Interviewer: James Tager, J.D. ‘13

Let’s start by talking about the genesis of the Demand Dignity campaign, and the reasons Amnesty decided to embark on such a campaign.

The Demand Dignity campaign was designed to address the violations that drive and deepen poverty. In other words, to address the kind of things that keep people poor and that make them poorer. The Campaign mainly has a three-part focus: slums, or the human rights violations that are associated with living in slums; preventable maternal mortality; and corporate accountability, with a specific focus on the extractive sector.  The Campaign also has a focus on enforcement—“making rights law”—as a common thread running through the other themes.

I see the impetus for the campaign as two-fold. The campaign aimed to draw together the work that Amnesty was doing on economic, social, and cultural rights, emphasize the indivisibility of all human rights, and to give an overarching focus to this work. The campaign also aimed to provide, in a prominent way, the message that these rights are human rights. Each of the Demand Dignity reports carries a slogan on the bottom, depending on the issue: Housing is a Human Right, Health is a Human Right. The slogan is meant to remind people, or to inform them if they don’t know, that these things that they associate with poverty—or with bad luck, or with poor circumstances—aren’t inevitable, and that they have a rights component and they require solutions that involve taking account of human rights issues.

Although the Demand Dignity campaign has been only recently founded, the campaign has been ongoing for a few years. Are there any success stories that come to mind, which for you demonstrate the success of the campaign?

It’s difficult to measure success, because although the Campaign has been going on for three years, it still does take time to make lasting change. But examples do come to mind.

I think the work that has been done in India, in corporate accountability, is one example. We’re seeing there, and in other places, a greater willingness on the part of corporations to take account of the views and the needs of people in the areas where they are developing their operations. There’s an example from India where our work on the activities of a mining company on an indigenous group’s traditional lands led to a real change in the approach the company took to consultation with the community.  The key was showing the company that there was a community that was able to engage in the consultation process and that nongovernmental organizations were there to support that community.  So the community was pushing back , and investors were starting to take notice as well.  The challenge here, as always, was to get beyond a “public relations” response and move the company toward actual, meaningful engagement with the communities affected by corporate operations.

Similarly in places like Paraguay and in Canada, what we’re seeing in the sphere of corporate relations with indigenous communities is greater awareness of the need to pay attention to what the communities are asking for. We are also seeing this in the sphere of government relations with these indigenous communities. And this approach is in contrast to the approach of effectively steamrollering the project through any objections on the part of the communities.

I think in the legal standard-setting and litigation realms there have been some good responses. In Paraguay, again with the issue of indigenous communities, the inter-American system has ordered measures that need to be taken to reflect free, prior and informed consent from the communities. That has been a principal issue: what achieving this consent means in practice, and what states and corporations need to do to comply with this principle and to ensure this right. And we have seen some good results from the inter-American system on this, with positive steps taken by Paraguayan authorities and companies in response.

In the area of our work on the slums issue, and maybe with maternal mortality as well, we have been at the very least getting greater awareness on the part of the governments. And I refer to awareness that these circumstances are not just . . . ‘bad luck, bad circumstances, isn’t it terrible’ kind of hand-wringing, but that there are actual steps that need to be taken.

For example, in the context of forced evictions, we’ve promoted awareness that governments need to take serious steps to make sure that people get notice, to make sure that they have the opportunity to contest their eviction, that alternatives are offered if it’s needed—if they would otherwise be made homeless—and that there’s a real process behind the evictive action that is protective of what’s really important: this fundamental right to have a roof over your head, that this right is protected.

And very concretely, our work has played a role in stopping some forced evictions, for example in Port Harcourt, Nigeria.

And you mentioned maternal mortality, as well?

For maternal mortality, some of the earlier reports that we did for the campaign were in places like Sierra Leone and Burkina Faso. These are hard places in which to work, because the context is so dire generally. But I think that we were able to make some really detailed recommendations to governments about how to reduce the kinds of delays that lead to maternal death that would otherwise be preventable. And we also were able to make detailed recommendations on how to provide the kind of information that families need, that decision-makers need, to make the right decision. And I should point out, in contexts such as Sierra Leone the decision-makers for the family are often the male heads of the household, and we might prefer that the decision-maker be the woman in this case. But at least the male decision-maker can be informed of the need for early medical attention, and will make that happen if possible.

I think the challenge has always been, and maternal mortality is probably the easiest illustration of this, that we’re talking about issues where there are so many variables in play. So, the inability to get medical care may be the result of health clinics being located very far away. Now, the state can be doing more in this regard, by making sure that medical facilities are located in places where people need them, or by providing some form of transportation to get there.

Now, that is easy to say in principle, but in practice in a place like Sierra Leone it’s incredibly hard. I think when we looked at the total health budget of Sierra Leone, it was some laughable number; it was completely impossible to conceive of how you could even equip the facilities they have, much less staff them and put new facilities in, and provide transport and so on. But at least with these recommendations you can start a process of making sure that people are thinking about these factors among others, particularly when working with international cooperation and assistance. Just isolating one issue, the transport issue of bringing expectant mothers to hospitals, this is very difficult, but there are things that can be done to make this happen.

And finally, to tie this all back to your question about Campaign successes, I think there has also been a greater willingness from national governments recently to look at good practices from other countries. There are some examples from the fight against maternal mortality. In Peru, there is the idea of residential facilities, so that women who are close to giving birth will travel the distance needed before they require medical attention, and then they are near a medical facility when they give birth, making the process a little easier. There are lots of creative solutions like this one that can be implemented by governments. And governments, with appropriate assistance, are in a position to do this, rather than throwing up their hands and saying, ‘People are poor, isn’t that terrible.’

That is an interesting process you have described, moving from diagnosis of the right violated to prescription of specific actions the government can undertake. Your work on slums is an example: the campaign mentions Article 25 of the Universal Declaration of Human Rights, which declares the human right to an adequate standard of living. Tell us about the work of moving from this diagnosis, to a prescription for action.

I think that the Demand Dignity Campaign’s work on slums has followed a trajectory of starting with issues that are easier for policymakers to grasp, because they involve more of the civil-political, negative rights: You shall not forcibly evict someone, you shall not deprive someone of a home without adequate notice and opportunity to contest, and so on. Now, the trajectory of this work moves on to a new area for a lot of human rights work, and I refer to the work of international human rights organizations like Amnesty International as well as legal policymakers (as opposed to social development policymakers). So the trajectory includes moving from a focus on forced evictions to looking at adequacy of housing more generally, and looking at the conditions of housing including access to water and appropriate sanitation, looking at related safety and security and policing issues that arise from this focus. All of these aspects of the Campaign’s work fall along this trajectory, and each of the reports or final work-products of the Campaign build on the previous work of the campaign.

An example that comes to mind involves a rockslide in Egypt a couple years ago, where we looked at the responsibility of the state, which was really two-fold. One responsibility is that the state knew or should have known that these houses were built on areas that were unstable. In fact, we found that the state did know, because we were able to look at the records from the state authority that’s responsible for this kind of investigation. So they were clearly aware of it. And after the state failed to act on this information for months, suddenly there was a mudslide, people died, and there was an imminent threat to the other families in the area. So the government suddenly had to move people from the affected area on an emergency basis. And this is an example of a natural disaster where an evacuation is needed, and in fact the state’s duty to protect life requires these kinds of emergency measures. In the immediate aftermath, however, you have to find some way of ensuring a longer-term solution, one that takes into account the needs of the people, one that is realistic and also inclusive in terms of involving the affected people in the outcome. Ultimately, it is the people who are going to be affected by this decision, and not the policy-makers.

So in this example, it was interesting issue on which to engage with the Egyptian government, but it was also a critical issue for us to be engaging in, because we were able to provide the Egyptian government with some really specific guidance on what the government should be doing in the immediate term, and to provide them with guidance on what they should doing in the longer term, to make sure that the outcome was appropriate in terms of securing the rights that were at stake for the affected population.

Another example comes to mind from the context of Demand Dignity’s work on slums, and this to me is an example of focusing on specific recommendations that arise out of our research, rather than trying to address all aspects of adequate housing. The example involves our work on slums in Kenya, where the issue that we were focusing on was violence against women and the way that the structural set-up was increasing the risk of violence. It had to do with the number and placement of latrines in the communities, and this touches upon something that is quite personal and quite central to one’s own sense of dignity: whether you can relieve yourself in a way that gives the sense of privacy that you need, and complies with the cultural context.

So in the situation we were examining, women were having to not use the facilities until late in the evening or early in the morning, when of course it would be dark and they would be at risk of attack in a way that wasn’t the case during the daylight hours. Women were going far away from their homes in order to have some privacy, again increasing the risk of attack. In any event, this set-up was not one that was going to safeguard women; on the contrary, it was increasing their risk of violence. And so again, our research resulted in some very straightforward recommendations, getting down to very practical things. We weren’t being as prescriptive as saying, ‘this is how many latrines you need,’ but we did talk about how many latrines were placed, how many households were having to share latrines, and we recommended a better way of locating these public services so that women didn’t have to go through this. So I think that this was a very useful contribution from Amnesty, and I think that for the government the new perspective was to have it framed as a human rights issue rather than a social development approach.

The Journal continues its conversation with Bochenek in Part II of the interview. For more information on the Demand Dignity Campaign, visit the Campaign website, available here.

Critics have alleged that European courts have been neglecting international human rights laws, guidelines, and principles. Do you feel this is true?

If we take the European Convention on Human Rights (“European Convention”) as the center of international human rights law as it applies in Europe, well no, I don’t think European courts have been neglecting human rights law at all. In Britain in particular, because of the British Human Rights Act, they have been given legal authority to give certain forms of legal effect to the European Convention in English law and they have taken up that authorization from the British parliament with quite a bit of creativity and enthusiasm. They have not at all been slow to give effect to human rights law in the form of the European Convention. In British law the courts have been careful in some ways, and there are decisions in which they have held that they need to defer to the judgment of Parliament and the judgment other public authorities on certain issues that are relevant to international human rights law. But where they find a violation of the European Convention they don’t hesitate in using the power that they have been given by Parliament to strike down decisions of public authorities, and you can say the same fairly generally about courts across Europe. Of course, the European Convention has a different kind of legal effect in the laws of different countries. In quite a few European countries the courts of the state have power to give effect to the European Convention and I think they do so pretty readily. There are some exceptions; there are a huge number of cases challenging the judicial processes in Russia for example. So there are exceptions, but generally the courts in Europe I would say are quite enthusiastic in giving effect to the European Convention.

