1994 offer a harrowing example of what can happen when the media becomes an unchecked platform for hate.

Image credit: European Commission DG ECHO

European Court of Human Rights upholds the ban on Hungarian Guard

Tanja  headshot

Tanja Venisnik, a lawyer assisting MRG’s Legal Cases team, delves more deeply into the background, and possible consequences, of a recent judgment by Europe’s highest court.

Taking a position on banning extremist political parties and groups that incite hatred, advocate violence and/or engage in hate crimes is no straightforward task. The recent rise in political extremism across the world, but particularly in Europe, has put a question mark over the concept of unfettered freedom of association.

Extremist political parties and other groups have been resorting not only to hate speech but also to violence and hate crimes. Even mainstream political parties tend to rely on racist discourse in order to avoid losing votes to the extreme right. These dehumanising statements and violent attacks mostly target minority communities, and if unaddressed, may result in persecution of minorities on a larger scale. However, simply banning political parties, even the most extremist ones, can encroach on other basic rights and freedoms, such as the freedom of expression, freedom of assembly and, in some cases, freedom of religion.

The guidelines and recommendations of various regional and international bodies monitoring human rights, including the Council of Europe’s Venice Commission, have always erred on the side of caution in this respect, stating that prohibition or dissolution of political parties should only be envisaged in extreme cases. The ban as a measure of last resort must be necessary in a democratic society and there must be evidence that a party is engaged in activities threatening democracy and fundamental freedoms. Furthermore, any restrictive measures taken against a political party on the basis of the behaviour of its members should be supported by concrete evidence that he or she acted with the support of the party in question or that such behaviour was the result of the party’s programme or political aims.

Last week, the European Court of Human Rights (ECtHR) delivered a long-awaited judgement in the case of Vona v. Hungary, in which it dealt with the issue of banning an association and a movement, rather than a political party. The ECtHR held that Hungary had not violated the freedom of association by banning the Hungarian Guard Association and the Hungarian Guard Movement.

Credit: Leigh Phillips

Credit: Leigh Phillips

The former was founded in 2007 by the right-wing political party Jobbik. Later that same year, the Hungarian Guard Association created the Hungarian Guard Movement, whose president was Jobbik’s leader Gábor Vona. The Movement defined its mission as “defending a physically, spiritually and intellectually defenceless Hungary” against “Gypsy crime”. The members of the Movement conducted marches in Roma neighbourhoods, intimidating the inhabitants with racist chants and military attire, reminiscent of Nazi uniforms.

According to the ECtHR, Hungary was entitled to take preventive measures to protect democracy against associations if a sufficiently imminent prejudice to the rights of others undermined the fundamental values upon which a democratic society rested and functioned. The ECtHR further held that paramilitary marches organised by the Movement had gone beyond the mere expression of a disturbing or offensive idea, which is protected under the Convention, given the physical presence of a threatening group of organised activists. Therefore, the only way to effectively eliminate the threat posed by the Hungarian Guard Movement was to remove the organisational backup provided by the Hungarian Guard Association.

Important points, stemming from the ECtHR’s decision are that states do not have to wait until a political movement resorts to violence before intervening, and that while spreading anti-democratic ideas is not enough in itself for banning an association, the Movement’s coordinated and planned actions together with its actual influence on political life in Hungary constituted sufficient and relevant reasons for such a measure. The ECTHR relied on the notion of intimidated “captive audience,” as the people living in the communities targeted by the Movement could not escape the extreme and exclusionary views held against them.

However, after being banned, the Hungarian Guard simply reorganised under a different name without applying for formal registration. The New Hungarian Guard continues the work of the banned movement, still spreading hostile propaganda and intimidation campaigns against the Roma.

This only goes to show that banning similar movements might prove to be fruitless or, in some cases, even counter-productive, as there might be a risk of further radicalisation and an increase in violence. Nevertheless, states have a positive obligation to act against dissemination of racism and intolerance, whereas democratic institutions should send strong messages that inciting racial hatred and engaging in violence against minorities is simply not acceptable in a democratic society.

In his concurring opinion to the Vona decision, judge Pinto de Albuquerque noted that, according to international treaties, states have positive obligations to dissolve every group, organisation, association or party that promotes racism or ethnic intolerance. He further asserted that this obligation must be acknowledged as customary international law, binding on all states. This position is problematic, however, because there is no evidence of uniform state practice regarding the issue of banning political parties, let alone other associations or movements. In this respect, legal approaches vary considerably from one state to another, meaning that it is still too early to talk about the emergence of a customary norm.

Finally, it should be kept in mind that limitations and prohibitions of political activities are often used by states to restrict minorities from promoting their culture and identity or from expressing critical views on a vast array of issues. Therefore, the issue should always be examined in light of the question whether the restrictions could actually be used against those they are meaning to protect in the first place, and whether in the future they could pose a danger to minority rights in general.

