Upon the nomination of the United Nations High Commissioner for Refugees (UNHCR), Professor Geoff Gilbert has been accorded the title of Sérgio Vieira de Mello Professor of International Human Rights & Humanitarian Law in the Essex Law School & Human Rights Centre at the University of Essex!
Sérgio Vieira de Mello worked most of his life for the UNHCR, retired and was then asked to serve as Special Representative of the Secretary-General to Iraq. He was killed in the Baghdad bombing of 2003. He was Brazilian and the government immediately created Sérgio Vieira de Mello Chairs that were meant to be available across the whole of South and Central America to promote education on and for, research regarding, and solidarity with forcibly displaced persons.
The expansion beyond Brazil did not happen until Goeff took on the role of inaugural Chair of the Secretariat of the Global Academic Interdisciplinary Network and there are now SVdM Chairs in Dominican Republic, Costa Rica, Mexico, and Ethiopia, with plans for Mozambique and Thailand. Geoff’s initial plan was for the chairs to be established in low- and middle-income countries that host the vast majority of the 103 million people within UNHCR’s mandate, but UNHCR wants to expand these globally akin to United Nations Educational, Scientific and Cultural Organization (UNESCO) Chairs.
Geoff is the first Sérgio Vieira de Mello Professor in the global North, reflecting his education, research and solidarity regarding forcibly displaced persons for the past thirty (30) years.
Dr Sabina Garahan, Lecturer at Essex Law School, has completed her AHRC-funded doctoral research on “Adjudicating the Right to Liberty: The Use and Appropriateness of Discretion at the European Court of Human Rights”. The thesis critically assesses the level of protection offered by European human rights law against arbitrary detention. Dr Garahan argues that the appropriateness of discretion granted to Contracting States in this sphere requires the Court to recognise the need for a progressive interpretation of the right to liberty (as enshrined in Article 5 of the European Convention on Human Rights). The thesis develops a new framework for determining the appropriateness of discretion by linking the Court’s use of its methods of interpretation to their underlying approaches. Dr Garahan’s development and application of this framework in the Article 5 context is rooted in thorough doctrinal and theoretical analysis as well as empirical findings on the practice of the European Court of Human Rights as gathered through interviews with serving judges.
On this basis, the thesis finds that the Court neglects an evolutive reading of Article 5, thereby stifling the progressive development of the provision. It is argued that, at the same time, an increased turn to subsidiarity has undermined the Court’s oversight role. A new framework for allocating discretion that takes consensus as a starting point in the Court’s review is suggested to address these challenges. It is argued that centring the role of consensus as part of an evolutive approach to Article 5 will not only achieve the progressive interpretation mandated by the Convention, but will also create a more consistent and thus legitimate body of Article 5 jurisprudence.
Dr Garahan makes the argument that an inappropriate level of discretion is accorded to States in determining whether the aims of detention, in particular in the fields of pre-trial detention, the detention of minors and immigration detention, have been met. The lack of progressive advancement of the right to liberty in the Convention system also results in the right being disproportionately ceded to both individual and public interests in proportionality testing. Dr Garahan therefore ultimately concludes that continued neglect of a progressive interpretation of Article 5 risks undermining not only the further realisation of the right to liberty, but indeed its continued maintenance as a vital tool of human rights protection.
Once again, I was called on to be living proof that anyone can dance. I showed off my worst moves. I told how my wife recently abandoned me on the dance floor. The facilitator confirmed that I was the tensest person he had ever encountered in his inclusive (mixed-abled) dance workshops. Once again, we put my own embodied embarrassment to some use: to begin the process of breaking down barriers, reassuring workshop participants, encouraging inclusive dance aesthetics, and thereby co-creating a safe space for bringing dance, disability, and rights together.
What was different this time is we were training Nepali dancers, lawyers, and, most importantly, war-disabled activists in a pioneering method of transformative human rights education developed by VisAbility in Sri Lanka (with support from the UK Arts and Humanities Research Council (AHRC), British Council, Goethe Institute, and Schmitz Stiftungen). What was also different is we were focusing specifically on the Right to Information (RTI) as a way for war-disabled people to demand more transparency and fairness in the provision of social protection and reparations.
This South-South training and knowledge exchange was led by Mahesh Umagiliya, a Sri Lankan choreographer/dancer and a co-founder of VisAbility, alongside Vinothine Balasubramaniam, a Sri Lankan RTI activist. The Nepali participants came from the National Network of Disabled Conflict Victims (NNDCV), the human rights NGO Advocacy Forum, and the music school NAAD Sangeet Pathshala. I was there not only as an ice-breaker, but also to provide some (much less fun) training on project evaluation, ethics, and data management in my role as Principal Investigator on our Performing/Informing Rights project.
