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Are We Really Surprised?

By Cassandra Richards

During my time at Maliiganik Tukisiiniakvik Legal Services in Iqaluit, a riot broke out at the Baffin Correctional Centre in June. Baffin Correctional Centre, known colloquially as BCC, carries a reputation as an abhorrent facility, among the worst prisons in North America.

BCC is a men’s territorial medium security prison in Iqaluit and the largest correctional facility in Nunavut. Anyone in Nunavut who is detained will be immediately brought to this facility. This has widespread implications for individuals who do not live in Iqaluit. For example, if you are arrested in Cape Dorset, you will be flown to Iqaluit (1hour flight). For many family members of individuals who have been detained in Iqaluit yet who live in other communities, visiting is not an option for multiple reasons, particularly travel time and costs.

There are no federal prisons in Nunavut. Therefore if a person must be detained at a federal prison (determined by the crime they have been found guilty of committing and their sentence for the latter), they will be flown to a prison in Ontario.

BCC was designed in the 1980s by Bruno Freschi. It was constructed to hold a maximum of 41 inmates. However, since it’s original construction it has been upgraded. The most recent upgrade targeting the amount of inmates the facility could hold was in 1996, during which the capacity was increased to 66 beds with two segregation cells. The prison is constantly over its 66 bed capacity.

There are three other prisons in Iqaluit. Accordingly: Makigiarvik Correctional Centre (men’s prison), Nunavut’s Women’s Correctional Centre, and the Isumaqsunngittukkuvik Youth Facility. Before having gone to Makigiarvik (Maki) or BCC, many people in Iqaluit had described Maki as a hotel compared to the “shit hole” of BCC.

Unfortunately, after my first and many repeated visits to BCC, it lived up to the “shit hole” reputation it has received. What is most frustrating is that many people have long known about the appalling conditions at BCC. A 2015 Report to the Auditor General of Canada stated that “Housing inmates at the Baffin Correctional Centre compromises the security and safety of inmates and staff” and that the “Department of Justice has not addressed its most critical facility needs.”[1] Justice Cooper of the Nunavut Court of Justice has previously called the jail “intolerable” in R v. Uniusaraq, 2015 NUCJ 16.[2]

There are numerous issues with BCC I could speak of, however it would take up a lot of space. Briefly, BCC is constantly overcapacity. The facility itself is severely under resourced and unsafe.  Inmates have often be said they are given 30minutes outside their cell  per day. The facility equally lacks adequate programming for its population.

[Picture taken from: https://www.cbc.ca/news/canada/north/baffin-correctional-centre-inmate-riot-iqaluit-1.4715657]

BCC houses some of the most vulnerable people in Nunavut. Accordingly, many individuals who are detained at BCC live with serious mental health issues, substance abuse, and/or trauma that must be properly treated. The facility itself and the programs  it offers (or lack thereof), fall completely short of offering many individuals detained at BCC the treatment they need and deserve. It is also important to remember that many of the people detained at BCC are still presumed innocent, therefore have yet to be convicted of a crime.

Prior to the riot in June, I had used an interview room to speak to a client about their upcoming court appearance. The client I was seeing struggled with serious mental health issues. As him and I sat down in the interview room, I noticed someone had engraved words into the wall saying: “Kill yourself so you don’t need to live in this shit hole.” The situation was extremely upsetting. As I sat with my client with severe mental health concerns the words on the wall reconfirmed to me that BCC and many other facilities across Canada, are doing more harm than good to people in serious need of support. An ethos of rehabilitation has not yet been fully embedded in our prison systems.

The riot which occurred in June 2018, was the second riot at the Iqaluit jail in less than a year. Last September, multiple inmates had damaged 85 per cent of the building’s medium-security bed space. There have been various other riots at BCC since it was first constructed. Inmates have stated that they lashed out in June again to bring attention to the deplorable conditions in the jail.

In an interview with CBC, Director of BCC JP Deroy and Satah Smith a policy analyst at BCC, made statements about the riot and the prison:[3]

“It’s going to happen again. It will. As long as we have this building, and we’re dealing with these issues, it’s going to happen again.”

 “Now, take the same inmates and put them in a proper facility. Different story. Completely different story. In general, they want to help themselves,” Deroy said.

 “For the sceptics who want to put this on the inmates and say the inmates are bad people, or maybe even the staff are bad people, we’ve seen the success,” Smith added.

 Smith, too, added as long as BCC is open, riots will happen again.

 “This building has far exceeded its life-cycle, and we’re just seeing the repercussions of it now. It’s not like our inmates are getting more bad, or savvy, or whatever,” she said.

If we know riots will continue to occur, what are we doing to change this reality?

Prisoners remain human, with human rights that cannot be violated. Accordingly, prisoners have the right to be safe from cruel and unusual punishment. It is imperative that facilities which house those who have been detained seek to rehabilitate, not punish or ignore basic human rights. Prisoners detained at BCC will one day return to their communities. Nunavut Corrections and the Canadian Department of Justice are currently failing these inmates and these communities.

 

[1] http://www.oag-bvg.gc.ca/internet/English/nun_201503_e_40255.html

[2]https://www.canlii.org/en/nu/nucj/doc/2015/2015nucj16/2015nucj16.html?autocompleteStr=R%20v.%20Uniuqsaraq&autocompletePos=1

[3] https://www.cbc.ca/news/canada/north/baffin-correctional-centre-jail-conditions-riots-1.4720831

Strawberries, Nature, Culture, and Community

By Allen Brett Campeau

I spent most of my Akwesasne internship in Kana:takon in Akwesasne Mohawk territory, but I also had the opportunity to participate in several excursions, both on and off reserve. Two of the most enriching for me were my trips to Ottawa-Carleton Detention Centre (OCDC), a correctional and remand facility in Ottawa, and the Thompson Island Youth Cultural Camp (Tsikionhet Onkwawen:na tanon Tsiniionkwariho:ten), which was held on reserve in the St. Lawrence River. I met with Indigenous inmates at OCDC and Indigenous youth at the Cultural Camp.

