On the existence of a Palestinian State

What will happen in September? Will Israel still occupy the West Bank and Gaza? Will the U.N. recognize an independent Palestine? Haven’t Palestinians already declared an independent state?  Shouldn’t a future Palestinian state be negotiated? What about the Oslo Accords?

These are just a few questions often asked about the upcoming vote in the United Nations regarding Palestine.  While these are difficult questions and easy answers do not exist, I have attempted to provide some concise insight into the legal and political dimensions of the Palestinian application for statehood and its effects on civilians living in the occupied territories.

The Palestinian Application and Possible Legal Consequences

In March 2011, the Palestinian Authority (“PA”) made clear its intention to achieve full-membership to the U.N.   Full-membership would permit Palestine to vote in the U.N., put forward candidates for positions in the organization, and accede to major international treaties.[1]

Palestinians have long claimed a right to an independent and sovereign Palestine.  It is a claim well-founded in international law.  The U.N. Charter recognizes the right of self-determination for ethnically and culturally distinct peoples, including Palestinians.  The right to self-determination is the process of an indigenous people or ethnic minority claiming the right to determine their own form of governance.[2]  Self-determination is the principle legal authority for the creation of a new state and the legitimacy of a state depends on the consent of the governed.  To this end, the PLO declared itself an independent state in “Palestinian territory with its capital in Jerusalem.”[3]

Through the U.N., the PA hopes that an increase in recognition will lead to favorable international political opinion which Palestine can leverage to exercise power over Israeli accountability in the occupied Palestinian territories, including Gaza.   Recognition of a Palestinian state would provide the PA access to international mechanisms of accountability, including the International Criminal Court and the International Court of Justice.   These courts have jurisdiction over international crimes committed in a state parties’ territory and disputes of international law between states, respectively.

If Palestine is recognized as a state along the 1967 borders, it is possible for Palestine to seek international criminal investigations into Israel’s conduct in the West Bank and Gaza.  While international criminal investigations would not implicate Israel’s responsibility as a state, these investigations could implicate the conduct of individuals, including high-ranking political and military officials who decide policy matters, into possible violations of international criminal law including obligations under the law of occupation. Additionally, Palestine could seek an opinion on Israel’s obligation as an occupier in the West Bank or Gaza.  These international mechanisms would provide Palestine an alternative to bilateral Israeli-Palestinian relations to resolve disputes. 

Israel’s Response and Obligations under International Law

The two primary opponents of Palestinian U.N. membership are the United States and Israel. Because of the U.S. position on the Security Council, the Palestinian application for full-membership is likely to be blocked.  In addition Israel denies that Palestine is a state under international law because it does not satisfy certain objective criteria, and is unlikely to recognize Palestine regardless of the outcome.  Regardless, many members of the General Assembly are expected to extend bilateral recognition to a Palestinian state and increase pressure on other governments to recognize a Palestinian state.

In response to the pending Palestinian application, officials in Israel have called for, among other things, pre-emptively, “breaking all ties with [the Palestinian Authority]” or for continuing the status quo.[4]  These options presume a continued Israel presence in the West Bank and control over Gaza.

Whatever legitimate claims Palestinians may have to an independent sovereign state, those claims cannot be fully realized so long as Israel continues to exercise control over critical public functions in the West Bank and Gaza.  A sovereign state requires both legitimacy to govern and an ability to govern to fulfill the aspirations of its people and be held accountable.  Some of elements of control generally associated with sovereign states include control over borders and independent governing institutions. 

Though Israel currently considers itself bound by the Oslo Accords in the West Bank, Israel denies any responsibility for civilians in Gaza.  Facts, however, clearly demonstrate the scope of Israel’s control in Gaza.  Israel controls the borders, air and sea space, population registries, and tax revenue.  Moreover, since 2006, Israel has consistently declined to distribute tax revenue emanating from Gaza.  This effective control over Gaza is sufficient to describe Israel as an occupying power subject to the laws of occupation.  