Background
Civil war inevitably maims and mutilates. After war, people with conflict-related, physical impairments are likely to experience extreme poverty, social exclusion, and illegal discrimination – notwithstanding the promise of the 2030 Agenda for Sustainable Development to “leave no one behind” and notwithstanding 184 states ratifying the UN Convention on the Rights of Persons with Disabilities. This is certainly the case in post-war Sri Lanka and Nepal where disabled people frequently lack the knowledge, confidence, resources, and access to claim their rights, benefits, and reparations.
Our earlier AHRC-funded Performing Empowerment project (2016-18) brought together transformative human rights education, legal empowerment, and inclusive dance to enable war-disabled people in northern and eastern Sri Lanka to claim their rights and benefits. However, a few disabled participants became understandably frustrated and discouraged by a lack of government response to their applications for disability benefits. As a result, we saw a need to empower disabled people to chase up their claims-making to government officials using Sri Lanka’s strong RTI law. Hence, this new AHRC-funded Performing/Informing Rights project (2021-23) that not only adds RTI to VisAbility’s trainings in Sri Lanka but also tests whether VisAbility’s methods can be adapted and applied to Nepal’s post-war context.
Both projects develop a novel form of transformative human rights education for disabled and non-disabled people using dance. According to a 2011 UN Declaration, human rights education is all about “empowering persons to enjoy and exercise their rights and to respect and uphold the rights of others.” Transformative human rights education takes this further through experiential learning focused on how rights can address everyday forms of political, economic, and social exclusion. It also emphasizes playful, participatory, and embodied learning. Indeed, dance has been used to teach, perform, and campaign for human rights, perhaps most famously with the One Billion Rising Campaign.
Both of our projects also pioneer a more holistic form of legal empowerment. Legal empowerment is a form of rights-based development by which the poor are enabled to use law to make rights claims and improve their livelihoods. Despite the UN Sustainable Development Goals’ call to empower disabled persons and provide “equal access to justice for all,” there has been surprisingly little attention to how legal empowerment might help war-disabled people. VisAbility has started filling that gap while also using inclusive dance to combine somatic and psycho-social empowerment with legal empowerment.
Mixing Rights and Dance
It’s not easy to combine rights and dance. For one thing, law privileges words, whereas dance relies on embodied expression. For another, there is a risk of instrumentalizing dance and thus losing some of its creative potential. Furthermore, the most visible examples tend to be professional performances, such as William Forsythe’s “Human Writes” and Pichet Klunchun’s “7 Decades of Human Rights,” rather than grassroots, education projects.
VisAbility is still experimenting with how best to mix dance and rights – something that Mahesh has likened to “putting sweet buns with chilli sambal”. Initially, its workshops had separate sessions on each. With the Performing Empowerment project, VisAbility started explicating dance movements through rights language and teaching rights using those movements (partly as mnemonic devices or body memories).
With this new project, VisAbility is aiming for a more ambitious synthesis of dance and rights. That first meant Vinothine training Mahesh on RTI and him leading an RTI training himself. It also meant Mahesh training Vinothine on dance and VisAbility’s methods. They then worked closely with Helena-Ulrike Marambio, the project’s Post-Doctoral Research Associate, to develop a draft training resource. However, Sri Lanka’s economic and political crisis meant Mahesh and Vinothine had to do this all online in the face of electricity outages. It wasn’t until they got to their Kathmandu guesthouse that they could actually start working through the resource together in the same physical space.
For Mahesh, one of the biggest challenges is that RTI training involves “a lot of information you have to deliver” which is “really hard to put into a dance task” because it needs to be learned “as information, not as something else, not as something realized in a symbolic way.” Another challenge was to “create a methodology that was not only suitable for Sri Lanka but can be used in another country also.”
Training and Knowledge Exchange
Even though the Nepali participants knew they would be learning dance and RTI, they were wrong-footed from the get-go. As Amisha Adhikari, one of Advocacy Forum’s lawyers, told us afterwards: “When they first entered the workshop venue, they were stunned because they did not see any chairs, any writing materials, projector, all that stuff. So, they kept coming to me asking … How are you going to talk about RTI [without that]?” What Mahesh and Vinothine quickly demonstrated is that moving bodies are a whole lot more fun than PowerPoints. As Vinothine put it, “without boring [them], we can deliver our knowledge and participants are engaged with the dance.”
