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.  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.

 Part I of the interview is available HERE.

Interviewer: James Tager, J.D. ‘13

It sounds like you have serious concerns regarding American policy in Latin America. Does that affect your work on the ground?

From 2007 to 2009, I ran a human rights project in Colombia with U.S. government funding. Our project was a $40 million, five-year effort that worked with Colombian government agencies charged with the protection of human rights, the national police,  and sixty civil society organizations all over Colombia doing human rights advocacy and local work. I thought we ran a great project, and I was pleased with that but became increasingly frustrated with U.S. policy. If your government is spending $450 million a year to support the Colombian military and not exercising due scrutiny over issues of human rights, then you’re swimming against a larger policy stream that is basically eviscerating your efforts at the local level.

[For more of the Joan B. Kroc Institute’s analysis of American policy in Colombia, see their February 2011 Policy Brief, “Retooling U.S. Policy for Peace in Colombia”.]

Plan Colombia has been a disaster in human rights terms. The Colombian military is now accused of 2,547 cases of extrajudicial killings within the Colombian court system. One example which comes to mind occurred in August ’08, when the press announced that the military had recruited 11 young men from a marginal neighborhood of Bogotá called Soacha, put them on military transports, transported them to the other side of Colombia where the conflict was raging, murdered them, dressed them up and announced them as combat kills. The current 2,547 cases may not have all those same elements but are cases of civilians allegedly being murdered and passed off as combat kills by the military.

U.S. legislation regarding aid to the Colombia military contains language for the U.S. State Department to certify progress on respect for human rights. Recruiting, transporting, murdering, and announcing as combat kills all seem to meet a definition of systematic violations of human rights. But Colombian progress on human rights has continued to be certified despite these extrajudicial killings.

There are five million displaced people in Colombia, more than any country in the world now, including Sudan and Iraq, which is quite hard to imagine. For a decade Colombia has led the world in the murder of trade unionists. There are as many as 51,000 forced disappearances in Colombia; such figures put Colombia in the range of the most egregious cases in the hemisphere, along with Guatemala at 40,000 forced disappearances and Argentina at 30,000 forced disappearances. So we have a looming human rights/humanitarian disaster in Colombia that, if you recall Secretary Gates’s visit there in 2009, we are being told is a “success story.”

 Our banner policy issues in Colombia over the last few years have been free trade and expanding American military presence on Colombian bases -  instead of an effective foreign policy that projects our democratic values and asks our allies to do the same. Colombia has been an ally of the United States since the Korean War, so I think we have the rapport with the Colombian government to be able to insist on some human rights accountability, if we choose to.

In your policy brief on Colombia, you have called for a foundational document to help catalyze a peace agenda, and you offer the Comprehensive Agreement for Human Rights in Guatemala as a model. What about this Agreement was effective, and why does it provide a good blueprint for Colombia?

I was alternately impressed and distressed with the way the UN managed the peace process in Guatemala.  By the early 1990s, people were frustrated trying to end latent cold war battles going on in places like El Salvador and Guatemala. The El Salvador mission was the first international peace process in the regional transition, and the UN was simultaneously trying to bring the parties to the negotiating table in Guatemala.

By that point, the Guatemalan army had basically won the war by any military standard. Guatemala was a “low-intensity conflict” at that point, but “low-intensity” depends on where you sit in the world. It’s an easy phrase to employ from the analyst’s chair if you are counting deaths in combat but not so apparent if you are still trapped in the middle of violent conflict. The predominant social reality within Guatemala was still an environment of fear, a fear instilled through massive human rights violations, and that was evident throughout and beyond the peace process.

The UN’s first step was to try and establish a timetable of key agreements that would lead towards an eventual peace accord, and one of these agreements was the Comprehensive Agreement on Human Rights, where the Guatemalan army and the URNG [Unidad Revolucionaria Nacional Guatemalteca] insurgency agreed to a series of human rights standards that would be monitored by the UN and other international groups under multinational auspices. That was a real breakthrough in a sense as it was the first time the Guatemalan army and insurgency agreed on standards amenable to the international community.