Whatever significant progress the PA may make at the U.N. or in West Bank, so long as Israel’s closure policy vis-à-vis Gaza continues, civilians in Gaza will likely continue be severely restricted in their livelihoods.  Clearly, the Palestinians’ legitimate ambition to determine the sovereign under which they will live is severely circumscribed by Israel’s occupation of the West Bank and Gaza.  However, Israel’s control cannot negate Palestinian’s right of self-determination or desire for the creation of an independent and sovereign Palestine; nor would Palestine’s recognition as a state negate Israel’s responsibility as an occupier in either the West Bank of Gaza.   So long as Israel exercises control within the occupied Palestinian territories that exclude Palestinians from constituting a sovereign state which they control, or freely associating with an existing state, then Israel’s effective control over those territories and responsibility to civilians should be governed by the laws of occupation.

If Israel fails to fulfill its obligations under international law and comply with the laws of occupation, there exists a danger that Palestine will seek the support of international mechanisms, like the International Criminal Court, to hold Israel responsible for alleged breaches of international law.  Israeli compliance  with the laws of occupation will protect the fundamental freedoms and rights of Palestinian civilians and also protect Israel’s soldiers and government officials from international investigations.

But, Israel’s status as an occupier is unlikely to change regardless of what happens at the United Nations in September

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[1] For more information on the procedure to obtain full-membership, see Al-Haq’s FAQ on Palestine’s September Initiatives at the United Nations, http://www.alhaq.org/pdfs/qa_July_2011.pdf.

[2] See U.N. Charter, art. 1(2), G.A. Res. 1514 (XV) (14 Dec. 1960).

[3] Palestinian Declaration of Independence, 1988.

[4] Barak Ravid, Lieberman: Israel Should Cut All Ties with Palestinian Authority, Haaretz, August 7, 2011; and Barak Ravid, Barak warns Israeli Ministers: Sanctions could lead to Palestinian Authority’s collapse, Haaretz, August 11, 2011.

Just briefly on the indeterminancy of states

South Sudan joined the brotherhood of states recently, read the story here, and was easily accepted as a full member of the United Nations.  That is a simple summary of a longer more arduous 40 plus year process in Sudan that left millions dead, displaced, tortured, and hungry.

After decolonization, the arbitrary European borders of Africa stayed, often mixing ethnic groups whom the Europeans had played off each other for hundreds of years.  The consequences of empires can be recounted in any number of Africa’s bloody conflict.  Generally, liberation movements cited the self-determination of the people to throw out colonial regimes whilst keeping the borders and public administrative institutions.  Subsequent political upheavals replaced one liberation movement with another.  This process has been called ‘the race for the state.’  Oppressed political or ethnic minorities overthrew a tyrant only to be equally tyrannical.  Of course, such liberation also played against the background of the Cold War where two new empires, the U.S.A. and U.S.S.R., played off local divisions fostered by European imperial powers to install a favorite dictator of either the right or left.

Now that the Cold War silliness is over, a little more creativity has been shown in constructing peaceful arrangements in Africa.  South Sudan is the latest experiment.  A little less recently is Kenya, where a new Constitution introduced devolved government for the first time.  Then there’s Somaliland (not to be confused with its parent state Somalia) which has demonstrated quite incredible stability given the region in which it is located.  Admittedly, imperfect examples also exist on the continent.  Regardless, these more creative approaches demonstrate a trend away from an obsession with states and their attendant sovereignty with arrangements that promote security, peace, and stability – building-blocks for achieving human rights.  For a non-African example, look at the federal arrangement between Tamil Eelam and Sri Lanka that lasted until a nationalist Sri Lankan government was able to convince the world that an aggressive, decisive, and bloody confrontation was necessary to protect the world from ‘terrorists.’

None of these arrangements are perfect, but it seems increasingly hard-headed to advocate for principles of statehood which have proved ineffective in protecting human rights and have less bearing in a world that is becoming less state-centric.  So, while a new state emerges, its very existence undermines its own longevity and effectiveness by proving that other concerns, like long-term prospects for human development, might trump once dearly held principles in international law.