In giving effect to human rights principles and the European Convention, have the views of different courts in Europe been clashing with those of state governments?

Oh yes, quite clearly and definitely. For example, the British courts have consistently adopted a line on control of immigration decisions in Britain that is a direct and quite striking clash with the views of British politicians. Not just one or two politicians, but everyone in the British parliament who speaks out in public about immigration law today is criticizing the role of the courts in preventing deportation of illegal immigrants on the grounds of the right to privacy and family life under the European Convention. That’s just one example of a clash between British courts and the government.

Of course, there is also a clash between the governments of countries in Europe and the Strasbourg court. By ‘Strasbourg Court’, I am referring to the European Court of Human Rights, the court that’s responsible for deciding how to apply the European Convention across Europe.

In Britain the most dramatic example of this clash is over voting rights for prisoners. In British law prisoners cannot vote in general elections. According to the Strasbourg Court that rule is contrary to the guarantee of free and representative elections in the European Convention. This decision of the European Court of Human Rights is considered outrageous by British politicians, and not just by one or two of them, but by most of them. There are exceptions; some British politicians think that people in prison should have the right to vote, but most of the members of the House of Commons in Britain think two things. First of all, they think nobody who is in prison should have the right to vote in general elections; that if you have violated the laws of the land you have forfeited your right to participate in elections to Parliament. And secondly, they think this question should be decided by British politicians in a representative democracy deciding the matter in Parliament. They think that it should not be decided by judges, and especially that it should not be decided by European judges in Strasbourg in the European Court of Human Rights.

So yes, the views of the courts have been clashing quite dramatically with those of the state governments. But I don’t want to exaggerate it—the British government has made it unequivocally clear that Britain is not going to pull out of the European Convention; they are not going to abandon it because of these clashes and the tensions. But they don’t have a solution to the tensions and I think that tensions will be a permanent feature of human rights laws in Britain and other countries in Europe.

Considering that the views of courts have been clashing with those of the government, do you feel that courts have been creating their own law? Is the creation of such law reasonable?

Yes, the judges of the European Court of Human Rights have been creating law. In 1950, when the members of the Council of Europe signed up to the European Convention, they didn’t agree that prisoners would have the right to vote. When they agreed that there should be free and representative elections, that decision by the member states was not a decision that prisoners should have voting rights—it was a creative decision of the judges of the European Court of Human Rights that if there were to be free and representative elections then prisoners should have the right to vote in at least certain circumstances. So yes, they created that rule that prisoners cannot simply be banned from voting.

The very idea of judges creating law should not surprise us, especially in common law countries like England or India. Many of the pillars of English law and Indian law are created by judges. A great example, an ancient example, is habeas corpus—invented by judges to control government. Another example is the basic structure of contract law, which was created by English judges over centuries. A lot of contract law as we now understand it was created in the 19^th century, and there isn’t anything surprising about this or outrageous. And I think that all of us should understand that, especially in a common law country, judges need to invent some of the law. But even if we have a written constitution as India does, or an international convention on human rights like the European Convention, when judges are applying the very abstract principles in a constitution or in a convention on human rights, they need to answer questions that were not answered by the people who framed the convention. So especially in the common law but also in giving effect to a written constitution or a written bill of rights or a statute of parliament or written contract or will; judges often need to decide matters that were not decided by people who wrote the constitution or the statute or the contract or the will, so that should not surprise us at all.

But your second question is quite separate. In exercising that power to make new decisions that were not made by authorities whose decisions they are giving effect to, are they acting reasonably? That’s a very complicated matter. If we think of it in terms of human rights law in Europe today—there is no simple answer to that. I think that some of the things that the judges of the European Court of Human Rights have done are brilliant and wise and just exercises of the lawmaking power that judges have, and I will give you one example in England. It used to be up to a politician to decide how long a prisoner should stay in prison if he was imprisoned for life, typically for murder. Under the European Convention, judges decided that that is a breach of the right to an independent hearing, and took away that right from politicians. That was a creative bit of lawmaking by judges and I think it was reasonable as you say. The above example on voting rights for prisoners—I think this is more complicated. On the one hand, I think that it would be good policy to allow prisoners to vote for a variety of reasons, one of which is that it would be a way of communicating to them on behalf of the state that they are members of the community and they are expected to play a role in the community and to be integrated in the community and participate in the future when they won’t be in prison any longer. On the other hand, I don’t think that anyone who has committed armed robbery or rape or murder has a right to vote any more than they have a right to freedom from imprisonment. And in the act of punishment in Britain, as in India, we take their freedom and we lock them up in prison. And if we also take away their right to vote then I don’t think that’s an abuse of them as a human being any more than it’s an abuse of them as a human being to take away their freedom of movement. So I am of two minds about the decision on the right to vote and I think it might have been a better idea for the judges of the European courts to leave it to the member states of the Council of Europe to decide for themselves how to run their election systems. So it’s a complicated picture. There are other decisions where I think it’s not complicated. I think the European Court of Human Rights has got it wrong. But out of all this I think some very excellent decisions and some unreasonable decisions by the European Court have emerged.  I don’t think there’s a clear cut balance sheet you can draw up to decide whether on balance they have done right or done wrong. But I think that the British government, even the conservative attorney general, is right in committing itself to remain a part of the European Convention.

Given that European courts have been involved in creating laws, do you feel that courts are unnecessarily interfering with the lawmaking process?

Well, the courts actually are part of the lawmaking process in my view, but they are also interfering with the lawmaking process when they declare in Britain that a statute is incompatible with the European Convention. There are some lawyers who would disagree and would say they aren’t interfering because the lawmaking process itself includes the European Convention. In this view, if Parliament interferes with the European Convention, then judges aren’t interfering with the lawmaking process but are instead giving effect to the lawmaking process because the lawmaking process requires adherence to the rights in the European Convention.

This is not a point of view which limits itself to a European context; you could say the same thing in regard to the Indian Constitution. When the judges of the Indian Supreme Court hold that a statute is incompatible with the Constitution, are they interfering with the lawmaking process? You might say yes because they are stopping Parliament from doing what Parliament chose to do. Or you might say no because they are giving effect to the Constitution itself and the legislature has no power to act contrary to the Constitution. So there is an interesting kind of tension.

In my view the courts, whether in India or in Europe, are not interfering with the lawmaking process in a way that’s illegitimate when they interfere to uphold the principles of the Constitution in India or the principles of the European Convention.

Have we been seeing a shift in the attitude of courts around the world—a shift towards creating their own guidelines with respect to human rights law?

In India, there has been a shift over the history of the nation since the union, and the judges have become more creative. In the US, there was a shift starting in 1930s and 1940s but more so in the 1950s towards more judicial creativity. In Britain there has been more of a shift since 1998 when parliament passed the Human Rights Act authorizing British judges to give certain kinds of legal effect to the European Convention. In my country, Canada, there has been a major shift in the attitude of the courts towards creating law under the Canadian Charter of Rights, a bill of rights that was adopted in the 1980s, and judges have become more creative.

Every large common law country, except Australia, has some form of human rights jurisdiction in its top court. South Africa is a remarkable example, but you could even include New Zealand. What I am saying applies to all of the forty seven countries of the council of Europe. So not only in common law countries, but in all of these nations and others, there has been a shift over the past century towards a new, more creative judicial role in governance—but it’s not straightforward and it’s not simple. In all of those countries, judges in different ways have tried to act responsibly and tried to construct powers for themselves in giving effect to what the framers of their constitutions have authorized them to do, in ways that show respect for the role of the legislature and the role of the executive. They have had mixed success in those attempts to be responsible in developing their own powers, and this is an ongoing process. So it is a very complicated question; there has been a clear shift since the 1940s in all the countries I’ve mentioned and others, towards a greater, more creative role for judges in governance. But it’s complex and in each of those countries, it involves some degree of hesitance to interfere with the legislature and the executive.

Are there any cases which point towards a shift in the attitude of courts?

Yes, the ones I have mentioned about voting rights for prisoners and the decisions on the right to family life which have become a limitation on the immigration policy in all forty seven nations of the Council of Europe are examples. And finally, the extension of the European Convention to cover overseas military operations is another example of the judges of the European Court of Human Rights taking a new, more assertive, and more creative approach to the responsibility they have. And we have to remember that’s not a responsibility they invented; the governments and legislatures of all those forty seven countries decided to sign up to a human rights convention, the European Convention. But the judges have developed their role under that convention. You could say the same about India: the judges didn’t invent the Constitution of India, they didn’t draft it. It was a political decision of the nation to adopt a constitution. But the judges have been creative in developing the role the Constitution gave them.

Why do you feel courts have been acting in this manner discussed above, and why have they started to adopt a more creative approach? Is the current set of human rights law insufficient?

Courts have been acting in this manner because political decisions conferred on them a responsibility to apply human rights norms. This is true in the UK, its true in India, and you could say the same about the US—the  judges didn’t write the Bill of Rights—it was the decision of representatives, politicians, to write the Bill of Rights.  More than 200 years later, today the judges must carry out the responsibility given by political decisions. Mind you they are also carrying it out in a more creative way today than they were 50 years ago in the European Court of Human Rights, in the US Supreme Court, and I think in the Indian Supreme Court. And the reasons for a more creative approach today are partly, in my view, that they are talking to each other more and they are reading each other’s decisions more, and there is more of a tendency for judges to rely on what judges in other countries have done as a justification for creative decisions in human rights law. In the US this is very controversial and some judges say that it’s improper for US judges to pay attention to what has been done in other countries, but then some US judges think it’s a very good idea to learn from the experience of human rights adjudication in other countries. This true in most countries that I’ve mentioned, such as Canada, and I think this is true in India. In these countries it’s not so controversial and the judges are quite committed to learning from each other. And I think that process of judicial conversation between different countries is part of the explanation of the more creative approach.