This arrangement allowed for a UN monitoring mission to go in on the ground and separate the parties and document human rights violations. That presence ended up being a strong deterrent for further violations. When the guerillas blew up electrical towers in Huehuetanango in December 1994, we were there to document and object. When the military massacred a group of returned refugees in Xaman in October 1995, the UN mission was able to condemn immediately. Public visibility and official, international criticism helped further reduce human rights violations. And that’s why I argue that something similar could be done in Colombia under multilateral auspices. Unfortunately, the Colombian government is not interested in international monitoring at present and the guerrillas continue to conduct their insurgency in ways that make it hard to justify negotiations , including attacks on civilians, kidnappings and the recent murder of four Colombian officers who they had held as hostages for more than a decade. But negotiating with one consolidated insurgency may ultimately be more prudent than trying to control dozens of fragmented groups if the FARC splinters into smaller criminal groups. I think that the U.S. Government has the historical relationship and rapport with the Colombian government to be speaking about the policy benefits of peace and wish we were doing so.

Line’s interview will continue with a discussion of the Mayan indigenous legal system, and its relationship with the Constitutional legal system in Guatemala, in part III available HERE. The complete interview series is available HERE.

 HHRJ spoke with Line about peace and justice concerns in Guatemala: the current health of Guatemala’s justice system, historical legacies of conflict, and the incorporation of Mayan justice practices. Our editors have divided this interview into three parts, to be run at regular intervals. In this first section,  Line discusses how the historical legacies of conflict have affected Guatemala’s development in the realms of peace and justice.

 Interviewer: James Tager, J.D. ‘13

In your work, you consistently argue that many of Guatemala’s current social and judicial problems can be at least partially understood as legacies of Guatemala’s civil war. Can you tell us about that?

Fifteen years after the peace accords, you might think that the historical legacies have faded, but I think it’s still very important. Guatemala just elected a new president, a former general who during the Civil War led Guatemala’s shock troops – the kaibiles – in areas on northern Quiché where the UN later found genocide to have taken place. As President, he has recently announced he will deploy the kaibiles to combat drug trafficking. So the legacies of the conflict are very much present in Guatemala right now.

Beyond the elections, many of the current social and judicial challenges, especially in Guatemala but all the way down the isthmus, are also the legacy of historical inadequacies in the justice systems, along with the social polarization and exclusion that has manifested itself in a lot of different ways. In Guatemala the 36-year civil war, which occurred between 1960 and 1996, is kind of the ‘elephant in the room’ which shapes a lot of the injustice and human rights violations up to the present.

An illustration of this can be found in the Institute’s recent work in Quiché. Looking back in history, the Spanish administrators thought of the K’iche and Ixil indigenous peoples in Quiché as being an especially difficult-to-manage population, and they created this stereotype which perpetuated itself throughout the years and was replicated by the Guatemalan army. Within the 646 villages that were identified as razed villages during the Civil War by the country’s Truth Commission, approximately half of them were in Quiché, and the largest concentration was in the various smaller municipalities of the Ixil area around Nebaj .

This legacy, that the Ixiles are difficult to manage, plays into the historical racist attitude of Guatemalan mestizos, Ladinos who fear that someday the Indigenous are going to take over (somewhat like the fears of white supremacists in South Africa several decades ago). That is a deep-seeded fear, and it is a fear that is played on politically to maintain the government’s own power base. So that fear was exacerbated and was used as a justification for violence inflicted on these little towns during the civil war – even though the Guatemalan Army knew the insurgency was not really a strategic threat – and has evolved into public insecurity issues today.

You mentioned other legacies of the conflict. Can you elaborate?

Currently, there’s a large and multi-layered drug scenario in Guatemala. Part of this is the conflict legacy, and part of it is the ongoing drug situation in Mexico. The legacy aspect of it began when President Carter cut off assistance to the Guatemalan military because of their human rights violations. When the Guatemalan army was cut off from US funding, which had been for them a significant and historical base of support, the army went into business for itself. When I got to Guatemala in the early ‘90s, the Guatemalan army was an entrepreneurial investor that had major holdings across Guatemala, including a television company and the national telephone company. Incidentally, it was actually quite useful for the army to own the telephone company for the purpose of spying on people internally. They could simply listen in on the phone lines that they owned. Because elements of the Guatemalan army had become quite business-like in their ventures, they quickly caught on to a much more lucrative model: drug trafficking. They began by using their military logistics capacity for moving drugs coming up from Colombia. Then they realized that it is much more lucrative to become a competitive part of the cartel system. The director of a leading newspaper in Guatemala, Jose Ruben Zamora of El Periódico, who has been recognized by the Committee to Protect Journalists and the International Press Institute, did much of the investigative work on how this developed over a period of decades.

