Tag Archive | "United Nations"

The European Refugee Crisis: Unaccompanied Refugee and Migrant Children

Photo Credit: Getty Images

Photo Credit: Getty Images

The refugee and migrant influx into Europe continues. Since January 2015 approximately 1.2 million people have journeyed across the Mediterranean in an attempt to reach Europe. The majority arrive in Europe by sea, while almost 34,900 refugees and migrants arrived by land. These individuals are fleeing economic and social breakdown such as conflict, violence, and poverty, with the largest numbers leaving Syria, Afghanistan, and Iraq.

The crisis has had a substantial impact on children. UNICEF’s advocacy brief on the refugee and migrant crisis in Europe describes this crisis as a “children’s crisis.” By the end of December 2015, 1 in 3 refugees and migrants in Europe were children. And, based on arrivals in Europe since January 1, 2016, 27% were children.

Especially vulnerable are unaccompanied children. Children are among the most at risk of refugees and migrants – at risk of trafficking, exploitation, abuse, death, rape, and detention, among others. Unaccompanied children are those under the age of 18 years old and travelling alone. In 2015, approximately 25% of child asylum claims were made by unaccompanied and separated minors. However, it is difficult to gather accurate numbers of unaccompanied children because either they are not registering at borders or the country does not allow for their identification in formal registration procedures.

So, what is global community’s responsibility in addressing the issue of unaccompanied refugee and migrant children? According to the Convention on the Rights of the Child, the protection of unaccompanied children is a state obligation. One response to the problem of unaccompanied refugee and migrant children arriving in Europe was that of the United Kingdom, which passed the Immigration Act 2016, Section 67. The Act specifies that the “Secretary of State must… make arrangements to relocate to the United Kingdom and support a specified number of unaccompanied refugee children from other countries in Europe.” It further specifies that the number of children to be resettled will be determined by the government in consultation with local authorities. The Act does not specify a fixed number on arrivals in order to assess the local governments capacity and ability to help. The purpose is to resettle unaccompanied refugee children who have fled conflict in the Middle East and whom it is in their best interest to be transferred to the UK.

Although there are real considerations as to capacity and ability of countries to help unaccompanied refugee children, a greater effort should be made by the global community in collaboration with one another and individually to assist this especially vulnerable population as well as the refugee and migrant population as a whole.

Hannah Mitchell is a 2L at the University of Denver Sturm College of Law and a staff editor on the Denver Journal of International Law and Policy.

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Renewed Violence in the Central African Republic Threatens Fragile Peace

Photo Credit: Global Risk Insights

Photo Credit: Global Risk Insights

The UN Multidimensional Integrated Stabilization Mission in the Central African Republic (MINUSCA) has reported renewed violence this week in the Central African Republic (CAR). On September 16th, after months of relative peace between predominantly Christian anti-Balaka supporters and predominantly Muslim ex-Seleka rebels, 26 civilians were killed, a UN aid worker was injured, and UN humanitarian offices were looted. The violence occurred in and around Kaga Bandoro, a market town 330km North of the capital Bangui. A spokesperson for CAR President Faustin Archange Touadera said that members of the ex-Seleka rebel group “went door to door and killed their victims[,]” including the village chief, and described the execution style killings as “a massacre.”

This recent flare in violence comes after a summer of relative calm in the country, the first since the Seleka uprising began in 2012. Last week at the UN, President Touadera said that “the [CAR] has turned its back on past dark days,” and promised a brighter future based on a four-stage framework for change: peace and security; national reconciliation; economic recovery; and justice and human rights. National reconciliation is to be achieved through a newly established hybrid criminal justice mechanism, the Special Criminal Court (CPS), established to prosecute the Seleka and Anti-Balaka responsible for extreme violence. In this fragile region of the country, renewed violence could stall efforts of the CPS to achieve the second stage of President Touadera’s plan to bring reconciliation to the nation.

In 2012, when Seleka rebels began an assault on the government of President Francois Bozize, the security situation in the CAR began to rapidly devolve. In a matter of months, ethnic violence overcame the country, and the CAR fell into a deepening humanitarian and economic crisis compounded by violence and widespread human rights violations. Following the coup in early 2013, unintegrated Christian militias came together, united under the banner of Anti-Balaka, to resist the rebel power-grab. During the conflict Seleka and Anti-Balaka fighters became engaged in a cycle of tit-for-tat retributive revenge killings. Individuals from both sides are accused of targeting civilians, murder, rape, torture, enlisting child soldiers, destroying humanitarian missions, forcibly displacing civilians, engaging in widespread persecution, looting, and pillaging. In the case of Anti-Balaka, there are also accusations of ethnic cleansing. This conflict resulted an estimated one million refugees and internally displaced persons (IDPs), the rapes of thousands of innocent women and girls, the destruction of humanitarian missions, and the death of thousands of civilians, many of them children.