Mahesh and Vinothine didn’t hesitate to deviate from the training resource as they read both the mood and bodies in the room. Still, some of the RTI exercises proved too complicated, which prompted me to suggest we “simplify and exaggerate” – simplify the RTI content and exaggerate the movements to make things more memorable. So, we focused on five key stages of the RTI process rather than trying to teach all 13 stages. Participants proposed movements to represent each RTI stage and we voted as a group for the ones we liked the best. Mahesh then helped us simplify and exaggerate the five chosen movements and had us rehearse the sequence over and over, so the RTI process became muscle memory. As Amisha later said: “The law is very complicated, right … but once they perform it by themselves through movements, through gestures, they will be able to remember those gestures and movements even if they don’t remember the legal provisions.” Earlier, though, she had had some doubts: “As a law student and as a lawyer, I always felt like law requires seriousness. … Dance is more like entertainment. So, I was confused how the two of them will work [together].”
Mandira Sharma, a prominent human rights lawyer and founder of Advocacy Forum, told me that she too had initially been “very puzzled” and “a little bit sceptical” about how dance and rights could be combined. But she explained that the training had “really opened our minds” as they saw how dance made it “easier for a non-legal person to really understand what the RTI process is about.” She added that dance is “really an empowering tool – even for us [as human rights activists].”
Moving from Dance Performances towards Street Theatre
On the last afternoon of the workshop, Mahesh choreographed a short work of “street theatre” (often a mix of theatre, dance, and music performed outdoors) that depicted a war-disabled woman using the RTI process to gain the government-issued disability card that entitles her to interim reparations. After just three, rather free-wheeling rehearsals, we performed for staff of the Taragaon Museum that had so generously hosted us. Afterwards, one audience member encouraged us to perform in more venues, including hospitals and rehabilitation centres.
VisAbility usually caps its workshops with dance performances at parks, outdoor markets, and street junctions. The performances serve three important purposes. First, they build cohesion and solidarity among the workshop participants. Second, they help empower participants: once they have danced in public spaces, they are less shy about performing their rights to government officials. Finally, they challenge the stigmatizing, shaming, and invisibilizing of disabled people in everyday life. As Gerda König, the German choreographer and VisAbility co-founder, has said: “Yeah, [people] are staring at them, or they look away, or they don’t even see them, but [for the workshop participants] to be as a crowd there [gives] so much power.”
Until now, VisAbility’s dance performances have been mostly abstract or non-representational. There was some resistance to using dance didactically to tell stories about challenging discrimination and claiming rights. But with this new project, VisAbility is moving towards more representational movements (partly due to more co-creation with workshop participants) and then integrating that with verbal storytelling about RTI. This may prove more resonant for participants and audiences. After all, there is a rich tradition of using street theatre to challenge injustices in Nepal and Sri Lanka. And street theatre has been used to promote RTI awareness in places like Bangladesh, India, and Sri Lanka.
While all of us were energized by our three days together, the real test comes when our Nepali colleagues start conducting their own dance and RTI workshops, as well as performances, with war-disabled and non-disabled people at the grassroots level.
What is ‘modern slavery’ and who is responsible for it?
What is the relevance of human rights law, which primarily regulates state conduct, for practices predominantly committed by private actors?
Where can victims seek justice and redress when national authorities fail to protect them?
In her new book State Responsibility for Modern Slavery in Human Rights Law: A Right Not to Be Trafficked, Dr. Marija Jovanovic analyses the role and responsibility of states for addressing ‘modern slavery’ – a diverse set of practices usually perpetrated by non-state actors – against the backdrop of international human rights law. Her work explores the dynamic between criminal law and human rights law and reveals the different ways these legal domains work to secure justice for victims.
In particular, the book considers the ‘absolute’ nature of the prohibition of modern slavery in human rights law, the range of practices covered by this umbrella term and their mutual relationships, the positive obligations of states established by international human rights tribunals owed to individuals subject to modern slavery, and the standards for assessing state responsibility in these situations.
By engaging with the concept of exploitation in human rights law, Dr. Jovanovic glues together diverse practices of modern slavery, including servitude, forced labour, and human trafficking, into a coherent concept.
State Responsibility for Modern Slavery in Human Rights Law: A Right Not to Be Trafficked elucidates the theoretical foundations of this fundamental human right and explains why human trafficking has an independent place within it.
In addition to providing a comprehensive critique of the existing human rights jurisprudence, the book offers a roadmap for the future development of law on this subject, emphasising the limits of human rights law as a tool for addressing modern slavery.
Dr. Jovanovic’s book will be published by Oxford University Press in January 2023.
La légalisation de la mort assistée, un sujet sociétal au cœur des débats
Ces podcasts correspondent à la deuxième partie d’un projet de recherche sur la légalisation de la mort assistée en France et en Angleterre. Après avoir publié un article décrivant les lois actuelles dans les deux pays et les raisons de chacun de refuser la légalisation de la mort assistée, j’ai eu l’opportunité d’interviewer deux expertes sur ce sujet et d’engager la discussion quant à l’état de la législation actuelle et ses possibles évolutions. Nous avons également abordé d’autres questions comme la responsabilité de l’équipe médicale dans le cadre de la mort assistée.