Interestingly enough, South Sudan independence and recognition comes at a time when another people are pursuing their right to self-determination with mixed success. More on the Palestinian application for U.N. recognition to come…

On who should protect human rights

Reports have emerged about the wages paid to contract laborers for the United States Armed Forces, or Third County Nationals.  Read the story here.  In short, contractors for the Armed Forces pay criminally low wages and restrict the rights of ‘independent contractors’ who are induced from generally economically sparse areas with promises of well-paying jobs for work under U.S. Government contracts.

This raises a challenging question: who should be responsible for protecting human rights?

Should the responsibility solely rest on governments?  Or, should private actors also be responsible for ensuring human rights? And if so, what is the mechanism for accountability?

The responsibility to protect and ensure human rights should be question of position, not a formulistic interpretation of treaties reducing human rights norms to writing.  Who, or what, is best positioned to guarantee the universal values enshrined in the Bill of Human Rights?

This is the position the European Court of Human Rights took in their Cyprus cases.   Again and again in decisions, the Court applied creative legal reasoning to ensure that people and property were afforded the protections of the European Convention on Human Rights.  Similarly, in Boumedine v. Bush, the United States Supreme Court declined black-letter law definitions of sovereignty and instead created a distinction which extended rights of habeus corpus to non-national detainees at Camp X-Ray in Guantanamo Bay.  Moreover, for all the horrors associated with war, the expectation is that an occupying power will do all within its power to ensure normal lives for civilians.

When a state is positioned to protect and uphold human rights, the expectation is a state will.

However, there are other institutions that are equally if not better positioned to protect basic human rights.  For example, places of employment are best positioned to guarantee non-discrimination in employment.  And generally, states hold business and employers accountable for discriminatory practices.

Similarly, corporations are sometimes best positioned to prevent gross violations of human rights.  In a recent decision, John Doe VIII, et al v. Exxon Mobil Corp., et al the United States Court of Appeals for the D.C. Circuit recognized that corporations could be liable for breaches of international law (so long as those violations are also torts in the United States) under the Alien Tort Claims Statute when their employees commit gross violations of human rights.  However, this is in contrast to the Second Circuit’s decision in Kiobel v. Royal Dutch Petroleum, where the Court of Appeals declined to recognize corporate liability for the appellees’ ‘aiding and abetting’ of human rights violations.

That non-state actors should refrain from conduct constituting gross violations of human rights is trite.  But, the question remains of how best to hold non-state actors accountable for those violations.

The Alien Tort Claims Statute is an unpredictable accountability mechanism for non-state actors given U.S. courts’ reticence to involve themselves in foreign affairs.  If the purpose of international law is to regulate the affairs between equal sovereign states in a peaceful manner while emphasizing negotiation and cooperation, perhaps domestic unaccountability for non-state actors makes some sense, (i.e. the sovereign decisions of a foreign state are of no concern to a U.S. court no matter what catastrophe may result).

However, if the purpose of international law is to ensure basic human rights for all people, then the absence of domestic, or international, remedies makes less sense.  Clearly, sovereign states are less and less the central actors in the lives of individuals.  Societies rely on a variety of institutions for livelihoods, dignity, expression, and many other rights.

It seem patently unfair that all states are required to comport with international human rights norms while massive corporate entities who enjoy rights reserved for individual, whose revenues are much larger than most states,  and who assert great control over the lives and livelihoods of people have no responsibility to individuals.

If international human rights law means anything, it means putting universal human values ahead of the interests of institutions, be they public or private.

 

 

On Circumcision in San Francisco

San Francisco has certified a ballot initiative which would criminalize performing circumcisions on persons below the age of eighteen.  Many in San Francisco’s Jewish and Muslim community are understandably agitated by the initiative’s effect of criminalizing a sacred rite central to their beliefs.  Read the story here.

While many have called the initiative unconstitutional, and while I agree, the United State’s Supreme Court jurisprudence probably requires demonstrating more an undue burden on the free exercise of religion.

The ballot initiative is facially neutral – it applies to Jews, Muslims and gentiles with equal force.  This neutrality would be enough to remove the initiative from the constitutional protection of freedom of religion in the First Amendment incorporated against the states by the Fourteenth Amendment.  See Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990).  Instead, the Jewish and Muslim communities must demonstrate that this law of general applicability unconstitutionally burdens the free exercise of their religion and another constitutional right as well.  Id.