Carter cut off assistance to the Guatemalan military on human rights grounds, and yet this decision seems to have triggered the Guatemalan military’s involvement in the drug trade. What’s the take-away from that?

I think that part of the problem with the Carter policy was that it was short-lived. Reagan subverted it immediately upon election to office. In 1982, despite U.S. State Department and CIA cables recognizing that Guatemalan security forces were not distinguishing between the insurgents and civilian populations, President Reagan told the press that military dictator Rios Montt was “totally dedicated to democracy” and that his de facto government had been “getting a bum rap.” This type of Cold War support for de facto governments enriched their uniformed members and did nothing to build capable governments and societies. It has produced a Guatemala where violence prevails, 98% of murder cases go unsolved, and education, health and nutrition standards are more comparable to African countries than the rest of the region.

As for the consequences of Carter’s policy, the Guatemalan military might have been less entrepreneurial if it weren’t for Carter’s decision, but they were already involved in large-scale thievery at that point, including seizures of Indigenous land for personal use – some of which was returned after the war. So the Guatemalan military probably would have eventually realized the lucrative model of drug trafficking anyway, as have other military personnel across the region.

So this, for you, is not necessarily a cautionary tale of value-based diplomacy.

I am a big advocate of the idea that the U.S. historic development of a human rights-oriented Constitution, and even our struggle to fulfill standards of equality as seen in the Civil Rights and women’s rights movements, resonates with the people of other countries. So we should have a strong human rights policy line because it reflects who we are. There may be some unintended negative consequences, such as when the bad buys go into business for themselves because they can no longer rely on your support. But we do have to be true to our values. And recent research—see The Justice Cascade by Kathryn Sikkink—indicates that international prosecutions of officials for human rights violations are changing their behavior and making them less likely to commit human rights violations.

I think that we’ve made huge foreign policy mistakes, largely around human rights issues, because instead of being a forceful advocate for human rights and for our constitutional values in other countries, we have let political expediency dilute these values overseas. In Latin America, U.S. policy has been driven by anti-communism and free trade – not respect for human rights. And I think the world perceives us as such. Certainly Hugo Chavez and Castro and others in Latin America have latched on to this line of the U.S. as an imperialist hegemon, and it encounters a receptive audience because of some of these mistakes.

I’m referring to historical mistakes like the coup in Guatemala in 1954. This was a CIA-led coup that toppled a democratically elected government which was not a Communist but rather a socially progressive government that attempted to reform land tenancy. This coup led to 32 years of de facto military governments which were gross human rights violators and which were generally—with the exception of Carter—very closely aligned with the United States.

I remember how, when I got to Guatemala in 1994 with the first human rights observer mission, we heard the story of Diana Ortiz, a nun who was an American citizen. Ortiz was tortured, and testified to hearing an American voice, speaking English with a distinctly American accent, in the room with her. [Former New Jersey Senator Robert] Toricelli, who at that point was a representative, started an investigation in Congress which uncovered that the CIA was still involved in covert activities in Guatemala as late as in 1989. Torture was, and continues to be inimical to U.S. values and counter-productive to any sensible foreign policy objectives.

Line’s interview will continue with a discussion of American and international policy in Latin America, and its effects on the ground, in Part II available HERE. The complete interview series is available HERE.

Part IV is available HERE.

 Interviewer: James Tager, J.D. ‘13

In your work, you mention your concern over the possibility of a “chilling effect” of these laws, that this may halt debate and discussion over the appropriate limits of free speech within Pakistan society. Can you elaborate on this aspect?

One of the things that I set out to do in my research was to try and explore a potential linkage between the blasphemy laws and the larger global free speech debate, because obviously one dimension of this entire analysis involves looking at the concept of blasphemy as a distinct kind of hate speech. I tried to place Pakistan within that broader analysis by looking at various international free speech regimes as well as what they caveat as hate speech. In doing so, I was firstly able to confirm that the spectrum of free speech, as recognized in different countries, is quite broad and irregular. Thus, Pakistan is not unique in terms of having several caveats to permissible free speech. However, the primary difference, for instance, between the First Amendment in the United States (and that particular approach to protecting free speech) and free speech regimes in India and Pakistan is that the legal exceptions to permissible free speech in the latter countries are part and parcel of the actual constitutional provisions for free speech.