At both OCDC and the Cultural Camp, we were joined by Mohawk elders and knowledge-keepers, who shared their knowledge of Mohawk culture and the Mohawk creation story. These teachings emphasized respect for the natural world and humanity’s connection with the land and non-human beings. I was particularly intrigued by the important role of traditional food in medicine and ceremony. Food was prominent in the teachings of the elders and knowledge-keepers at both the OCDC and Thompson Island events. Although the audiences were different, the key message was largely the same: “Whatever life’s hardships, the natural world—Mother Earth—will sustain us.”

At the Cultural Camp

I visited OCDC on June 21st for an Indigenous Peoples Day Celebration. Over the course of the day, we met with close to fifty Indigenous inmates—in groups of ten—in the OCDC prison yard, where we shared traditional foods, danced traditional dances, and listened to Mohawk teachings. Many of the inmates had gone months without seeing grass, I learned; they were immensely grateful for the chance to sit outdoors on this sunny day, with grass beneath their feet. Many inmates took off their shoes to make the most of their brief time in the yard. After less than an hour, they would be ushered back indoors. Our moments together were quite short, but they still felt significant. The inmates were all very kind and happy to meet with us.

After listening to the knowledge-keepers and dancing a few dances, we sat around a fire for a traditional meal: corn soup, frybread, and strawberries. I helped to prepare the food the night before, so the opportunity to share it with the inmates, and to learn about its significance from the knowledge-keepers, was very rewarding. The heart-shaped strawberry is symbolic of life and heath. It is recognized as a leader of the medicine plants because of its early ripening in the new year. It was also, I learned, one of two plants (along with tobacco) to have descended to Turtle Island with Skywoman in the Mohawk creation story. It is a food of incredible cultural significance, but likely one that few OCDC inmates had enjoyed since their incarceration. However, as one elder pointed out, strawberry plants could be found growing in the prison yard.

Around the fire

In the relatively lush surroundings of Thompson Island, strawberries and other traditional food and medicine plants were abundant. The rich natural setting made the perfect backdrop for the mid-August Cultural Camp. I acted as a chaperone for some of the twenty-odd Mohawk teenagers that came to learn about their culture, practice traditional skills, and enjoy the outdoors. We swam, canoed, played lacrosse, and ate good food. After burning off some energy, we would also sit and listen to traditional Mohawk teachings, including an hours-long telling of the Mohawk creation story. Here too, like at OCDC, we learned about the central importance of love and respect for Creation.

Many of the young people came to the Cultural Camp because they wanted to be there, but presumably some came at the insistence of their parents or loved ones—“it will be good for you”. It was, after all, an opportunity to learn more about Mohawk language, traditions, and stories. For a young Indigenous person—indeed, any person—knowledge about and pride in your culture and identity is crucial to living a good life. It keeps you grounded in and connected to your community. In Indigenous worldviews, this connection to community easily extends to the natural world. It is maintained through time in nature and participation in traditional practices, including those surrounding traditional foods.

In my last evening at the Cultural Camp, we sat around a fire and danced many of the same dances that we tried at OCDC. It was easy to see parallels between the experiences: we were all connecting or reconnecting to nature and culture, and in so doing, nurturing a part of ourselves that is often underdeveloped in modern urban or reserve life. For the OCDC inmates, the sense of estrangement from nature, culture, and community was likely more acute, but it is something that many of us struggle with, even in ideal circumstances. We can all benefit from time immersed in nature and culture, learning from our elders and peers, whether at camp for a week or just an hour with good food in the sun.

Selling Justice Short: Reflections on Reconciliation, Accountability, and Weight Loss

By Tiran Rahimian

A night view of the Empire State Building, where HRW’s offices are located.

One of the very first remarks made by my darling mother upon my return to Montreal was, perhaps unsurprisingly, that I had lost a fatally dangerous amount of weight. At first, I curtly brushed off the observation as an archetypal exaggeration of maternal love. But confronted to the cold, hard numbers of our bathroom scale, I couldn’t help but ponder on the reasons of this incontrovertible reduction of my body mass. It surely wasn’t malnourishment? I spent the equivalent of my Montreal rent every month at the delightfully nutritious Whole Foods Market buffet near Bryant Park. Certainly not over-exercising either? As much as I liked to profess to my friends that I was jogging every morning in Central Park (in part by recycling saved snaps of the same run over and over again), I simply lacked the stamina and willpower to stick to a proper cardio routine.

I realize that, surely for physiological reasons beyond my understanding, I tend to lose significant weight whenever I’m pushed out of my comfort zones for a protracted amount of time. I lost weight when, after a comfortable upbringing in Montreal, I returned to my native Tehran to finish my middle school. I also lost weight in my first months of law school, and again when I began clerking at the Court of Appeal last year. And HRW undeniably fit into that trend: my time in New York city profoundly challenged me on both intellectual and personal fronts, and, while ultimately cementing and confirming many of my previous convictions, compelled me to go through a long process reflection on of some of the drivers that had underpinned my interest in international justice.

“I would give all my fame for a pot of ale…” –Henry V. A riotous mix of high art and low comedy, Drunk Shakespeare is an Off-Broadway must-see where a professional actor ups six shots of Whiskey before embarking on a classic Shakespeare performance.

In IJ circles, the enduring debate on whether seeking accountability for grave international crimes interferes with prospects for peace is close to always brushed off with the self-evident response that there is ‘no peace without justice’. But the tension, I came to learn, is anything but axiomatic. With the inception of the UN Security Council Commission of Experts for the Former Yugoslavia in October 1992 – at a time when the UN-EU International Conference was already managing a peace process – the stage appeared set for a tense relationship between accountability for core international crimes on the one hand, and international mandates for peace and reconciliation on the other hand. The already polarized ‘peace versus justice’ debate crystallized with the establishment of the International Criminal Tribunal for the Former Yugoslavia in 1994, paving the way for a broad discourse on the compatibility of the two.