Aujourd’hui, ces discussions sont d’autant plus importantes qu’en France, le débat sur la législation de la mort assistée est d’actualité. Le 13 septembre 2022, Jean-Luc Godard, cinéaste franco-suisse, a délibérément mis fin à ses jours grâce au suicide assisté, une pratique légale en Suisse. Le même jour, le Comité Consultatif National d’Ethique a rendu un avis sur la fin de vie ouvrant la voie à une «aide active à mourir». Une convention citoyenne sur la fin de vie va également être prochainement organisée. Alors que les discussions sur la fin de vie prennent de plus en plus d’importance, il paraît crucial d’en apprendre davantage sur la législation en vigueur et ses possibles évolutions.
Le premier podcast est une interview de Sabine Michalowski, Professeure de Droit à l’Université d’Essex, co-directrice du projet: Essex Transitional Justice Network. Elle est aussi membre du Human Rights Centre et du Essex Autonomy Project.
Le deuxième podcast contient une discussion avec Aurore Catherine, maître de conférences en droit public à l’Université de Caen Normandie, membre de l’Institut Caennais de Recherche Juridique et présidente du groupe de Réflexion Ethique du Centre de Lutte contre le cancer François Baclesse.
Ces deux podcasts, bien qu’ils traitent des mêmes sujets, présentent deux points de vue différents.
Dans son interview, Madame Catherine commente la loi en vigueur en France. Elle rappelle que le but de cette loi est de soulager les souffrances. Selon elle, il faudrait d’abord s’assurer que cette loi est bien appliquée avant de se pencher sur la légalisation de la mort assistée:
«En 2015, une critique a été soulevée: notre législation était philosophiquement, éthiquement bien fondée, simplement on n’arrivait pas à l’appliquer parce qu’elle était insuffisamment connue des soignants, insuffisamment connue du grand public».
Concernant Professeure Michalowski, il lui semble important de se focaliser non pas sur l’application de la législation actuelle mais sur la nécessité de légaliser la mort assistée. Selon elle, il serait préférable d’adopter une nouvelle loi plutôt que de se reposer par exemple sur l’«état de nécessité», un moyen de défense utilisé lors de certains procès mais qui se révèle «totalement imprévisible». Pour Professeure Michalowski, il est important de laisser le choix aux individus et de leur permettre ainsi de décider de leur vie comme de leur mort. Elle affirme à cet égard que: «Pour certaines personnes, une meilleure fin de vie serait d’avoir accès à la mort assistée».
Interview with Dr. CatherineInterview with Prof. Michalowski
The Legalisation of Assisted Dying
These podcasts are the second part of a research project on the legalisation of assisted dying in England and France.
In the first interview, I had the honour of talking to Sabine Michalowski, Professor of Law at the University of Essex, co-director of the Essex Transitional Justice Network and a member of the Human Rights Centre and the Essex Autonomy Project.
In the second interview, I had the opportunity to interview Aurore Catherine, Lecturer in Public Law at the University of Caen Normandie, member of the Institut Caennais de Recherche Juridique and President of the Ethical Debate Group at the François Baclesse cancer centre.
In both podcasts, we are going through different themes on the topic of assisted dying. Similar questions are asked to both interviewees in order to grasp the differences between both jurisdictions.
From the definition of dignity at end of life, to the powers of the courts and the physicians’ responsibilities, we discuss the challenges associated with the legalisation of assisted dying.
Although dealing with the same topic, the two podcasts present two different points of view.
In her interview, Dr. Catherine focuses on the current legislation in France. She recalls that the purpose of the law is to relieve suffering. According to Dr. Catherine, it would first be necessary to apply this law properly before debating on legalising assisted dying:
“In 2015, a criticism was raised: our legislation was philosophically, ethically well-founded, however, we could not apply it because it was insufficiently known to caregivers, insufficiently known to the general public”.
For Prof. Michalowski, the importance of the debate lies in the legalisation of assisted dying. According to Prof. Michalowski, adopting a new law would be a better option than relying for instance on the defence of necessity, a means of defence used in some trials but which turns out to be “totally unpredictable”. She focuses on the idea that it is important to leave everyone to choose and decide about their own life and death. In this regard, she says that “for some people, a better end of life would be to have access to assisted dying”.
Interview with Dr. CatherineInterview with Prof. Michalowski
I have recently had the honour to be part of the panel of judges of the Aban Tribunal – a People’s Tribunal established by civil society to review evidence of atrocities allegedly perpetrated by the Islamic Republic of Iran as part of its crackdown on the mass protests that had engulfed Iran in November 2019, sparked by massive rises in fuel prices but fundamentally were about social and economic rights and governance in the country. Our judgment, in which we found that acts of extrajudicial killings, torture, sexual violence, arbitrary detentions, enforced disappearances and persecution amounted to crimes against humanity, was released on 1 November 2022.
