Background

The Endorois people are a sub-tribe from central Kenya that were evicted from their lands near Lake Bogoria in the 1970s. The government relocated them to an area that limited their access to a clean water source, central sites of worship and other daily requirements for their pastoral way of life. The Kenyan government failed to provide compensation for this eviction but still proceeded to develop a Game Reserve on the Endorois former lands.

After exhausting all domestic avenues for remedy, the Endorois – with the help of Minority Rights Group International – brought their case before the ACHPR. The ACHPR is a quasi-judicial regional body that renders non-binding decisions aimed at protecting human and collective rights in Africa as envisaged by the African Charter on Human and Peoples’ Rights (“African Charter”). Although non-binding, I believe that the decisions from the ACHPR can be viewed as a snapshot of general zeitgeist. Indeed, until the African Court on Human and Peoples’ Rights starts delivering decisions regularly, the Commission’s decisions will remain an important and indicative source of normative shifts.

The ACHPR found Kenya to be in violation of Articles 1, 8, 14, 17, 21 and 22 the African Charter which included the rights to free practice of religion, property, education, culture, natural resources and development. (An interesting documentary detailing exactly how the Kenyan government infringed each right can be found here). The case (Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v. Kenya ), is a landmark decision in that it is the first time an international tribunal has recognized the right to development. The Commission seemingly utilizes Article 22 – the right to development – as an umbrella to safeguard numerous human rights including the right to property, religion and culture. In recent years, the right to development has remained a backdrop legal right, therefore this decision can be seen as a judicial indication of the direction of this debate in the global South.

The Right to Development

While the discourse surrounding developmental issues has traditionally taken a political and economic approach, the advent of documents like the Declaration on the Right to Development as well as the African Charter has allowed the discourse to take on a legal dimension.  However, the right to development remains a controversial tool because it is a group right designed to serve the collective. But does the ACHPR go too far regarding the right? Is this right to development too broad and subsequently is it in danger of collapsing upon itself? Or is this decision a recognition that collective rights are needed in communal societies?

The ACHPR grounded its finding of a violation of the right to development on the government’s failure to guarantee effective participation and to guarantee a reasonable share in the profits of the Game Reserve (or other adequate forms of compensation) to the Endorois. While the decision reflects the ideals of the African Charter, it continues to raise key questions regarding the right to development.  The basis for the decision seemingly moves this judicial organ beyond its conventional role into a politicized corridor. The broadness of the right to development allows it to touch upon the overall development process including largely political aspects like financial allocation. Ostensibly, as a result of this political aspect, the exact intersection between the right to development and human rights will continue to be illusive. Though the Endorois decision is a general step forward for the right to development, it seemingly reinforces the disconnect between the right and human rights.

The political dimension means that whether the decision will translate into concrete results remains to be seen.

Future considerations

The decision from the ACHPR requires the Kenyan government to compensate the Endorois and allow them to return to their lands. This decision, though not binding, has potential and precedential value. As Clive Baldwin, co-counsel for the Endorois, has stated:  “The Endorois decision, the first of its kind, can help many others across Africa who have been forced from their homes.”  He continues by stating that “the African Commission is clear: the land where the Endorois historically lived is their property and must be returned to them.” However, it is important to take a measured approach in ensuring that this decision does not slip through the cracks and disappear. All the key actors must be engaged. The Kenyan government, the larger African community, the Endorois and NGOs are equally important pillars that must cooperate to ensure that the decision rendered by the Commission is adhered to. Particularly, the decision takes the significant step of spotlighting an indigenous group as a stakeholder in the developmental project. An approach that continues to underscore the importance of indigenous groups as well as the more widely recognized actors will likely reinforce this decision and it will subsequently serve as a key step towards a legally recognized right to development.

The 73-page report is heartbreaking.  It contains information from 128 interviewees interviewed by three Human Rights Watch staffers.  The accounts of murder, violence against children through child soldiers, rape, torture, abduction, and unimaginable brutality are not easy to read.  I did, however, feel a duty to pay attention to these accounts.

Astonishingly (at least to this Western writer), the 312 murders and 250 abductions went relatively unnoticed for months.  The area’s remoteness slowed communication, assistance, and investigation.  This persistent isolation surely devastates the local population, who were unimaginably terrorized by these atrocities.  Thanks to the courageous interviewees and interviewers, the world can take notice and seek some measure of justice.

