Posted by: Castan Centre | February 19, 2018

ON NATURAL LAW AND THE LAWS OF NATURE

REFLECTIONS ON MY FIRST WEEK AT THE INTERNATIONAL SERVICE FOR HUMAN RIGHTS.

By Aiden McKee

The year is 1687. The Kangxi Emperor, Xuanye, is the fourth of the Qing Dynasty, and he will live on to become the longest reigning emperor in Chinese history.

He is presented with a gift; a series of three books – collectively entitled Principia – that have been authored by Sir Isaac Newton, an English mathematician and physicist.

After carefully appraising the work, the Qing Emperor sends his response:

The theory of gravity is relative to local conditions and many so-called ‘laws’ of gravity are merely parochial Western notions inapplicable to Chinese circumstances.

Of course, this is a fiction. No such interaction ever occurred.

However, if you were to take this quote (here, incorrectly attributed to the Kangxi Emperor) and substitute “human rights” for “gravity”, you would find yourself with a rough equivalent of the statement issued by Chinese Communist Party (CCP) in response to the international outcry sparked by its imprisonment of Xu Wenli, an organiser of the 1978 Democracy Wall movement and founding member of the illegal China Democracy Party.[1]

In 1688, only a year after Sir Newton’s Principia, yet another Englishman would publish yet another series on a supposedly universal law. In John Locke’s Second Treatise of Government, he proposes the first fully developed theory of natural law (at least, in the liberal political tradition). He suggests that the authority and jurisdiction of the state cannot infringe upon the life, liberty or property of its citizens, as these are universal rights that should be enjoyed by all men (or at least, Europeans that happen to be male and that happen to own real estate).

For fear of labouring the analogy any further, I venture to suggest that gravity and human rights are not all that different. Neither can be seen, but the forces that they exert on the objects that they effect are measurable and intelligible, and lead observers to conclude that some scientific rule – or law of nature, if you will – is at work. No doubt, the reader will naturally accept that the preceding is an accurate description of gravity, but might pause a moment before conceding that the same can be said of human rights.

Admittedly, the statement of the CCP played upon my mind as I queued up to collect my accreditation pass at the main gate of the United Nations Office at Geneva. I was coming to the end of my first week as an intern at the International Service for Human Rights. Here, in Switzerland – the geographical heart of Western Europe and the age-old arbiter between its great powers – I glanced up at the familiar UN logo; an azimuthal equidistant projection of the globe superimposed over concentric circles. After a polite exchange with the French-speaking security corporal (who busied himself with my passport), and a brief survey of the bustling throng of European staff, my eyes again turned to the logo above. I noted that it was flanked by Greco-Roman olive branches and the almost identical English and French lettering: ‘United Nations’ and ‘Nations Unies’. I wondered whether all of this this would feel quite so universal if I was a Chinese diplomat.

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Where, after all, do universal human rights begin? In small places, close to home – so close and so small that they cannot be seen on any maps of the world. Yet they are the world of the individual person; the neighbourhood he lives in; the school or college he attends; the factory, farm, or office where he works.

Eleanor Roosevelt – diplomat, activist and ‘First Lady of the World’ – shared these words with the United Nations General Assembly on the tenth anniversary of the adoption of the Universal Declaration of Human Rights (UDHR).[2] This document is the foundation upon which the entirety of the modern international human rights law regime is built. From it spawned the nine core treaties of the United Nations.

I interrogated these words from Roosevelt’s 1958 address as I passed back through security checks and strolled around to the western gate of the Palais des Nations, the path towards its neoclassical façade lined by the flags of the UN’s 193 member states. Roosevelt’s rhetorical foregoes the dilemma of the origins of human rights theory, in favour of a much more pragmatic approach. But the question still lingers, 60 years on. Although devoid of the typical decorative elements of most neoclassical architecture, the Palais still has a distinctly European aura – similar, I thought, to the legal architecture of its human rights mechanisms, and the philosophical presumptions underpinning them.

Whilst these rights can’t be seen on the world’s maps, they’re plainly evident in its history books. At least in the ones I’ve read – the West tends to takes centre stage. The Magna Carta, the English Civil War and the Bill of Rights, the French Revolution and the Declaration of the Rights of Man and of the Citizen, the American Revolution and the Declaration of Independence and – of course – the founding of the United Nations and the drafting of the UDHR. Most historians and human rights advocates worth their salt bear at least a passing familiarity with each of these developments. When asked for an account of comparable milestones in the East, however, many struggle. I, for one, would falter, before murmuring something about the Cyrus Cylinder or the Confucius Analects, and perhaps attempting to recount the upsides of communitarian value systems.

In this context, it is not difficult to understand the reservations (or indeed open suspicion) of the East and the Global South, as hinted at in statements like the one issued by the CCP in the fallout surrounding the Xu Wenli fiasco. Others go as far as to suggest that human rights theory is merely cultural imperialism re-packaged; that it is an attempt to export hedonistic individualism and chaos-prone democracy where they’re not welcome. One such critic is Makua Mutua, former dean of the State University of New York’s Law School and member of The Council of Foreign Relations. The “declaration’s bias and exclusivity”, he opines, has been exposed by “Muslims, Hindus, Africans, non-Judeo-Christians, feminists, critical theorists, and other scholars of an inquiring bent of mind”.[3]

There’s no denying the underlying assumptions. The western world’s thoroughly riddled historical track record speaks for itself, and needs no recounting here. One can’t help but think that it’s not the whole story, though.

Whilst the UDHR is not a perfectly representative document, it is difficult to conceive of any practical measures that could have made it any more inclusive. There was not a single dissenting vote when it was presented to the General Assembly in 1948.[4]Indeed, whilst it is true that many peoples across the world were still under colonial rule at the time – and thus were not represented as nation states at its presentation and accession – every subsequently constituted state has gone on to ratify both the ICCPR and the ICESCR (the two primary treaties deriving from the Declaration), and have reaffirmed the UDHR itself in the Vienna Human Rights Declaration in 1993 (along with, in some cases, the wholesale copy and paste of large swathes of the UDHR into their own newly written constitutions).