This was my first foray into the world of People’s Tribunals, a concept which originated with the Russell Tribunal, named after Bertand Russell. That was a process he initiated together with Jean Paul Sartre, Simone de Beauvoir and other luminaries of the day to consider the American role in Vietnam. Since then, the People’s Tribunal concept has developed and evolved and many other tribunals have been established to consider a wide array of issues ranging from the coalition-led invasion into Iraq, the situation in Palestine, the situation in Kashmir, Japanese wartime practices related to sexual slavery, the treatment of refugees and migrants, the treatment of Uyghurs, climate change and the murder of journalists. And the list goes on.
People’s Tribunals tend to come into play when more traditional justice avenues are completely blocked or when the official narrative about what happened denies the space for other voices or perspectives. Either a regime has no interest in any kind of justice and will not be cajoled into a justice process. Or, there is a particular issue that is completely taboo in a country or which cannot be solved by bringing a case to court.
In the case of the Aban Tribunal, the Islamic Republic had authorised the violent crackdowns on protesters and in the aftermath of those events, had instituted a devastating campaign of intimidation against family members who had sought out information about how their loved ones had died or were calling out for justice. Authorities had also interrupted families’ burial rituals in order to deflect attention away from the many killings, preventing families from grieving their loved ones. Thus, there was no realistic prospect of domestic investigations or prosecutions of those responsible or any likelihood of an official acknowledgment of the wrongs done and the harms caused. Victims and witnesses, who faced significant risks of reprisals for their participation, testified, often by video link – with faces covered and voices distorted, from inside Iran. The opportunity to tell their stories to the world was one they could not pass up lightly.
People’s Tribunals are about drawing attention to problems that are not being solved by traditional courts, governments or others. These tribunals are intended to bring public attention to issues not sufficiently in the public domain; to build solidarity with victims; to provide some kind of ritualised forum in which evidence is evaluated and the moral weight of a conclusion is given; to serve as a catalyst either for later formal justice processes or for changing public opinion or inspiring political debate.
What makes “justice” justice? This is perhaps a philosophical or sociological question, it can also be considered anthropologically – what do we turn to a justice system to do for us? And when do we see that it has the power to deliver?
Do we do a disservice to victims if justice is not sanctioned by a government; if the results of this “contrived” justice process cannot result in “real” sanctions?
In some cases, a People’s Tribunal might make it more difficult to have a formal justice process afterwards (but sometimes the opposite with be the case). But often “real justice” is symbolic – victims will take cases to human rights courts that they know will not get enforced; but often the reason why victims bring cases to court is for an official body to acknowledge that they were wronged and that they suffered. It is important that there is official recognition that what was done to them was wrong and that they – the victims, are not to blame.
As such, it becomes a question of whether the People’s Tribunal is imbued through the rituals it cloaks itself with, with enough internal legitimacy that victims and communities see it as having the power to do justice in the form of acknowledgement.
In some cases, it will be important for the judges of People’s Tribunals to don robes, to use gavels, and to seem otherworldly, and to speak the language of the courtroom for the victims to believe that the justice ritual they are part of is “real” and “meaningful”. This was the case with the Aban Tribunal – it was our determined belief, based on our understanding of the situation and speaking with civil society that there was this overwhelming sense of impunity – the total and absolute absence of justice. Donning the rituals of the courtroom was therefore an important part of our process.
In other cases, it is the formal justice system that is alienating and has failed victims in the past; the People’s Tribunal will be embraced and seen as legitimate only if it gets stuck in with the community in a more visceral way.
Can justice exist without a government legitimising it?
In most societies, justice is like a social contract – the justice process helps reinforce the rules by which the society lives by. Justice that is fair makes communities feel comfortable to abide by the rules. Everyone knows their place. In this sense, justice is something a government uses to reinforce the rule of law within the society. When state actors commit crimes, subjecting them to the same scrutiny, to the same justice, reinforces the sense that everyone plays by the same rules. When the state exempts itself from the rules, this undermines the rule of law in society.
Before embarking on this People’s Tribunal journey, I was convinced that for justice to be meaningful it had to be done by the decision-makers. As someone who has worked a lot on the issue of reparations or remedies to victims, – reparations were always something the government or the direct perpetrators should provide – indeed, this was part of their social contract, their role in reinforcing the rule of law. When civil society groups or development agencies started getting involved in reparations, my sense was always that they were just muddying the waters; reparations means something specific; it is special – it is about the wrongdoers acknowledging the wrongs and harms that they caused. So similarly, a justice process needed to be set up by governments because of the role governments play, or should play, in society, in reinforcing the rule of law.