The Human Rights Watch report calls for justice by addressing several stakeholders.  It first demands that the LRA cease its attacks and release its prisoners.

The report then addresses the governments of the Congo, Uganda, Central African Republic, and Southern Sudan, calling on these governments to focus on protecting civilians.  Part of the problem seems to stem from these government’s politically- and strategically-based shortcomings.  The governments failed the people of Congo by misrepresenting the strength of the LRA, by not contingently planning for the aftermath of failed military attacks on the LRA, and by lacking sufficient resources to respond to the attacks.

For these shortcomings, Human Rights Watch has asked these countries to improve on their future efforts and provide some measure of assistance to the traumatized Congolese citizens.

Congo in particular has been asked to tighten its policy against human rights abuses, particularly on the apparently abusive Congolese military’s own soldiers.  Regardless of rank, nationality, or circumstance, Human Rights Watch has called for zero tolerance for human rights abuses.  To reduce these abuses, Congo should provide soldiers with sufficient compensation and food.  Human Rights Watch has also called on the Congo to set up additional judicial mechanisms with international support to hold violators accountable.

Human Rights Watch has further called on international actors—Uganda, the UN, the ICC, individual donors, regional organizations, and the United States—to increase support in the struggle against the LRA.  Considering the LRA’s bloody history, this broad coalition of actors should answer the call to eliminate the LRA—a group of only an estimated 250.

Of course, international law plays a role here.  On the surface, humanitarian law calls for international criminal prosecution of the LRA’s leaders.  Clearly, the LRA’s war crimes and crimes against humanity beg for international criminal accountability.

The human rights implications are perhaps more subtle.  You see, while international human rights law may not provide a direct remedy against the LRA, it does hang in the background to push the Congolese government to act in support of the people of Congo.  In fact, several international human rights treaties could apply here.

In the Universal Declaration of Human Rights, Articles 3, 4, 5 respectively deal with the right to life, the protection against slavery, and cruel, inhuman, and degrading treatment.

As a party to the International Covenant on Civil and Political Rights, Congo must respect, protect, and promote its people’s civil and political rights.  In an atmosphere of poverty, isolation, and terror, the rural Congolese people are unlikely to have access to effective remedies (Art. 2), let alone to enjoy the right to life (Art. 6), freedom from cruel and inhuman treatment (Art. 7), slavery (Art. 8), or the basic respect for human dignity.

The ICCPR also binds the Congolese government to afford adequate judicial safeguards in prosecuting the perpetrators of these crimes (Art. 14).  Paradoxically, the Congolese government must also afford protection to the LRA—even in the face of its atrocities.

Other human rights treaties likewise loom in the background.  The Convention of the Rights of the Child screams out a laundry list of protections here, considering the role of child soldiers in the LRA (see, e.g., Arts. 6, 9, 11, 19, 20, 24, 32, 33, 34, 35, 36, 37, 38, 40).  Many of these obligations not only bind Congo to increase prevention efforts—they also require Congo to provide rehabilitative help for the child victims of these atrocities.

Also, the Convention on the Elimination of All Forms of Discrimination against Women binds Congo to “take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women.”

Finally, in the spirit of African self-reliance, the African Charter on Human and People’s Rights binds Congo to protect its inhabitants.  Like the ICCPR, this treaty requires respect for life (Art. 4), dignity (Art. 5), liberty and security (Art. 6), legal remedy (Art. 7), information (Art. 9), mental health (Art. 16), family (Art. 18), and peace and security (Art. 19).

Now, the Congolese government will not likely face direct international legal action as a result of these international human rights treaties.  Nonetheless, their obligations under these instruments provide additional impetus to act to the full extent possible to respect, protect, and promote human rights in this devastated area.  Further, Congo’s compliance with these obligations will play hand-in-hand with the much needed support from outside actors, be they fellow African nations, international organizations, or the U.S.

It seems each of these actors has a role to play, especially the U.S.  Through its relatively new organization, Africom, the U.S. has pledged to support countries like Congo who desperately need assistance.  While the U.S. has already provided a large amount of aid to stop the LRA, more action appears to be on the way.

In fact, a bill before the House Foreign Relations Committee called the Lord’s Resistance Army Disarmament and Northern Uganda Recovery Act could further bind the Obama Administration to stop the LRA in short order.  Hopefully, the Human Rights Watch report will reach the U.S. people who will in turn urge their representatives to take all reasonable measures to end such atrocities at the hands of the LRA.