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

chelsea-Awaaz-webChelsea 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.

kenya 2008 010The 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

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

On the 25th 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 ride a donkey in Iraqi Kurdistan

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 25th 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 20th 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 men in Syria

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.

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 28th, 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…

Privatization of court interpreting hinders access to justice for non-English speakers in the UK

Head shot of Shahendra SulimanThe UK Ministry of Justice’s decision to adopt a privatized contract for court interpreters has severe implications regarding access to justice for minorities from non-English speaking backgrounds. Shahendra Suliman, MRG’s Conflict Prevention Programme intern, reports.

A contract between the Ministry of Justice and a translation company to provide interpreters for all courts in England and Wales has angered interpreters and frustrated judges.

Whilst previously each individual court hired freelance interpreters from a national register of qualified interpreters, under the new scheme interpreters are provided by a single company, Applied Language Solutions (ALS). The contract, which has promised to cut the annual translation bill by a third, came into effect on 1st February and has already provoked countrywide protests and boycotts.

Not only does this new deal undermine interpreters by cutting their pay and removing travel expenses for the first hour, but it appears to have had widespread implications for the justice system, particularly for people who do not speak English as their first language.

An interpreters' demo outside the Ministry of Justice. Credit: Andy Taylor

Previous interpreters needed a Diploma in Public Service Interpreting and at least 400 hours of proven public service interpreting experience in the UK to obtain full status on the national register, as well as providing an enhanced Criminal Records Bureau disclosure check. ALS interpreters are assessed using the company’s own method which makes it difficult to determine whether they are fully qualified, for the decision rests at ALS’s discretion. Nonetheless, anecdotes backed up by statistical evidence – 60% of the 2,300 interpreters on the National Register of Public Service Interpreters have refused to work for ALS – suggest that there is a real shortage of qualified interpreters willing to work for the company.

In several cases, interpreters have failed to show up at all, resulting in people being kept in custody longer than necessary. Recently a mother of three young children was kept in jail for three days for a minor theft (such a first time offence rarely results in this) because the interpreter failed to show up. No-shows have left all parties inconvenienced and put victims through unnecessary stress and trauma. An interpreter failed to show up in the case of a vulnerable Pakistani woman who had been violently and sexually assaulted, leaving the presiding judge to brand this ‘a disgrace.’

It should go without saying that competent interpreters are crucial for a fair trial – a right which applies to both English and non-English speaking persons alike. Despite this, court clerks have had to resort to using web translations which can produce highly inaccurate results – one had to rely on Google translate to tell a defendant the details of his next hearing.  In cases where interpreters have showed up, there have been several incidents suggesting that they are not qualified for the task. One interpreter failed to understand the solicitor when he said they had to go down to the cells and didn’t understand what an oath was. A solicitor who deals with a large number of Polish cases has expressed concern that many of the new interpreters ‘don’t understand legal jargon.’

Yet perhaps a failure to interpret is better than a poor interpretation – incidents of incorrect interpretations include telling a suspect that being charged meant that they had to pay the court money, and telling a suspect charged with perverting the course of justice that they were accused of being a pervert.

Needless to say, the potential miscarriages of justice due to poor interpreting should be a huge cause for concern. In Immigration and Asylum tribunals, personal testimonies are vital in deciding whether or not a person is granted asylum or entry/leave to remain in the UK. The slightest misinterpretation could result in vulnerable people being denied entry or deported. Not only this, but the rising number of adjourned trials and the cost of keeping people in custody due to no-shows suggest that the new system may end up costing much more than the old one.

Most recently a trial collapsed at a London court after a Romanian defendant said the claimant had “beaten” them but the interpreter said “bitten.” It was only when the prosecution cross-examined the defendant the next day, asking for evidence of the biting that the defendant corrected them. The estimated cost of the resulting re-trial is £25,000. The mistake only came to light at the end of a four-day trial and the defendant – who is 13 years old – will be forced to go through the experience and give evidence once more.

protest outside Ministry of Justice

An interpreters' demo outside the Ministry of Justice. Credit: Andy Taylor

Organizations such as the Association of Police and Court Interpreters, Professional Interpreters Alliance and the Institute of Translation and Interpreting have hit back, teaming up with Britain and Ireland’s biggest trade union Unite to launch a campaign to reverse the privatisation of court interpreting. Protests have taken place in Manchester, Birmingham and London, with interpreters decrying poor pay and condemning the contract as a monopoly.

The Ministry of Justice has authorized courts to bypass the new system for urgent cases for the time being, however until it abandons the new scheme in its entirety non-English speaking minorities are likely to continue to experience poor/false interpretations, extra nights in custody, adjourned trials and potential miscarriages of justice.

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.