But with People’s Tribunals, I realised, the idea that victims and civil society create their own framework of justice when justice is not otherwise going to happen, recognises that a government does not have the power to deny justice – this itself is really powerful. When the government does nothing, the victims, the civil society, the international community say no – that is not alright; we deserve justice; if you won’t provide it, we will not allow you to block it for us; we will take matters into our own hands and create our own justice.
It recognises that justice as acknowledgement is a ritualised project, and it is not owned by governments.
The result can be very creative; participatory; and if done well, a really positive experience for victims that they wouldn’t get in a traditional courtroom.
How to avoid the accusation of Kangaroo Justice?
There will always be arguments that Peoples’ Tribunals are one-sided; that they are just a politically motivated tirade against a government. For any People’s Tribunal to have a positive effect, it must guard against this. It is the judges of the People’s Tribunal who need to control the process. They must give space for nuance, hear all possible arguments even if not all sides are participating, recognise that there are defence rights even if there are no accused. This is difficult, and not always as obvious as it should be.
The truth is never simple, the organisers of tribunals are advocates, with advocacy positions – it is important for judges/deciders of fact to be independent of that, to be as neutral as possible.
Another line of argument is that a Peoples’ Tribunal should not seek to resemble a court – the more they don the rituals of a court, but do not have the necessary checks and balances of a court, the more they veer towards kangaroo justice. However, one needs to consider the purpose of the People’s Tribunal – in some cases, it is set up precisely because the community has a real need for justice – and there is no accountability in the society – so becoming as “court-like” as possible is really important, for the victims and the ritual of the process.
For the Aban Tribunal, it was really important that we were a court – we wore robes, the witnesses were sworn in, the judges spoke in legalese and the judgment is a judicial ruling – but this obviously raises other challenges – we had to take special care about process, about fairness, about our own accountability.
Conclusions
People’s Tribunals play a really interesting part of the mix of justice processes. They are particularly important to adjudicate situations or issues which would not otherwise have benefited from adjudication. They also play an important role in expressing solidarity with victims and affected communities who often feel isolated in authoritative regimes.
The idea that justice comes only in one shape, or size, is evolving. This evolution is necessary in light of the many instances of absolute impunity around the world. But also, it can be very empowering and freeing to develop conceptions of justice that are centred on the needs of victims and communities.
The United Nations (UN) has recommended international guidelines developed through a partnership between Julie Hannah, at Essex Law School, and the United Nations Development Programme should be used in the Philippines to improve and protect human rights.
The Office of the High Commissioner for Human Rights (OHCHR) has recommended the International Guidelines on Human Rights and Drug Policy form part of the UN joint action plan to improve the human rights situation in the Philippines.
“We are delighted to see the Guidelines form one of the United Nation’s key recommendations to the government of the Phillippines to advance more humane and just responses to drugs in the country. Vigilance and accountability will continue to be critical to ensure the Guidelines are utilised in a comprehensive system of reforms necessary to support justice and healing for the communities so deeply affected by the punitive and violent drug control efforts of recent years. It is an honour to play a very minor role in supporting the tremendous advocates at the Commission on Human Rights as well as civil society colleagues and friends in the country.”
Improving human rights in the Philippines
This recent UN report examines progress made on the implementation of the United Nations Joint Programme on Human Rights (UNJP), agreed by the Government of the Philippines and the UN on 22 July 2021.
This three-year UN joint programme was developed to implement Human Rights Council Resolution 45/33 which outlined specific areas, including drug control, for capacity-building and technical cooperation for the promotion and protection of human rights in the Philippines.
The OHCHR’s recommendation that the new Philippines administration ‘revise legislation and policies in line with a human rights-based approach and the International Guidelines on Human Rights and Drug Policy’ followed a national consultation convened in 2021.
This consultation involved the Philippines Commission on Human Rights, the OHCHR and national stakeholders to review the current efforts on drug policy reform in the Philippines in light of the International Guidelines on Human Rights and Drug Policy. This was subsequently followed by meetings organised by the UNJP in April this year with government, health officials and academia to propose a draft roadmap to transition the national drug policy framework towards a public health and human-rights centred system to enable voluntary community-based treatment and rehabilitation for drugs.
More about the International Guidelines on Human Rights and Drug Policy
They were developed by the International Centre on Human Rights and Drug Policy and the United Nations Development Programme in collaboration with the GPDPD, GIZ on behalf of the German Federal Ministry for Economic Cooperation and Development and the Swiss Federal Department of Foreign Affairs.
This piece was first published on the University’s news web pages and is reproduced on the ELR Blog with permission and thanks.