You also asked if the current set of human rights law is insufficient. No, I don’t think it is insufficient. You might say that it is, because there are a lot of crucially important human rights in my view that are not part of the European Convention, that are not guaranteed by the Indian Constitution or the US Constitution, or the Canadian Charter of Rights, or the US Bill of Rights. To give you an example, I think there is a human right to welfare, in a certain sense. Any person, who is in desperate need, just because he or she is a human being has a right to assistance from someone who is well placed and is able to give assistance to them. If I am right about that, then every state, well at least every well functioning and healthy state, including the Union of India, Canada, the UK, and the US, has a duty to provide welfare to people in desperate need, and those people have a right to it. And yet the law doesn’t protect that right. The European Convention very carefully didn’t provide a right to welfare. The judges of the European Court of Human Rights have been invited by lawyers again and again to create a right to welfare and the judges have refused to do so.

So you might say that human rights law is insufficient because it doesn’t give effect to this right to welfare. But I think that would be a mistake. I think that judges should only be giving effect to human rights law where the judges are able to make the decisions on behalf of the state that need to be made in order to respect human rights, and the judges are very good at that in certain cases. One example is the control of detention—if the government of a country detains someone, judges are independent decision makers uniquely capable of listening to both sides and deciding whether the detention is reasonable under Indian law and under European human rights law. But it is very different in the case of welfare, and judges are not well placed to decide what any state should be doing to help people who are in desperate poverty in those states. So that’s an explanation of why I don’t think human rights law is insufficient even though human rights law doesn’t protect every human right.

What is the way forward? How would you deal with the current situation—the clash in views between the government and courts?

There is no general answer to these questions; I think they are questions that can be answered in respect of certain particular legal issues. And yet, there are certain general aspects to the question, and I will tell you what I think the way forward is and how I would deal with the current situation. First of all, as I’ve mentioned, I think that it’s right for Britain to be part of the European Convention on Human Rights, even though I don’t think the judges of the European Court of Human Rights always do the right thing. I think that the judicial responsibility for fundamental rights under the Indian constitution is a great and valuable part of Indian social life today, and will be in the future. I also think that these remarkable aspects of law, both of India and Britain, need to be developed in the future by the judges with respect for the appropriate role of the legislature and the executive. That’s a very difficult balance for judges to achieve, to carry out their responsibility for protection of human rights while also showing respect for the elected role of politicians. That’s the way forward; they have to continue trying to achieve that difficult balance—on one hand standing up against government and legislative action that abuses human rights, and on the other hand, refusing to interfere with the government and legislature when the judges are not able to make things better for the country.

Photo by urbanworkbench.   Some rights reserved.

HRJ typically publishes three different types of student writing: student notes, book notes, and recent developments, and we are currently on the search for all three.

Student Notes

Student notes should ideally be between 10,000 and 15,000 words; please be aware that articles longer than 20,000 words will not be considered. Citations for all pieces should follow Bluebook format. For examples of past student pieces we have published in HRJ, be sure to check out the Archives section of our website at http://www.harvardhrj.com.  We plan to publish one student note in Volume 26.

Recent Developments

Recent developments offer summaries and analyses of judicial decisions or legislative developments with human rights implications. The possibilities, as you can imagine, are endless. In addition to international tribunals such as the ICTR and ICTY, we are interested in the goings-on at the European Court of Human Rights, the Inter-American Court of Human Rights, and any domestic court (either in the United States or any other country) that has decided a case with human rights implications. In the past few years, we’ve published on both the Military Commissions Act, the Supreme Court’s decision in Hamdan v. Rumsfeld, and the Ladies in White dissident group in Cuba. In short, the world is your oyster. Recent developments should be between 2,500 and 5,000 words long.

Book Notes

For anyone interested in writing for publication but not quite ready to commit to a student note, book notes are a great place to start. Book notes are typically between 700 and 1,000 words in length and offer a brief summary and critique of a recent book on human rights.   For anyone still around campus, you should check out the shelf full of books we have available for review on the 3rd floor of Wasserstein, in the Student Journals corridor.  For everyone else, just send us an email to check to see if a recently-published human rights-related book that you are interested in reviewing would work in our upcoming volume.

HRJ is unique in the diversity of pieces it publishes – we cover a vast array of human rights-related topics, so if you have written a paper for a class that is related to human rights in any way, please feel free to send it our way!  HRJ will be accepting submissions for student writing on a rolling basis until August 10, 2012. However, we would be more than happy to work with you throughout your writing process; the earlier you let us know that you’re interested in writing for HRJ, the better! We will also be working with the online editors to get some shorter student-written work up on the web, so send over your ideas.

We look forward to working with many of you soon!

Madison and Connie

Photo by toastytreat87.  Some rights reserved.

After the talk, clinical student James Tager, JD ’13, had the chance to interview Shetty about everything from the uprisings in the Middle East and North Africa to the need for strong human rights advocacy in the United States. This interview was also run on the Harvard Human Rights Program website, at http://harvardhumanrights.wordpress.com.

JT: In your lecture, you said that “the clearcut division that the purists sometimes like to make in the human rights world—between civil and political rights on the one hand and economic social and cultural rights, on the other—was exposed as meaningless” by the Arab Awakening. Can you elaborate on what you meant by that?

SS: Let’s take Tunisia, for example, and look at the case of Mohamed Bouazizi.  Bouazizi was the Tunisian street vendor who set himself on fire in protest, an action which then set Tunisia on fire, which set Egypt on fire.  If you were to ask: Was he unhappy about his unemployed status, and the fact that he didn’t have a livelihood?  Or was he protesting against the fact that he couldn’t express himself freely, and he had no way of getting any redress?  And the answer, obviously, is both.  Bouazizi’s actions were a graphic illustration of that.

There are other graphic illustrations.  In Egypt, 40% of the population in Cairo lives in slums, with very uncertain tenure.  I visited many of the slums in Cairo—Manshiyat Naser and others—where people are forcibly evicted.  Then, when they go to the government to complain, they are further repressed, and there is massive corruption.  So there is really a combination of factors at play here.

There’s another example in my mind that is particularly poignant, of a woman in a favela in Saô Paulo, who is in an abusive relationship with her husband, who doesn’t have a next meal to look forward to, and who has no security from the police.

The bottom line here, the thread that connects all of these stories together, is:  It is those who are poor who have no voice, and those who have no voice who are poor.  With this in mind, the distinction between civil-political rights and economic-social-cultural rights becomes a bit meaningless.  Legally, of course, we understand that there are different Covenants that enumerate different rights, and so on.  But in a very practical way, the distinction doesn’t mean much.

JT: In your remarks, you share your concerns regarding situations where “an apparent victory for human rights and democracy has come to seem much less of a bright shining victory than governments would sometimes like to suggest.”  Can you tell us more about what the issue of an “apparent victory” means in countries like Egypt and Tunisia?

SS: My line has been: The dictators have gone, but not the dictatorships.  We have published action plans for Egypt and for Tunisia, which we call a Human Rights Agenda for Change.  The Agenda lays out the roadmap for creating the institutions, the rule of law, and the human rights culture, that now need to fall into place.  The agenda discusses basic constitutional issues as well as basic freedoms which need to be converted into legal provisions.  But, more concretely in the case of Egypt, our biggest concern is around women’s rights and minority rights, and we are pushing hard to engage on this issue with the political parties in the country.

For Egypt, we actually wrote to all 54 political parties who were contesting the January 2012 elections and asked them to make clear commitments to human rights principles, through adoption of a ten-point human rights manifesto.  Interestingly, there was a positive response to many of the points within the manifesto.  But when it came to women’s rights, both the Muslim Brotherhood and the Salafists [which are associated with the two biggest Parliamentary parties after the January 2012 election, the Freedom and Justice Party and the Islamist Al-Nour Party, respectively] were very cagey in their response.  So there is a lot more work to be done.

JT: Your comments make reference to the fact that the Bahraini government has recently missed an important deadline to meet key human rights benchmarks set by the Bahrain Independent Commission of Inquiry in the aftermath of the country’s 2011 anti-government protests.  What are the next steps that need to be taken, now that the deadline has passed?

SS: In the case of Bahrain, the Western powers, particularly the United States, have significant influence.  So I think it is absolutely essential for the United States and European allies to put pressure on the Bahraini government.  What is needed, very simply, is implementation of the Bahrain Independent Commission of Inquiry recommendations.

And then, of course, there’s a massive issue of justice, of reparations for those who have been attacked in the last year, including reinstatement of the people who have lost their jobs, and compensation.  All of the basic freedoms that were suspended need to be put back in place, and there needs to be a systematic investigation of all abuses, and people need to be brought to justice.

When I call for a systematic investigation, I am of course referring to an independent investigation.  The Commission based its recommendations at a very high level of analysis, and I believe they did a phenomenal job, but we now need to move on to individual cases.  And let’s not forget that, since the Commission, there have been further abuses, massive abuses.  This includes last month, at the one-year anniversary of the original protests.  So there needs to be a comprehensive, independent process.

JT: Does the need for increased American awareness of international human rights issues  translate to human rights issues here at home, regarding the United States itself?

SS: Well, let me illustrate by using two big issues that Amnesty International is concerned about.  The first is Guantánamo Bay.  That has been one of our biggest disappointments with President Obama’s first term.  With President Obama, there was a clear promise to shut Guantánamo Bay down.  Now, Guantánamo has become part of the political ping-pong process between the Congress and the White House.  All at the cost of the victims who are facing daily suffering inside Guantánamo.

The other issue is the death penalty.  The United States simply cannot continue to be one of the few developed, Western nations that continue to use the death penalty in this day and age.  The other day, I received a letter from the president of Mongolia, thanking Amnesty for its anti-death penalty campaign and declaring that Mongolia is now a death penalty-free county.  And we still have the United States following this completely primitive procedure.

And all of this links into public pressure.  We hope that the Troy Davis case, which Amnesty International worked on and where Troy Davis sacrificed his life, marks a significant departure from how American people think about the issue of the death penalty.  And we hope that this translates into pressure that the Americans will put, that they need to put, on their Congressional representatives and other leaders.

JT: Tell us a bit more about your thoughts on the work of encouraging and growing a human rights culture.

SS: It involves schools, and universities, and campuses, and people at young ages starting to think about these issues.  Because if you don’t develop an understanding of the issues at an early stage, it becomes very difficult at a later stage.