Being mindful of that, one of the arguments I explored in my research was that since in the Pakistani constitutional context the notion of permissible free speech (unlike the First Amendment jurisprudence where certain kinds of speech has been incrementally proscribed over the years through court decisions) is textually limited by certain very broadly stated policy imperatives and justifications, the Pakistani constitutional design inherently provides adequate protections against hate speech – thus precluding the need for any special blasphemy laws. If anything, one can actually persuasively argue that the existing constitutional caveats for restricting free speech in Pakistan are over-broad and, therefore, susceptible to stifling even legitimate speech. Furthermore, if anything, over the years the Pakistani courts have frequently endeavored to carve out spaces for legitimate free speech where they thought that the constitutional caveats were being used to crowd out the same – especially considering that the country has often faced military coups and autocratic regimes.

However, coming back to the original point, my argument was that the existing constitutional language for regulating speech ought to be adequate for curbing several kinds of hate speech – including blasphemy, if we were to define it as such. The related contention is whether blasphemy ought not be purely classified as a kind of hate speech, which it really is, rather than allow it to be treated as a kind of crime that adopts certain other worldly or extra terrestrial dimensions which then allow the proponents of the current laws to advocate that the crime is not just punishable by terrestrial laws but that such is its character and heinousness that any ‘right-thinking’ individual is entitled to take the law into his own hands and act as accuser, judge, jury and executioner – the creation thereby of several individualistic normative frameworks that are in direct conflict with the law of the land. This is one important dimension of my analysis. The other separate argument that I tried to make in my research and that also related to the larger free speech domain is of course whether the blasphemy laws, as they exist, have the potential to stifle legitimate and socially useful/desirable religious discourse and debate. Some of the reported blasphemy cases demonstrate how this can be a legitimate concern.

One such case is that of a certain Dr. Yunus, who taught at a private college. During one class some students asked him certain questions about the early years of Islam and whether certain sacred historical personages from the Holy Prophet’s family –who had passed on before the message of Islam was spread – were technically Muslim. He made some careful and reasoned responses. Objectively speaking there was nothing blasphemous or offensive about them. However, it seems that they were at odds with what the questioners adhered to or were expecting and some of them misinterpreted them as blasphemous and accused Dr. Yunus. A long-drawn case and much harassment later, Dr. Yunus had to go into exile to save his life.

This particular and other similar episodes immediately raise the question in my mind about the potential for misconstruing even a respectful and well-reasoned academic discussion as blasphemous, either because of a low tolerance for divergent views or a propensity on part of some to mischievously use the flawed law to get someone into trouble or to settle scores. Theoretically speaking, such is the potential for the misuse of Zia’s blasphemy law that my own careful academic work on this theme can be questioned by some zealot as inappropriate and hence amenable to legal action or private intimidation. And I have made it very clear in my academic article, as well as my responses here, that I am not qualified to, nor I am engaging in, a theological discussion on the larger concept of blasphemy or even a broad normative debate on Islamic jurisprudence—which, however, are discussions that I strongly believe ought to take place in Pakistan—but that my well-circumscribed ambit of review is a legal, public policy and sociological analysis of a man-made law from the 1980s So Zia’s blasphemy law has a definite ‘chilling effect’ on useful and necessary public and academic debate and discussion. 

Needless to say, the assassination of Governor Taseer—who did indeed engage in a legitimate public discussion about this particular law and its adverse impact on certain sections of society, thereby advocating legislative review of the same—has made such discourse riskier. At the time of his assassination a Private Member’s Bill had already been prepared to this end and it also had support from sections of the treasury benches. That Private Member’s Bill has now been shelved and those in the Government supportive of it (some of them also received threats) have meekly withdrawn into their shells – thus a great opportunity has been lost. Such was the Government’s and the ruling political party’s alarm at the prospect of being embroiled in a controversy that they essentially caved in to the pressure exerted by relatively small sections of zealot support for the murder and did not even assist the family of the deceased in arranging an effective lawyer – the state eventually provided one. It is apparent that the general rule of thumb continues to be to ‘let the dust settle down.’ As a result of this tyranny of the largely silent majority, the suffocating phantom of dogmatic zeal and vigilante justice grows stronger. The room for free and informed speech is increasingly encroached by self-styled custodians of morality and acceptable behavior.