South Africa’s Truth and Reconciliation Commission– and its wide media coverage following the fall the Apartheid government – was heralded by some ‘peace-before-justice’ proponents as demonstrating the importance of pacifying, or at least postponing, calls for criminal justice accountability until after peace has taken proper hold. The temptation to suspend justice in exchange for promises to end a conflict has similarly arisen with respect to the International Criminal Court’s work in places like Darfur and Uganda, and threatens to recur in coming years as conflicts in Syria, Afghanistan, and Myanmar approach their conclusion. Thankfully, the symbiotic relationship between peace, justice, and building a sustainable culture of human rights isn’t merely heralded as a self-evident truth, but has also been subject to empirical analysis by scholars and organizations like HRW itself.

Slight cultural shock

Rereading myself, the relationship between my weight loss and reflections on justice and reconciliation is perhaps…spurious. But I still like to think that my time working at HRW pushed me out of my professional and intellectual comfort zones, and was ultimately one of personal growth. Witnessing firsthand the inner workings of an NGO as influential and remarkable as HRW, hanging around diplomats at UN meetings, and working on the most pressing matters of international justice across the globe will certainly stand out as one of the more delightful challenges of my time at McGill law.

Making a Case for Privacy as a Human Right

Maia Stevenson

Being a law student interested in privacy rights, I frequently hear the following two comments, respectively:

Only people who have something to hide are worried about privacy”,

 and

Privacy is a concern for the privileged”.

I disagree with both comments.

Before I interned with the Privacy, Technology, and Surveillance Project at the Canadian Civil Liberties Association this summer, and before I began law school, I had a fairly robust sense of why I disagreed with the comment that privacy is only a concern for those who are breaking the law.

I disagree because of an appreciation for the value of political dissent and because of an unwillingness to fully welcome any government, including a modern, liberal, democratic one, into one’s home, personal relationships, and inner intellectual life. While as Canadians, we may not feel like we live in a police or surveillance state, one where activists, political dissidents, and other citizens are spied upon and persecuted, such realities are close enough at hand[1] to warrant appropriate safeguards for Canadians’ privacy.

It is not only drug traffickers and child pornographers who value a right to privacy: other political, religious, moral, artistic, and personal opinions and expression, especially those that deviate from a norm, are stifled or self-censored when citizens do not believe that they have a space in which to exist, develop, and share, shielded from the eye of the state, the public, or their peers.[2] Even if you don’t believe that you will never be in need of this sphere of privacy, the fact remains that our political and legal systems are built upon principles of freedom; they are strengthened when citizens have the theoretical capability of experimenting with opinions and ideas, without fear of serious repercussion. Privacy law protects the mind of the citizen as the most fundamental realm of individual privacy; it is not a crime to think about breaking the law, for example.

As for the comment that privacy is a concern only of the privileged…

Perhaps I hear this comment made in part because nowadays the phrase “privacy rights” calls to mind a locked iPhone containing encrypted communications, an embarrassing Internet browsing history, and online banking passwords. Not exactly the stuff of “human rights”.

Or maybe we find it hard to place value on something we regularly and freely relinquish to corporations in the name of convenience, efficiency, and connectivity.

Whatever the reasons, I agree that if we’re abstractly ranking Charter rights Maslow’s hierarchy style, then privacy rights seem to intuitively come second to other human rights; I think, the idea goes, that it is only after one has secured more basic human rights that the value of a private life starts to take form.

However, it is misleading to think of human rights in distinct silos. Issues of equality, race, and class overlap frequently with issues of privacy. Invasions of privacy by the state as they occur on the ground in Canada disproportionately affect the members of poor, racialized communities. The degree of privacy one enjoys is correlated to their wealth and historic interaction with the state: how advanced is your technology, how long is your driveway, how high is your fence, are you a guest, tenant or property owner, how good is your lawyer, how assertive of your rights is it safe for you to be in front of an armed policeman?

The CCLA is intervening in a case at the Supreme Court of Canada this autumn in which the police, without reason or warrant, walked into the backyard of a young black man, and after an exchange, arrested his friend/guest.[3] This occurred in a social housing complex in the neighborhood I lived in this summer in Toronto. To the CCLA and others, this case raises important issues at the intersection of privacy, race, and class:

In Canadian law, the Edwards test is used to determine whether or not someone has a “reasonable expectation of privacy” (REP) in a space. According to this test, the type of property and the control and ownership of that property (or lack thereof), factor greatly in the determination of the REP. The result is that the privacy of those who can prove a certain type of residency (exclusive occupation of a space, ownership) is more readily recognized than the privacy of those in other types of residency (non-exclusive occupation, non-ownership). Someone who lives in a social housing complex or an apartment building, someone who is temporarily living rent free at a friend’s or partner’s residence, or someone who doesn’t have a place to live at all, likely has less of a right to privacy than someone with a fence, a long driveway, and space reserved exclusively for themselves. Logically, this answer to the question of “what was your reasonable expectation of privacy?” makes sense: I live in the country, my driveway is a kilometer, I have clearly demarcated property lines; suffice to say I would be very shocked to encounter anyone but my family in my backyard. But are logical answers enough of a reason to continue using a question that yields discriminatory results, in an area as important as the state’s interaction with citizens?

This is but one example of how “privacy rights” are not free-floating, second-order human rights. To say that privacy is a concern of the privileged is to assume that we all experience “rights and freedoms” in the same way. The privacy that a citizen is afforded is closely related to the respect her state has for her, her human dignity, and her freedom, all of which are subject to differential treatment.

 

 

[1] Russia, China, Turkey, Saudi Arabia, for example.

[2] For scholarly work on the importance of privacy, see: James Rachels, “Why is Privacy Important?” (1975) 4 Philosophy & Public Affairs; Jean Cohen, Regulating Intimacy: A New Legal Paradigm (Princeton: Princeton University Press, 2002); Julie Inness, Privacy, Intimacy, and Isolation (New York: Oxford University, 1996); Stanley Benn, A Theory of Freedom (Cambridge: Cambridge University Press, 1988); Robert Gerstein, “Intimacy and Privacy” (1978) 89 Ethics.