But I think that certain trends are in our favor: The increasing exposure of young people to the international media, the growth of an international consciousness. So I believe that the creation of a true, and healthy, international human rights culture will happen. But we are hoping that we can catalyze and accelerate the process.  We see Amnesty as having a big role to play in accelerating the growth of this culture.

JT: You included in your remarks a focus on the BRICS countries: Brazil, Russia, India, China, and South Africa.  As these countries grow economically and politically, how do you think they will develop in their relationship to human rights, as agents on the international stage?

SS: I would start by saying that we cannot put all of these countries into the same category because Brazil, India, and South Africa all claim to be democracies, and so they are purportedly champions of human rights.  Given this, the standards to which we hold those particular countries are quite different from countries that make no such claims.

In my mind, this all needs to be related back to my previous points on building a human rights culture.  The BRICS countries are large countries.  And large countries—and the United States could be seen as another example—do not have much of a focus on international relations or foreign policy issues.  The concerns are very domestically focused.  But now these BRICS countries have an upwardly mobile middle class, along with more international exposure; these are two trends that I see as contributing to the potential formation of a human rights culture.  I think that engagement on building a human rights culture in these countries will be an important next step.

James Tager, ’13, is a member of the International Human Rights Clinic and an online editor at the Harvard Human Rights Journal

Interviewer: Jonathan Nomamiukor, J.D. ‘13

Tell me a bit about how Gracehaven started, and how it has evolved since its beginnings

Before Gracehaven, I was involved as a consultant with Christian Medical Association working with the State Department’s T.I.P. [Trafficking in Persons] office to research the health consequences of human trafficking and prepare some reports for them, which I did for three years. I moved on to found and start a nonprofit by the name of Gracehaven Home Incorporated.

The purpose of Gracehaven initially was to create a home for victims of domestic minor sex trafficking, and we are still in the process of doing that. We realized, after we began, that there were many other issues that needed to be dealt with on the whole issue of minor sex trafficking, including raising awareness of the issue – that it occurs here in the U.S., in our case, here in Ohio, and also to educate the various sectors – education professionals, healthcare, social workers, juvenile justice system, all on the issue of child sex trafficking. So when we began to realize how huge a need that was, we expanded our work to include that as well. We’ve been doing that for almost four years now and we’re close to opening a house.

You mentioned that you previously worked to research and report on the health consequences of human trafficking. What did you find in these reports?

I was initially approached while working on staff for the Christian Medical Association by a senior person in the T.I.P. office who was looking for someone who could began looking at the interface between healthcare and human trafficking. With my background as an ob/gyn I began to research that interface. Initially I knew very little about human trafficking so I took most of the first year, 2005, to research what I could find on the issue.

I found first of all that there is not very much data, particularly in 2006-2008, there was very little data – good data – on the health consequence of human trafficking. With the exception of Dr. Jay Silverman, who was working at Harvard at the time and performed several good studies back in 06, the only real research on health and human trafficking was done by social workers at the London School of Hygiene and Public Health. Because they were not physicians, they came from the perspective of analyzing the symptoms that the survivors of trafficking had rather than the diagnosis of health issues trafficking victims suffered from. I think that this is a huge difference. – it’s obvious that we want to have the diagnosis made by a healthcare professional rather than by a simple analysis of what symptoms are being exhibited by the victim. So I found that there is very little good data out there and there’s a huge need for it. There’s a connection, I feel, between the global spread of HIV/AIDS and the phenomenon of sex trafficking – particularly around sub-Saharan Africa and parts of Asia, and that’s been confirmed by Silverman in several of his reports, especially regarding the spread of H.I.V. among young girls coming out of Nepal.

In general, when you look at the research going back 15–20 years, before HIV was endemic in many of the sub-Saharan African countries, there were typically three – what we term – super-transmitters that tended to increase the likelihood of HIV getting into a country. They were 1) IV drug users, 2) those that were active in the homosexual population – especially male homosexuals, and 3) the women working in prostitution. And that’s been confirmed over and over again – those three groups of people have been very involved with the initial spread of HIV into various countries fifteen to twenty years ago and in sub-Saharan Africa the one that’s most predominant is women working in prostitution. For example, the prostitutes working along the Trans-African highway, which is a trucking route that crosses many parts of sub-Saharan Africa, women working in prostitution along that route became infected with HIV/AIDS and then spread it to the truck drivers who then took it home to their wives; that’s one of the major ways the HIV virus was spread across Africa.

Could you talk a little bit about the different approaches you’ve taken as far as researching on the international scale vs. domestically?

Well, when I first began, I looked through the literature – not just the medical, but any literature that had anything to do the health consequences of trafficking.  I did initially focus on international trafficking…and in the process of this research, I learned more about the domestic side of trafficking, and that’s another area where the research is extremely limited. Once I learned about the domestic side, I became more and more interested and that’s why I started Gracehaven.

There are a lot of differences between international trafficking and domestic trafficking in terms of predisposing factors, the way the traffickers handle the victims, and the way the victims are controlled. All of those mechanisms do vary in some degree between the two types.

What about your role in both of these fields? How is it different?

While I was working with the State Department’s T.I.P. office, they also began to recognize the need to train healthcare professionals on human trafficking, so I developed the first online training program back in ‘07 for healthcare professionals to learn about trafficking. A lot of my work then was focused training healthcare professionals to recognize victims and know specifically how to help them. I believe there’s a great deal that needs to be done in that area, but that was relatively easy work in terms of my own schedule and having a broader impact. When I shifted to domestic trafficking and starting a nonprofit, the work became much more involved in terms of regulations by the government. There is a serious deficit of shelters currently in the U.S. for domestic victims, especially minor victims. My estimate is that there are only about 120 beds in the entire U.S. that are specifically designed for minor victims of domestic sex trafficking.

And I now know why – the difficulty of starting a non-profit, especially in this economy, and add to that the burdensome government regulations when starting a home for minors that is going to be licensed by the state.  We’ve actually been working on our home for the last 2-3 years and it is far safer than any home I’ve ever raised my kids in.  It’s got a sprinkler system and all kinds of safety features far beyond what the average American home has but that’s what’s required by the State. Having all those features in place are expensive, difficult, and tedious. The number of victims I’ve encountered, both domestic and international victims is less than I would like because the vast majority of my work has been to create the home here in Ohio.  Right now, if law enforcement were to find a girl in Ohio who is entrapped in child sex trafficking, they don’t have a place to put her. The only options are: a general group home that doesn’t have a great deal of knowledge regarding the issue of exploitation – or a juvenile detention facility because these girls tend to go back to their trafficker.

Tell me more about why you see a need for residential treatment.

The mission of Gracehaven is to find and free underage girls involved in child  sex trafficking. In order to deal properly with this issue, you need to have a specialized place of rehabilitation because the girls that are involved in sex trafficking on a domestic level are trauma–bonded to their trafficker. It’s a form of coercion, but it’s not usually physical coercion as much as psychological and emotional coercion. When you really look closely at it, most of the girls that get involved in domestic child sex trafficking come out of abusive or neglected homes, while most of the international victims come from a very poor background. They may not be abused at all but they are vulnerable because they live in deep poverty and needed money and thus fall prey to the traffickers. In the U.S., it’s more a vulnerability not so much due to poverty and money, but due to abuse and neglect. So these girls grow up in abusive homes, grow up with low self esteem, grow up having been traumatized, runaway from home, get picked up by traffickers who are extremely proficient at manipulating them. They know exactly the words these girls want to hear and initially trick the girl into falling in love with them. This is what we call trauma bonding, or as it is also known, Stockholm Syndrome.

What about the role the juvenile justice system plays in all this?

Federal legislation passed in 2000 –the Trafficking Victims Protection Act of 2000 was the first U.S. legislation dealing with human trafficking. When Congress passed that legislation, they wrestled with the concept of whether a minor, defined as someone under the age of 18, could give consent for commercial sex. For an adult over age 18, in order to prove they are a victim of sex trafficking, the prosecutor has to prove one of three items: force, fraud or coercion was used with that adult woman to cause her to be engaged in prostitution. When it came to minors, again defined as children under the age of 18, Congress wrestled with the concept of whether a minor can give consent to commercial sex. They concluded correctly, I believe, that no, they did not believe a minor could give consent to commercial sex. Therefore there is no need in federal statute to prove force, fraud, or coercion when dealing with a minor in commercial sex. In other words any minor that is involved in commercial sex is automatically a victim of severe sex trafficking under federal statute.

And that’s different than molestation – with a single incident you could charge a man with molestation, but whenever money changes hands and you have several different men having sex with the girl, it becomes a commercial sex act. In reality, in many states, when money changes hands and there are multiple men involved, instead of charging the men with statutory rape or molestation, the minor is charged with solicitation.

In 2010, Ohio finally passed its first law to make human trafficking a stand-alone offense. It makes human trafficking a second-degree felony in the state of Ohio, with the penalties dependent on the age of the victim. One thing I would eventually like to see changed in our Ohio law is to bring the level of penalties to the same level as the federal government. Second, I would like to see a law created that would clarify how law enforcement and the courts should deal with a minor found in commercial sex. Right now, a minor found in commercial sex can often be treated as a criminal with the result that she is arrested and put into a juvenile detention center. The type of legislation that would change this state of affairs is termed Safe Harbor legislation and other states such as Washington, Texas, Illinois, and New York have passed this type of legislation. The particular state laws differ from each other, but in essence, these Safe Harbor laws create a special jurisdiction so that when a minor is found in commercial sex, they can be properly treated as a victim, and not as a criminal.

Are there other changes that have been occurring in the domestic legal system, changes you’d like to encourage?

Until relatively recently, most local police departments for the last fifteen – twenty years have put a greater emphasis on dealing with drug trafficking than prostitution. Vice units tend to lump prostitution and drugs together and focus on drugs rather than prostitution and there are several reasons for that. This has been the emphasis in the past from the Chief on down, but that is slowly changing as people learn more about trafficking. The other issue is just purely budgetary and even as police begin to recognize that trafficking is going on, they don’t have the manpower to go and shut traffickers down because of all the investigation that’s necessary to do so. And third, there is frustration on the part of law enforcement due to the lack of specialized facilities to care for these victims. Without a good rehabilitative facility to properly deal with the needs of these victims, the girls often run away after a few days or weeks and they are back out on the streets right where they started. So there ends up being a revolving-door effect that causes law enforcement to feel they are wasting their time with these girls.

