Unrecognized in the Shadows – the Plight of the Stateless

This blog post was written by Lee Caspi and Federica Sola, masters students of the LL.M in Human Rights at the University of Edinburgh. The blog reports on the panel eventUnrecognized in the Shadows: The Plight of the Stateless” on the topic of statelessness, hosted recently in Edinburgh, that received funding from the Global Justice and Global Development academies’ joint Innovative Initiative Fund.

On the 4th of April 2017 students, academics and professionals came together to discuss the issue of statelessness, a topic that does not receive much attention in academia or in public debate. The speakers aimed to raise awareness of the challenges encountered by stateless people. The event started with four short lectures on the topic, orchestrated by Professor Jo Shaw (University of Edinburgh).

The first speaker was Mr. Omar Alansari (Queens University, Belfast). Omar gave a very comprehensive overview of statelessness in international law, discussing the difficulties in achieving an accurate number of stateless people worldwide due to the fact that they are, by definition, not registered. He then discussed the causes of statelessness, such as discrimination; religion; gender; arbitrary denial of nationality based on political views; and gaps in nationality laws and geopolitical changes (as happened with the breakup of the former Soviet Union). He then focused on the two international conventions dealing with statelessness, underlining that both are not widely ratified. Next, he described the UNHCR mandate as relates to stateless people, which focuses on encouraging states to ratify the two conventions, and a campaign to end statelessness by 2024. Omar concluded his talk by describing the situation in Saudi Arabia, where there is an estimated total of over half a million stateless people.

Following this excellent outline of the legal framework on statelessness, Deirdre Brennen from the Institute of Statelessness and Inclusion spoke about “Gender Discrimination and Statelessness”. There are 28 countries where women are discriminated against in their ability to confer their nationality to their children, and over 50 where they are discriminated against in their ability to change and confer their nationality through marriage. Following this introduction, Deirdre screened testimonies by a woman named Deepdi, with whom she worked in Nepal, Deepdi’s husband and two daughters. They told their personal stories, describing the everyday difficulties arising from the lack of nationality such as the inability to have their own bank accounts, open a business and access certain educational institutions. Deepdi’s two daughters also spoke about their experiences of feeling different to their friends due to their limited opportunities in some areas. In conclusion, Deirdre spoke about the mainstream aspects of feminism nowadays, but said that a fight for women’s nationality is missing from this global movement, and there is a need to raise more awareness of it.

Next came a presentation by Nina Murray from the European Network on Statelessness (ENS), who spoke about the arbitrary detention of stateless people. The ENS initiated a project around Europe to try to understand the scope of the problem of detention of stateless people, which was derived from 6 country reports from around Europe. The project focuses on removal procedures, the point at which stateless people are most at risk of detention. Despite the fact that detention of migrants is becoming more common, there is very poor data regarding detention of the stateless since it is not always recorded, making it more difficult to protect them. Nina then discussed two countries, Poland and the UK, where there is a route for stateless people to become recognized, but both present often insurmountable obstacles on the path to recognition. For example, in the UK, those who have a criminal record cannot be recognized as stateless. This creates what Nina describes as a cycle of detention-release-detention, making it near impossible for people ever to start a normal life. The presentation concluded with recommendations for the way forward, such as finding alternatives to detention and developing a better procedure for identifying the stateless.

Finally, Cynthia Orchard from AsylumAid spoke about Statelessness in the UK. Being stateless in the UK makes it very difficult to work, access higher education, creates a higher risk of detention, and many other problems as access to housing. A procedure for recognizing stateless people was successfully introduced by the UK government in 2013. To apply to stay in the UK, a stateless person must fill out a 38-page application in English and provide many documents that are impossible to access if you are stateless. The Home Office expects stateless people to contact the embassy of a country to which they have some connection in order to obtain proof that they are stateless. AsylumAid often accompanies them in this process in order to act as witnesses, because the testimonies of the applicants are frequently deemed not credible. If the application is successful, the applicant is granted leave to remain in the UK for 2.5 years, which can then be extended. If leave is refused, the applicant can make a new asylum/statelessness application, or request judicial or administrative review. Cynthia discussed her concerns regarding the process of recognizing stateless people in the UK, which is extremely slow, provides no legal aid (in England and Wales), and has a very low rate of granting stateless status (around 5%).