[3] You can read R v Le, 2018 ONCA 56 here: https://www.canlii.org/en/on/onca/doc/2018/2018onca56/2018onca56.pdf

An Institutional Infection

By Alicia Blimkie

It’s easy to love the Philippines. The country is a place of contrasts, with a mere handful of blocks separating towering glass skyscrapers from shacks with tin roofs that could fall over with a single gust of wind (and the country gets a lot of typhoons, so fall over they do). But one thing that stays constant is the people. Their friendliness crosses class divides and endures hardships. No matter where I walk, I’m always greeted with a smile and “Morning, po!” This spark in people’s eyes is even more spectacular when you realize the suffering that this country has experienced. Centuries of colonization (first under the Spanish, then the Americans), massive casualties during WWII, then a decade of dictatorship and martial law under the Marcos regime forced the country through seemingly endless suffering, in multiple forms. The true resilience of the Filipino people is demonstrated by the fact that all of this violence culminated in the peaceful EDSA People Power Revolution in 1986, which ushered in a transition to democracy.

View from the Makati courthouse

But the freedom that was found after the transition is now under threat. I’ve heard people say that the atmosphere today feels like it did in the 1980s, when fundamental freedoms were stamped out. Many journalists and other political activists are afraid to speak out against the government. (If you think the fake news issue was bad during the 2016 U.S. election, you should look at the fake news in the Philippines). Political opposition leaders have been attacked, some having been thrown in jail for yet-unproven drug offenses.

But I’d like to write about one particular event. While my tired body was being carried through the air, across the Pacific to Manila, the Justices of the Supreme Court of the Philippines were busy voting out their Chief Justice. Imagine, for a moment, that the Supreme Court of Canada voted to oust Wagner or dear Bev McLachlin from the court. Yes, this is just as crazy and unfathomable as it sounds. And it was unthinkable for many of the Filipino lawyers I work with, as well.

To put the incident in context, the Philippines has a government and judiciary modeled after the American system, including built-in checks and balances on power. Filipino lawyers and law students look up to their Supreme Court as upholding independence and rule of law as much as we do. This was a shock. Filipino law students are taught that the only way to remove a Chief Justice from office is through impeachment – they would get the question wrong on their exam if they wrote otherwise. Instead, Chief Justice Sereno was removed via a process called quo warranto, which essentially declares that the appointment was never valid in the first place. The court was able to justify its use of quo warranto by interpreting a phrase in the Constitution which states that the Chief Justice may be removed by impeachment to mean that she could also be removed through other means. This diverged from how the provision had previously been interpreted, thus, as some argue, contravening stare decisis.

What are the consequences of this? Chief Justice Sereno had opposed the current government multiple times in her judgments. It was the Solicitor General – representing the government – that submitted the petition for quo warranto. The worry is that the highest court is being influenced by political pressure. In a country where officials are constantly accused of involvement with drug trafficking, and where alleged traffickers are often killed without due process, this is a serious issue. And if government officials can now use quo warranto proceedings to remove members of the judiciary who oppose them then they also have the chance to fill these positions with those who are loyal to the regime. So much for a strong, independent institution.

Volunteering with AHRC staff to paint a local elementary school

A loss of judicial independence is not just an academic or legal issue, it has serious human rights implications. One issue is due process. For those officials who can be removed via quo warranto, there is a prescription period of one year. In its reasoning, the Supreme Court stated that this deadline did not apply to the government. But if that is the case, with what other offenses can the government charge people, regardless of prescription? The court that was supposed to protect individual rights could potentially rule in line with its political inclinations now, more than with the law. Freedom of expression may also be negatively impacted. The removal of someone in a high-ranking position who stood up against the government contributes to an atmosphere of fear. If the Chief Justice can be removed by a President who doesn’t like her, what about people with lower profiles whose stories will not end up in the news?

A courtyard in Intramuros: the old part of Manila

Ultimately, this event made me reflect on the fact that the institutions to which we cling so tightly are largely abstract, and often ephemeral. Even if the buildings and the people working in them are physical, much of an institution’s effectiveness depends on the trust of the public and the willingness of employees to do their work in good faith. These structures are fragile, and what can reduce them to rubble is simply people changing their minds. The question of how to build institutions that will withstand the test of time is a difficult one, but it is highly important, particularly for societies with violent pasts that are rebuilding for a brighter present and future.

 

Responses to Brett and Sara

Brett Campeau:

Your post about Akewesasne and the environment at the Canada-US border raised questions for me. I can think of many ways in which the imposition of the international and provincial borders that divide Akewesasne would cause problems for the people that live in this territory. For one, the act of crossing the border can be time-consuming and is highly guarded by the state. Individuals with criminal records maybe denied permission to cross the border and this may affect many Akewesasne residents given the over representations of indigenous people in the criminal justice system. I am also curious about whether duties are imposed on those crossing the border within Akwesasne territory with goods bought cross-border. I know your post is about the environment but I’m wondering whether you have come across these issues during your internship and whether you have crossed the border within Akwesasne and if you notice any differences between crossing there and at other border crossings.

I would also be very interested to know more about the Akwesasne court. In what ways do the procedures differ from Canadian courts? Are proceedings conducted in an indigenous language? It would be great if you have a chance to observe in the Akwesasne court so that you can share with us a sense of Akewesasne legal proceedings.

Sara Gold:

I appreciated that your post identifies some of the issues with access to justice in the international law setting. Usually when we speak of access to justice we think of local concerns, like self represented parties in family law courts. Your descriptions of how Gladys Justina Escobar Candiotti was treated by state lawyers was very illustrative of the problem of the legal profession’s monopoly on legal proceedings. One way that Escobar Candiotti could have been better prepared is if she would have had her own lawyer. However, as a witness she would not be entitled to a free lawyer nor, from what you described in your post, would she be able to afford one.