Its developmental process was also highly consultative in nature. The UNESCO Philosopher’s Group and the Committee on Social, Cultural and Humanitarian Affairs were both involved in the drafting and review of the document – the latter including six members from the communist bloc, eleven different Islamic countries, and four countries containing large Buddhist populations. After over 100 meetings spent reviewing each word of the declaration, its Chair – Charles Malik, of Lebanon – concluded that each culture in the world had had a hand in the drafting of the UDHR.[5]Additionally, the particular delegates involved in the UDHR’s composition that were from China, Lebanon, the Philippines and Chile (including Chang, Malik, Romulo and Santa Cruz) were widely regarded as having been some its most influential drafters.[6] Some have gone so far as to say that “it is unlikely that any other political document in history has ever drawn from such diverse sources, or received the same worldwide, sustained consideration and scrutiny as the Declaration underwent over its two years of preparation.”[7]

The UNESCO Philosophers group would also go on to conclude, after consultation with Confucian, Hindu, Buddhist and Islamic cultures (including, of course, Christian culture) that there was an irreducible common core of fundamental principles widely shared in countries that had not yet adopted human rights instruments.[8] From this, it was extrapolated that there are indeed basic concepts of humane conduct so widely shared that they may be viewed as implicit in man’s nature.[9] This writer has his own views on how they got there, as, most probably, will the reader. The UDHR drafters, however, deliberately omitted the inclusion of any philosophical premise for the universality of the rights they proceeded to proclaim. There was no mention of any divine inspiration or any natural law; no one culture’s perspective given any preference over another’s. In the thaw of the icy rivalries that had gripped the globe in WW2, the drafters quickly bypassed any settlement on these foundations. The Iron Curtain was descending upon Europe, and both sides would soon dig in for the long winter of the Cold War. Once that chill set in, the steady stream of cooperation and resolutions passing through the United Nations General Assembly would freeze over, and any consensus would be nigh on impossible. The window of opportunity would have been lost.

 

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The Commission on Human Rights. New York: May, 1948. Chang (far left), Roosevelt (third from left), Malik (centre right).

The consequence, however, was a much more flexible and inclusive document. PC Chang (the Chinese delegate to the drafting committee) stated that the rights described therein were for everyone, not just Westerners.[10]There was thus no central blueprint for the implementation of these rights, and no one culture that could claim to have had the monopoly on their genesis. Chang and his colleagues on the international drafting committee expected that that the Declaration’s rights would be inculcated in a variety of ways, and that over time the corpus of human rights would be enriched as a result. It was never intended that its implementation would compel uniformity with western ideals. As the French philosopher Jacques Maritain would remark of the 30 articles of the Declaration; many different kinds of music could be played on the document’s 30 strings. Mirroring the same sentiment, Chang stated that “culturallythere are many ‘Easts’ and many ‘Wests’; and they are by no means all necessarily irreconcilable.”[11]This was evident in the leeway built in to the international human rights mechanisms themselves. Aside from non-derogable rights, all human rights can be subjected to reasonable limitations, the enforcement of which is the responsibility of individual states – which may also include reservations to treaties in order to retain the right to differing interpretations, as they arise. 

All things considered, then, those that attempt to frame the debate as a binary East v West contest are, respectfully, perpetuating something of a fallacy. It’s easy to fall into the trap of viewing the West as uniform, and sprouting the familiar Hobbes, Locke, Kant, Rousseau and Voltaire narrative (which does, admittedly, form so much of our political and philosophical development). As with most fields in academia, though, international law and human rights scholarship is beset with a multiplicity of philosophical divisions and debates. Amidst the economic and cultural relativists, the modernists, Marxists, and moralists, the utilitarians and the consequentialists, the cynics and the political realists, the faithful and the sceptics – and those that quite simply defy categorisation – it’s difficult to say that there even is a Western orthodoxy on the theory of human rights. Each and every practitioner has his or her own particular subscriptions, biases and ulterior motives when engaging in the work – this writer included.

This same complexity is present in the East, and its many different cultural and religious traditions. Whilst it is important to take international criticisms of “human rights hegemony” as bona fide, and to respond to them on their merits (and there’s no doubting that they are not without merit – if you’ll excuse the double negative) it is perhaps slightly naïve to assume that the protestations of many non-western states are entirely representative of the cultures that they claim to speak for. The vast majority of human rights defenders that are imprisoned and harassed in the non-Western world are just that; not Western – but rather, local. It’s possible that the real fear underscoring these state’s objections to Western human rights laws is of their own peoples, rather than the aspirations of the West.

Here again, the conflict between the likes of Xu Wenli and the Chinese Communist Party comes to the fore.

Xu was arrested in 1981 for his role in the Democracy Wall Movement, having been charged with spreading counterrevolutionary propaganda and incitement. He subsequently served 13 years of the 15 year imprisonment order handed down, having been released on May 26, 1993. He would be imprisoned again in 1998 – this time, for having co-founded a political party to oppose the CCP. He would be exiled to America in 2002, after having been granted medical parole.

On beginning my internship with the International Service for Human Rights, I learned of the experiences of my predecessor this time last year, in 2017. Then, China’s more recent civil society crackdown (starting around 2015) had forced numerous NGOs to shut down. Newly introduced national security and counterterrorism laws limited access to and sharing of information, both online and offline. Efforts to contain progressive or ‘activist’ lawyers and legal professionals resulted in up to 300 human rights defenders being harassed, detained – or simply disappearing. In Washington, Brussels, and of course Geneva, this had sparked an urgent initiative by NGOs (including the ISHR) to leverage international pressure and appeals – from both foreign governments and the UN – for an end to the crackdown and the release of political prisoners.

One of the main UN human rights mechanisms through which the ISHR works, and where efforts to hold China accountable continue despite the current political environment, is the UN Human Rights Council. I have arrived just in time to prepare for its 37th session, commencing at the end of February and running through March. In my first conference with my programme managers, we discussed the ISHR’s thematic and country-based priorities, the primary resolutions to be proposed, and the role that potential spoilers – not least of which is China – might play in the negotiations.

Two years ago, 12 governments (including Australia) issued a joint statement in the Human Rights Council raising concerns about China’s deteriorating human rights record, including its use of disappearance and detention to silence activists. Since then, despite continual arrests, disappearances, restrictions, and deaths – like that of Nobel Prize winner Liu Xiaobo – the Council has remained relatively silent. Even when individual delegations and UN experts dared to directly raise concerns themselves, China returned to its increasingly familiar script;

As a state based on the rule of law, China opposes any case of arbitrary detention. Yesterday the Chair of the Working Group made an irresponsible statement on Liu Xiaobo, and this is interference in the judicial sovereignty of China. China firmly objects to this… the case of Mr Liu does not represent arbitrary detention, but falls into the purview of national sovereignty. We do not accept any external interference, and the Working Group should use authoritative and objective information to improve its credibility.