Authoritarian Leadership

This blog is certainly not the forum to engage in an ideological debate. Moreover, prorogation of Parliament is not unusual. Since Canadian Confederation, the Parliament has been put on hold 105 times. However, it is the timing and circumstances of this prorogation which has drawn nationwide criticism. While this is not a problem under Canadian domestic law, it is arguably contrary to “soft” international law. In my previous entry I came to the conclusion that there was, at the very least, the existence of some soft international law requiring the principles of democracy to be promoted.

By proroguing Parliament, University of Toronto constitutional scholar Peter Russell argues, Prime Minister Harper’s leadership has taken “an authoritarian direction…minimiz[ing] his exposure to critical review.” In doing so he killed 36 government bills, and five more Conservative senators took their seats allowing the Tory government to take control of Senate committees. In pausing the legislative process and halting governmental committees from operating, Harper has put the internationally-guarded democratic process at risk.

What makes the prorogation even more internationally relevant and reprehensible is that it came right as the government was facing heat from parliamentary committees about whether Tory officials had knowledge that detainees handed over by Canadian troops in Afghanistan to local authorities were to face torture.

Breaching a Duty to Investigate and Punish?

Regardless of Harper’s reasoning for proroguing Parliament (i.e. for Canadians to focus on the upcoming Olympics), it has the effect of interfering with the investigation of those who may have had knowledge of the torture of detainees in Afghanistan. Such an investigation could lead to the discovery of breaches of the UN’s Convention Against Torture. While the investigation will resume come spring, it is uncertain whether the delay could harm the process.

In the Valesquez Rodriguez case, the Inter-American Court of Human Rights held that States have an obligation to investigate violations of human rights treaties, such as the Torture Convention. By effectively interfering with the committee that was investigating the matter in Canada, this requirement may have been breached.

While these links could be seen as somewhat of a stretch and while the prorogation will attract political, rather than legal criticism, these relatively soft contraventions of international legal principles makes Harper’s decision even more troublesome.

The modern laws of warfare were born in the nineteenth century from Europe’s fears “about the escalating severity of war”[1]. As the decades passed, war’s means, methods, aims and tactics have changed. Suicide bombers that melt into the civilian population have replaced ordered battalions of uniformed soldiers. Strikes from unmanned Predator drones have supplanted direct confrontations on the battlefield. Wars are fought not only against states, but also against colonial domination, racist regimes and abstract social phenomena, most notably the “war on terror”.

The laws of modern warfare are enshrined in the Geneva Conventions of 1949 and their Additional Protocols. Since the First Geneva Convention was signed in 1864, international humanitarian law (IHL) has evolved in response to the changing nature of armed conflict. Protocols I and II recognize that war is not limited to a conflict where both parties are states, effectively expanding the scope of IHL to include internal armed conflicts and “armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right to self-determination”[2].

The nature of war however, continues to change faster than customary and conventional law. The cardinal aim of humanitarian law – to protect the victims of war – is jeopardized as gaps in protection emerge. It is often said that military forces are trained to fight the last war, not the next one[3]. Similarly, IHL is necessarily reactive; it develops in response to conflicts past.

As the nature of conflict changes, are the minimum standards of protection offered by IHL enough to achieve its primary aim? Is there a role for the aspirational provisions of international human rights law?

IHL and human rights are two distinct yet complementary regimes that govern the taking of lives. Though the former is a set of minimum standards of conduct, whereas the latter grants individual self-executing rights[4], the interests they seek to protect are inherently similar – often appearing “harmonious or even redundant”[5]. Why not use human rights to supplement the protection offered by IHL?

Traditionally, humanitarian law is defined as lex specialis to human rights, in congruence with the opinion of the International Court of Justice in the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons. Human rights apply in times of war, but should they contradict rules of IHL, then lex specialis generalibus derogat[6]; humanitarian law takes precedence.

Many authors, Marko Milanovic among them, suggest that this is an oversimplification. The relationship is far more complex than one of lex specialis and “cannot be explained by the single comparison of the general to the special”[7].

The 2006 Targeted Killing decision issued by the Israeli High Court of Justice (HCJ) is a noteworthy example of an attempt to further “humanize” IHL. In this case, the HCJ found that the Israeli state policy of targeted killing of Palestinian militants in the Occupied Territories could be considered legal if conducted according to the following four conditions:

“[1] The state must possess well-based, thoroughly verified information regarding the identity and activity of the civilian who is allegedly taking part in the hostilities; the burden of proof on the state is heavy.