All those things together cause police departments to not focus on the issue that much… they focus on other criminal activities. The abolition movement has been encouraging local police departments to place a greater emphasis on prostitution. And of course, we are working on promoting rehabilitative facilities. Another thing the abolition movement has focused on is cutting down demand and going after men who buy sex. That’s what I call the Swedish model.

What kind of changes would you like to see made on an international scale?

With international trafficking, you’re dealing with locations that are outside of the jurisdiction of our government. Every country in the world has a problem with trafficking; there is no country immune to it. When dealing with other countries, it becomes difficult to motivate them to change their laws and then not only that, to enforce the new laws once they are changed. We can only help that happen in other countries by putting some type of pressure on them.

The original TVPA created a tier system to categorize all the countries of the world regarding their response to human trafficking. It is now a 4-tier system with Tiers 1, 2, & 3 and a 4^th tier entitled 2-watch. Unfortunately, since the TVPA was passed, even though there are ways to punish countries for lack of action, not enough has been done to use those inducements. Because of that, we’re not able to give a message to these countries in tiers 2-watch and tier 3 that we’re serious about their trafficking problem. We must give them clear-cut motivation to make changes in their laws and enforce those laws or corruption will continue to allow trafficking to flourish in these countries.

Any final thoughts on how the United States can better deal with the problem of trafficking within the country?

I would love to see the U.S. and the states adopt the Swedish model. Sweden had a huge amount of success about ten years ago where they decided to approach the issue of prostitution differently; they made the selling of sex legal but the buying of sex illegal so that it changed who law enforcement was going after. Rather than arresting women in prostitution, the change in the law caused them to go after the men buying the sex… and when they did that they dropped prostitution in Sweden by over 80 percent. Critical to this process is a commitment on the part of law enforcement to go after those purchasing sex. I think that’s something that we need to look at closely in this country if we’re going to get serious about this issue.

For more information about Gracehaven House, visit their website at http://www.gracehavenhouse.org/.

In this third and final part, Virak discusses the relationship between human rights and the Cambodian government, the ASEAN institution, and the business community.

Interviewer: James Tager, J.D. ‘13

The CCHR works to liaison with different governmental and inter-governmental organizations to promote human rights. How does that process occur? Are we seeing results? Where are the points of tension in working with these groups?

I am supposed to be the main person responsible for the drafting of a law for the establishment of a national human rights institution, or NHRI, in Cambodia. This process was set in motion in September 2006. So we are approximately 5 years into the process, and we still have no law, no establishment of any institution. [Prime Minister] Hun Sen has made, on a few occasions, public statements saying that Cambodia would be the 5^th country within ASEAN to have an NHRI. Hun Sen has also said that he wants an NHRI that is in accordance with the Paris Principles, where are the internationally-agreed-upon set of guiding principles for NHRIs.

Despite these public statements, there have been huge problems with trying to push this program. We submitted the first draft for a law establishing the NHRI in 2008, after consultation with many different people including different sectors of civil society. We never received a response. We met with the government afterward, and they told us that they were waiting for a draft from us. So we provided them with a copy of the draft, and they still haven’t responded.

Is the government the only obstacle to the establishment of the NHRI?

I think that there is a lack of concerted efforts by civil society actors, also. Some people within civil society do not want an NHRI, because they’re afraid that such an NHRI would not be independent from the government and would in fact be tightly controlled and abused by the government. That is one view.

I have a different view. An NHRI that was compliant with the Paris Principles would already be a positive step, and the fact that the NHRI would be reviewed and rated by the International Coordinating Committee, adds a lot more pressure on members of the NHRI to behave themselves. And this particular rating mechanism usually, albeit not in all cases, serves as an effective process. Generally, NHRIs have become more independent and competent. So because of all this I believe that there is opportunity for the NHRI to develop into an independent, effective body. There may be a process of transition: even if the first batch of representatives are not truly experts in human rights, the NHRI can evolve into an effective institution.

The difficult part is selling this view to both the government and to other NGOs. I find this to be difficult. As a critical view, I worry that some of my peers in the NGO world are not always up to par, and some may indulge in selfish reasons to oppose an NHRI. This is because of the view that, if the NHRI takes on monitoring or investigating capacities, then the investigating capacities of NGOs would not be needed any more. To me, it is sad that this motivation to retain power has traction, but in some instances it is a real motivation.

So is there hope for an NHRI in Cambodia?

There is some hope, but currently the momentum is not there. We had some strong momentum in 2006, but the momentum has since been lost, almost completely. We need to restart the push for an NHRI. We need to restart the heartbeat to resuscitate this idea of Cambodia as one of the ASEAN countries with its own national human rights institution.

Expanding somewhat from a national focus to a regional focus, what are your thoughts on the progression of the ASEAN Intergovernmental Human Rights Commission?

On this issue, there actually is significant momentum. The ASEAN Intergovernmental Human Rights Commission (AICHR) was established in 2010. The Terms of Reference (TOR) for the establishment of the AICHR were adopted before that, in 2009, by all ASEAN states. Now, the language of the TOR is weak and vague. But because of that, there is the opportunity for different interpretations of the TOR, which means that there is an opportunity for civil society to actually advocate for a broader interpretation of the Terms of Reference.

The Terms of Reference are up for review in 2014. It is stated within the Terms of Reference, and I personally know the drafter who was smart enough to make sure that this clause was included, that the Terms are to be reviewed after 5 years. So this is an opportunity for the Terms to be amended for the better. In fact, the language was kept vague for that purpose. This is because, if the language had been too strong, certain countries would not have accepted the Terms: Burma, Singapore, Vietnam, Cambodia. The language had to be vague so that more progressive members could push the Terms through.

So the review of the Terms in 2014 will be an important event. To help illustrate its importance: Guess who asked to be the ASEAN Chair in 2014, the year of the review? Burma. And within ASEAN meetings, Chair has a significant role to play in how the debate unfolds. When the TOR was originally drafted, the Thai chair was pushing for progressive language, and he was able to exercise control over the sequence of proposals in order to assist the bid for progressive language. And so the concern is that Burma will use its 2014 Chair position to utilize control for the opposite goal, pushing back against granting the redefined Terms of Reference any power or effectiveness.

The 2009 Terms of Reference determined that the AICHR would be an intergovernmental body. Was there a struggle over this aspect of the Terms of Reference, as well?

The body of the AICHR is not independent, and in fact the TOR have never stated that it would serve as an independent body. The members of the AICHR are representatives of the government, and the very name of the body makes that clear. ASEAN member states pushed for this name, for the inclusion of the term “Intergovernmental”; they believed that this particular word had to be present. We civil society leaders wanted it to be the ASEAN Human Rights Commission. Because the states did not all agree to the word “Commission” within the title, the only situation on which they would all allow the word “Commission” was if it were an “Intergovernmental Commission.”

Now, eventually, the word “Intergovernmental” will be removed from the spoken title. In fact, we try not to mention that particular word as much as we can; instead, we tend to refer to the AICHR as “the Commission.”

The AICHR is also working on an ASEAN Human Rights Declaration. What are your thoughts on this process?

The ASEAN Human Rights Declaration will be a key document. Today, the AICHR mainly works on the “promotion” of human rights. So we are dealing mainly with education and training. The question is, what kind of standards will the AICHR promote in its training? It is in answering this question that the new Human Rights Declaration would play a key role.

I can tell you already that the Declaration will talk about not just human rights, but rather, “rights and responsibilities.” These responsibilities will be placed on the people themselves. Now, in the language of human rights, the responsibilities rest on the state. The AICHR is attempting to turn that around and place the onus on the people. And this assignment of responsibilities will be used to strike against some of the things for which we are advocating as part of our push for human rights.

Are there certain arguments being used to advance this vision of “rights and responsibilities”?

The “Asian Values” argument is re-appearing. Argument like “cultural context,” “regional specificity,” . . . same idea, different spelling. Countries that have tried to bring up this issue of “regional specificity” include Vietnam, Burma, Laos, Singapore. I specifically remember Singapore trying to bring this argument into play in a 2007 meeting during the TOR drafting process. In my mind, this should no longer be a subject of debate. But the same argument is continually resurrected in different forms.

So are you hopeful for the effectiveness of the AICHR?

I believe that there is some hope for the AICHR as a result of the dynamics of peer pressure. No one wants to be seen as the one who is blocking progress in human rights.

Of course, perception will only get you so far. I remember the first interface meeting between civil society and government leaders of the ASEAN member states, over the summer, in Huhin, Thailand. Vietnam and Singapore did not want this meeting to be a success. Singapore does not even have independent human rights NGOs, and they did not want to empower a norm where governments were responsive to the desires of NGOs. Vietnam felt similarly. Now, Laos, Cambodia, and Burma didn’t really care about this meeting. I don’t think any of those three governments were sophisticated in understanding the message that the meeting would be sending, its significance. So it was Burma and Cambodia that walked out of the meeting and stopped the process. But it was Vietnam and Singapore, behind the scenes, pushing these two countries to walk out.

As this example illustrates, smart leaders never want to be blamed for stopping an open process. They never want to be blamed for stopping advancement in the realm of human rights. So they step into the public eye—and Singapore especially comes to mind—and say all the right words. But behind the scenes, they are pushing other countries to stop this process.

I have been consistently critical of Vietnam’s contribution to the AICHR. In my mind, Vietnam is the worst contributor in this area. But Singapore is the country that distresses me the most. They will not explicitly oppose progressive language. They want to be seen as a father figure, the smartest of all of them, the one who is willing to model and compromise. But behind the scenes, the reality is different.

CCHR has launched a Business and Human Rights project. How do you view the interaction between human rights organizations and corporate actors, both globally and in Southeast Asia? What are your hopes for how this relationship can develop?

This has actually been a topic picked by the AICHR for thematic study, which goes to show that this is a topic that all ASEAN member states find acceptable. And if this topic is acceptable for all ASEAN states, then there is room for all of us to work on this issue within Southeast Asia, and to work with business operators and investors.

In Cambodia, business people learn to operate in a system by operating within the limits of the system or by getting around the system. And this is viewed as being strategic, being pragmatic, and it’s not a problem because they are normalized to operate in this system throughout many years. But besides that, the business community in Cambodia is actually a force for moderation. They also want change. In that regard, I’m happy to talk with the business community. In fact, I’m happier talking to the business community than to the government. I think the members of the business community understand that a better rule of law will help them.