I had actually forewarned in my 2007 article that if we don’t arrest the growing and misconceived conflation of theological matters and a patently man-made law by a self-serving dictator, we may as yet witness more violent demonstrations of the growing lawlessness stemming from and around this law. It seems like a prescient observation as the events from earlier this year have shown. The assassination of Governor Taseer was a brutal and shocking event. Given that it is the only episode to date that involves the killing of a prominent public figure due to his/her views on Zia’s blasphemy laws, one can be tempted to perceive it as a freak occurrence. However, in my view it would be self-deceptive to think that way.  To my mind, the murder actually demonstrates not just how the tide may be turning in Pakistan in the larger battle between tolerance and intolerance, and between pluralism and parochialism, but also how easily certain vocal and violent sections of the population can intimidate a government and a people into silent submission. Others with similar coercive ambitions are watching closely I am sure.

The ‘chilling effect’ extends to not just debating these laws and discussing the possibility of more just, equitable and socially useful alternatives, but even to other larger and highly socially desirable public and academic discussions on several issues of public life and governance with overlaps with equally significant popular and academic discussions stemming from the analytical constructs of Islamic theology, Islamic law, Islamic history  and Islamic political, economic and social thinking. More likely than ever is the possibility of someone crying foul, appointing himself as the only true interpreter of the faith, and provoking, instigating or wreaking mayhem and violence.

But I still choose to look for that proverbial ray of light. I recall that some months ago when I was a participant here at Harvard on an academic panel discussing the Pakistani blasphemy laws—a very engaging discussion in which I was joined by an Islamic historian and an anthropologist who has done extensive work in this area—on that very day, there was a seminar on the same topic taking place at LUMS – my university back in Lahore. I actually did not anticipate that people would be willing to speak openly on this issue so soon after the Governor’s assassination and I was much heartened that they were. I also remember with a degree of solace how, after the initial few days of shocked incredulity in the wake of the assassination, many social commentators as well as religious scholars and clerics came out in the Pakistani electronic media and condemned the action, while making a clear distinction between the positivist dimensions of Zia’s blasphemy law and the larger theological discussion on the concept of blasphemy. However, much more needs to be done to educate the masses, to thwart the violent radicals, and to pressure the Government and various political parties towards taking long overdue and decisive legislative steps.

We’ve touched on a variety of issues relating to the blasphemy laws. Do you have any final thoughts?

I would like to underscore how important I think it is for those outside Pakistan to understand, appreciate and meaningfully support the various attempts within Pakistan, both in the judiciary and in the society at large, to mitigate the coercive potential of this law. This is important if we want to move beyond facile and sensationalist coverage of certain events and towards a meaningful support of those facing an increasingly tough battle ahead. Having said that, the growing societal polarization and hardening of attitudes on this issue within Pakistan can only be tackled through an informed, robust, uninhibited, sustained and widely disseminated domestic debate that unravels and exposes the false sacredness and unassailability that has been disingenuously ascribed by some quarters to a very problematic law.  Without informing and educating popular opinion on the law and simultaneously pressurizing the State to unflinchingly adhere to its duty of protecting the lives of its citizens, regardless of whether it is politically expedient or not, the champions for dialogue and reform will likely dwindle in number and strength.  

Furthermore, when it comes to how this law is popularly perceived by an increasingly embroiled, divided and politico-economically skewed Pakistani society that faces myriad domestic challenges and is also highly distrustful of the new ‘Great Game’ being played within and in areas neighboring its borders, it is evident that the issue cannot be looked at in isolation. Popular reactions and attitudes towards those who advocate its reform also formulate public views on whether reform is desirable. Thus, the resented local educated upper class, NGOs and human rights groups and their western allies in governments or in the world of international human rights, have eroding credibility with the common man – and this is often for fairly understandable reasons. Without greater and deeper democratization of Pakistani society and its progression towards a more pluralist and tolerant ethos as well as distributive justice – a transformation that requires both concerted domestic efforts and a consistent and honest international commitment to the future of Pakistan’s democracy as well as abiding respect for its sovereignty –  I think that these issues that essentially display growing intolerance and lawlessness are not going to go away any time soon. I emphasize in particular a positive perception of the international commitment to democracy and sovereignty as overwhelmingly large sections of Pakistani society are oblivious of the Universal Declaration of Human Rights and the notion of a just International Law, but graphically reminded everyday of illegitimate wars all over the world and the succession of drone attacks on their own territory. The credibility of anything that the West says, rightly or wrongly, is at an all time low and ‘human rights’ is something which is to many, rightly or wrongly, what the West says.