Human rights are not simply rights, they are also quintessentially human; and the human experience is filled with emotion. Dr Nikolaidis argues that human rights can be understood as emanating from emotions that we are perceived to share.
Art in general and poetry in particular can provide a great service in helping us explore and bring these emotions to the fore, thereby reinforcing the distinctively human character of human rights, while also enabling us to understand them as something more than moral or legal constructs.
The regulatory and legal facet of human rights is a fundamental aspect of democratic justice systems. But so is the personal, emotional facet, which prompts us to celebrate, communicate, debate and re-imagine the nature and content of human rights – within and beyond the courtroom – in a more empathetic and inclusive manner, with reference to the emotions that underpin them.
In his new article, published Open Access in the journal of Law and Humanities, Dr Nikolaidis advances the idea that a sharper focus on the personal facet of rights can help promote the regulatory one “by making the justice system more sensitive and responsive to the emotions of individuals, thus rendering it more open and relatable”.
“Today, we acknowledge [these past abuses], and, on behalf of the Church of Sweden, I apologise.”
Those were the words of the Archbishop of the Church of Sweden, Antje Jackelén, as she led the reconciliation service in Luelå Cathedral this past Sunday (23 October), and officially apologised to Sweden’s indigenous population for the Church’s involvement in past colonial oppression and abuses. This is part of the Church’s reconciliation process and efforts in dealing with a dark past that has included forced Christianisation, destruction and desecration of Sami religious places and objects, active participation in grave looting in search of Sami remains, deprivation and suppression of Sami identity and culture.
The Sami are the only indigenous people of Europe and their traditional land – Sápmi – stretches across half of modern-day Norway and Sweden, as well as part of Finland and Russia. It is estimated that there are around 100,000 Sami in Sápmi, with 20,000-40,000 in Sweden.
The Sami are believed to have lived on this land for thousands of years. In Sweden, colonisation of Sápmi began in the early 14th century but really took off in the 17th century when silver was discovered. This led to Sami populations being driven further to the north and west, which led to centuries of conflict between the Sami and colonisers as the Sami saw their rights, including to land and water, being curtailed. These rights are still being violated today in breach of international human rights law and Sweden has been criticised by the UN Special Rapporteur on the rights of Indigenous Peoples for its treatment of the Sami, including for the lack of protection for their right to their lands and resources.
The Church of Sweden was instrumental in the oppression of the Sami, who were forced to convert to Christianity (through methods like fines, imprisonment and even the death penalty) and to attend church, where their language and traditional joik singing was banned. As part of the Christianisation of the Sami, the Church also defaced Sami religious sites and destroyed drums used in traditional ceremonies. This contributed to the loss of traditional Sami religion and culture.
In addition, the Church was the main force in organising so-called “nomad schools” for Sami children, which were run between 1913 and 1962. Like the residential schools for indigenous children in Canada, these were boarding schools and based on racist ideology. However, unlike the Canadian schools, the purpose was not necessarily to assimilate Sami children into Swedish citizens. Rather, the schools in Sweden were created based on the understanding that reindeer-herding Sami should live according to what the Church considered to be as close to their nature as possible, whereas non-nomadic Sami should be assimilated into white Swedish society. Therefore, the children of reindeer herders were sent to the nomad schools, where they were provided sub-standard education, where Swedish was the language of instruction and where their own language was banned. Consequently, generations of Sami lost their language.
The Church was also involved in other racist policies. In 1922, the State founded the Institute for Eugenics. Its director, Herman Lundborg, believed in racial purity and argued that ideas about the equal worth of peoples was an illusion (he became an inspiration for German eugenics researchers whose work laid the foundation for many Nazi policies). Lundborg conducted his “research” on the Sami people which led to trauma, lasting generations. He travelled to Sápmi and measured skulls and faces of the Sami, and also collected information about eye and hair colour. He photographed each person, sometimes naked, and a catalogue of pictures with public access is still kept at the library at Uppsala University. Church representatives had a close relationship with Lundborg and they acted as points of contact between Lundborg and the schools and villages he visited.
While the State has remained largely silent and has yet to apologise, the Church has taken the lead in redressing past abuses against the Sami and has begun a reconciliation process which has included mapping its involvement in abuses and holding Ságastamallat (conversation or dialogue in Sami) – where testimonies have been collected about the experiences of the Sami and consequences of the Church’s abuses. The first one took place in October 2011 and the second took place 21-22 October. Two more Ságastamallat are planned – one in 2026 and one in 2031. The Church will then have spent 20 years working on the process of reconciliation.