In Pierce v Society of Sisters of the Holy Nameof Jesus and Mary, 268 U.S. 510 (1925), the U.S. Supreme Court held that parents had an inalienable freedom to direct the education and upbringing of their children.  Retreating from this premise, the Court in Prince v. Massachusetts, 321 U.S. 158 (1944) noted that parents do not have absolute authority over the upbringing and education of their children and that the state could compel submission to policies repugnant to a sincerely held religious conviction if doing so guards the general interest of childrens’ well-being.

In San Francisco, the ballot initiative’s supporters have cited the health and well-being of the children as sufficient reason to restrict the religious expression of parents and their right to raise their children as they deem fit.

An  attack on the ballot initiative may be mounted on the grounds that it impermissibly restricts the free exercise of religion and the right of parents to direct the upbringing of their children, but probably not because it only restricts the free exercise of religion.

This seems like an unnecessarily complicated approach to the freedom of religion and strange considering the author of the approach is Justice Antonin Scalia.

In her book Rights Talk, Mary Anne Glendon weaves together the relation between law and society.  She distinguishes the American experience, with its many institutions where people may congregate and form relationships outside of the state, from the French experience, where the French revolution very early on demanded a monopoly on the loyalties of its citizens.

The French experience seems to be repeating itself with the burqa ban, which I have written about previously.  Rather than encouraging individuals to participate in areas outside the control of the state, France demands its citizens to assent to the core principles of the state.

Whatever negative may be said about the United States, it is true that Americans enjoy wide-breadth in forming relationships and acting outside of the control of government oversight to build institutions where society and culture may flourish amongst people.

The Smith opinion written by Justice Scalia eschews this tradition. Religious institutions are placed in the background and can only survive so long as they comport with government ideology promulgated by law or by demonstrating an interference with another, apparently more cherished right, such as familial decision making.  This subtle coercion would have the tendency to produce a monolithic culture constructed around a specific judicial interpretation of tradition and not a multicultural society where communities and persons may operate outside of the state.

The French experience and the U.S. Supreme Court’s jurisprudence on freedom of religion, would tend to alienate and deny minorities human rights they would otherwise enjoy if they belonged to a majority capable of infusing a particular tradition into legislation.

Compare these approaches with that of South Africa, where Parliament has attempted to accommodate a significant Muslim population with the Muslim Marriage Act, which would provide for one judge and two assessors qualified under Muslim tradition to decide issues related to shariah law.

The bill has gained the ire of just about everyone and remains imperfect.

It should also be noted that South Africa’s constitution purports a commitment multiculturalism and human dignity.  So, Parliament’s attempt to create multiculturalism through acts such as the Muslim Marriage Bill, is equally open to the criticism law does nothing more than promote a particular ideology or culture.  In South Africa’s instance, a multicultural culture.  But this effect seem less odious.

Law seems to play two different roles in these scenarios, being a protective shield against minority influence in a state or cultivating communal units that have some independence from state ideology and influence.

Strangely enough, though, the persons advocating for the circumcision ban likely constitute a minority in the United States because close to 80% of males in the United States have undergone circumcision.  The demise of San Francisco’s proposed circumcision ban is inevitable.

I wonder if a state law requiring circumcisions would be so easily struck down if those opposed to the practice were to able to identify a religious conviction and the right to raise their children without circumcisions.

On killing OBL.

The killing of Osama bin Laden raised several relevant questions of human rights law.

Targeted killings, also raise a question regarding inter-state use of force governed by Art. 2(4) of the United Nations Charter.

While Art. 2(4) generally prohibits the extraterritorial use of force by states, there are recognized exemptions.  Chief among these exemptions are a U.N. authorization for the use of force, secondly is the right to self-defense; both of which are acknowledged in the U.N. Charter. A third category of consensual use of extraterritorial force whereby state A permits state B to use force on state A’s territory seems to arise from targeted killings cases, especially in the case of the United States, Pakistan, and Yemen. Therefore, a targeted killing must be one of these exemptions to be a legitimate extraterritorial use of force.