In January 2014, in order to bring peace to a nation at war, the CAR government established the Transitionary National Council (TNC), approved a new constitution, and replaced coup leader Michael Djotodia with interim president Catherine Samba-Panza. In July 2014, through mediation by the TNC, Seleka and Anti-Balaka leaders signed a peace agreement which formally disbanded the Seleka alliance, and all groups were promised inclusion in the future government. These developments, however, failed to end the violence; ex-Seleka rebels who did not lay down arms, and Anti-Balaka militias, continued to commit grave atrocities throughout the country.

In April 2015, interim president Samba-Panza executed a law creating the CPS. The CPS was created to investigate and prosecute all those responsible for grave human rights violations in the country since former president Bozize took power in 2003. The CPS is the first ‘hybrid justice’ institution created through national legislation to prosecute perpetrators of mass atrocities, and is seen as an inventive and transformative mechanism which possesses the potential to end the cycles of impunity-inspired violence in the CAR. Once the CPS is established it will exist as a special court within the domestic legal system of the CAR, will have a mandate of five years, will be located in Bangui, and will include both CAR citizens and other non-CAR citizens as staff and judiciary. The official mandate of the CPS is to conduct preliminary investigations and judicial examinations, in order to try “all war crimes and crimes against humanity committed on the territory of Central African Republic since 2003.” Despite progress, attacks against civilians remained “alarming and widespread” through early 2016. It was not until late Spring of 2016 when the pinnacle of violence finally passed.

The ultimate success of the CPS in changing the trajectory of the CAR is likely to be determined by specific organizational factors of the court which have yet to be legislated, and future unpredictable events in the country. The CPS is, however, a hybrid justice mechanism like none other before, and is the country’s best chance to end the vicious cycle of impunity for mass atrocities which has plagued it since independence. While President Touadera seeks only brighter days ahead, he also recognizes that despite progress “the situation is a fragile one” and that the CAR “absolutely needs the support of its bilateral and regional partners.” If recent violence in Kaga Bandoro is an indication of, or may become a catalyst for, renewed violence elsewhere in the country there is a risk that it could derail progress towards national reconciliation. MINUSCA is now reinforcing positions in and around Kaga Bandoro and  stepping up patrols to protect civilians, and will continue its mandate in the CAR in order to prevent further violence.

Jeremy S Goldstein is a 4L J.D. Candidate at the University of Denver Sturm College of Law in Denver, Colorado USA; Senior Managing Editor of the Denver Journal of International Law and Policy.

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70 Years of Justice

Meeting in The Hague on 3 February 2015, the International Court of Justice (ICJ) dismissed genocide claims by Croatia and Serbia. UN Photo/CIJ-ICJ/Frank van Beek.

Meeting in The Hague on 3 February 2015, the International Court of Justice (ICJ) dismissed genocide claims by Croatia and Serbia. UN Photo/CIJ-ICJ/Frank van Beek.

This week we celebrate a very important birthday – on April 18th, 1946, the International Court of Justice (ICJ) was born. Since its birth 70 years ago, the ICJ has had the opportunity to hear 161 cases. These cases have been entered from large countries like the United States and the former Soviet Union all the way to small ones like Burkina Faso and Malta. I thought I would take this opportunity to explore the history and purpose of this very important court as it’s not one that many American jurists get the opportunity to encounter.

To do so, we need to go back a little further in time. You may be surprised to learn that what Americans know as “alternative dispute resolution” actually predates judicial settlement in history. Mediation had its origins in ancient India and the Islamic world, while arbitration was used throughout ancient Greece, tribal Arabia, and medieval Europe. Finally, in 1899, the International Court of Arbitration was established by the first Hague Peace Conference in the newly built Peace Palace. By the time judicial settlement took its place in the international realm, World War I had just come to an end. The precursor to the ICJ, the Permanent Court of International Justice (PCIJ), was established by the League of Nations in 1920 and heard 29 cases that mostly dealt with issues from WWI.

The PCIJ came to an end when the League of Nations was dissolved and with the establishment of the United Nations, so came the ICJ. This coincided with World War II and a whole new set of issues. Article 1 of the UN Charter defines the ICJ’s purpose is “to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.” Also seated in the Peace Palace at The Hague, Netherlands, the ICJ is composed of 15 judges elected for nine-year terms. Besides settling disputes between nations (contentious procedure), the ICJ also issues advisory opinions on legal questions submitted by UN bodies and agencies (advisory procedure).

However, advisory procedure should definitely not be seen as secondary to contentious procedure. In 1947, the ICJ decided on the conditions necessary for a state to be admitted to the UN, something that still controls today. 1950 brought about procedure regarding the genocide convention following WWII. 1993 and 1995 brought about advisory procedure on the legality of the threat and use of nuclear weapons. Of course, contentious procedure has made its mark on the world too. The Nottebohm case (1950) has been a cornerstone of nationality determinations the world over. The United States Diplomatic and Consular Staff in Tehran case (1980) was brought by the US against Iran following the Iran hostage crisis. Finally, another 10 cases are currently in progress and range on issues from maritime borders to the cessation of the nuclear arms race and disarmament.