One of the observations I have made (in my master’s thesis) is that rather than look at the cost of legal services, the Canadian legal profession has focused on legal aid and self help strategies as a solution to the problem of access to justice. While legal aid is certainly helpful, one must qualify by showing significant need. But, as we know, there is a large gap between those who qualify and those who can afford a lawyer. Plus, in the case you describe with Escobar Candiotti, she would not qualify because she was a witness, not a party, and because she was testifying in an international forum. The self-help strategies, like legal information hotlines or simplified court forms, are also inadequate. Lawyers have created a legal system that presumes lawyers rather than laypeople are the primary participants. To then provide people with more information and expect them to participate equally is quite disingenuous. If lawyers make it too easy for parties to act alone then what would be the point of hiring a lawyer. It is in lawyers’ self-interest to maintain the complexity of legal proceedings and their monopoly. Just as you described in your post, legal jargon and the technicalities of legal procedure are tools to preserve this monopoly.

Cast of a Show Election: Villains, enablers, and heroes

By Emilie Duchesne

It took me maybe five minutes to fall in love with Phnom Penh. I stepped out of the airport after my day-and-a-half redeye, thinking I was too exhausted to feel anything, and it woke me right up. At first it was the lack of traffic control. When you aren’t used to it, it’s hard to overstate how exhilarating it is to ride in a tuk-tuk at rush hour, with motos weaving in between cars and around street vendors. Being Canadian, and used to all the action being indoors, the next thing that struck me was how little is enclosed. Most restaurants and shops are open to the street, many ground-floor houses double as shops, and big groups of people eat street-food at tables a few feet from traffic. There is so much people-watching to be had that you couldn’t possibly catch it all.

I remember finding it jarring to see propagandistic Cambodian People’s Party signs on every street, but they quickly become invisible. Campaigning started today for the sham election, and I had my way blocked by a parade of twenty or so cars, trucks, and floats with CPP supporters yelling and waving banners. While I watched with interest, the people around me continued their conversations or took out their phones. Anything can seem normal after thirty-three years.

Some people had hoped this would be the last year of Hun Sen. The last national election nearly went to the opposition, and they made even more gains in local elections last year. But winning the popular vote in a military dictatorship can turn out to be a tactical mistake. Six months before I arrived, the CPP stopped tolerating dissent in any form. First, in November, they had the opposition party dissolved by the Supreme Court. Over 100 party members were banned from politics for five years and many others, including leader Kem Sokha, were jailed on spurious charges. In the months that followed, the CPP has systematically destroyed the independent media with forced closures and targeted arrests, and self-censorship is now pervasive among the independent journalists who remain in the country. The CPP has also recently passed a series of legislative amendments criminalizing free speech and authorizing intensive government surveillance of NGOs and the social media accounts of the general public. People have been targeted seemingly at random, creating a climate of paranoia. In one case that I researched, two former Radio Free Asia journalists, Oun Chhin and Yeang Sotherain, were charged with espionage and producing pornography after Oun, who was out of a job after the forced closure of Radio Free Asia’s Cambodian branch, set up a karaoke production studio in a guesthouse. When he called his friend and former colleague, Yeang, to testify that he had not been “spying”- which the CPP have re-defined to mean “telling the international community about the crackdown”- they arrested Yeang, too.

I arrived in the middle of a strange lull; on the one hand, everything is falling apart, and on the other, there is very little for anyone to do. NGOs and activist groups have observed the plight of people such as Chhin and Sotherarin who have been persecuted for nothing, and now have a well-grounded fear of being shut down, deported, or jailed. The threat of jail means something more in Cambodia- it’s not just loss of freedom, it’s confinement to filthy and severely over-crowded conditions, especially in Cambodia’s notorious Prey Sar men’s prison. While the wealthy can bribe their way to relatively luxurious conditions, in the average cell there are a hundred people to one toilet and the men sleep shoulder-to-shoulder on the ground. The overcrowding problem has in large part been brought on by the war on drugs, a hugely ineffective and ill-executed strategy inspired by the American war on drugs.[1] LICADHO’s prison team monitors 18 of the 28 prisons, interviewing the prisoners to ensure their rights are not being violated and providing them with medical care, but there is simply not enough money or doctors to provide what should be a social service, if the government had any interest in that sort of thing.

And then there are the quieter but equally horrible everyday effects of a dysfunctional government: corrupt pay-to-care police, corrupt pay-to-win judiciary, no public healthcare, no social security, substandard public schools, and the list goes on. The NGOs function as a sort of decentralized bureaucracy, attempting to fill in the gaps, but the uneven quality of NGOs and lack of a coordinating mechanism makes this impossible. The government has no incentive to improve the state of things because Chinese investment will keep pouring in either way. The country keeps getting richer on paper, but it isn’t trickling down. The basic agreement between Cambodia and China is that China provides lots of no-strings-attached aid, by contrast with international aid, which is contingent on respecting human rights standards. In exchange, Chinese businesses get to build developments wherever they want, leaving evicted Cambodians and environmental destruction in their wake. In the words of my tour guide at Angkor Wat, who turned out to be a fascinating person: “why does China only give money to bad guys? Because the bad guys are easy to control.” Most recently, Hun Sen granted a cheap 99-year lease to China to develop a massive resort on Cambodia’s valuable and ecologically sensitive coastline. It will cover a full 20% of the coast, and will include its own airport, leading some to question whether China has effectively been granted sovereignty over a huge parcel of Cambodia.[2] This is only one of many land concessions that have been granted to foreign interests, mostly China and Vietnam.[3]

Before I showed up here, I was preoccupied by the question of how to get rid of Hun Sen. Practically speaking, what would the international community need to do- sanction the textile industry, cut off aid? Would the human costs be too high, and would these methods even work? It seemed like a logical question to me. If you’re faced with a hydra, everyone knows you don’t cut off one of the heads- you have to stab the heart.