After this first meeting with my new colleagues, I mulled over the now standard-form response of the Chinese government as I headed back to my desk, my opinion on the matter toing and froing. The corner of the Palais des Nations is just visible from my office window – and sitting on the wall adjacent, a large ‘Carte du Monde’. The warped longitude and latitude lines, increasing in breadth, depth and curvature as they move out from the centre, give the impression that the continents are being pulled inwards by some invisible force.

It struck me that Europe – in particular, Western Europe – was in the centre of the map. I reflected on the fact that its innate bias (it was evidently drawn up by Europeans) did not necessarily render it inaccurate – in fact, the proportional adjustments on this particular map make it more accurate than most.

The philosophical entanglements surrounding the universality of human rights can produce something of a quagmire. But as far as their modern codification into legal standards is concerned, it strikes me that the more important question is not “who had the idea first?” but “is the idea a good one?”

The gravity of Newtonian physics is felt just as heavily in Asia as it is in Europe, where it was ‘discovered’. Here’s to hoping the gravity of human rights can be felt just as universally.

 

 

[1] See generally Mary Ann Glendon, ‘Universality Under Siege’ in A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights, New York, 2001.

[2] Eleanor Roosevelt, ‘The Great Question’, remarks delivered at the United Nations Office in New York, March 27, 1958.

[3] Glendon, ‘Universality Under Siege’, 2001.

[4] Mary Ann Glendon, ‘Foundations of Human Rights: The Unfinished Business’, AM. J. Juris, 1999, Vol. 44, p 163.

[5] Charles Malik, ‘Introduction, in Frederick Nolde, Free and Equal: Human Rights in Ecumenical Perspective, Geneva1968, p 12.

[6] Jack Donnelly, ‘The Relative Universality of Human Rights’, Human Rights Quarterly, May 2007, Vol. 29(2), p 283.

[7] Glendon, ‘Foundations of Human Rights: The Unfinished Business’, p 163.

[8] Donnelly, ‘The Relative Universality of Human Rights’, 283.

[9] Richard P. McKeon, “The Philosophic Bases and Material Circumstances of the Rights of Man,” in Human Rights: Comments and Interpretations, New York, 1949, p 45.

[10] P. C. Chang, China at the Crossroads: The Chinese Situation in Perspective, London, 1936, pp 124-25.

[11] Ibid.

Posted by: Castan Centre | February 14, 2018

The life of an immigration attorney in New York

By Michael Li

It’s been a couple of months since I began interning at Human Rights First in New York City. For those who aren’t familiar, Human Rights First is a non-profit organisation that assists and advocates for refugees. A big part of their work is the Refugee Representation Program (RRP), which provides pro bono legal representation to people seeking asylum in the United States. As an intern, I assist HRF’s attorneys with a variety of legal and administrative tasks. And boy, what a variety it’s been!

Since I’ve been here, I’ve written affidavits, drafted court motions, interviewed clients, attended court proceedings, filled out visa applications, served papers, researched country conditions, edited legal publications, and so many other things. It’s a glimpse into the life of an immigration attorney: every day is different, and no skill goes to spare. One day I’m combing through case law, trying to piece together the standard for proving inadmissibility on a particular ground, the next I’m furiously taking notes during a three-hour interview with a Tibetan client. Occasionally, I’ll get back to my desk to find a legal brief that needs proofreading, or some documents that need to be filed with the Immigration Court, in which case I’ll make my way down to the court building, hustle through the security checkpoint, and finally get yelled at by the clerk for not hole-punching the papers correctly – this is America after all, pal.

I’ve also had the privilege of working directly with HRF’s clients and learning some of their incredible stories. To put it mildly, they’ve been through some pretty rough times. Recurring themes include gang killings, arbitrary imprisonment, female genital mutilation and torture. A woman client came to us with of the worst cases of domestic violence I’d ever seen; reading her file literally made me shiver. But despite these deeply confronting narratives, the work that I do – and the work that everyone at HRF does – is resolutely optimistic. It’s inspiring to see people so determined to rebuild their lives from near ruin – to not let their past trauma control their future. You don’t know courage until you shake hands with someone who, after losing half their family to gang violence and narrowly avoiding the same fate, still manages to greet you with a gleam in their eye and a smile on their face. And of course, whenever one of our clients is granted asylum, we celebrate the good news with a round of Dunkin Donuts – which, I might add, taste strangely better in New York.

As I write this, I have about a month left in my internship and a sinking feeling in my chest. The past two months have gone by so quickly – I can already picture myself on the plane back to Melbourne, sad about leaving New York, wondering where all that time went. I’ve still yet to see a Broadway show (they’re not cheap), and this week I’m going to try to catch Free Fridays at the Museum of Modern Art. This has been a truly incredible experience for me, and I hope to make the utmost of my remaining time.

Posted by: Michelle Freilich | February 7, 2018

In the Pursuit of Women’s Human Rights

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Before venturing to bustling Kuala Lumpur, I was eager to delve into my internship at International Women’s Rights Action Watch – Asia Pacific; an international NGO promoting and protecting women’s human rights. I would be working alongside defenders against human rights violations and global, systemic discrimination faced by women. As I sat in a meeting on the discourse of intersectionality in an office enveloped in bright, unapologetic women’s rights posters, my expectations were surpassed. Indeed, throughout my time surrounded by the brilliant feminist minds of IWRAW it became increasingly evident how vital advocacy and capacity building, particularly in the Global South, is to the realisation of women’s rights.

Through immersive conversations with the women at IWRAW and a towering pile of booklets, I began to understand the depth of engaging with women’s human rights. It seemed apt that the first paper I read was on the crucial differences between gender equity and gender equality, as my coming weeks would be followed by in depth consideration of the nuanced complexities of discrimination against women. An international platform provides the clarity of view to discern women’s rights issues as a holistic network rather than silos. For example, in the examination of sexual and reproductive health rights, it is imperative not only to consider the accessibility of services but also their interplay with the socio-political climate, sexual violence and the marginalisation of groups of women. Further, in practice, an international platform enables programmes to be conducted in which human rights defenders from diverse countries learn from one another.