Clearly, if Osama Bin Laden’s killing is to be justified, it must be justified in accordance with the U.N. prescriptions because Pakistan was kept out of the loop on the operation.

U.N. Resolution 1368, recognized that the United States was the subject of an act of terrorism and authorized force necessary to defend itself.  So, the U.N. Resolution would seem to go no further than to recognize that a State was a right to defend itself against extraterritorial criminal acts through the use of force.  The novelty of this resolution is debatable.

If the U.S. was justified in the extra-territorial use of force that killed Osama bin Laden, it had to be on grounds of self-defense.

The right to self-defense is recognized by the U.N. Charter, but is left undefined.  Customary international law, however, recognizes self-defense as the use of force, 1) motivated by defensive concern; 2) designed to stop an ongoing armed attack, prevent its continuation or reoccurrence, or reverse its consequences; 3) directed against the responsible; 4) limited to the use of only necessary and proportional force; and 5) reported to the Security Council, as required by Art. 51.  Customary international law may also recognize anticipatory and preventative international law.  But, because few states practice these “pre” self defense practices, it is unlikely that such forms of self-defense are legitimate.

But, presuming that anticipatory or pre-emptive self-defense is legitimate, these doctrines are similarly narrowly tailored.  Anticipatory self-defense would be justified only when a threat against a state is real or imminent. The theory of pre-emptive self-defense considers conjectural and contingent threats to a state.  However, pre-emption can only be practiced with due consideration of the immediacy and magnitude of a threat.

The specific motivation for the extra-territorial use of force that killed Osama bin Laden is unknown.  A general motivation may be retribution, but such a motivation does not legally justify an extra-territorial use of force.   Because he was generally considered to be merely a ‘figure-head’ of al-Qaeda, sustaining an argument that bin Laden was known to pose an immediate threat seems to me unsustainable.

Because the state-sanctioned extra-territorial use of force which killed Osama bin Laden finds no legitimacy under Art. 2(4), the United States in authorizing the operation likely went beyond what is permitted under the U.N. Charter.

Such a violation, however, does not necessarily carry with it a remedy in international law.  The killing of Osama bin Laden cannot be characterized as a crime against humanity, genocide, aggression, or a war crime.

However, the United States may be responsible for any criminal acts committed by its agents in Pakistani territory.

Though no expert on Pakistani criminal law, generally lethal force against persons is forbidden, because it would be murder.  However, self-defense or the prevention of harm to others are recognized as justifications for the use of lethal force.

So, because the extra-territorial use of force was not legitimate under the U.N. Charter, the killing of Osama bin Laden would only be legal if the use of lethal force was necessary for self-defense or the prevention of harm to others.

While details of the operation continue to emerge, it would appear that Osama bin Laden was close to a weapon.  This may or may not be sufficient to justify the killing of Osama bin Laden under Pakistani law.

On hate crimes.

In Baltimore, MD a 22-year-old transgender woman was beaten inside a McDonald’s restaurant. The prosecutor is considering whether to add hate crime charges in addition to the assault charges. Read the story here.

In South Africa, a statute of anti-Apartheid activist and MK agent Nkothulu Simelane was desecrated by young white men. The vandals are charged with destruction of property. Read the story here.

The hate speech trial of ANC Youth League President Julius Malema also continues to garner attention. Mr. Malema’s trial is a civil case based on his singing of a song which includes the lyric, “shoot the boer.” Boer translates as farmer but connotes a white farmer of Dutch descent in South Africa.

The motivation in the criminal cases is likely based on status – in Baltimore, the victim’s sex and gender; in South Africa, the property was likely destroyed because of the ‘race’ of the statute. Mr. Malema’s singing recalls a time in South Africa when the overtly racist Apartheid government favoured whites and discriminated against everyone else.