Now that I am here, it seems obvious that I was asking the wrong question. Of course the international community could do something. I don’t know the best method of intervention, but I am not a political strategist. What I do know is that when the World Bank cut funding to Cambodia in 2011, largely in response to protests by Phnom Penh’s evicted Boeung Kak lake community, the government finally gave the community the compensation they had demanded. However, the World Bank went back on its promise not to end the funding freeze until the government had addressed the land grabbing problem.[4] They reinstated funding even though land grabbing remains the single most prominent political issue in Cambodia. One of my tasks at LICADHO is to keep a record of the land protesters who come to the capital to protest, and I quickly found myself getting confused between all the different but often related conflicts. In total, 23 communities representing more than 2,400 families across 11 provinces came to Phnom Penh in June alone; this does not include various communities that chose to take their complaints to provincial authorities instead.[5]

Engagements like this on the part of the international community are par for the course in Cambodia- a short burst of interest, and then nothing. Despite various condemnations of the opposition party’s dissolution and much discussion, so far aid has not been cut and trade agreements remain intact.[6]

This international disinterest is especially depressing considering that Cambodia’s problems have been created to a large extent by other countries’ foreign policies since at least French colonial times, and arguably far longer. Today, the biggest player is China, but historically Cambodia has been caught between the “tiger and the crocodile” of Vietnam and Thailand, and during the Vietnam war Cambodian civilians were heavily bombed by the United States.[7] The rise of the Khmer Rouge- like so many other human rights atrocities- has been persuasively linked to American interventionism in the region.[8] The concept of sovereignty seems entirely empty in a context such as this, where the self-interested meddling of foreign elites carries so much more influence than the democratic will of the people. The rest of the world is by far more responsible for Hun Sen than Cambodians, who have never elected him in a fair election, but they don’t see it that way. The United States has not paid any reparations, and instead is still asking Cambodia to repay loans used to feed refugees whose homes were destroyed by the bombing.[9] China is still happily munching away like Cambodia is a snack to tide it over between Africa and the Middle East. And the EU has bigger fish to fry- in the words of my colleague, “there is always something even worse happening somewhere, and they aren’t doing anything there, either.”

Human rights work in an autocracy is draining, frustrating, and tragic, and yet meaningful work does get done. It is really something to watch the people who do this work and to speak them about why they do it.

What do you do when you can’t kill a hydra? It turns out that you do whatever can be done, including slicing the same heads over and over to momentarily stop them from eating people. The progress is slow, and there is personal sacrifice almost universally.

I met one woman, a lawyer at another NGO, who was threatened by the government and forced to quit her job. She quit working for a year and then returned and continued representing the people the government wants to shut up- land activists, human rights defenders, and people who have had their land illegally grabbed. She loses almost every single case because judicial independence is non-existent in Cambodia. It’s a testament to her ingenuity that she still manages to win occasionally. But as any lawyer knows, winning and losing trials isn’t the biggest part of the job; it’s supporting clients through difficult decisions in through a careful, researched appraisal of the options. She can’t always, even often, get people a win when they deserve it, but she can make sure they understand their procedural rights and their options. And there are little wins, mostly cases that are dropped for lack of evidence when she pushes for this at the pre-trial stage.

This lawyer and her assistant, who has been failed at the Cambodian equivalent of the bar twice now because of corruption, are two of the people I admire most in this world. They both knew that they were signing up to be discriminated against when they decided to do human rights work, and they have been. They decided to do it anyway. Lawyers everywhere face the choice between selling out and doing good work, but in Cambodia that choice is starker and more lasting.

I also want to tell you about a colleague of mine. His family fell into poverty when he was young, and he put himself through university by working as a nighttime security guard and then by working fulltime. He chose to work in human rights, knowing the salary would be modest, and he regularly works 50+ hour weeks, which is a lot even for LICADHO staff, who are in general the hardest-working people I have ever met. Most of his salary goes toward his little brother’s university fees. He told me some friends who graduated with him work in government, which entails very little work and making a comfortable living off bribes. He would never judge them, and said he see it as people doing what they need to do to get by. Thinking of myself, and the temptation I’ve felt at times to sell out, I asked if he had ever considered it. He hadn’t. He told me he loves his job and considers himself lucky to love what he does. He also told me he would continue even if he didn’t- the work is too important to stop.

[1] https://www.phnompenhpost.com/national/drug-law-passed-critics-cry-foul

[2] http://www.atimes.com/article/a-chinese-colony-takes-shape-in-cambodia/

[3] http://www.licadho-cambodia.org/land_concessions/

[4] https://www.reuters.com/article/cambodia-worldbank/world-bank-stops-funds-for-cambodia-over-evictions-idUSL3E7J920D20110809 ; https://www.cambodiadaily.com/news/world-bank-loan-of-100-million-angers-boeng-kak-activists-128160/

[5] https://twitter.com/licadho/status/1014802083201970176

[6] https://euobserver.com/opinion/142321

[7] https://en.wikipedia.org/wiki/Operation_Menu

[8] https://www.jacobinmag.com/2015/04/khmer-rouge-cambodian-genocide-united-states/ ; https://en.wikipedia.org/wiki/Allegations_of_United_States_support_for_the_Khmer_Rouge

[9] https://www.npr.org/2017/05/30/530683478/u-s-demands-cambodia-repay-loan-from-vietnam-war-era

The Times They Are a-Changin

By Tiran Rahimian

In justifying the crimes of Milo in an internal armed conflict in Rome, Cicero pleaded, “silent enim leges inter arma.”[1] Times have, somewhat, and thankfully, changed. The past century alone has witnessed the crystallization of the laws of war, the emergence of a rules-based, human-centric global order, and the rise, and decline, and rise, of international criminal justice. Despite remarkable progress, however, the pertinence of law in the anarchically barbaric realities of war remains to this day contentious, and the objection that law falls mute when collective survival is jeopardized continues to resonate with the cynics and so-called realists of our world. To make matters worse, the rise of inward-looking populist movements in recent years poses yet another challenge to the international legal order, and may very well prove to be its litmus test. In this climate, the work of NGOs such as Human Rights Watch is more crucial than ever, and it was with a sense of both humbleness and awe that I began my internship within its International Justice (IJ) Program.