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In the first few weeks of my internship I began the project of contributing to the report on the international judicial colloquium on access to justice for sexual violence. This quickly became a highlight of my internship. The colloquium was a knowledge sharing and peer advocacy platform in which judges, lawyers, women’s rights experts and activists engaged in advancing the discourse on gender equality in national laws and policies. As I buried myself in the materials from the programme, I was struck by the reverberating effects of good judicial practices. I have long marvelled at progressive judgements in Australia (á la Justice Kirby) and in turn was captivated by these progressive judges sharing the ways in which they circumvented discriminatory laws to enhance access to justice. The High Court in Zimbabwe struck down marriage to the victim as a mitigating factor in sentencing in child sexual abuse cases, while the Constitutional Court of South Africa extended the common law definition of rape. Through the important dialogue that took place at the colloquium, various strategic responses to structural, substantive and cultural barriers to access to justice in sexual violence cases were disseminated in a global context.

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Central to the operation of IWRAW is the utilisation of the Convention on the Elimination of All Forms of Discrimination Against Women. The international treaty focuses on the attainment of full equality between men and women and the elimination of discrimination against women that impedes women’s enjoyment and exercise of their human rights and fundamental freedoms. IWRAW has harnessed CEDAW as a tool in pursuit of the realisation of women’s human rights. In particular, CEDAW can be utilised by women’s human rights advocates and defenders in applying international human rights standards at the national level.

In achieving this end, IWRAW provides strategic support to women’s rights NGOs through their Global to Local Programme prior to CEDAW Review Sessions. The programme empowers women at the grassroots level by facilitating the involvement of NGOs in the review. In turn, NGOs are ensured the opportunity to hold their government accountable for human rights violations and discrimination against women. Since the start of my internship, I have been involved in Global to Local through compiling and noting the discrepancies between the reports composed by States and the often starkly different shadow reports composed by NGOs. The space between the state report and shadow report manifests the necessity for local NGOs to be given a voice on the international human rights platform. In sifting through the reports of Malaysia, Chile, Republic of Korea, Fiji, Saudi Arabia, Suriname, Luxembourg and Marshall Islands, I have become acutely aware of the diverse ways in which discrimination against women manifests. There is a certain confrontation in reading about women’s human rights violations directly from local NGOs.

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Having never been to Malaysia before I was unsure what to expect of the country that would become my home for the next two months. I had a curiosity that Google and friends’ anecdotes could not quell. From the energetic streets to the humid lightening storms, I have been captivated by Kuala Lumpur. My tolerance for spice has even (very mildly) improved. It has become clear that cereal pales in comparison to dim sum for breakfast and sandwiches are a flavourless lunch against hawker delights. Beyond the consuming cuisines of Malaysia, it is a fascinating base from which to engage with women’s rights, as the exposure to new cultures demands a constant renegotiation of my perspectives. As the end approaches for the Malaysia component of my internship, I already long for egg custard buns and rooftop views of vast cityscape.

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James Barklamb is our Global Intern at the Louisiana Capital Assistance Center in New Orleans. He recently visited the National Civil Rights Museum and penned this post. You can also read his first post at https://jbarklamb.wordpress.com

James Barklamb- Castan

2018 marks 50 years since Martin Luther King Jr. was assassinated on the balcony of the Lorraine Motel in Memphis, Tennessee. In the half century since, there have been gains-  both real and symbolic- in the fight for racial equality. But any sense that the underlying injustice and disparity in circumstance that underlay the civil rights movement is remedied, is evidently misplaced.

The night before Dr. King was killed, he proclaimed he had seen the “mountaintop”, in what is now recognised as one of his greatest speeches. At its core, the speech is a meditation on service through collective action; service that sublimates the individual at the head of a movement, in pursuit of the movement’s greater longevity and sustainability. 

It is therefore unsurprising that the speech reaches its crescendo in Dr. King pronouncing his great fortune at having survived a life-threatening stabbing to witness a series of…

View original post 820 more words

Posted by: Castan Centre | May 17, 2017

Humans and Rights

By Nicola Silbert

Following an intense month at the Human Right Council, life at the International Service for Human Rights (ISHR) continues. This post will discuss the Universal Periodic Review and an example of ISHR’s advocacy work for human rights defenders in China.

Universal Periodic Review

The Universal Period Review (UPR) is a review of the human rights situation in all of the UN member States. A review of the human rights records of basically the entire world is not for the faint-hearted, and there is no other universal mechanism of this kind. A State, known as the State under Review (SuR) will cycle through for review every five years. The SuR will present a national report and then other States have the opportunity to make recommendations to improve its human rights situation. It is reminiscent of a TV talent show with 192 judges and significantly more tears.

The UPR culminates in an “outcome report” listing the recommendations the SuR will have to implement before the next review. Think it sounds like a great idea? You are in good company, former UN Secretary-General Ban Ki-Moon described the UPR as having “great potential to promote and protect human rights in the darkest corners of the world.” ISHR engages with the UPR by submitting briefing papers about the situation of human rights defenders in the SuR; supporting human rights defenders to interact with the UPR; and advocating for the strengthening of the UPR as a mechanism.

Humans and human rights

In the bland light of Room XX where the UPR is held, I struggled to conceptualise the meaning of words behind country reports. I was reminded of the following analogy:

“If someone tries to browbeat a farmer to sell his eggs at a moderate price, the farmer can say “I have the right to keep my eggs if I don’t get a good enough price.” But if a young girl is being forced into a brothel she will not talk about her rights. In such a situation the word would sounds ludicrously inadequate.” Simone Weil, Human Personality (1943)

In her criticism of human rights, Weil argues that the concept of rights is unable to portray the suffering of the girl in the above example. What would she think of the UPR and HRC? For me, the formulaic and disconnected atmosphere means that I struggle to understand the human rights violations which are described in the UPR. Of course, my individual experience of humanity also limits my understanding of how another’s humanity is violated. I can only imagine that the delegations involved in the UPR feel similarly.

Yet Weil was writing before the development of human rights as a legal tool. Human rights is not only a method through which we can express violations of our human dignity, but it is a legal system. As a legal culture, it is natural that the UPR and other human rights mechanisms do not go into issues of justification. In the UPR, the humans behind the human rights seem less important than the effectiveness of the mechanism. Yet implementation of UPR recommendations relies on political will, so perhaps it is important to have some deeper understanding of the humans who hold the rights. The pre-sessions to the UPR provide such a platform.