Surprisingly, the United States has a stronger legal regime for punishing crimes motivated by the class of the victim. The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act punishes the infliction or attempted infliction of bodily injury because of the victim’s race, religion, color, national origin, disability, and sexual orientation. Additionally, the Civil Rights Act of 1964, 18 U.S.C. § 245, protects property from racially motivated vandalism and destruction. Most states, including Maryland, also have Hate Crimes Acts, which punish racially motivated violence and vandalism. In addition, there are abundant federal and state laws in the United States that provide civil remedies for victims of discrimination in employment, housing, and public accommodations.

However, speech and ideas are beyond the reach of law in the United States.

South Africa, on the other hand, has no hate crimes legislation. Criminal charges for class motivated crimes are brought under the Roman-Dutch legal doctrine of crimen injuria, which is criminal impairment of another’s dignity. This principle requires that a person’s impaired dignity be measured against the prevailing norms of society to determine whether it is reasonable for the person to feel their dignity has been impaired.

However, South Africa does provide remedies for class motivated conduct and speech. The Promotion of Equality and Prevention of Unfair Discrimination Act, 4 of 2000, provides civil remedies for discrimination, hate speech, and harassment based on race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, and birth.

South Africa’s hate speech provision is very broad and provides remedies for persons who were assaulted by words that would “reasonably be interpreted to demonstrate an intent to be hurtful; be harmful or to incite harm…”

The United States has, through its law at least, demonstrated a greater commitment to punishing conduct that is motivated by animus. However, the law refuses to extend its reach to the communication of ideas that lie at the root of such conduct. South Africa, however, has not sought to provide comprehensive criminal measures for hate motivated conduct. But, it has sought to silence voices and ideology that promotes what most reasonable people would consider odious elements.

Hate speech is tolerated in the U.S. only to have the logical consequences of such invectives punished. In South Africa, conduct resulting from invective language is not legislated against so much as the idea is legislated against.

For whatever reason, most persons in the United States place a very, very high value on the freedom of expression. And for whatever reason, most persons in South Africa accept that expression can be limited in order to extract racialism and sexism from society.

I see merits in both approaches.

I have written before about the influence of culture on how we interpret rights or give effect to rights. There is clearly a commitment in South Africa and the United States to afford the freedom expression, but there is not meeting of minds on how far that commitment should go.

The depth of a commitment to a right can often be measured by the traditional values and culture of a jurisdiction. In multi-cultural jurisdictions, those values and cultures can be hard to accurately measure. Additionally, does it make sense for jurisdictions to have different approaches to human rights given that those rights exist from the mere fact that one is human?

This is why comparative approaches to law are helpful. As borders become more porous and immigration becomes more regular aspect of lives, many jurisdictions will be faced with competing value systems and cultures. It makes imminent sense for law to accommodate all people and not just those of a certain cultural background. Law as much as it reflects culture can also be a resource for accommodating and nurturing culture.

On things worth forgetting.

South Africa was recently shaken by the killing of political activist Andries Tatane by South African Police Service (SAPS).  Fortunately, the alleged perpetrators were quickly brought to trial and the acts have been condemned in the strongest terms by President Jacob Zuma.  Subsequent reports on SAPS brutality have revealed reports of 47 deaths resulting from police custody.  Read the story here.

In Argentina, reports of torture and police misconduct pervade the human rights agenda for the country, even in places like Buenos Aires province, where leftist Nestor Kirchner held office, was catapulted to President, and earned the respect of some human rights organizations by relentlessly pursuing the prosecution of Junta offenders.  Read U.S. State Department Report.

Both countries underwent cathartic truth-seeking exercises.  For Argentina it was the Comisión Nacional sobre la Desaparición de Personas (National Commission on the Disappeared) coupled with the famous trial of the juntas, where prosecutor Julio Cesar Strassera delivered his famous closing statement:  “Never again.”  For South Africa, it was the much-lauded Truth and Reconciliation Commission, chaired by Archbishop Desmond Tutu, with the objective of instilling in the country a human rights culture.

These are respectable goals.  But, these goals should be filtered through a presumption espoused by Albert Camus: “By definition, a government has no conscience. Sometimes it has a policy, but nothing more.”