Now, the tycoons will not want rule of law within Cambodia, because under a developed rule of law they will not receive the same privileges that they are getting now. The tycoons are the ones who are currently in positions of monopoly, receiving all the benefits, and being allowed to do whatever they want. With their power, and with the money they have, they have much more influence and they benefit quite a bit. But it’s the mid-sized and small businesses that see the benefit of rule of law.

And that is the message I think we need to keep hitting, the message that human rights and business do not have to be seen as contradictory. Protecting human rights will not hurt business, and will in fact allow them the stability to plan their investments and operations. Currently, businesses operate in an atmosphere where their interests are not clearly protected by law. And that, I think, is what worries businesses the most. Predictability will go a long way for business.

I also think that we have to be a bit more pragmatic in engaging with mid-sized and smaller businesses. These businesses are not all clean: they cannot be clean and operate in Cambodia. Period. So if the standard of working and engaging with them is that they’re perfect operators, then no one will work. A little more pragmatism with mid-sized businesses will go a long way in ensuring that we gain a lot of friends who will help advocate for rule of law.

So the challenge is to send a message that is not antagonistic but instead looks at how human rights and rule of law will benefit all businesses in a properly competitive environment. With this message, and with a developed strategy, I’m sure we could get a lot of buy-in from the business sectors. And with this buy-in, we will see change, because these sectors represent a powerful constituency.

I think that within Southeast Asia, CCHR is perhaps the only one, or perhaps one of only a few, with a Business and Human Rights project. But I think that other organizations within ASEAN countries are starting to see the issues as well. Hopefully this model will spread, and there will be replication by other NGOs and other countries also.

This concludes HHRJ’s interview with Ou Virak.  The complete interview series is available HERE. For more information on the Cambodian Center for Human Rights, visit their website at http://www.cchrcambodia.org/.

In this second part, Virak discusses how the work of the Khmer Rouge Trials is affected by issues of politicization, corruption, and respect for rule of law.

Interviewer: James Tager, J.D. ‘13

A lot of the CCHR’s recent work focuses on advocacy for augmenting political will for the Khmer Rouge Trials. Is there enough political will pushing forward the work of the ECCC today?

[Cambodian Prime Minister] Hun Sen has made it clear, and simple, and public, that he does not want Case 003. Period. Not only does he not want this case to go forward, he has said that he will never allow it. This is something that Hun Sen said to Bank Ki-Moon during Ki-Moon’s visit to Cambodia. The message from the government is for the Court to pack its bags and go home.

Look at the judges on the Cambodian side of the Court. Many of them are political appointees: they were appointed there because of their connections. They were appointed because the government can trust them to take on government positions, to defend the positions of the government and to make decisions in accordance with government policy. And this is obvious: You see Hun Sen making a speech and the next day Chea Leang, the Cambodian Prosecutor for the ECCC, will make a similar speech advancing similar arguments and even using the same citations.

Beyond this, the decisions of the Court have always been so predictable. All of the decisions, indeed all of the statements, made by the Cambodian side of the court—the co-prosecutor, the co-investigating judge—are basically a restatement of the government line.

I really doubt that Case 003 will go forward, given that even the co-investigating judge from the international community, Siegfried Blunk, has been making the same statements as the Cambodian government. I don’t know the reasons behind his statement, but we suspect that it’s either because he is under political pressure, that he’s not professionally able, or that this is just reflective of his actual opinions. If it’s the third option, I have to conclude that the UN knew about his opinions before selecting him for the job.

So, in other words, does the co-investigating judge believe in not investigating properly, and does that idea originate with him, or was this decision made at the UN level before hiring him? That’s the question. If this decision was made at the UN level, then the issue is far more serious than it appears. The UN originally said it would allow the co-investigating judge the freedom and independence he needed to perform his work, but if you hire someone who has already told you that they have every intention of closing the book on crimes committed by the Khmer Rouge, then the blame for such an action rests with you. So I believe that it’s the UN itself that ultimately should be held to account for its failure to investigate properly.

And honestly, I really do think Judge Blunk was probably selected with the understanding that he was the candidate who favored closing the book. I’ve also heard troubling reports of a toxic atmosphere at the ECCC, which cause me to question whether he is professionally able.

[Editor’s Note: In October 2011, Judge Blunk resigned from his role at the ECCC, after continuing pressure from civil society and advocacy groups for his resignation].

The work of the CCHR also focuses on encouraging a grassroots demand for rule of law and respect for human rights. What does that process look like?

This is the mistake that many people in the government make. They want to see a quick fix to the problem of creating a stable democracy, to the problem of advancing rule of law and human rights. They’re not going to get it. The only sure way of having a stable democracy is for the people themselves to want it, to desire it, to understand what it is and what it looks like. And then the people will become the force to push for reforms. At which point, it is the political powers which will have to adapt, to change their ways, or they will be pushed out by the people. And that is the only sure way to—not just change things, but to ensure that the change will take a strong foothold.

I think that right now a lot of people accept the idea that a statement for democratic reform by a top-ranking leader is the greatest victory for advancing democracy. It’s not. Two days after such a statement, everyone forgets about the statement and goes back to Square 1. That has always been the case. I have witnessed so much enthusiasm and cheering by different governments in the international community because of the rhetoric used by top officials. And this is sad, because the rhetoric is written by consultants for donor governments and donor organizations, and our government officials are simply parroting this language. So the result pleases the donors, but it promotes a sentiment that the public does not truly understand, and therefore the public will never hold its leaders to account. With such a system, why would the public officials ever change their ways?

Do you think the ECCC’s proceedings are a positive or negative influence on how the people perceive and understand the development of rule of law?

The Khmer Rouge Trials (KRT) are interesting: it is an opportunity to explain to the public what the rule of law should be. In discussing the rule of law with the people we can come up with hypothetical examples, or we can try do discuss larger themes. But without concrete examples, it’s very difficult for the people to understand. Today, we have a trial that mesmerizes the public. The public wants to see what’s going on. Now, to be fair, the public has little interest in the process. Their interest lies in the outcome. But because of their interest in the outcome, the people are also paying attention to the process. So there is an opportunity for the judicial process to be done properly, and with it an opportunity to demonstrate to the public what rule of law, what proper application of the law, should look like. This is what the right to a fair trial should look like, we can say.

So the ECCC represents a great opportunity. Has it been seized? Somewhat. Not to the level that I would be happy with. And of course, the ECCC should be held to a higher standard than what is being accepted in Cambodia today. Today, Cambodians are accepting even improper conduct in their judicial system. Just because we accept it, doesn’t mean it’s good enough. So I believe the KRT needs to be held to a higher standard, an international standard. Sadly, that standard has not yet been achieved. Somehow . . . somehow, the UN has failed to see the significance that a proper process could have in Cambodia.

Eventually, hopefully, the Cambodian public will see the flaws and problems with the domestic courts. The political interference, the corruption. Notably, the ECCC has been accused of exactly these same problems: political interference and corruption. That’s what upsets me the most. Corruption is present in Cambodia, and every Cambodian knows it. Kickbacks are so widespread here that every Cambodian talks about it. And for the UN to take so long to realize that corruption could be a problem in the creation of the ECCC, that in and of itself is problematic.

There is a barter system for jobs in Cambodia: whoever makes the highest bid gets the job. And for the UN to take so long to realize that this system would affect the integrity of the Court doesn’t make any sense to me. The UN was dealing with a country that is ranked in the bottom 20 on the Corruption Index. They could have put in place a system, prior to the Court’s operation, to protect the integrity of the Court. How could they not have thought about this?

For readers who will be unfamiliar, can you elaborate on how the system of kickbacks functions?

The gap in wages between employees in international organizations and the local market, as I’ve mentioned previously, is massive. The ECCC is no exception; employees at the ECCC are being paid at least 10 times higher wages as workers in equivalent positions in the local market. This means that if you receive a staff position at the ECCC, you can give 50% of your wages to the person who got you the job, as a kick-back, and you are still far better off than if you were employed by the local market. This applies as equally to lawyers and administrators as it applies to drivers. Cambodians haven’t seen anything seriously wrong with this, because it is a normal practice in domestic courts: you pay your way into the position of being a judge.

So the formula of paying such high wages for the ECCC is creating a situation that is begging for kickbacks and corruption. So if you want to pay high wages, you should put in place mechanisms to prevent this. Again, given the track record of Cambodia being one of the most corrupt countries in the world, and given this high salary compared to the local market, these are predictable outcomes.

This is another example of a missed opportunity to show the Cambodian people how a proper court should function. This corruption issue has tainted the court, so that it’s very difficult to ask the public to look at this court as a model. Of course, there have been many other procedural problems as well. But Cambodians look at this court and see corruption. They see kickbacks. People look at the court and see political interference.

In looking at the influence of corruption on the ECCC, one comes away with a bleak picture of how the Court can encourage understanding of the rule of law among the Cambodian populace. Are there other examples that may paint a more encouraging picture?

Well, we could look at the right to a fair trial for example. One of the issues the CCHR has highlighted is how the Court reduced 5 years out of the sentence of Kaing Guek Eav (“Duch”) because the government illegally detained him. This event triggered a societal conversation. The event goes to show that, regardless of the crimes of which you are accused, your rights will be legally protected. Your right to a fair trial will be legally protected. The right not to be illegally detained is legally protected. That was one occurrence we did highlight, and we said that it was the right thing to do, even though in saying that, we were speaking in defense of a man who was one of the most evil in the world. This is a man who tortured and killed many innocent Cambodians.

I think it’s important when we, as a well-known organization, speak out for the rights of even this evil man, a man who everybody wants to hang. It’s not the most popular statement. But the unpopular statements can be the more important ones.

I do think that we can use this court, this trial, to demonstrate the right to a fair trial and rule of law, so that Cambodians come to demand the same rights from domestic courts.

The next section of HHRJ’s interview with Ou Virak will look at the difficulties in forming a national human rights institution as well as the relationship between ASEAN and the human rights framework, in part III available HERE.  The complete interview series is available HERE.  For more information on the Cambodian Center for Human Rights, visit their website at http://www.cchrcambodia.org/.