View from the offices of Human Rights Watch on the 35th floor of the Empire State Building

My first few weeks were euphoric. International criminal law had been the bread and butter of my 3L, and the organization’s IJ department comprised some of the foremost experts and brilliant legal minds in that field (evidently explained by the disproportionate presence of McGill law alumni). The work was intellectually stimulating, pedagogically instructive, and above all, fulfilling. But as I went from drafting one memo to another, and attending one UN meeting to another, I became struck with ivory-towerist doubt. There was an unsettling detachment between the refined protocols of lawyering, which reduced the indescribable to the antiseptic confines of legal reasoning, and the solemn suffering of victims on the ground. That I happened to be situated at the 35th floor of the Empire State Building, metaphorically looking down into the arena of human rights violations, certainly didn’t help either. I brought up some of my thoughts with the IJ Program’s highly esteemed Director, Richard Dicker, who helped me alleviate some of my questioning. Remarkably approachable, he combined humility with activist fervor, and expertise with empathy. He taught me to keep the big picture in mind, to appreciate the significance of victim-centric activism, and that the impact of advocacy work need not necessarily be quantifiable or measurable. Comprehensive, effective human rights advocacy, it became clear to me, comprises both activism in the field, as well as ‘detached’ lawyering within courts and intergovernmental organizations­­–both of which are equally indispensable.

As I continued my work and kept on top of the latest developments at the International Criminal Court (ICC)– the only permanent tribunal that holds perpetrators of genocide, war crimes, and crimes against humanity accountable–, I came to another realization: the arena of international justice faces some incredibly thrilling and momentous years ahead. Born from the ashes of the Second World War in the form of the Nuremberg and Tokyo trials, virtually dormant throughout the geopolitical paralysis of the Cold War, and revived in the 1990s through the ad hoc tribunals for Yugoslavia and Rwanda and the adoption of the Rome Statute, the realm of international justice is bracing itself for consequential developments as the ICC ends its adolescent years.

Fun fact: protecting Mr. Trump’s private residence on Manhattan’s Fifth Avenue costs about $308,000 per day for local and federal taxpayers.

For one, we might very soon witness the end of what has been dubbed the issue of ‘US exceptionalism’ in international criminal justice. On November 20th 2017, ICC Prosecutor Fatou Bensouda formally requested judicial authorization to open an investigation into war crimes and crimes against humanity perpetrated in connection with the Afghan armed conflict. The investigation, if sanctioned by the Court’s Pre-Trial Chamber, would represent a feted shift in global justice, marking the first time in history an international tribunal has contemplated crimes allegedly perpetrated by US nationals.

Second, as I have argued elsewhere, the coming months could also mark a climax for decades of gender justice advocacy. The ICC’s potential probe into Afghanistan would be the first instance where the Court is poised to interpret one of the most controversial terms in its statute: ‘gender’. Reflective of political compromises and a tendentious negotiating history, the Rome Statute’s highly disputed definition awkwardly sits somewhere between a sociological and biological conception of gender: “For the purpose of this Statute, it is understood that the term ‘gender’ refers to the two sexes, male and female, within the context of society.” But this constructive ambiguity also leaves room for creative lawyering: as much as the conservative side might emphasize ‘the two sexes’, proponents of a more progressive and wide understanding could weaponize the words ‘within the context of society’, which could potentially extend to members of the LGBTQ.

Je me souviens.

Third, the ICC has been increasingly venturing into the uncharted waters of non-member states, inching closer to an ideal of universality. Of course, absent a referral by the UN Security Council, the Court can only assert jurisdiction where the “conduct in question” was committed on the territory of a member state, or if the alleged perpetrator was a national of a member state. But that hasn’t stopped the Office of the Prosecutor from conceiving ingenious arguments to stretch the Court’s jurisdiction. Regarding the plight of the Rohingya minority in Myanmar, a state not party to the Rome Statute, Fatou Bensouda recently asked the Court to confirm its jurisdiction on the basis that a legal element of the conduct, crossing a border, occurred in Bangladesh, which is a member state. Its preliminary examination of Palestine, and its ongoing investigation into Georgia, similarly probe crimes committed by nationals of non member states, namely Israel and Russia. While, as I have explained elsewhere, atrocities committed in Iraq and Syria remain out of the Court’s reach, recently established investigative mechanisms by the General Assembly and the Security Council have been collecting evidence of these crimes, and the issue of accountability in the fertile crescent appears to be more a question of when and how, rather than whether.

Human Rights Watch’s 1997 Nobel Peace Prize as as a founding member of the International Campaign to Ban Landmines.

To say that these developments will be controversial would be a grave understatement. Times have certainly changed since the days of Cicero, and they will likely continue to change in the decade to come. The road towards accountability is by no means clear, and is certainly rocky. Potential probes into Palestine and Afghanistan would be political dynamite, and accountability advocates have been bracing themselves for when the proverbial excrement hits the fan. At any rate, the arena of international justice faces excitingly tumultuous times ahead, and interning at Human Rights Watch has helped me keep on top of these historic developments.

[1] “Laws are silent among [those who use] weapons” (Cited in Cicero, Pro Milone, 4.11).

Responses to Renaude and Rose

Renaude Morin:

I was struck by the connection between story telling and justice in your post. It reminded me of one of my previous comments about the victims of the Huronia Regional Centre who wanted to tell their stories at trial. Their lawyers considered it a victory to reach a settlement with the Ontario government and pay each victim instead of giving them their day in court. Because of the harm to their dignity from the abuse in the government-run institution the victims saw the chance to tell their stories in open court as a way to heal and reclaim their agency. The nature of class action lawsuits privileges getting a huge settlement (which is how lawyers get paid) over going to trial and allowing victims to testify about their experiences.

Your post also made me think about another area of law in Canada that fails to let victims tell their stories publicly. Most of the time when an individual makes a complaint to their provincial human rights commission the matter is settled by mediation. There is no public record of the dispute and a condition of settlement may be a non-disclosure agreement. I know of an individual with a disability who made a human rights complaint when she was unable to vote in an election at her local polling place because it was inaccessible. In the end the barriers were removed but she was required to sign a non-disclosure agreement. For such a basic right – the right to vote – it astounds me that the settlement with the government should be private. One of the basic principles of our legal system is that it be public. In fact litigants must apply for a sealing order to avoid their court case being in the public record. Yet we have created a procedure for human rights complaints that is completely hidden from the public. We do not know, for example, how many disabled people are being disenfranchised, nor can we use these cases as precedent. These stories of discrimination remain untold.