The pre-party

UPR pre-sessions are organised by the non-governmental organisation UPR Info. The pre-sessions are panels of human rights defenders and national organisations who provide first-hand testimonies and information. The room is filled with reviewing States, who use this information to make recommendations to the SuR. Listening to the lived experiences of human rights violations, State representatives are more likely to fully comprehend the situation in a country. The pre-sessions are clearly powerful, leading to some States preventing panellists from speaking – a human rights defender in Bahrain who was meant to speak on the panel was apprehended on their way to Geneva and another declined to speak for fear of reprisal. Providing a platform for people on the ground to engage with States ensures that the UPR remains effective and relevant to the humans whose rights are being discussed.

Advocacy at work

Another example of ISHR’s nudging the UN to focus mechanisms on defending the rights of people is through advocacy work. In July 2015, more than 300 human rights lawyers and defenders were arrested in China in what is known as the “709 Crackdown.” Two lawyers arrested in these attacks were Li Heping and Xie Yang. Last week, Li Heping was sentenced during a secret trial while Xie Yang’s trial was indefinitely postponed. There are allegations that both have been tortured while in detention. Meanwhile, Li’s wife, Wang Qiaoling was harassed by State security who asked her to come with them for a ‘reunion’ with her husband, a euphemism for what is essentially a house arrest.

What has been the UN response to the 709 Crackdown so far? In February 2016, the UN High Commissioner for Human Rights released a statement expressing concern over China’s clampdown on lawyers and activists, including Li Heping. A group of twelve States, including Australia, also delivered a joint statement at the Human Rights Council. However, over the past year there has been little response to the ongoing human rights violations and clampdown on civil society.

So, how do international NGOs like ISHR push the UN to hold the Chinese government accountable? I was lucky enough to see the advocates at work. During the HRC in March, I watched civil society organisations strategize and meet with the Office of the High Commissioner for Human Rights (OHCHR). This was followed by a flurry of letter writing from ISHR and other organisations. We wrote to the OHCHR; to States who spoke out about China at the HRC; and to those who should have spoken out about China but did not (Australia being in this category). During the week that Li Heping and Xie Yang had (or rather, didn’t have) their trials, I gave my rusty Chinese skills a work-out, contributing to the following article.

The tangible effects of meetings, letters and articles are difficult to quantify. However, on Friday, the OHCHR released this statement on human rights lawyers in China, including Li Heping and Xie Yang. The Chinese government has been sensitive to this kind of international scrutiny in the past, making the statement a small success. ISHR’s pushes might have just tipped the OHCHR into making the statement, demonstrating the effect of their work. This advocacy is yet another example of how ISHR works within the UN systems to advocate for both humans and their rights.

Posted by: Castan Centre | May 8, 2017

Hello from Geneva!

By Madelaine King

I feel I should make a full disclosure before reading on: I am not a law student, nor have I formally studied international politics in any shape or form. This blog will chronicle my experience as a non-law/politics student interning with the Australian Permanent Mission to the United Nations for the 34th session of the Human Rights Council and the 2017 Bennelong Indigenous intern for the Castan Centre for Human Rights. As such, expect plain language and simplified explanations, free of technical terms and jargon – something I’ll pretend is a skillset I’ve acquired throughout my medical training, and not due to being in over my head.

UN Geneva

As a final year medical student, I applied for this internship with the hope of expanding my knowledge of how political and government systems interact within the United Nations and in a human rights framework. As has been echoed many times throughout the preceding weeks of council, knowledge and education is power and I had hopes that this opportunity would better equip me to become a leader and advocate for human rights at home.

Human Rights Council 101

Four weeks into my internship, I have essentially undergone a crash course in international politics, international and human rights law and diplomacy. I won’t go into detail about how the council operates, but there are essential three main components:

  1. The main plenary in Room XX (the room with the fancy ceiling*), where the formal items of the council take place. This includes addresses from the High Commissioner, general debates, panel discussions, reports from Special Rapporteurs and Independent Experts and the Universal Periodic Reviews.
  2. Informal negotiations, which is where resolutions that have been drafted by states are reviewed and critiqued by the other states in an informal and ‘friendly’ round-table kind of way. Consider your thesis being broken down line-by-line and the wording, language, punctuation and references being torn to shreds.
  3. Side events, which are put on by missions, non-government organisations (NGOs) or national human rights institutes (NHRIs) and usually take the form of an expert panel presentation with space for open discussion from the floor. Side event topics range from the protection of human rights defenders and the importance of providing reformed sexuality education to women and girls, to the human rights situation in Sri Lanka and using Universal Jurisdiction to end impunity for war crimes committed in Syria.

 

On a day to day basis, my schedule will consist of a three-hour shift in the main plenary and then a mixture of informal negotiations and side events. There is a lot going on and the council moves very fast. In a single day I may have covered the panel discussion on climate change and the rights of the child, an informal negotiation on the right to privacy in the digital age and a side event on the human rights situation in Myanmar. It often feels like there is little time to fully digest and reflect on the serious, urgent and awful current affairs being discussed. What has truly been a blessing has been connecting with the community of international interns and professionals here in Geneva; a wonderfully diverse group of intelligent, passionate and like-minded individuals, always up for a debrief and discussion over a glass of wine and copious amounts of Swiss cheese. I feel incredibly privileged to be able to engage with such brilliant, forward thinking minds and it gives me hope for the future in the current global climate of rising xenophobia and intolerance.

 

Candidate for the UN Human Rights Council 2018-2020

It has been an interesting time to commence an internship at the Australian Mission due to Australia’s ongoing 2018-2020 campaign for council membership. Since the announcement by Julie Bishop in 2015 we’ve all read the opinion pieces, heard the criticisms and engaged in debates surrounding Australia’s bid.

My fellow interns and I arrived as the campaign was peaking; the pinnacle being an event entitled Future Dreaming: a celebration of Indigenous Australian culture and Australian food and wine and the showcase was to include a performance by the Bangarra Dance Theatre and an Indigenous art exhibition.

Having just arrived from Australia, at first I found this concept quite jarring; it appeared the Australian government wished to project an image to the international community that is far from the reality of the rights of Indigenous people on the ground, and throughout that first week I struggled to shake the uncomfortable feeling that Indigenous Australian culture was being appropriated to serve a political agenda.