Following this excellent series of lectures, three students discussed issues of statelessness from their home contexts. The first speaker was Josef Budde who moved to Guam in 2010. Josef discussed Guam’s history and its current status as a US naval base, where the local community has limited statehood. They are, on the one hand, US citizens, but on the other cannot vote for the presidency and have no representation in the Senate. Next, Aija Butane described the situation in Latvia. When Latvia achieved independence, it established in its nationality laws that those who were citizens of Latvia before the Second World War and their descendants would be recognized as Latvian, and those who moved during the Communist era would not. This has rendered many ethnic Russians in Latvia stateless. Aija discussed the very high requirements of the naturalization process for ethnic Russians to become Latvian due, among other things, to the high language requirements. However, the situation is slowly improving and now affects mostly those of the older generation. Finally, Dania Abul Haj described the complex nationality situation in Palestine. She described her personal experiences as a Palestinian from East Jerusalem travelling with an Israeli travel document despite not having Israeli nationality, while having a Jordanian nationality which is cumbersome and impractical to use. She described her experiences when registering her nationality with the University of Edinburgh and the bureaucratic system’s lack of understanding of the situation she must deal with every day.

The event concluded with a short Q&A session, where students brought up issues such as climate refugees, the nationality of children born in the Islamic State, and the ratification rates of the two statelessness conventions.

 

This workshop was made possible through the generous support of the Global Development Academy and the Global Justice Academy. We would like to give a special thanks to Dr Kasey McCall-Smith for her support; to Professor Jo Shaw for chairing the conference and to all the guests who travelled from all over the UK to speak at the event.

Keeping Guantánamo on the Map

Vivek Bhatt, a Student Ambassador with the Global Justice Academy (GJA), has written this blog following a panel event he attended at the Edinburgh Law School. The event, hosted by the GJA, explored the continuing relevance of legal and political issues arising from detention at Guantánamo Bay.

The United States acquired control of Guantánamo Bay in 1903, when it entered into an agreement with Cuba for the perpetual lease of the 45 square mile area.[1] Guantánamo Bay has since been operated as a naval base, and in the 1990s, it was ‘refashioned as a detention camp for those seeking asylum in the United States.’[2] From 1991 to 1996, more than 20,000 Cuban and 36,000 Haitian asylum seekers were interned in Guantánamo Bay.[3] And, in November 2001, merely days after the declaration of a ‘global war’ against terrorism, a US Military Order authorised the indefinite detention and trial of ‘enemy combatants’ at the camp. The US promptly began transferring individuals captured during its international counterterrorist operations to Guantanamo Bay. A total of 770 have been held there through the course of the war on terrorism. Only 8 men have been convicted, with more than 500 released during the Bush administration, 198 released during Obama’s presidency, and 9 killed in custody. 41 remain in detention, with 14 considered high value detainees and 26 designated as ‘forever prisoners,’ individuals whose knowledge of practices at Guantánamo Bay renders them too dangerous to be released.

The legal justifications provided for detention at Guantánamo Bay have been vague, at best. Those transferred to the camp are characterised as ‘enemy combatants’ under the laws of armed conflict, even though many have been captured outside areas of fighting.[4] The camp’s location in Cuba has, furthermore, allowed officials to assert that detainees are not entitled to the protections of the US legal system. According to Harold Koh, Guantánamo Bay is effectively a ‘rights-free zone’ constructed by the US. [5] Its detainees, writes Agamben, ‘[Are] legally unnameable and unclassifiable beings.’[6] After the release of the Senate Intelligence Committee’s report on CIA torture in 2014, it was finally confirmed that many of these detainees have been subjected to ongoing torture practices as part of their interrogation. The camp has, therefore, come to symbolise the legal and ethical dubiousness of the war on terror, with the ‘visceral image’ of the orange Guantánamo jumpsuit now engrained in public memory and popular culture.[7] Fifteen years on, however, International attention to the legal and political issues arising from detention at Guantánamo Bay is waning. Some, it seems, believe the worst is over, while others may simply have accepted that the goings on at the camp are part of an inevitable, ‘new’ reality of the war on terror.