In South Africa, the police force is part of the political apparatus and high-ranking officials who participated in the Apartheid regime’s most offensive and repressive measures have been removed.  Similarly in Argentina, Kirchner revitalized security sector reform by removing high-ranking military officials.

Even when there is a clear commitment from individuals at the top of a political system to respect human rights, a culture of abuse and violence still pervades the security apparatuses when there is no accountability, punishment, or justice for those with the guns and shackles.  In her book, The Dark Side, Jane Meyer reports how the United Kingdom created a culture of torture and abuse against suspected IRA operatives and found it difficult to extract the culture from its operations. As Meyer also reports, the United States repeated this mistake at Guantanamo Bay.  The policy of systematic torture as an viable response to political subversion should be discarded by policy-makers and never be regarded as legitimate – though the history of such abuse never should be forgotten.

Governments and states themselves are ill-positioned to be effective human rights advocates and watchdogs of themselves, despite the best efforts of leaders. Leading by moral example is insufficient when a bloated bureaucracy is stained with vestiges of abuse.  Once it [torture, abuse of force, excessive force] is there, it is there forever, like Lady MacBeth’s, “damned spot.”  It must be rooted out with conviction at the lowest levels of government and condemned in the strongest terms.

This requires eternal vigilance from persons committed to the very idea of human rights.

On the late King of the Swazis and the last Burqa in France – Swaziland, France, U.S. Supreme Court

Swaziland is in a crisis.  The government is in massive debt and civil societies and trade unions are attempting to foment the same kind of unrest that has beset North Africa recently.

In France, the ban on face-covering religious garb was enforced and the woman received a ticket and other punitive measures for expressing her religion.

At first glance, these two stories have little in common.   But, a close analysis reveals that repression of human rights couches itself in the familiar and comfortable language of culture.

When King Sobhuza II of Swaziland suspended the country’s first Constitution in 1973, he noted the constitution had:

“[P]ermitted the importation into our country of highly undesirable political practices alien to, and incompatible with the way of life in our society and designed to disrupt and destroy our own peaceful and constructive and essentially democratic methods of political activity.” King’s Proclamation to the Nation.

When the French National Assembly passed the law banning the wearing of the religious garb that covered a face, burqas and other Muslim garb were clearly the target.  The resolution called the burqa “contrary to the values of the French republic,” and furthermore that the ban, “forge[d] our unity, our individuality and which are the foundations of the greatness of France.” Read the story here. The radical secularism of laicite would likely find little support in other parts of the world where

In short, constitutionalism and publicly displayed religious symbols upset the values and the culture of the Swazis and French, respectively.

The plight of the Swazis will likely gain more sympathy in the western world than the plight of Muslim women in France.  But that is because constitutionalism is not foreign to the west and has generally treated the west well.  The display of Muslim religious garb is unfamiliar in western culture.

The perception of our rights are inevitably filtered through the lens of the culture in which we live.  In the liberal western state,  it seems fair to prohibit  all people from wearing public displays of religion because liberal western states do not place a high value on public displays of religion.   The ban also attempts to inculcate in non-westerns a western cultural tradition.

United States Supreme Court Justice Antonin Scalia understands this relation between culture and rights very well.  His writings on substantive due process inevitably cite the Anglo-American legal tradition to decide what is and is not a fundamental right. See Lawerence v. Texas, 539 U.S. 558 (2003)(Scalia, J., dissenting).

Justice Scalia, the late King Sobhuza II, and the French National Assembly all agree. For Justice Scalia, because United States culture has a long tradition of moral condemnation of same-sex relationship, same-sex relationships cannot be protected by the Anglo-American rights tradition. Since Constitutionalism is foreign to the long cultural tradition of Swaziland, the rights it imbues would have no place in Swaziland. Public religious garb upsets the militant secularism of the French, and therefore may be banned.

If this is right,  then the Swazis will rightfully remain under the rule of an absolute monarch.  A course undesired by western liberal states.  So too are the French, and Muslims will not be permitted to wear religious garb.  A course that produces ambivalence in most western liberal states.

But, fortunately, this is not right.  Human rights exist because one is human not because of the traditions found within a particular jurisdiction.  The rights of the Swazis and French Muslims should be recognized with equal force.