In this first part, Virak leads us through a detailed discussion of the state of civil-political freedoms in Cambodia today.

Interviewer: James Tager, J.D. ‘13

Can you start by telling us a bit about the state of freedom of the press in Cambodia today?

Right now, the Ministry of Information has total control over the licensings of all media. This means all newspapers, all television, all radio. The only thing that hasn’t fallen under the purview of the Ministry of Information is the Internet. As one result of this, for example, television is fully controlled by the government. You will never be licensed if you are not pro-CPP [Cambodian People’s Party], or if you promise to be pro-CPP. Even then, you have to have a track record of supporting the government. You cannot come out of the blue and promise never to attack the government; they simply will refuse to believe you. And the government does censor; they monitor TV programs all the time.

An example comes to mind when a certain program started to veer off a bit. The program stared to invite NGOs, not even opposition parties but non-governmental organizations. At first the government seemed to accept this, but after the program’s segments became popular, the Ministry shut down the program.

Licenses are also under yearly review by the Ministry. Of course, there are often no problems at this stage, because normally if you want to run a TV program you pay your dues to the Ministry. By this, I’m not referring to official fees. And not just to one Ministry, either.

Radio is another interesting space; it’s the most listened-to source for news within Cambodia. There’s a lot of space now in radio, and most of the radio stations do not get shut down. Many of the more independent stations got their permission for their frequency and their licensing during the “two-head” government, when there were two Prime Ministers in government. That is why we have more radio stations that are more independent of the CPP.

Of course, radio has its issues as well, although I believe there has been progress. There used to be only one radio station that was willing to air the voice of the opposition; they would sell airtime to the opposition parties. The head of that particular station was often in trouble; in fact, I believe he was jailed twice. But that radio station was the only one to sell airtime to NGOs, and my organization was the first to buy radio time and produce a radio program as an NGO.

We started buying radio time in 2003, and we bought eight hours per day of that station’s airtime. They didn’t have much programming, so after we bought airtime the opposition parties started buying airtime, as well. But it was our NGO programming that was responsible for the popularity of that station. So that one station was a pioneer in the early 2000s, but now there are a few more radio stations that are independent.

And are more NGOs using radio today?

Well, back then, not only were radio stations in general unwilling to sell airtime to NGOs, but I think also that not many NGOs thought of using radio as a medium for advocacy. So it was our organization which pioneered that approach on the part of the NGOs, and now many more NGOs are buying airtime.

So on both sides, the trend is growing. CCHR, for example, now buys airtime on seven different radio stations throughout the country. That could not have been the case in 2003-2004. Even up to 2006-2007, that could not have been the case. Radio airspace is opening up, so in that regard, you can say that there have been positive developments.

Is there a similar situation for print media in Cambodia?

Print media is growing in Cambodia, but it’s growing slowly. Print media is interesting: it’s free to print, except for if you get arrested. What I mean by that is, the government will arrest journalists, but they don’t control the licensing. So there are hundreds of licensed newspapers. But many, in fact most, of these newspapers do not print regularly. Many newspapers will simply run two or four pages worth of print. Others will have front pages that are simply taken up by photos with captions, papers that contain maybe two or three articles. Papers may come out every two months, or even more irregularly, depending on when they have the resources to print.

Journalism as a profession has not been a terribly rewarding one in Cambodia, because of a lack of financing. Journalism in Cambodia is a low-pay, high-risk, crazy-hours job. Because of that, not many people who have other opportunities will go into journalism.

Where were people with these opportunities going?

Generally, in the past, if you were more able and had the connections, you went into NGOS; that was the industry that paid the highest, or used to pay the highest. I’m speaking more specifically about international NGOs, and the UN system, and the Embassies, which paid by far the highest.

The gap between that particular market and the local market is incredible. It’s five-fold. If you look at two drivers with the same qualifications, a driver for an Embassy might make $400-$500 a month, while a driver for a local operation might make $70 a month. That’s a huge gap.

This clearly has an effect on the job market in Cambodia. And this effect touches upon the world of journalism?

No one is really making similar commitments to other fields, particularly with journalism. So journalism as a career is problematic. Publishers will not provide good pay. In many cases, there are truly shoestring budgets.

Right now, newspapers fall into three camps. You have pro-government newspapers, which are both financially assisted and protected by the government, as well as by some of the business interests. Then you have the official opposition party newspapers. And then you have the independent newspaper in the middle, attempting to flourish despite all the problems I’ve just described. Except for the English-language papers, which can be seen as an exception.

Opposition papers will have some financial backing by the opposition to write articles about political campaigns, and to attack the government as much as it can. You previously saw opposition papers calling [Cambodian Prime Minister] Hun Sen a ‘one-eyed man, crazy and deranged, born to evil.’ We don’t have that same kind of rhetoric any more, the language has changed. Instead, you’ll see the opposition papers talking about ‘His Excellency Sam Rainsy and that guy, Hun Sen.’ Now, a similar tone is taken by pro-government newspapers. However, those papers are much more able to pay the staff, so you see a different quality in the journalism.

Financing newspapers is tough for the opposition. If you are a pro-government newspaper, you are probably going to get businesses willing to advertise and to appear as sponsors. This is because, from the perspective of a business owner, if you know that government officials are going to be reading this paper, you want to be seen as sponsoring the newspaper. If you are a business tycoon, you will want to be seen as supporting any efforts to strengthen the rule of the government. And so sponsorship of pro-government press, whether it be in newspaper, radio, or TV, is an effective medium for that.

Tell us a bit about the state of the law regarding freedom of expression in Cambodia today.

Looking at the state of the law regarding freedom of expression, you’ll find that the Cambodian Constitution is actually almost perfect in that regard. We also have a recently passed law on demonstrations that needs a few amendments, but it is by no means a draconian law. It’s simply an issue that some of the vague language within the law will be abused.

Actually, the CCHR is reviewing existing law, and we use a color coding system: red, yellow, and green. We’ve ranked the demonstration law as a yellow, simply because the law needs to be further clarified, but it’s not a bad law. The Cambodian Constitution is a green. The criminal code, we’ve ranked as a yellow; the current criminal code is certainly better than the UNTAC [United Nations Transitional Authority on Cambodia, established in 1991] Penal Code. This is because the UNTAC penal code has too few articles, so that most crimes are not actually stated or listed within the code. Today, the new criminal code has somewhere around three to four hundred articles. This provides for a more extensive stating of the law, and for more detail. And that’s what’s needed. That said, some of the articles related to freedom of expression in the Criminal Code need to be amended. It should be no surprise that this is our position: we are freedom of expression advocates. We want to decriminalize “defamation,” even “incitement.” Defamation, at the least, should be decriminalized. This helps explain why we rank the current Criminal Code as a yellow.

Actually, Hun Sen promised to decriminalize disinformation, and because of that, there is actually no disinformation in the current Criminal Code, although it was a criminal offense under the UNTAC penal code. So, technically, “disinformation” has been decriminalized. But, then they introduced “false information” into the new penal code, which functions exactly the same way. So this is an issue that needs to be addressed and appropriately amended.

Now, to go back to media issues, I want to point out that, while there is a Press Law in Cambodia, there’s no Media Law. There is no law governing broadcasting and publications, nothing governing print media and the radio and the Internet and TV. What this means is that the Ministry of Information has free reign in regulating these media outlets, essentially operating as the final decision-maker over the actions of these outlets. The Ministry’s procedures and their decisions are their own; they don’t share these things with the public. So if you are rejected in applying for a broadcasting permit, you are being rejected without being given proper reasons, without a proper citation of existing law. The Ministry of Information has shut down radio stations before, without even due process. And these are not decisions that they publish.

As for the Press Law, however, the law itself is a good one. Of course, that doesn’t necessarily translate into effective implementation; we definitely have a problem with how the Press Law is actually implemented.

And what about laws that affect other civil society groups? NGOs? Labor unions?

The up-and-coming NGO law will be a threat to civil society and to the work of NGOs. Larger NGOs like ours can probably fulfill all the requirements of the law, but not smaller civil society-based NGOs; this will have major, major implications for those groups. The law will also serve as a major threat to freedom of expression; this becomes obvious when one thinks about the NGOs whose work involves speaking out and and providing an organized forum or a microphone to small villages in order to air their concerns.

There’s now a draft law on labor issues, and this draft law will affect the labor unions in many ways. The only thing that can threaten the government’s grip on power is the unions, the garment factor workers. Because the members of these groups number in the tens of thousands, and these groups have demonstrated many times, and they are the only group that ever really takes to the street in large numbers. So controlling these groups, that’s the goal of the government.

One of the themes that seems to be emerging from your critique is the prevalence of a disconnect between the black letter law and its implementation.

The biggest concern is still the lack of proper implementation, the poor application of . . . let’s use the example of laws governing demonstrations. If the law is applied properly, it’s actually not bad. People do have the right to demonstrate under this law, and the requirements are not over-burdensome. The elements of defamation and incitement are still present, but with the proper court, people would know their limits and still be able to express their opinions. There are a lot of other countries that criminalize defamation and that do not have significant repression of freedom of expression.

So, for us, the court system is the biggest problem: it’s an issue of how these laws will be applied, and whether they will be applied across the board for everybody or arbitrarily as a result of political motivations. And the court system in Cambodia is very corrupt. We all know the court system is corrupt. This is not hidden from the international community; in the U.S. embassy’s cables, they say this.

Because of this corruption, the court system will bend over backwards to please the politicians. Politicians can get whatever they want from the court. I mean, even things that make no legal sense: There have been cases where they change the charges in the middle of the case. They change the charges the day they announce the verdict. So the claim that there’s consistency in the legal system today is laughable. The corruption of the court system is ultimately the biggest problem for human rights in the country today. And for democracy as well, because the institutions that are supposed to guarantee a certain process, and to allow for competition and pluralism, are not doing their job.

The next section of HHRJ’s interview with Ou Virak will deal with the Khmer Rouge Tribunals, in Part II available HERE.  The complete interview series will be available HERE.  For more information on the Cambodian Center for Human Rights, visit their website at http://www.cchrcambodia.org/.

Part II of the interview is available HERE.

Interviewer: James Tager, J.D. ‘13

In Guatemala, there are two functioning legal systems currently in place. There is an official legal system operated by the Guatemalan government, and there is an indigenous legal system operated by Mayan judicial practitioners.  How do these two systems interact? How are they supposed to interact?