It was unclear if a single Indigenous person, other than the Bangarra Theatre, were consulted or involved in the organising of the event. It was also unclear if these were questions that were okay to be asked. After raising these concerns however, I was reassured that there had in fact been a great deal of input from Indigenous partners in Australia and a significant amount of work had been invested in building a foundation of trust in these relationships. It was also conveyed to me that by putting Indigenous rights at the forefront of their campaign, the Australian government was attempting to take ownership of the past, acknowledge their failings and not shy away from the challenges they still face. As an intern I was pleasantly surprised to have my concerns taken seriously and to be given the opportunity to engage in a constructive conversation.

When the night arrived, I think the event was executed in a culturally sensitive manner and it really was an evening of celebration of Indigenous Australian culture. The Bangarra dancers were breath-taking and received a well-deserved standing ovation. The issues surrounding Indigenous rights are incredibly complex and there are no easy solutions, but I do believe that partnerships and collaborations with Indigenous Australians like this, are of upmost importance if we are to heal and move forwards as a united community.

No state has a perfect human rights record and it’s clear you don’t need one to serve on the council; current members include Egypt, China and Saudi Arabia. As Philippe Magid, the executive director of Bangarra Dance Theatre said in his address, Australia still has a long way to go regarding recognition of the rights of Indigenous Australians but he hoped that Australia’s bid for a seat on the council was a step in the right direction and would make them more accountable of human rights violations of Indigenous people. I can only hope he’s right and that meaningful policy shift that results in positive change on the ground will follow. In the meantime, I will utilise this opportunity to learn as much as I can to better advocate, protect and promote the human rights of all, especially our Indigenous people.

 

*so it’s actually called Miquel Barcelo’s Dome, there you go.

Posted by: Castan Centre | March 30, 2017

Hello, and welcome to the Human Rights Council!

By Nicola Silbert

It is my privilege to be writing to you from the International Service for Human Rights in Geneva, where I am interning for four months.  The International Service for Human Rights (ISHR) is an NGO which promotes human rights by supporting human rights defenders and strengthening human rights systems. I’ve spent the last few weeks attending the Human Rights Council of the United Nations, so this post will focus on some aspects of NGO life in the UN human rights system.

 

The Human Rights Council (HRC) is the United Nations body which is responsible for promoting, protecting and fulfilling human rights around the world. The HRC is an intergovernmental body with 47 member states that are elected for three year terms. HRC member states commit to upholding human rights domestically, and can even be suspended from the HRC if they fail to do so – although membership tends to be overwhelming political and some HRC members have rather cavalier attitudes towards human rights.

 

Where words are louder than actions

It is a common criticism that the paper-shuffling and word-twisting of the HRC does not have any real impact on peoples’ lives. The work of the HRC in Geneva consists only of words, so can they make a difference to the rights of real people? Over the past few years, we have seen the extreme power of words and narrative. We have seen how a story of victimisation and identity can elect a US President,[1] and how a narrative of human control can cause climate change.[2]

 

So how do words in the HRC impact reality? One of the most Orwellian examples is when States use language to delegitimise the human rights system. When States complain that human rights are being ‘politicised,’[3] lament the ‘selectivity’ of the HRC[4] or stress that States have the primary responsibility over the human rights of their citizens,[5] they are in fact enacting a specific agenda.  The complaint that human rights are selective, politicised, or infringe on sovereignty generally follows when a State has been singled out for condemnation for human rights violations.

 

As ISHR interns, we are assigned to areas of concern, one of mine being China. This State is an example of one of the more powerful States impacting the narrative of the HRC. From catchy phrases like the Chinese dream (中国梦) to the complete defining of “Chinese culture”, the Chinese government is known for its use of words. This State is one of the most influential using strategic language to cover over human rights violations.

 

The problem is that this use of these narratives is more than merely a denial of human rights violations by an individual State, it is aimed delegitimising the UN human rights system itself. This narrative denies the principle of universality of human rights, a foundation of human rights law. The response of other member States is too often to ignore the core of these States’ intentions in using language that denies the universality of human rights in order to justify human rights abuses. And it is at this point that the mere words used during the HRC paint a false picture of the on the ground reality in a State. When real facts of the human rights situation are obscured by narratives aimed at delegitimising the UN human rights system, the desired positive impact on the lives of people cannot be achieved.

 

But what about the people?

Media, politics and university classes generally focus on the role of States in the HRC. One of my biggest lessons in the past few weeks has been discovering just how important NGOs are in the UN human rights system. Even some of the most democratic of States often do not always represent the most basic interests of their own citizens, and there are many more States who directly oppose the interests of their people.

 

That is where NGOs come in. A rabble which sits at the back of the Council, they clamour for their speaking time to address the Council. The room often empties at this point as member States, having espoused the benefits of civil society only minutes before, leave the room. But it is at this moment where some semblance of reality enters the HRC. NGOs that speak directly to the very people affected by human rights abuse provide an opportunity for their voices to be heard in the HRC. ISHR works with human rights defenders and provides space for them to engage with UN human rights mechanisms. It is here where the real people, through civil society organisations, are able to reclaim the HRC.

 

What we do when our beds are burning

Finally, I want to share one of the more surreal experiences of my life. Last week I crossed the square full of protesters in front of the UN building on my way to attend a “multicultural day event”. The UN cafeteria was packed with hundreds of delegates, diplomats and NGO representatives showing off their dance moves. Cameras and press were not allowed, lest they expose the party habits of some poor delegate. Dancing to American pop music, with the sounds of sirens and gunshots mixed over the music, these strangest mix of people took to the dancefloor. Although there were some notable absences of States, I couldn’t help but think that this might just be where the real constructive conversations occur.

 

[1] Reicher, Stephen, and S. Alexander Haslam. “The Politics of Hope: Donald Trump as an Entrepreneur of Identity.” Why Irrational Politics Appeals: Understanding the Allure of Trump (2017): 25.

[2] Klein, Naomi. This changes everything: Capitalism vs. the climate. Simon and Schuster, 2015.

[3] Egypt, High Level Segment of the 34th Session of the Human Rights Council.

[4] Cuba , High Level Segment of the 34th Session of the Human Rights Council.

[5] Iran, Item 3 of the 34th Session of the Human Rights Council.

Posted by: jessicaleefitzgerald | March 8, 2017

Happy International Women’s Day!

Happy International Women’s day to you all! This International Women’s Day I want to highlight the achievements of the male and female lawyers I am surrounded by daily who fight to make the legal system in Africa fairer and more protective of women.