This was the topic of ‘International Law and Guantánamo Detention Operations: Why it Matters,’ a panel event hosted by the Global Justice Academy and the Edinburgh Law School on 9 February 2017. The event aimed to examine the range of international law and human rights issues relating to detention operations in Guantánamo Bay, and was opened by Kasey McCall-Smith, lecturer in public international law at the Edinburgh Law School. Dr McCall-Smith provided an overview of the breaches of international law at Guantánamo Bay. She began by pointing out that the United States is not solely responsible for these breaches; the international community has facilitated the detention programme at Guantánamo Bay, and has failed to react to the grave violations of human rights that have occurred there. The violations of human rights at Guantánamo Bay begin with rendition flights, which transport terrorists to the camp for interrogation, and have been allowed to land at various airports throughout Europe. Various areas of international law are relevant to rendition, but particularly the prohibition of enforced disappearance. Once at Guantánamo Bay, detainees have been denied their right to visits from a consular official of their national State, protected under Article 36 of the Vienna Convention on Consular Relations.[8] As Dr McCall-Smith pointed out, various provisions of the International Covenant on Civil and Political Rights have also been violated in the course of detention and interrogation at Guantánamo Bay. These include the right to non-discrimination,[9] the right to liberty and security of person,[10] the right to be heard before a court,[11] and the right to be treated with respect for the inherent dignity of the person.[12]

Meanwhile, Jacques Hartmann, a senior lecturer in Law at the University of Dundee, spoke of his research into arbitrary detention in non-international armed conflicts. This topic is particularly relevant to Guantánamo Bay, given that most of those taken to the camp are captured as enemy combatants. To Dr Hartmann, the detention of suspected terrorists at Guantánamo Bay is symptomatic of a much larger problem: the lack of treaty provisions that explicitly address detention in non-international armed conflict. The lack of an express provision leads many to infer the authority to detain from the authority to use lethal force. Yet Dr Hartmann warned against such inferential reasoning, reiterating that any detention without legal justification is arbitrary, and is thus prohibited under both international human rights and humanitarian law.

As suggested above, the most widely discussed human rights violation at Guantánamo Bay is the continued use of torture. This was the focus of an address given by Dr Mitch Robinson, an international law specialist at the United States Department of Defense. He characterised Guantánamo Bay as a concentration camp; the only people detained there since November 2001 have been Sunni Muslim men. Dr Robinson spoke of one of his clients, a Saudi national who was accused of financing terrorism, and was in the CIAs’ torture programme for three and a half years. Though reports from early questioning suggested that he ‘does not appear to be a financing mastermind,’ the client was repeatedly deprived of sleep, sodomised and water-boarded, among other things. Robinson proposed a strategy for global human rights litigation relating to Guantánamo Bay. He refers to this strategy as ‘collateral advocacy’ for detainees’ human rights through domestic courts, regional human rights bodies, the UN’s human rights treaty bodies and high commissioner for human rights, international non-governmental organisations, civil society, and the application of legal or diplomatic pressure by other States.

Andrea Birdsall, lecturer in international relations at the University of Edinburgh, pointed out that as the international community has become aware of torture practices in Guantánamo Bay, the US government has moved along a ‘continuum of denials.’ This began with literal denial, a phase in which the Bush administration simply argued that the US Government does not commit acts of torture. This was, however, challenged by the release of the torture memos,[13] which made clear that torture was being used as a government policy. This led to ‘interpretive denial,’ in which it was argued that detainees were not subjected to torture, but to ‘enhanced’ or ‘increased pressure’ phases of interrogation that did not entail the ‘near-death’ experiences that would constitute violations of international or US domestic law. In the final stage, ‘implicatory denial,’ it was admitted that ‘mistakes had been made’ in the interrogation of suspected terrorists, but it was argued that the measures taken were justifiable in times of crisis. To Dr Birdsall, the US government’s treatment of terrorist suspects does not signify the demise of the anti-torture norm. Instead, the discourse surrounding Guantánamo Bay has legitimised the international law prohibition of torture, reinforcing a shared global understanding of the prohibition’s non-derogability.

The panel concluded that the programme of detention and interrogation at Guantánamo Bay warrants continued attention from scholars, lawyers, governments, and international civil society. There are three reasons for this conclusion. Firstly, violations of human rights are ongoing; Article 14 of the Torture Convention, for example, requires States parties to rehabilitate victims of torture, an obligation the US government has not fulfilled in relation to Guantánamo detainees.[14] Secondly, Guantánamo Bay is unlikely to be closed in the foreseeable future, and conditions may in fact worsen in coming years. And, finally, the prominence of human rights violations at the camp presents an opportunity for scholars and practitioners to reflect upon the state of the international rule of law, and to reify the value of the fundamental rights protected within the international legal order.