Whether or not you believe that international public law is important, the ICJ has made determinations that affect you. Whether you live on a small fishery on the coast of Iceland, drive a gas-powered tractor on a potato farm in Idaho, or dream of a world where nuclear missiles are no longer a threat, your life has been shaped by the decisions of the ICJ. The last 70 years have moved our world in a positive direction. Happy Birthday, ICJ – cheers to the next 70.

Lorne Hiller is a 3L at the University of Denver Sturm College of Law and the Executive Editor of the Denver Journal of International Law and Policy.

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The Protestant Ethic and the Spirit of Slavery

If “idle hands are the devil’s workshop,” and if our own hands are not idle when we use machines and other property to do our work for us, then does the resulting prosperity guarantee our salvation? Though the title of this blog is not an entirely fair play on Max Weber’s, The Protestant Ethic and the Spirit of Capitalism, the ownership of human beings as commodities certainly relates to the drive for profit because there is little doubt that unfettered capitalism itself is the result of slavery. However, the intention of this blog is not to point out the good and bad aspects of capitalism; rather, the intention is to point out the prevalence of modern day slavery and how easily we can end it by changing our views on what “success” entails, and by increasing racial and gender equality. We can accomplish this by simply becoming aware of what is happening and how we are each contributing to its continuance.

December 2nd is the United Nations’ International Day for the Abolition of Slavery, and this blog is in observance of that day. The International Day for the Abolition of Slavery is significant because people throughout the world are encouraged to publish material on slavery to raise awareness and combat its continuance.

Modern slavery is defined within International Law as: “the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.” In plain English, the person is held against their will under the constant threat of injury or death and is forced to work without pay. Slavery exists in every country in the world and includes: sex trafficking, domestic servitude, bonded labor, child labor, and forced labor, among others. Today, it is estimated that there are 35.8 million people held in slavery worldwide, although the actual number is likely much higher.

Increased globalization amplified the profitability of slavery through cheap labor in various parts of the world. Many of the items we use daily, such as cotton, sugar, cocoa, rugs, and bricks are likely to have connection to slavery. Once these items reach the global market, it is difficult to track their source.

The people held in slavery are themselves are viewed as investments and are42418-front-new cheaper today than at any other time in history. They are usually young because the elderly and very young cost more to maintain and cut into revenue. Experts on modern slavery, such as Kevin Bales, describe them as “Disposable People” because they are merely thrown away or killed when they no longer produce enough profit for the owner.

Despite numerous treaties and law abolishing slavery throughout the world, slavery remains. Because of this, we must go beyond the anti-slavery laws themselves and pay closer attention to laws which prohibit discrimination based on race and gender. This is because these are the groups at the most risk of poverty due to discrimination, thereby placing them at increased danger of being taken into slavery.

There are many things we can do to help end slavery as individuals. For instance, we must be aware that it may be happening right next door to us, that we may be purchasing products that are connected to slavery, and we must be willing to pay more for certain products since “low prices” can be deceptive. For instance, with chocolate, low prices make slavery more prevalent because the farmers cannot pay for the labor and the company either goes under or the owners begin enslaving people to produce the cocoa. This is one reason why boycotting certain products can actually contribute to slavery. In other cases, such as carpets and rugs, boycotting is a viable solution as is paying extra for rug labels which provide some assurance that the carpets were not produced through the use of slave labor.

If we remain locked in the iron cage and continue placing profit above all else, believing that “whoever dies with the most toys wins,” we will eventually be unable to continue blinding ourselves to the actual cost.

Bernadette Shetrone is a 3L at University of Denver Sturm College of Law and Staff Editor on the Denver Journal of International Law and Policy

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Grading the United Nations at 70 years old

(Denver Post) By Ved Nanda

The euphoria that accompanied the creation of the United Nations in 1945 has long since

The UN Security Council meets on the current situation in Syriaon September 16, 2015 at the UN in New York.    AFP PHOTO / HANDOUT UNITED NATIONS DEVRA BEROWITZ              == RESTRICTED TO EDITORIAL USE / MANDATORY CREDIT: "AFP PHOTO / HANDOUT / UNITED NATIONS / LOEY FELIPE"/ NO MARKETING / NO ADVERTISING CAMPAIGNS / DISTRIBUTED AS A SERVICE TO CLIENTS ==Loey Felipe/AFP/Getty Images

The UN Security Council meets on the current situation in Syriaon September 16, 2015 at the UN in New York. AFP PHOTO / HANDOUT UNITED NATIONS DEVRA BEROWITZ == RESTRICTED TO EDITORIAL USE / MANDATORY CREDIT: “AFP PHOTO / HANDOUT / UNITED NATIONS / LOEY FELIPE”/ NO MARKETING / NO ADVERTISING CAMPAIGNS / DISTRIBUTED AS A SERVICE TO CLIENTS ==Loey Felipe/AFP/Getty Images

given way to frustration and disappointment. Established in the aftermath of the death and destruction of World War II to “save succeeding generations from the scourge of war,” it has succeeded in preventing another global war, but peace still remains illusory.