Being at the Southern Africa Litigation Centre (SALC) has been the most interesting and personally enriching experience of my life. It has been astounding to learn about the sheer breadth of work that the office of only nine lawyers undertakes. All of the lawyers at SALC work across women’s rights in some way, because women’s rights intersect into all areas of human rights work, such as health rights, prisoner’s rights, LBGTI rights, property rights, sexual and reproductive rights, and labour rights.

The purpose of this post is to highlight the amazing work of the lawyers I get the pleasure to work with each day, who are empowering women and providing them stronger, more stable legal protections, so that they can live lives free from fear and abuse, so that they can be healthy, and so that they have access to education, opportunities and choice.

Ending Child Marriage in Tanzania

A male lawyer at SALC recently won a case which means that it is now illegal for girls to be married at 14 years of age in Tanzania. The case mentioned instances where a 70 year old man had married a 15 year old girl, and where women under 18 years old were being forced to have sex, but were not able to report the rape, because it occurred within a marriage. Women are now required to give their own consent to a marriage only after they are 18 years old – their parents and the Courts can no longer consent to a marriage on their behalf. This also enables women to complete school, and prevents girls as young as 14 from being subjected to sexual and domestic abuse from their husbands, who are usually much older.

Ensuring the safety of women engaged in sex-work in Malawi

A male lawyer at SALC recently won a case which challenged laws that Police were using to arbitrarily arrest and detain sex-workers in Malawi, in order to harass or intimidate them. These women were often asked for bribes or sexual favours in exchange for their release. As a result of this case, women in Malawi can no longer be arbitrarily arrested under these laws, and the case has prompted an education campaign for Police on the limits to their powers of arrest.

Challenging the automatic dismissal of women who are pregnant

Myself and another female lawyer at SALC are currently assisting on a case which challenges the unfair dismissal of three women from the Defence Force for falling pregnant. There was a policy which outlined that women who fall pregnant within their first years of service will be automatically discharged, as they became permanently unfit for service. All three women are from very poor families, and the money they earned in the army supported themselves, their husbands and their broader families (mothers, fathers, brothers, aunties, uncles, and extended cousins). We are working to get them compensated and reinstated, now that they are no longer pregnant, so that they can continue work and provide for their families, and so that they do not become destitute and fall below the poverty line, as a result of an unfair and illogical policy.

Why we do it

Every case, every campaign brings us closer to a world where women are treated with respect and dignity, where they don’t fear domestic abuse or mutilation, where they have equal access to education, where they are able to drive, to own property, to make choices about how they wish to live their lives, and where they have access to basic medical services to ensure their health and those of their families.

Women’s rights are not only a women’s issue, which is why I highlighted that two of the three cases were won by male lawyers. Women’s rights are realised when both men and women work to ensure their realisation – women are only one half of the equation.

It is an amazing privilege to be surrounded by, and be working with, such talented lawyers to advance the rights of women in Africa – an opportunity which I am genuinely grateful for, every day.

Posted by: Castan Centre | February 22, 2017

“You picked an interesting time to visit the United States!”

By Gemma Hallett

That remark has become the hallmark of my time here in New York, as a Castan Centre intern at Human Rights First. It’s certainly been an interesting, challenging time to be here – I arrived about four weeks after the election, and six weeks before the inauguration. The resulting atmosphere in New York has been one of nervousness and disquiet, hanging in the air like storm clouds in a city descending into a winter both literal and uncomfortably symbolic. I quickly realised that time itself was redefined on November 8, and our world is now split into eras Before Donald and After Donald.

As a first-time visitor to the United States, it’s been a steep learning curve navigating a culture that is vastly more complex and different to mine than I ever expected. A perfect introduction to this was my first day at Human Rights First. My induction started off by watching a video summing up the American values and ideals upon which Human Rights First bases its advocacy. “Freedom is American,” the video declared in its first screen. Then, Martin Luther King Jr.’s voice proclaimed his “desire to see our beloved country stand as the moral example of the world”. The video concludes on a note intended to feel optimistic and aspirational: “The world needs American leadership.” Now, in the post-election era – After Donald – these sentiments made me feel sick. The irony of working in a human rights organisation in the U.S. at a time like this started to sink in, and still hits me every day when I sit down at my desk and review our daily press briefing, which increasingly profiles a country rocketing backwards at a vertiginous pace.

Against this increasingly dark political backdrop, it’s felt like even more of an honour to become part of the Refugee Representation team at Human Rights First. I come to work every day surrounded by driven, multilingual and over-worked young lawyers – mostly women, as is the norm in many social justice organisations – who work on behalf of refugee and asylum seeker clients to assist them in navigating the complex U.S. immigration system and obtaining legal representation. As well as client casework, Human Rights First also engages in fearless political advocacy, lobbying the government to improve its immigration policy and stop detaining asylum seeker families.

Since the new administration took power just three weeks ago, the feeling in the office has sometimes been devastating – urgent emails pouring in from John F. Kennedy Airport, reporting detention and deportation as the travel ban kicked in. It’s been disorienting, hearing yet another colleague object to the latest report of Trump’s executive orders – “isn’t that illegal?” – and being met with a mournful, unprecedented silence. But most importantly, this office has also been a steadfast bastion of hope and resistance every single day. All of my colleagues are now working overtime, not only as immigration lawyers, but also as shoulders for clients to cry on; as makeshift taxi services when detained refugees are released without warning into the cold New Jersey streets after sixteen months imprisoned; as impromptu interpreters of Arabic-speaking clients making emergency phone calls to us from airports in the seven banned countries.

Every day, I’m being reminded that human rights law is not a career for the faint-hearted, or the easily discouraged. But I’m also learning that it’s a space in which you can act as a dream-bearer, a crisis manager, a social worker and a life planner for those in dire need of someone to trust. And I’m also learning to appreciate the silver linings, as rare as they are, and even rarer as they will continue to be. For example, the day after New York lit up with protests against the Muslim travel ban, I was dreading going to work and discussing the tragic fallout for thousands of families worldwide. What I wasn’t expecting was to arrive to several emails of thanks from former and current HRF clients. They’d written to us to thank us for protesting, and to say how much it meant to see streets full of supporters who welcome refugees and immigrants with open arms. Although legal casework is often frustrating in that you can only help so many people at a time, it’s moments like this that remind us that our work is more important and far-reaching than we often think.