About the author

Vivek Bhatt is an Edinburgh Global Research Scholar, and is reading for a PhD in Law. He holds an MSc in Political Theory from the London School of Economics and a Master of International Law from the University of Sydney. Vivek’s research interests span public international law, international political theory, and counterterrorism. His current research relates to the engagement of individuals in the international legal system through the course of the war on terror.

[1] Fleur Johns, ‘Guantánamo Bay and the Annihilation of the Exception’ (2005) 16(4) The European Journal of International Law 613, 616.

[2] Ibid.

[3] Ibid.

[4] Mary Ellen O’Connell, ‘The Choice of Law Against Terrorism’ (2010) 4 Journal of National Security Law & Policy 343, 353.

[5] Quoted in Joan Fitspatrick, ‘Spekaing Law to Power: The War Against Terrorism and Human Rights’ (2003) 14 European Journal of International Law 241, 242.

[6] Giorgio Agamben, State of Exception (Kevin Attell trans., University of Chicago Press, 2005) 3.

[7] This phrase was used by Mitch Robinson, a panelist at ‘International Law and Guantánamo Detention Operations: Why it Matters’, hosted by the Global Justice Academy and Edinburgh Law School on 9 February 2017.

[8] Vienna Convention on Consular Relations, signed 24 April 1963, 596 UNTS 261 (entered into force 19 March 1967) art 36.

[9] International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 2.

[10] Ibid art 9(1).

[11] Ibid art 9(4).

[12] Ibid art 10(1).

[13] See, for example, Philippe Sands, ‘Torture Team: The Responsibility of Lawyers for Abusive Interrogation’ (2008) 9 Melbourne Journal of International Law 365, 366.

[14] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) art 14.

Rethinking the International Criminal Justice Project in the Global South

This guest post is by Michelle Burgis-Kasthala, who is currently a Research Fellow at the Centre for International Governance and Justice, RegNet, ANU. Michelle will be returning to Edinburgh Law School in 2017-18. This post is re-blogged from ‘Regarding Rights: Academic and Activist Perspectives on Human Rights’ and is based on an article published recently in the Journal of International Criminal Justice: ‘Scholarship as Dialogue? TWAIL and the Politics of Methodology’.

ICC in Ivory Coast in 2013. Image: BBC News

ICC in Ivory Coast in 2013. Image: BBC News

Concerns about the International Criminal Court’s (ICC) continuing relevance in Africa following exit announcements by Burundi, South Africa, and Gambia are widespread. But the picture across the continent is more complex. While some African states have clearly rejected the Court, the majority remain members. How can we explain the fracturing of the Court’s support in Africa? More fundamentally – what is the best way of studying international criminal justice and its effects in the Global South – whether in Africa or elsewhere?

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The Apportionment of Shame: Rodrigo Duterte and the Cosmopolitan Discourse of International Criminal Law

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GJA Student Ambassador, Vivek Bhatt

The Global Justice Academy is delighted to launch the second year of its Student Ambassador programme with a guest post by Vivek Bhatt. Vivek is an incoming student reading for a PhD in Law. He recently completed the MSc in Political Theory at the London School of Economics, and holds a Bachelor of Arts (Advanced) (Honours) and Master of International Law from the University of Sydney. His primary interest is in international laws relating to counterterrorism, conflict, and human rights.  

Rodrigo Duterte’s war on drugs in the Philippines has recently been deemed an international crime. This post reflects upon issues arising from the condemnation of Duterte, asking whether international criminal law can enable the realisation of cosmopolitan ideals. 

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Rodrigo Duterte, President of the Philippines

When elected President of the Philippines on 9 May 2016, Rodrigo Duterte vowed to reduce rates of drug-related crime within the state. Duterte has since waged a violent anti-drug campaign, authorising the extra-judicial execution of individuals thought to use, possess, or traffic illegal substances.  The President’s “death squad” comprises select members of the police force and civilian volunteers. Most of these individuals were lured into their roles as amateur mercenaries through payment, and promises of impunity for their actions. Others were coerced into joining Duterte’s campaign; men and women were guaranteed immunity from punishment for their own drug-related offences in exchange for their services as assassins.[1] The OHCHR suggests that over 850 people have been killed since Duterte’s election, but reports that take into account unexplained deaths during that period suggest the number is closer to 3,000.[2]
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