Armed conflicts in Syria, Iraq, Afghanistan, Libya, the Congo, Yemen, and other places attest to this grim reality. And the killing fields of Cambodia, the genocide in Rwanda, and the tragedy of Srebrenica show the international community’s failure to make good on its promise.

Benefiting from the experience of the failed League of Nations, the U.N. founders proclaimed in its charter the main purposes: to maintain international peace and security, to promote and protect human rights, and to effectively address pressing international economic and social issues such as development through international cooperation.

For a fair assessment of the U.N. on its 70th anniversary this fall, we need to look at its record in achieving these goals.

Under the U.N. framework, the Security Council, in which the veto power is wielded by five permanent members — China, France, Russia, the United Kingdom and the United States — is primarily responsible for peace and security. The founders envisioned that these five members would provide an umbrella of collective security for the world. That is why these became the only countries exclusively authorized to possess nuclear weapons.

But the Cold War quickly intervened. The U.S. and the Soviet Union — then the two superpowers — were embroiled in a prolonged ideological struggle, which led to an era of client states and proxy wars. The outcome was a paralyzed Security Council and stillbirth of the collective security system. This period lasted until the collapse of the Soviet Union.

At that time, there was renewed promise that the five permanent members (P-5) would work together to fulfill the expectations of the Security Council’s role on peace and security, and the first Gulf War showed a glimpse of that possibility. But the window again closed with Russia and the West at loggerheads on several geopolitical issues.

This tussle notwithstanding, the P-5 have found their interests aligned on countering terrorism, piracy, nuclear nonproliferation, on imposing collective sanctions on Iran, and now the Iran nuclear deal. They have also given their blessings to peacekeeping operations, and President Obama is to host a peacekeeping summit in New York in September. But more often, they disagree, such as on Syria.

Because the collective security apparatus did not work, the U.N. instituted peacekeeping as a band-age for trouble spots. From the early days of U.N. peacekeeping between India and Pakistan, these operations have expanded considerably, now in 16 countries with an enhanced mandate to protect civilians.

More than 100,000 personnel from more than 100 countries are engaged. The operation is costly — $8 billion-plus — and there are tremendous challenges. Critics often point to inefficiencies and abuses in the system, which badly needs clearly defined mandates, selection of peacekeepers based on experience and training, an effective oversight process, and well-defined exit strategies. The value of these operations, however, cannot be overstated.

The geopolitical circumstances have shifted the landscape. The 50 original charter signatories have grown to 193. No longer are peace and security issues confined to conflicts between and among states, as non-state actors such as the Islamic State, terrorists, and criminal elements challenge the traditional structure. And mass migration, climate change, environmental degradation, food insecurity, and violent extremism, among other forces, are major global security problems.

More than 50 million people are forcibly displaced today, and given the tragic incidents of hundreds of asylum-seekers drowning in the Mediterranean Sea and thousands on the move in Europe, the international community is undoubtedly failing them. Will the U.N. system, which is already showing its age, be able to deliver on these challenges?

On human rights, the U.N. indeed has undertaken impressive initiatives. Given the vivid demonstration of the Nazi Germany’s atrocities at home and aggression abroad, the founders realized that peace and security and human rights are inextricably intertwined. Accordingly, human rights found a place of honor on the U.N. agenda. The Universal Declaration of Human Rights, adopted in 1948, followed by binding international treaties on civil and political rights and economic, social, and cultural rights, culminated in an “international bill of rights.”

Since then, a number of international agreements have set universal standards for the promotion and protection of the rights of women, children, indigenous peoples, and disabled persons, for example. International agreements on the prohibition of atrocity crimes — genocide and torture, ethnic cleansing, and war crimes — and the creation of an International Criminal Court to hold egregious violators accountable are attempts to end all impunity. And credit for the independence of dozens of former colonial states goes to the U.N.’s decolonization process.

The U.N. World Conferences on Women — especially the 1995 Beijing Conference — set the goals of gender equality, active participation of women in decision-making, reproductive rights, and voluntary family planning. U.N. Women, a U.N. entity, now has a universal mandate to promote the women’s rights agenda.

Impressive international agreements are now in place on a wide range of other issues of human interaction, including the environment, the Earth’s ozone layer, the oceans, trade, outer space, terrorism, disarmament, aviation and shipping. The U.N. specialized agencies are addressing these issues. For example, the World Health Organization leads the global response to pandemics by creating awareness and mobilizing member states’ quick action on these threats.