As we head deeper into the After Donald era, I’m clinging to moments like these. I’m also trying to spend my time as an intern learning as much as I can about the world we live in, to equip myself to become a better part of the resistance that’s already unfolding. I’m looking forward to bringing these lessons back home in time for the end of my studies and the start of my career – and hoping we never face as grave a threat to human rights in Australia as the United States is facing now.

Posted by: Castan Centre | February 15, 2017

NYPD accountability? Part 2

By Amy Myers

Five years ago last week NYPD officer Richard Haste killed 18-year-old Ramarley Graham in his Bronx home. The five-day departmental trial of Officer Haste wrapped up on the 23rd of January, and the presiding departmental judge is expected to give her recommendation to NYPD Commissioner O’Neill by 3rd February. Commissioner O’Neill is under no obligation to follow it or publicly reveal what his decision is because of existing legislation which permits secrecy in departmental trials.

There was a lot wrong with Haste’s week-long “trial.” The absence of any civilian witness testimony undermined the legitimacy of the court. At no point was Ramarley’s grandmother, Patricia Hartley, or the ground floor resident who allegedly consented to Haste and his partner McLaughlin entering the apartment building, given the chance to testify. Ramarley’s grandmother was not only present when Ramarley was killed, she was also threatened by Haste after he killed Ramarley. The departmental trial was limited to the “technical” question of determining whether Haste’s actions were proper, and therefore no civilian testimony was deemed necessary. But how can a decision maker determine whether the urgency, danger, and stressfulness of the circumstances were in fact real and the officer’s actions justified without impartial outside testimony? When a court does away with this principal it becomes an illegitimate court.

Haste and McLaughlin emphasized how quickly everything happened. They consistently referred to Ramarley as the “perp” and “suspect” and Ramarley’s possession of “the gun,” as if its presence was an accepted fact. But no gun was ever recovered in or around the property. Criminalizing Ramarley through this choice of language during the trial was not met by any objections by the departmental advocates prosecuting Haste, the people charged with ensuring the facts were clarified and Ramarley was accurately depicted.

It is true that the events on February 2, 2012, happened quickly, but not for the reasons the NYPD officers claimed. From the time Ramarley walked calmly into his house and shut the door to the time the police hastily removed his body after shooting him, hardly 15 minutes had passed. Having noticed Ramarley “walking with a purpose” with his hand allegedly in the waistband of his pants, the Bronx Special Narcotics Enforcement Unit decided to follow him. This was hardly a “hot pursuit” as characterised by the NYPD officers present. The NYPD bust into his home in a cavalier and reckless manner. They kicked in the front door with no warning or request for it to be opened. They failed to call in backup or the highly specialised Emergency Services Unit, who generally engage “barricaded perps” verbally to deescalate situations. Haste and his team also failed to clear the area, a standard procedures for apprehending a suspect when real danger is perceived. It is highly unusual for a body to be removed this quickly following a fatal shooting. Not surprisingly, there were discrepancies in accounts of where Ramarely’s body was when he was shot. During testimony during the trial the police officers involved also made the extraordinary inference that, because the scene was not secured, the gun Ramarley allegedly had must have been removed. Neither of these things would have been in issue if the incident had been handled professionally by an external investigator.

During the trial, Ramarley’s mother, Constance Malcolm, attended with Gwen Carr, Eric Garner’s mother. They both say that the “true facts of the story aren’t being told.” Constance held a press conference to set the record straight. She played the complete video footage from the cameras outside the apartment building which clearly contradicted the NYPD narrative. Confirming the above tactical violations, it depicted the officers taking over three minutes to enter the premises, turning their backs multiple times to the entrance to the property, failing to clear the area and pressing their faces to the doorway glass to try and see through – actions that Inspector Sheehan, the Commanding Officer for the Special Training Section of the NYPD, told the court were indicative of egregiously poor tactical judgment. These actions go further and reveal the degree of fabrication involved in the official NYPD story that they “feared for their lives.” The erasure of civilian testimony and the curation of the video footage showing in the courtroom were two legal tactics which were used by the NYPD to create an alternative narrative and assist in shielding Haste.

The full video also tragically depicted Ramarley’s then-six-year-old brother, Chinnor Campbell, being led out of the apartment into the freezing cold, crying hysterically, and dressed in only a t-shirt. Separated from his grandmother, traumatised from seeing his brother being shot, he was passed between officers, none of whom offered him a coat or other covering in the frigid February cold. This is despite Haste remarking on the stand that he was driven to act quickly by the interest in protecting any children in the building. Soon afterwards, the video shows Ramarley’s bloodied body being carried out and carelessly slung onto a gurney. At the press conference, Constance revealed that the police also later lost Ramarley’s body for days. The treatment of Ramarley’s body, both at the scene and afterwards, coupled with the absence of any consequences for the officers, reveals the NYPD’s complete failure to live up to its mandate of courtesy, professionalism and respect when it came to Ramarley as an 18-year-old Black teenager in the Bronx.

Ramarley’s mother, Constance Malcolm, considers it a personal slap in the face that “Haste refused to apologise in court. That was his opportunity and instead he chose to justify himself.” She told me, “I fight not just for Ramarley but also for Chinnor…I have to raise a Black boy in this country, this is why I fight so hard to get things done and changed. I don’t want to bury another child.” Trials such as this create further division between the police and the communities they purport to serve and undermine comments by Mayor De Blasio about bridging that gap.

               Ramarley Graham rally

Constance said, “This trial raises the question of whether the NYPD is seeking to root out bad officers or covering up for them…We are skeptical and the public should be too.” Constance had an op-ed published in the New York Times on the anniversary emphasising these points. The key provision that Constance would like to see changed is New York Civil Rights Law § 50-a. This section excludes from public access “all personnel records used to evaluate performance toward continued employment” relating to police and corrections officers unless mandated by a lawful court order. The Committee on Open Government within the New York Department of State has recommended that this exemption be removed to increase transparency and accountability.

As we peer into the terrifying abyss of the Trump presidency, and begin to make out the shape of what is to come, it is difficult to hope that transparency or accountability will improve. “Does anyone really remember the details of a course from training they received years before?” asked Haste’s defence attorney, Stuart London. London also chillingly stated, “Police work should not be judged by the end result…or second guessed.” Justice for Ramarley Graham is far from served: officers have avoided accountability and been rewarded with promotions. This is unacceptable.

This was originally published on the CCR blog.

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