This is one of the biggest challenges for the Guatemalan justice system, and it directly relates back the legacy of the conflict. The historical lack of judicial oversight or even of a functioning state justice system in the Mayan highlands helped produce support for the insurgencies of the conflict. Since then, the Government of Guatemala has ratified International Labour Organization Convention 169, which recognizes Mayan indigenous justice practices. Traditional Mayan conceptions of justice can be employed, hopefully increasing local ownership of and satisfaction with justice processes.

I think most Mayan communities do not feel vested in the historic official Constitutional system, and there are good reasons for that. If your experience of the Constitutional system has been that it is largely absent, as has been the case in the highlands of Guatemala, it’s hard to believe in that system. And if your only real experience of the system is that it has been used to justify removal of ownership over your lands, then that makes you even less amenable.

Mayans do have traditional justice conceptions and practices that are focused on restorative justice that is community based. Our own American legal system could benefit from adopting some of these and has worked to incorporate concepts like community service. The indigenous system, however, is not without problems, including abuse of authority, gender equity, arbitrary detentions and violence by local communities frustrated with impunity. Mayan communities were targeted for violence and Mayan justice practitioners were largely eliminated during the many assassinations of the conflict, producing a void or a break in the historical continuity of Mayan justice practices. That means that the Mayan legal system is, in a sense, being reconstructed. Some of the more violent practices learned in the conflict, like lynchings, are even being portrayed as Mayan justice.

During the armed conflict, both the army and the guerrillas would arrive in Mayan villages, convene the inhabitants and allege ‘you’ve been collaborating with the other side, hand over your co-collaborators’ and villagers would hand over people because they knew that everyone would be worse off if they didn’t cooperate. The ‘collaborators’ were usually summarily tried and executed in front of the village as a demonstration killing. I think the current epidemic of lynchings is very much a legacy of that type of terror tactic for social control. They are not really Mayan justice practices. But because the idea of a “Mayan justice system” has become common and these lynchings tend to happen, though not exclusively, in Mayan communities, then they get depicted as a Mayan justice practice. Curiously, this representation of savagery goes back to the historical fears of Mayan majority domination mentioned earlier.

So how do you see the interaction between these two judicial systems evolving?

The official Constitutional system unfortunately continues to be weak and will require years of intensive reform efforts. The news is not all bad however. Guatemalan prosecutors, now led for the first time by a female human and women’s rights advocate, Claudia Paz y Paz, have begun to make progress on the impunity for historic war crimes that underpins much of Guatemala’s current justice challenges. In June a former general, Hector Lopez Fuentes, was detained as the architect of crimes of genocide and forced disappearances in the early 1980s and, in August, members of the Guatemalan Army brigade most associated with the scorched earth policy that left hundreds of thousands of dead and more than 600 villages razed were sentenced by a Guatemalan court in one of the first such convictions.

Continued oversight of local Mayan practices will also be necessary. Our small project in Quiché, which is funded by the U.S. State Department, has convened almost 50 Mayan leaders to review justice practices and address some of these challenges. But it’s worth pointing out that we’re comparing apples and oranges. There are two very disparate functioning systems which are being simultaneously practiced in Guatemala.  But analysts have tended to compare Mayan practice with Western standards of rights. Instead, it’s important to compare practice with practice – and both systems of practice exhibit deficiencies that require a great deal of work. Our project in Quiché follows a legal empowerment concept: in polarized societies where justice agencies have not really functioned, legal reforms and trainings are not sufficient. The justice system literally has to be rebuilt with ownership from the ground up. Building relationships between Mayan communities and Constitutional justice agencies, and exploring the possibility of Mayan justice practice as a way to lessen the burden on the official agencies, is a truly historic opportunity in Quiché that would have been inconceivable fifteen years ago.

The cultural relativist/universalist controversy is one of the great debates in international law and in human rights work. But your example of Mayan lynchings brings up the point that sometimes a ‘cultural’ practice may not be cultural at all.

I think a good question to ask is “who is that person telling you about cultural relativism and do they really represent the culture?” I was in Bosnia for three-and-a-half years, and the leaders of ethno-religious strife in Bosnia weren’t necessarily the leaders of the religious community they claimed to represent. My thesis on that is, and which is documented in the book called “Yugoslavia: The Death of a Nation” by Laura Silber, the conflict wasn’t really a clash of civilization between Muslims, Orthodox, and Catholics. It was very much a result of Communist Party officials realizing what was happening to their colleagues in neighboring governments where they were being voted out by the democratic transitions across Eastern Europe, knowing that their days were numbered, and going for the lowest common denominator to stay in power. That lowest common denominator was the identity politics of ethnicity.

There were historic ethno-religious grievances and a record of conflict, no doubt about it. But the political elites revived and intensified it for their own interest. I tend to follow Amartya Sen’s line, presented in “Identity in Violence”, that so much of what we may be told is a ‘clash of civilizations’ and other types of cultural strife is actually the result of shabby politics. By ‘shabby politics’ I mean the manipulation of identity politics that produces human rights violations. If we return to the previous example, I think lynchings are an example of these pseudo-cultural legacies. People were not lynched in Mayan communities before the civil war. People learned this theater of summary executions and death, and now they have replicated it, and it is misrepresented as cultural.

But even with all that, I do think there is a legitimate issue within the cultural relativist/universalist debate in its application to Mayans and the justice system. I referred earlier to gender equity issues. Another issue is the ritual whipping known as xicay. Guatemalan judges in Quiché rightly protest that they simply cannot allow whippings of people in public. As for Mayan practitioners, there’s a big debate about this. Some Mayans say, “yes, the whippings were done historically, but they were symbolic. You would be symbolically punished in front of the community and you would then be returned to the community. These were not intended as brutalizing punishments.” There are other Mayan practitioners who say, “no, you really have to whip them.”

These are problems that have to be worked out, and the absence of the conflict allows for that to be possible. Over the past fifteen years of my involvement in these issues, I have witnessed Mayan communities evolve to a point where there is much more reflection about what constitutes authentic Mayan justice practice. Many Mayans now will say that they don’t agree with the practice of whipping.

This returns us to the continuing and real need to think about local practices versus international standards. One of the strengths of Mayan justice practice is that it is very local. Trying to create and enforce universal standards may in fact be detrimental to that practice but there are certain issues that have to be worked out in terms of compatibility to make sure that the two Guatemalan judicial systems, the Constitutional system and the Mayan system, can at least function with a certain level of confidence that they’re not grossly violating the standards of the other.

In your writings and research, you mention the pitfalls of other-imposed, top-down plans to reform the justice system, and how these plans can be sub-optimally implemented or even unproductive when they come up against the realities of local conditions. How do you avoid these pitfalls? What has your experience in Guatemala taught you regarding this?

I always say that we have a lot to learn in the peace and justice field and that we learn it from the people in conflict. One of my experiences helped me understand this in the context of our work in Guatemala: from 2001-2004, I managed a U.S. Agency for International Development-funded human rights project where we used a grassroots strategy for targeted projects with small civil society groups in the five Guatemala highland departments. These organizations were fragile groups that didn’t have a tremendous amount of capacity and we didn’t want to overwhelm them with funding—that’s perhaps the worst thing you can do to a lot of mission-driven local organizations—so instead conducted human rights advocacy, training, and education at the local level, along with enhancing their connection with justice agencies. And what we discovered over time was, just by facilitating that relationship we were catalyzing justice outcomes.

How we learned this was through the monitoring component of our project which trained Mayans in local languages to go out to the local villages, off the grid, to see how our training was being disseminated in local communities. This was an important step because most projects are designed with a boilerplate – there’s almost a faddish component to it. One year it’s women and development, the next year it switches to another theme. Our project was intended to get past that and to ensure that we were plugged into local conceptions and changes on the ground. What we saw over a two-year period was that by building that relationship between justice interlocutors and civil-society groups our project had triggered a process where cases were being solved.

Guatemala is a country where you have only a handful of people in jail for the deaths of 200,000 people (despite the recent progress I mentioned earlier). Earlier in the decade there was virtually no judicial process on most of the human rights violations, and suddenly our project monitoring was reporting that dozens, and eventually hundreds, of local cases and conflicts were being solved.

My first reaction as a project manager was to suspect that this wasn’t true. We consulted our monitors and examined the results more closely, which held up to scrutiny. It was only later that I learned more about the academic literature on the legal empowerment alternative.

[For more on the legal empowerment alternative,  Line recommends the work of Stephen Golub, of the Boalt School of Law at University of California at Berkeley.]

This has important implications for legal reform efforts, which usually have focused on reforming codes and training attorneys. In Guatemala, U.S. assistance has invested $30-40 million over the past decades on justice reform projects that focus on restructuring civil and criminal procedure, instituting oral  adversarial systems, and training. This is not necessarily bad, but it is insufficient in reforming a largely unaccountable justice system that has historically operated in a limited fashion and distant from the social realities of Guatemala. To do that, I think you have to start from the grassroots and have civil society placed in a position where it can advocate for and oversee transformation of the system.

Has there been any indication that the Guatemalan justice system can incorporate such social capital into their system?

Recently the justice system of Guatemala has established alternative conflict resolution centers which have become a great vehicle for managing many of the cases that can be resolved through local mediation. Because the courts are slow and generally inefficient, the opportunity to solve problems under legal auspices that ensure a certain level of standards and guarantees of accountability and justice is more attractive than having your case sit in court for years and never get finalized. So that has been an indication of progress from the institutional side, and an encouraging sign for judicial issues in the country more generally. Much depends on whether people like Attorney General Claudia Paz are able to continue working to make the justice system operative for the first time in Guatemalan history. This is an important time to follow recent events in Guatemala: The change in presidential administrations following the 6 November 2011 elections may lead to the Attorney General’s removal, though the US Ambassador, to his credit, has publicly stated his support for her continued efforts and Secretary of State Hillary Clinton will award her the International Crisis Group’s In Pursuit of Peace Award on 16 December 2011. It has yet to be seen how the recent presidential elections will affect the justice system within the country.

This concludes HHRJ’s interview with Milburn Line. For more information about the work of the Joan B. Kroc Institute for Peace and Justice, visit their website. The complete interview series is available HERE.