Finally, if we are committed to reforming these laws, there has to be a larger commitment to understanding the broader, structural issues of the Pakistani justice system, as indeed of other post-colonial justice systems. This requires closer examination of the various issues of the alienation and disenfranchisement of ordinary people from the formal legal and court systems, as well as the perennial violations of due process, inadequate substantive justice, and rarely heard of distributive justice. Isolated attention to the issue of the blasphemy laws, whether from a domestic lens or an international lens, without comprehension of the larger Pakistani socio-legal context, will not get us far.

The complete interview series is available HERE.

Various groups, including April 6 Youth Movement, We Are All Khaled Said, National Association for Change, and Kefaya led a coordinated effort using social media platforms, including Facebook and Twitter, to spread a revolutionary message.8 Prior to the first day of protest, 85,000 Egyptians pledged on Facebook to attend “Revolution Day.” Similarly, April 6 Movement had over 90,000 members during the protests,10 and We Are Khaled Said had over 40,000 Facebook fans.11 In the two weeks leading up to and including the first few days of the protest, Egyptians created 32,000 Facebook groups and 14,000 Facebook pages.12 It is likely that a substantial number of the five million Facebook users in Egypt13 were in some way encouraged to attend the protests.

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March 17, 2010, however, was not the first time the Ladies in White were forced off the streets of Cuba, nor was it the first time they faced violence from the Cuban government. It was also not the first time Cuban dissidents were physically harmed for criticizing the Cuban government. During marches in 2008, several of the Ladies in White were visibly bruised when the police physically removed them from the streets. Thanks in large part to the Internet, by March of 2010, a larger audience watched as the women were accosted. The audience witnessed firsthand the violence in photographs, on television, and online. On December 9, 2010, one day before the international Human Rights Day, videos posted on YouTube showed the Ladies being assaulted as they peacefully marched through the streets of Havana with pictures of their jailed loved ones and flowers in hand.6 While Internet access in Cuba remains quite restricted, users have managed to gain access to online content demonstrating the violence the Cuban government has employed against the Ladies in White.

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In recent years, greater attention has been paid to the role of commercial entities in violent contexts whose activities may, directly or indirectly, implicate issues of human rights or international humanitarian law. International human rights law establishes a set of norms and obligations that are mainly enforced in relations among states or between states and their citizens.
Unlike states, private commercial corporations are generally not treated mas bearing direct human rights obligations under international law; human rights law applies only in a limited way to these corporations. Similarly, international humanitarian law, although increasingly applied to non-state actors, has yet to be applied directly to privately-owned companies.

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Although merely one of a number of rights enshrined in the Declaration, this is a right whose importance is belied by the small space it occupies in the text of the Declaration. The right to use CSLs is a core expression not only of indigenous identity but also of indigenous sovereignty, an attempt mto retain autonomy in the face of a monolithic state seeking to exercise its authority over a diverse geographical space through formal state laws, among other things. In many senses the conflict between formal, state systems of justice and informal CSLs is one of the most visible and enduring tensions between the Westphalian nation-state system and the multiplicity of autonomous ethnic groupings that have been subsumed within it. However, although CSLs are well-adapted to comprehending and appropriately addressing the specific problems in the communities in which they are applied, where there are jurisdictional conflicts between the two systems they are invariably resolved in the state courts by applying formal, state laws. In short, under international law, indigenous sovereignty must yield to state sovereignty.

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I was not a stranger to language rights issues when Leo posed the question. During previous years in Washington, D.C., I was deeply involved with a coalition of advocates that achieved adoption of a Language Access Act requiring D.C. government agencies to provide interpretation and translation services to non-English speakers who could not otherwise access their services or programs.2 I also represented individuals who suffered discrimination based on language, such as a Salvadoran man who successfully sued a Sheraton Hotel restaurant in the D.C. area after he was laid off and denied rehire because of his lack of English fluency, even though he had worked without difficulty as a dishwasher in the restaurant for fifteen years.

However, Leo’s question revealed a new dimension in language rights that I had not previously considered in any depth. Most of my work — in fact, most language rights work in the United States — has revolved around the extent to which individuals not fluent in English should be protected and assisted as they seek to ensure treatment on par with English speakers. Leo’s concern was focused in a different direction. He did not understand why a more positive cultural value was not ascribed to a language other than English despite the obvious influence of Spanish in Texas and the importance of cross-cultural communications with Spanish speakers in Texas and across the border.

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