The U.N. is attempting to shape a livable future on earth through a “sustainable development agenda,” which envisions linkage between economic viability, social development, and environmental aspects. It is an effort to bridge the initial North-South divide under which the developed states focused primarily on environmental protection, and developing countries on development needs. In 2005, the U.N. adopted the Millennium Development Goals, which focused on reducing poverty, hunger and child mortality, ensuring women’s empowerment, and providing clean water. Many of these goals, set to expire at the end of this year, have been largely met, and in September the U.N. will launch the Sustainable Development Goals, to last until 2030. These goals aim at ending poverty and hunger in all their forms everywhere, achieving gender equality, and ensuring access to clean water, sanitation, and affordable, reliable, and modern energy for all.

Indeed, the U.N. has had spectacular successes and monumental failures. It provides this interdependent world a platform where nations can enter into dialogue and negotiate to resolve their conflicts and address pressing challenges. Undoubtedly the organization suffers from a large bureaucracy, mismanagement, and inefficiency. Its governance structure has pointedly come under harsh criticism, a valid concern, indeed.

Currently the expansion of the Security Council is a contentious issue. Among the P-5 there is no representation from Africa or Latin America. The Asia-Pacific region, which comprises 55 percent of the world’s population and 44 percent of its annual income, has just one representative: China. This calls the Security Council’s legitimacy into question, and on Sept. 14 the General Assembly renewed the efforts for reform.

The veto power, which is responsible for the impasse and hence inaction at the Security Council to solve crises such as Syria, should be altered. But the P-5 defend it, and none would be willing to relinquish it. To illustrate, the Russian ambassador to the UK recently called the permanent members’ right to veto, a guarantee of checks and balances. And any alteration of the U.N. governance structure would require two-thirds of the membership of the General Assembly, 129 votes, not an easy task.

Secretary-General Ban Ki-moon’s term expires at the end of 2016. Jockeying for the job is in full swing. While East Europeans feel that it is their turn and the former president of Slovenia is a strong contender, there is powerful sentiment that the time is ripe for the first woman to take the helm.

There is truth in the cliché that if we did not have a United Nations we would have to invent one. However, while it is accurate that the U.N. can do only what its members will let it do, it must have the capacity to adapt to the changed geopolitical setting and a new economic and social landscape. Crucial questions are how to end red tape and bureaucracy; how to ensure effective monitoring and accountability mechanisms; and how to bring the governance structure in tune with modern-day realities.

Unless they are answered, the U.N.’s capability to effectively address the challenges and crises of the present and future is in question. The United States, which acknowledges the benefits of U.N. membership, must give its full support.

Ved Nanda (vnanda@law.du.edu) is Thompson G. Marsh Professor of Law and director of the Nanda Center for International and Comparative Law at the University of Denver Sturm College of Law.

 

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Intervention: Altruistic Benevolence or International Tyranny?

John Donne famously declared, “[n]o man is an island.” Similarly, “no state is an island,” as states are inevitably impacted by the actions of others. But does this mean that any connection, however attenuated, justifies one state’s interference with another? Is this kind of interference ever justified? Is there ever an obligation on states to commit just this sort of interference?

Intervention
(courtesy of K-State IMI data)

Historically, the line that divided benevolent intervention from tyrannous interference was the consideration of whether such interference was necessary to protect a state’s “vital interests.” While the standard of “vital interests” is itself an amorphous concept, the greater concern is whether it is an appropriate standard in the first place. Might not atrocity permit, and perhaps even require, those states with the ability to interfere to do so?

As early as 1933, the Montevideo Convention on the Rights and Duties of States illustrated the efforts of the international community to establish limits on the extent to which countries could interfere with one another. Article XI explicitly provides that “[t]he territory of a state is inviolable and may not be the object of military occupation nor of other measures of force imposed by another state directly or indirectly or for any motive whatever even temporarily.” Similarly, Article II of the United Nations Charter, passed in 1945, states that “[n]othing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of [a] state.” The general trend at this time appeared to favor non-interference, considering the sovereignty of a state to be absolute.

The Universal Declaration of Human Rights (UDHR), adopted in 1948, suggests a divergence from this mode of thinking. In its prohibition of genocide and war crimes, the UDHR proclaims that it is the responsibility of nations to ensure the “universal and effective recognition and observance” of human rights. However, the implications of this agreement remain abstruse. Is it the responsibility of each state to guarantee these rights only within their own borders, or is it incumbent upon each state to ensure that all other states also adhere to the UDHR? By what guiding principle is a state to adjudicate this dilemma born out of ambiguity and vacillating standards?