 

Rose Adams:

I was excited to read in your post about the program for new indigenous law students that is taking place at the U of S this summer. While increasing education for judges and lawyers about Gladue sentencing is important, I am convinced that increasing the number of judges and lawyer who are indigenous is necessary. Law schools across Canada are making more efforts than before to ensure that their student populations reflect the actual Canadian population. My own experience with disability has really heightened my awareness about how difficult it is to fully understand the discrimination that others experience when you have immense privilege. Before my car accident I was aware of my privilege but it was not until I became a wheelchair user and began to experience the city of Montreal as a person with a disability that I fully understood privilege. As we (hopefully) move towards including indigenous legal perspectives and remedies in the Canadian legal system we absolutely must do so under the leadership of those who have embodied experience with what it means to be indigenous.

“Let your smile change the world”

By Alicia Blimkie

This might sound a bit strange, but I never thought about the Philippines as a “developing country” until I found out that I would be spending the summer in Manila. Growing up in Vancouver and attending Catholic school all my life, I was surrounded with friends and acquaintances who were Filipino. Because it was a place I heard about often, it didn’t seem foreign to me in the way that other developing countries did as I was growing up. I didn’t think about the Philippines as a nation of malnourished children living in shacks, like the one-sided images of Africa that my young brain saw on TV, but as the place where many of my friends were from. When I heard where I would be spending the summer I didn’t give much thought to any culture shock that I would experience until I arrived and the sun, humidity, traffic and bugs welcomed me to the old “Pearl of the Orient”.

A courtyard in the Commission on Human Rights

As part of its obligations under the UN Committee on the Rights of the Child, the Philippines must submit a state report. The national Commission on Human Rights is in the process of compiling information for an alternative report. In partnership with the Ateneo Human Rights Centre (AHRC) and UNICEF, the Commission held regional inquiries throughout the country to gather input on the implementation of the Convention of the Rights of the Child (CRC) from children themselves. I was able to attend the session in the National Capital Region (NCR), which focused on three topics: the children of overseas Filipino workers (OFWs – sorry, lots of acronyms), children with HIV/AIDS, and discrimination against children born to unwedded parents.

In Canada, we think about OFWs in the context of temporary workers who come into the country. As immigration advocates, we focus on their conditions of employment, access to legal remedies, and potential for permanent residence. These are all important, but we tend not to see temporary migrant workers from the opposite perspective, that of the children across the ocean who lose a mother or a father for years on end. At the NCR inquiry, the children spoke of the pain of not having a parental figure to share their life with. Some are abused by the caregivers they are left with in the Philippines. Those who travel with their parents may not be able to access social services, including education, in their destination country. This discussion reminded me of a recently published article in the Globe and Mail.[1] The article spoke of the difficulties of Filipino children who are able to migrate to Canada only years after their parents arrive. It speaks of how gaps in the Canadian immigration system have caused some of the painful separation that I witnessed the children speak of here in Manila. In some ways, Canada and the Philippines are linked by movement of labourers, who should be seen as mothers, fathers, sisters or brothers, rather than just a boost to the economy.

2000 year-old Ifugao rice terraces in Northern Luzon

The second theme discussed was HIV/AIDS. It was shocking for me to discover that the Philippines has the fastest growing rate of HIV infections in Asia. Most of these new infections occur in youth, most of whom are men. A large problem is unwillingness to talk about the issue. It is seen as taboo, linked with sex and drugs. To me, this issue really highlighted the invisible nature of many human rights concerns. Other human rights abuses plaguing the country, such as extrajudicial killings or labour rights, are much more visible and publicized. The danger of taboo subjects that live inside a person is that a child’s life may be irrevocably changed because their parent or teacher was too embarrassed to speak to them about HIV and AIDS.

The final issue was that of children born out of wedlock. For children in this situation, the Family Code declares them “illegitimate”, and they have different rights than “legitimate” children. Many of these children face discrimination socially, as well as legally, despite the fact that a 2016 survey conducted by the Philippine Statistics Authority found that nearly half of all births that year occurred out of wedlock.[2]  One activity at the NCR inquiry involved the children preparing skits. One group acted out a child being mocked at school because she had a different surname than her sister, which one child later revealed was based on personal experience.

Tricycles: a common means of transportation

After zooming in on these issues, it’s useful to take a step back and realize that the NCR inquiry also highlighted something that the Philippines is doing well. Article 12 of the CRC states that children should be able to express their views freely on matters that affect them and should be provided with opportunities to be heard. The Committee on the Rights of the Child praised the Philippines in its 2009 report for its efforts on child participation. The AHRC is committed to fulfilling this Article of the CRC through many of its other initiatives, as well.

Sunset over Makati

While I knew that I would learn about human rights concerns while I was in Manila, I didn’t really anticipate the number of times when I would encounter something that the Philippines was doing better than Canada. Does Canada ask its children – those in poverty or in indigenous communities – whether their rights are being fulfilled? This brings me back to my conceptual difficulty in placing the Philippines in the same box as all other developing countries. Not that it is better or worse than other “third world” nations, but each of these countries is drastically different. I think one thing I have learned here is that development is not a straight line. This is one of those things that’s obvious when you say it, but is very different to actually experience. While the Philippines’ efforts in child participation, achievements in gender equality, and its regionally lauded refugee system place it ahead of many countries, its record is worse on other human rights issues. As much as we need to concentrate on problem areas to develop strategies to fix them, there are also times when we need to take note of human rights successes, or risk getting bogged down in failures. As one child at the NCR inquiry quoted: “Don’t let the world change your smile, let your smile change the world”.

 

[1]https://www.theglobeandmail.com/opinion/article-for-this-generation-of-filipino-canadians-broken-policies-have-left-a/

[2]https://psa.gov.ph/content/births-philippines-2016

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