The current (and retiring) Archbishop has, for many years, made repeated public comments about the Church’s past abuses against the Sami, and called for Sweden to deal with its colonial past. Under her leadership, the Church published a White Paper – “The Sami and the Church of Sweden” – where the Church “examines its guilt and responsibility towards the Sami in [Sweden’s] colonial past.” The White Paper documents past abuses and violations committed. The Church has also published a book about the nomad schools – “When I was eight, I left my home and I have still not returned” – which contains ten testimonies from persons who attended these schools. In the preface, the Archbishop wrote: “The Church took part in the colonisation of Sápmi and actively contributed to exercising power and control over the Sami. We delivered theological thought models that could justify the colonial system. Church representatives also had a driving role in the creation of the nomadic schools at the beginning of the 20th century.”
Last November, the Church made an official apology in Uppsala Cathedral, the seat of the Archbishop. This apology was repeated this Sunday in Luleå – which was symboliccally important as Luleå is located in Sápmi. Both apologies were made in Church services that were live streamed and still available online. The services were conducted in both Swedish and Sami. Importantly, the traditional joik was also included, as were several testimonies, including about experiences in the nomad schools and a poem about the racial policies of the Church. Others spoke about the loss of identity across generations, and how the loss of language and land (including land still owned by the Church) has contributed to the loss of culture.
The Archbishop’s apology acknowledged that the Church “has contributed to and legitimised oppression” and that the apology was only one step “forward on the long road of reconciliation.” As part of this road to reconciliation, and linked to the apology, the Church also made eight commitments, including to increase knowledge and awareness of the Church’s historical abuse against the Sami and the consequences of this and to expand knowledge of and respect for the principles of indigenous rights within the Church of Sweden and in society, as well as to preach the Gospel in the Sami languages and in the Sami cultural context, with respect for the Sami spiritual and ecclesiastical tradition.
After centuries of oppression at the hands of the Church, this public apology is an important step in the work done by the Church as part of the ongoing process of reconciliation. However, the Archbishop also acknowledged that “we cannot determine how you will receive this apology. It is not our place to demand to know when a response will be given and what that response will be.” Representatives of the Sami Parliament in Sweden have said that in order for the Sami people to accept the apology, practical action from the Church is needed. It remains to be seen whether the Church is able to deliver on its eight commitments and how the apology will be received by Sami communities.
In further developments, and perhaps spurred on by the Church’s work, the government agreed with the Sami Parliament last year to create a truth commission to “identify and review from a historical perspective the policies the Sami were subjected to and the subsequent consequences for the Sami people.” Commissioners were appointed in June 2022 and are expected to deliver their report in 2025. Little information is currently available about the commission, including details about its mandate, but it does not seem to include a mandate to recommend reparations.
Given the State’s history of dragging its feet when it comes to acknowledging responsibility for its abuses against the Sami, both past and present, and the fact that it refuses to ratify the ILO 169 Convention on indigenous rights, this is perhaps unsurprising. But it would be a missed opportunity nonetheless. At the very least, any reparations provided to the Sami should include acknowledgement of responsibility and an apology. With the Church leading the way, one can only hope the State follows suit.
Young European Research Universities Network (YERUN) is a network of young research universities in Europe seeking to have a true impact on the role and nature of academic pursuit. The competitive Research Mobility awards support early career researchers to establish new research collaborations within the YERUN network while providing a platform to promote multidisciplinary research.
Dr Koldo Casla will work alongside Marion Sandner (PhD candidate at Antwerp University) on the meaning of solidarity and responsibility in global politics and in international law, and the relationship between these two ideas and social rights.
Solidarity is one of the unifying principles of a society. But does solidarity have a role in the international society? How is solidarity recognised in international human rights law? What are the implications of the recognition of solidarity within nations and between nations? In other words, if we are bound by solidarity, what do we owe each other, and what does this mean for human rights, and for social rights in particular? These are some of the key questions Koldo and Marion will be busy with in the next few months.
Dr Fikayo Taiwo will work with Martin Munu (PhD candidate at Maastricht University) on access to justice, regional economic integration and electronic commerce (e-commerce).
As access to justice is a sustainable development goal (SDG), the researchers will investigate the extent to which the nascent Agreement establishing the African Continental Free Trade Agreement (AfCFTA) dispute resolution mechanism advocates this SDG for e-commerce disputes. Given the increasing popularity and complexity of e-commerce and the societal peculiarities on its availability and use across the continent, as well as the inspiration drawn from the World Trade Organisation Dispute Settlement Understanding (WTO-DSU), the researchers will consider any gaps in WTO rules and case law covering e-commerce with the objective of drawing any possible lessons for promoting access to justice under the AfCFTA, and contributing towards sustainable, inclusive socio-economic development in Africa.
The collaborations will last until the end of 2023. We look forward to announcing their findings. Watch this space!
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