The difficulty lies in the collision of sovereignty with the prevention of atrocity. Interference constitutes a breach of sovereignty and it seems that any subsequent agreement made due to such interference would fail to be legitimate. An additional concern therefore is that it would be no mark against the state which violates an agreement made under such duress. But perhaps such a violation of sovereignty is required in the face of large-scale violence. In this context, the question of how many lives a state’s sovereignty is worth remains a haunting question.

While the United States has established that amongst their citizens there is no legal duty to rescue, perhaps a different standard is called for in the international arena. Current international law appears to leave both options open: vigorously protect human rights within one’s own borders only, or unequivocally engage atrocities both foreign and domestic. The burden of this decision rests with the various states as they determine their own statuses in a multifarious world, as there does not appear to be a clear legal answer.

As states struggle to determine precisely what influence they wish to exert, perhaps a guiding principle can be discerned from the Declaration of Independence signed at the birth of the United States: “when a long train of abuses and usurpations, pursuing invariably the same object evinces a design to reduce [the people] under absolute despotism, it is their right, it is their duty, to throw off such government.” If the United States, or any other state, truly believes all people possess a duty to oppose a certain kind of cruelty, it would seem that the answer is clear: violations of human rights are intolerable. Yet the burden remains with each state individually to determine when and how to intervene, as the legal question of whether interference constitutes benevolence or tyranny remains an open one.

Cameron Hunter is a 3L law student and second year master’s student at the University of Denver and is the Survey Editor of the Denver Journal of International Law and Policy.

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Gender-Based Asylum Claims: Why the United States Approves So few

somali_woman2

Somali woman and child

Under current asylum law, gender is not a protected ground for asylum. The United States, as well as many other countries around the world, first committed to the international community to protect the rights of refugees when it signed the Refugee Convention in 1951, the controlling international convention in refugee law.  A refugee, according to the Refugee Convention Article 1(A)(2) is an individual “who is outside his or her country of nationality or habitual residence and is unable or unwilling to return due to a well-founded fear of persecution based on his or her race, religion, nationality, political opinion, or membership in a particular social group.”

Any individual bringing a claim for gender-based asylum must do so under “membership in a particular social group.”  However, merely stating that the individual’s “gender” constitutes as a social group is not enough. The social group cannot be based on the persecution the individual faced, and has to be specific, immutable, and socially visible. There is a fear that if an immigration judge allows a social group that is too broad, it will set precedent for a flood of women to come and claim asylum in the United States.  Women, therefore, have had to describe their social group in convoluted and intricate ways, in order to be as specific as possible to be acceptable to immigration judge.  As one scholar notes, “applicants often define groups in ‘overly complicated and unnecessarily detailed’ ways, including characteristics such as marital status, age, education level, the absence of male protection, opposition to abuse, transgression of social/cultural norms, and past experiences of harm.” These social group formulations are very narrow, sometimes illogical, and almost comical in length.

Claims are especially difficult to bring when the persecution occurs within the private sphere—this means, the government of the country did not conduct the persecution, but instead, the members of the government refused to protect the individual from the violence.  When the persecution occurs within the private sphere, the persecution must be on account of that social group; the persecutor either has or will inflict harm or suffering “in order to punish him [or her] for possessing a belief or characteristic [the] persecutor[seeks] to overcome.”  The asylum seeker must show that the persecutor wanted to persecute her on account of her social group by providing evidence that the persecution occurred, which is often difficult within the private sphere, because there is often no witnesses or evidence.  Women around the world suffer violence, such as female genital mutilation, honor killings,  or domestic violence,  at the hands of their fellow community members because it is “culturally acceptable;” however, when they flee to the United States to avoid this violence, they face many obstacles in getting their asylum applications approved.

Kitty Robinson is a 3L at the University of Denver Sturm College of Law and a Staff Editor on the Denver Journal of International Law and Policy.

 

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Lawsuit challenges Japan’s high standard for refugees

Fumio Kishida

Japanese Foreign Minister Fumio Kishida, right, visits Zaatari refugee camp near Mafraq, some 8 kilometers (5 miles) from the Syrian border. Credit to: Asian Correspondent. http://cdn.asiancorrespondent.com/wp-content/uploads/2013/07/Mideast-Jordan-Japan_Crav_opt.jpg

In early March, four Syrian men filed a lawsuit against Japan’s Ministry of Justice, challenging the rejection of their refugee applications.  The group arrived in Japan in 2012 and applied for refugee status, citing the potential for persecution for their participation in pro-democracy protests against the Syrian government.  The Ministry rejected their refugee status in early 2013, and instead granted them each a temporary residence permit under a “humanitarian perspective.”  This type of permit allows the men to work full time and to participate in the national health care and other social programs.  But while this seems like a compromise, the permits must be renewed every year, unlike refugee certificates which are permanent; and permit holders are excluded from certain assistance programs such as language training and employment help that the government grants to certified refugees.  Perhaps the greatest disadvantage the lack of refugee status prevents for the Syrians is the difficulty, or near impossibility, it is to get their families into the country.  Their lawsuit seeks to obtain official refugee status and the full rights and protections that it provides.