[2] A civilian taking a direct part in hostilities cannot be attacked at such time as he is doing so, if a less harmful means can be employed. Thus if a terrorist taking a direct part in the hostilities can be arrested, interrogated, and tried, those are the means which should be employed.

[3] If a civilian is indeed attacked, a thorough and independent investigation must be conducted regarding the precision of the identification of the target and the circumstances of the attack, and in appropriate cases compensation must be paid for harm done to innocent civilians.

[4] Finally, combatants and terrorists are not to be harmed if the damage expected to be caused to nearby innocent civilians is not proportionate to the military advantage directly anticipated from harming the combatants and terrorists.”[8]

It is interesting to note that of the four conditions, only one ([4] the requirement for proportionality) is based on principles of humanitarian law. The remaining three conditions (particularly notions of absolute necessity, recourse to due process before resort to force, and requirement of a non-lethal alternative) are derived from human rights law. Human rights norms are not being used to interpret IHL. In a rather revolutionary manner however, they are being used to restrict the application of a humanitarian norm.

This decision arguably enhances protection of the right to life in the context of armed conflicts. Is this humanization of IHL is a good thing? The broader applicability of the HCJ’s decision should also be considered. Is direct application of human rights law only justified in the unique case of prolonged belligerent occupation? Israel after all, “has a wide variety of options it can use in order to deal with terrorists, and this … augments the obligations it has under human rights law”[9]. In the absence of such a prolonged occupation, would human rights law necessarily impose such obligations restricting a state’s freedoms under international humanitarian law?

[2] Art. 4, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 8 June 1977 [Protocol I].

[3] Evan Thomas and John Barry, “The Fight Over How to Fight” Newsweek (24 March 2008), online: <http://www.newsweek.com/id/123479>.

[4] Provost, René, International Human Rights and Humanitarian Law (Cambridge: Cambridge University Press, 2002) at 30.

[5] William Abresch, “A Human Rights law of Internal Armed Conflict: The European Court of Human Rights in Chechnya”, (2005) 16 Eur. J. Int’l at 743.

[6] Nils Melzer, Targeted Killing in International Law. Oxford: Oxford University Press, 2008 at 382.

[7] Milanovic, “Lessons for Human Rights and Humanitarian Law in the War on Terror: Comparing Hamdan and the Israeli Targeted Killings Case”, 866 Int’l Review of the Red Cross at 391.

[8] Supra note 7 at 390.

[9] Ibid at 392.

Indonesia is a country of over 230 million people, spread out amongst 17,000 islands and islets along an archipelago that stretches for more than 5,000 kilometres. The province of Aceh, lying at the archipelago’s most westward tip, is itself a diverse region, where some fifteen languages are spoken, and where, for the better part of 150 years, conflict and outright war have been the norm.

Islam came to Aceh in the 9th century. It has long been a unifying force throughout the country, but the Acehnese people in particular focus on Islam as a defining characteristic of their identity. As such, the creation of a system of Islamic law (Syariah in Bahasa-Indonesia) was a central factor of the peace plan agreed to by the Acehnese liberation group Gerakan Aceh Merdeka (GAM). However, it must be noted here that GAM was a purely secular movement, and that the achievement of Syariah was just one of many negotiation goals – and one that was proposed by the Indonesian federal government, not by GAM.

Following the signing of the peace agreement, the Acehnese government highlighted the need to draft a series of fifty-nine qanun (pieces of legislation influenced by Islamic principles and vetted by the religious leadership of the province) to begin the process of re-organizing the Acehnese legal system into a system of Syariah law. Two of the qanun called for were a consolidated criminal code and a women’s empowerment law. Both of these pieces of legislation were originally slated to be tabled before the Dewan Perwakilan Rakyat (DPR, translated as the “National House of Representatives) during the 2007 calendar year, but they did not appear until 2008. As predicted by many, they were not voted upon until this year.

In brief, the women’s empowerment law was a breakthrough document for this part of the world. It was written after widespread consultation amongst political leaders, women’s activists, international government organizations, and religious leaders. It was meant to dispel the myth that Islamic principles cannot help to foster basic human rights. From the very beginning, the drafting of this qanun had a great effect upon other pieces of legislation being drafted, including the now infamous criminal code. The women’s empowerment qanun specifically promotes education, health, and economic and political integration rights, among other things. At several times during the drafting of the criminal code qanun, legislators were forced to re-draft sections to bring them into compliance with the women’s protection qanun, thus demonstrating that the women’s rights lobby was far from weak.