Japan’s Immigration and Refugee Recognition Act explicitly refers to the 1951 Convention in its definition of “refugee” as well as in the reasons a temporary refuge may be granted at the border.  Further, the Ministry of Justice itself uses the Convention’s definition of a refugee in its guidelines for refugee status.  The Convention defines a refugee as a person who has a “well-founded fear” of persecution.  In practice, the Ministry tends to grant refugee status to those who are in danger of being “personally targeted” by their home government which, according to the lawsuit, is a higher standard than what the Convention requires.

The Convention’s language of having a “well-founded fear” is too vague on its face to offer any sort of guidance, and the term has no further definition anywhere in the Convention.  Instead, the United Nations High Commissioner for Refugees (UNHCR), provides a handbook to “guide government officials, judges, practitioners, as well as UNHCR staff applying the refugee definition.”  In this handbook, the UNHCR considers the term “well-rounded fear” to have both a subjective and objective element.  Subjective in the person’s motivation for seeking the refugee status; and objective in viewing that motivation within the context of their country of origin or what brought about the motivation in the first place.  When considering whether there is a “well-founded fear”, the UNHCR places most of the weight on the subjective element while the objective element provides a context to assess the credibility of the refugee.

With this framework in mind, will the Syrian refugees’ case against the Ministry be successful?  The answer, naturally, depends most notably on the Ministry’s use of “personally persecuted” when determining refugee status.  Assuming that the terms “personally persecuted” mean that the person is being targeted by their home government and will be arrested the moment they step off the plane, it would seem that the Ministry puts more weight on the objective element of having a “well-rounded fear” instead of the subjective element as the UNHCR states.  Indeed, if a requirement for refugee status is to be a target, then this would effectively do away with the term “well-founded fear of persecution” and replace it with “actual persecution.”  Supporting this interpretation are further explanations in the UNHCR handbook.  A refugee’s fear of persecution, according to the handbook, need not be based on their own personal experiences or the fact that they have previously been persecuted.  The fear could be based on persecution of people in a similar situation, or persecution of friends or family.  The UNHCR further considers that “fear” applies both to those who have actually been persecuted and those who wish to avoid being persecuted.  The Ministry’s standard of “personally persecuted” could be found to be incompatible with 1951 Convention and the standards of the UNHCR.

Japan has been a party to the 1951 Convention since 1981 and has given no reservations or declarations to any provision.  As such, the Ministry of Justice should be bound by the provisions in the Convention and it is likely that it has applied a higher standard than is necessary.  If the lawsuit is successful, it will provide hope for the hundreds of refugee seekers who have been denied the status due to Japan’s rigid and restrictive system.

Leonard Large is a 3L at the University of Denver Sturm College of Law and is Candidacy Editor for the Denver Journal of International Law and Policy.

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Critical Analysis: Protecting refugees in the midst of war

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Destruction in Yarmouk. Credit: HaAretz. http://www.haaretz.co.il/st/inter/Heng/news/images/yar2.jpg

In the early days of April, the Islamic State (ISIS or ISIL) pushed closer to the center of Damascus, the Syrian capital, than they had been able to before.  They did this by seizing the majority of the Al-Yarmouk camp, a large refugee district in the southern part of the city.  The camp had once held 160,000 refugees from Palestine, but since the beginning of the Syrian Civil War, the refugees have dispersed, leaving 18,000 within the camp.

Even before this ISIS invasion, al-Yarmouk was “a humanitarian nightmare.”  The camp was “ruled” by various factions and armed groups, siphoning scarce food away from the refugees and towards the fighters and their families.  For the last two years, the camp has been subject to a siege that has made the food situation even more grave.  Recently, al-Yarmouk had falled under the control of the Syrian rebel group Nusra Front, whom some eyewitnesses say were fighting alongside ISIS, but who has claimed neutrality in the struggle since. Now, the festering humanitarian crisis in al-Yarmouk has somehow gotten worse.  Mere days after this incursion began, reports of killings and beheadings had already circulated.  The Syrian government has dropped several barrel bombs on the camp. Just as deadly, United Nations Relief and Works Agency (UNRWA) has been unable to send its usual food or convoys into the camp since the fighting started.  This means that the 18,000 residents of the camp have no food, no water, and very little medicine.  Moreover, only 93 people have been evacuated, leaving the rest stuck in this deadly zone. If nothing is done, “Yarmouk shall remain a testament to the collective human failure of protecting civilians in times of war.” (Saeb Erekat, as quoted in the New York Times.)

The al-Yarmouk situation sheds light not only on the dangers of ISIS and the plight of Palestinian refugees, but also the inadequacy of international humanitarian law in dealing with such situations.  There is an international obligation to protect refugees (1951 Convention relating to the Status of Refugees; 1967 Protocol relating to the Status of Refugees) as well as an obligation to protect civilians in times of war (The Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1949); Additional Protocol I (1977)).  And yet, no one is protecting the 18,000 people trapped in al-Yarmouk.  No one, it seems, is even considered responsible for the 18,000 refugees there.