So how did the offending provisions of the criminal code come to pass through the DPR? It is very likely that the law passed because of a mixture of reasons. Firstly, there is no doubt that many Acehnese are strict adherents to Islam, and that at least in part, the proposed bill was popular amongst some of the electorate. Secondly, harsh physical penalties for crimes are common in some regions of Southeast Asia, particularly in Singapore and Malaysia. Third, adultery is indeed viewed in the Acehnese culture as a crime, akin to rape in terms of seriousness. Fourth, and this phenomenon probably merits much more serious study – Aceh has been inundated with aid workers, foreign diplomats, and Indonesian federal officials since the tsunami disaster of 2004 and the 2006 peace deal. The lame-duck legislators, recently voted out of office in provincial elections, probably took this an as opportunity to take a (cheap) parting shot at the outsiders present in Aceh, the ever popular Acehnese Governor, Irwandi Yusuf, and the incoming and more moderate government. Despite federal laws promoting women’s rights, and Indonesia’s obligations under several international treaties and conventions, local legislators may have passed this law in order to take a ‘nationalist’ stand.

A fifth reason that this law may have passed also deserves a more nuanced analysis. There is serious speculation amongst scholars of the Acehnese legal system that should a constitutional challenge to the system of Syariah be mounted, the entire legal system of Aceh could be wiped away by the federal courts. This is particularly true of the laws covering criminal law (jinayat in Bahasa-Indonesia), which Aceh scholar Hasnil Siregar believes is very limited by a presidential decree from 2001. It is at least possible in theory that some lawmakers supported this law because they knew it would be struck down, along with the system of Syariah.

It is very important to note that some of the ruling elite of Aceh were not happy with the way the federal government implemented Syariah. Some would have preferred an open referendum process. The passing of such a tough law, one that would violate Articles 18 and 28(d) of the Indonesian Constitution, could provide activist Acehnese lawyers with all of the ammunition they need to poke holes in whole swaths of Acehnese legislation. Article 18 does not allow Aceh the flexibility it would need to pass such laws, as it limits such legal autonomy. Article 28(d) provides Indonesians the right to “legal certainty”, and the proposed law would have contravened this article. Sulistiowati Irianto, Director of the Centre for Women and Gender Studies at the University of Indonesia, also claims that the invoking of Syariah as it stands now violates Article 27 of the Indonesian Constitution, which calls for “equality before the law.” Reconciliation between Acehnese qanun and the Indonesian Constitution has not yet occurred.

Lastly, it is very important to point out that an alarmist Western press may have once again missed the mark in assessing the characteristics of Syariah. Professor Arfian Shah of Institut Agama Islam Negeri Ar-Raniry (The State Institute of Islamic Studies) in Banda Aceh has stated that there seems to be a misinterpretation of the word rajam as it is used to describe punishments for adultery. Stoning is theoretically a possible interpretation, but by merely honing in on and defining a meaning for the word in the law itself, lawmakers could have avoided this uproar. One need only look to other established qanun in Aceh to see that caning is the most severe form of punishment currently permitted. Even then, caning is usually offered up for convicted offenders in lieu of paying heavy fines or serving jail time.

Of course, this entire discussion is now moot. Governor Irwandi Yusuf exercised his executive prerogative and has refused to sign this bill. The coming of a new DPR session, with a newly elected body, hopefully means that all of this can be rectified. Aceh made some very progressive leaps towards offering equal rights to all of its citizens. In practice, women are highly respected in Acehnese culture and history. Solidifying this in the new legal system, after a tumultuous era of conflict, is very important to peace building in Aceh. However, Western observers should take heed. If the New York Times and similar publications do not take the time to understand the reasoning behind the Acehnese legal system, they end up sounding alarmist, and run the risk of isolating the Acehnese people when the West should be attempting to become closer to potential political allies in a moderate Muslim nation with strong geopolitical pull.

[The author lived in Banda Aceh, Indonesia working on legal development projects from May-August 2008. He is the author of “The Struggle for Women’s Rights in Nanggroe Aceh Darussalam Province: A Look at History and Emerging Legislation”, published in the Singapore Law Review, December 2008.]