Perhaps the problem is ISIS itself.  The Geneva Convention is designed to deal with states.  Neither ISIS nor Nusra Front is a state.  Therefore, neither feels bound to protect the civilians in al-Yarmouk.  It is doubtful whether either would even be held responsible for the harm done to civilians in the course of their battle.  While the Syrian government may be held responsible, their attitude (particularly in dropping barrel bombs on the camp) indicates that they feel the refugees are a secondary concern.  So when the state who should be responsible refuses to act to protect the civilians and the non-state actors concerned refuse to “stop the fighting” or let others in to evacuate citizens, who under international law is responsible?

This situation highlights perfectly the need to officially implement a Responsibility to Protect.  Ideally, the United Nations should be able to send in a force to evacuate the refugees, by force if necessary.  If the United Nations cannot or will not act quickly enough, anyone else should have not only the right, but the obligation to do so to protect those 18,000 lives.  But while that reformulation of the law is easy—and indeed, already in progress—the next question is both unsettled in law and difficult practically: where would that nation evacuate those refugees to?  If al-Yarmouk was already a humanitarian mess before the ISIS invasion, what good would relocating those people to another shabby, hastily constructed camp, with minimal food convoyed to them on a daily basis?  Is it as easy to obligate a state to take in 18,000—or 160,000—refugees as to march in and save them from certain death?  Is this not a grave oversight in our conception of both a Responsibility to Protect and our refugee law?

I have no good answers to this, but unfortunately, the refugees of al-Yarmouk do not have the luxury to wait for good answers.  Our international humanitarian law is not equipped to handle this—so we must use the law that we have and create the rest after, based on our victories or mistakes from this situation.  If we do not, al-Yarmouk, as Mr. Erekat has said, “shall remain a testament to the collective human failure of protecting civilians in times of war.”

Samantha Peaslee is a 3L at the University of Denver Sturm College of Law.  She is the Senior Managing Editor for the Denver Journal of International Law and Policy.

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Critical Analysis: Germany takes center stage in diplomacy

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Credit: http://www.zif-berlin.org/fileadmin/uploads/ueber_zif/bilder/News-Bilder/Logo_Review2014.png

In order to reevaluate its foreign policy approach, Germany conducted a review (“Review 2014”) last year.  Review 2014 included multiple town hall meetings with German voters and debates among foreign policy experts around the world.  Even during Review 2014, voters’ and experts’ opinions and approaches changed.  Initially, the majority of German voters disagreed with the statement “Germany should be more engaged internationally.”  This position changed, however, as 2014 progressed.

When looking back at 2014, and the world events contained therein, it is no wonder Review 2014 transformed.  The Ebola crisis in Africa; Ukraine, Russia, and Crimea dispute; continued fighting between Israel and Hamas; the rise of ISIS; and the revival of the Euro crisis when Greece rebelled against austerity just to name of few, the Western powers were spread thin.  Germany, as France was preoccupied in Africa, the United States involved in the Middle East, and the United Kingdom taking, what some would say, a negligible stance on foreign policy, left Germany to attend to the crises occurring in Europe: Ukraine, Russia, and Crimea and the Euro and Greece.

Chancellor Angela Merkel showed her stamina in diplomacy when working to resolve these disputes.  Chancellor Merkel takes the approach that it is always better to keep talking than to fuel conflict.  Germany’s history essentially forces Germany to take this approach, however.  World War II and the politics surround the Berlin Wall are still too fresh to ignore.  Any fueling of the fire or unilateral action by Germany, automatically brings back feelings of a not so distant past.  Regardless of why Germany and Chancellor Merkel takes this approach, their persistent diplomacy and “ethical” methodology sits well with German citizens.

As a result of these events and Germany’s responses, Review 2014 led to the following goals:

These goals were posted online where Review 2014 encourages visitors to continue the conversation as Germany’s foreign policy evolves.

Review 2014 has evolved into a social platform to discuss and change Germany’s foreign policy approach.  Should other countries use a similar review process to address foreign policy or is this process unique to Germany?  Engaging citizens is never a bad idea and it would not be surprising to learn that the majority of Western citizens likely agree with the statement “speak softly and carry a big stick,” putting diplomacy before fueling a conflict.  However, other Western countries do not need to tread as lightly when making changes to foreign policy because they do not have the same recent tainted past.  Opening up discussions regarding politics to citizens using a social platform appears to be a unique way to communicate with voters, but let’s withhold any firm judgment for 18 months to see what Germany does with the goals from Review 2014.

Alicia Guber is a 3L and the Editor in Chief on the Denver Journal of International Law and Policy. 

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