On small arms and the responsibility to protect-Libya, Cote d’Ivorie

According to former United Nations Secretary General Kofi Annan, “”The death toll from small arms dwarfs that of all other weapons systems – and in most years greatly exceeds the toll of the atomic bombs that devastated Hiroshima and Nagasaki. In terms of the carnage they cause, small arms, indeed, could well be described as ‘weapons of mass destruction.’ Small arms proliferation is not merely a security issue; it is also an issue of human rights.” We the Peoples, Foreward.  Numerous jurisdictions in the United States are familiar with the tragedies associated with indiscriminate shooting sprees at the hands of a lightly armed unstable individual.  However, the horrors associated with such random killings are distinct from the majority of deaths caused by small arms which occur in contexts of wars, whether domestic or international.

Many combatants and civilians will die because of small arms in the current civil wars in Cote d’Ivorie and Libya.  In Cote d’ Ivorie, a well armed endemic uprising has sided with Alassane Ouattara against Laurent Gbagbo.  In Libya, rebels have come into the possession small arms and some anti-heavy arms in an attempt to overthrow longtime Comrade Brother Muammar Qaddafi.

In the case of Libya, some United States officials have, paradoxically, publicly called for the “covert” arming of rebels.  These suggestions have, rightly so, been rejected, as far as is publicly known.  But additional anti-tank and anti-aircraft arms have not been ruled out. Cote d’Ivorie is part of the 2006 EWOCAS Convention on Small Arms and Weapons, which codifies a previous moratorium on SALW importation and manufacturing in West Africa.

The United States and Europe are the world’s leading exporters of small arms.  http://www.smallarmssurvey.org/weapons-and-markets/transfers/exporters.html.

In both conflicts NATO members have intervened with heavy arms, such as assault helicopters and jet fighters.  The use of force of these heavy arms has been justified under the principle of the responsibility to protect, which obligates the international community to use all necessary means when a state fails to protect civilians against internal crimes, like genocide, crimes against humanity, and war crimes.  Although this principle has not gained substantial currency, the doctrine does have supporters and advocates.  The Africa Union has included the doctrine in its Constitutive Act.  The Security Council has also adopted resolutions affirming its support for the doctrine.

The principle of the responsibility to protect should, as it currently stands, not be taken seriously. Western powers have over-bloated arms industries that over-produce and must as a consequence sustain themselves in foreign markets.  The introduction of small arms fuels conflicts around the world and have a disproportionate impact on the human rights of civilians.  But western powers only intervene in crises when the use of technologically sophisticated heavy-arms can decisively turn a conflict in favor of their interests.

So long as the superpowers who use heavy arms under the auspices of the responsibility to protect arm the world with small arms, their approval of the responsibility to protect has little meaning.

On LGBT Rights-Arkansas, Uganda, South Africa

The Arkansas Supreme Court has struck down a popular referendum approved by the majority of citizens of its state which would prohibit unwed co-habitating couples from adopting or fostering children.  The case, Arkansas Dept. Human Services v. Cole, 2011 Ark. 145 (Cole), affirmed the protection of the fundamental right to privacy implicit in the constitution, Jegly v. Picado, 349 Ark. 600 (2002), and held that the popular referendum unconstitutionally  burdened the right of privacy by forcing the unwed co-habitating couples to chose between private consensual sexual conduct and fostering or adopting a child.

In Uganda, meanwhile, after the brutal murder of activist David Kato, a bill has been placed before Parliament to “consolidate and repeal laws relating to sexual offences.”  The proposed Sexual Offences Bill, 2011, Bill No. 1, rewrites the crime of “unnatural offences.”  Sec. 19(1) of the proposed Sexual Offences Bill would prohibit “a sexual act with another person against the order of nature with the consent of the other person.”  Those sexual acts by straight and LGBT persons alike that were “against the order of nature” could be penalized.  Unlike Arkansas, Uganda’s Constitution explicitly protects the right to privacy. Constitution of Uganda, 1995, Sec. 21.

In both regimes, Arkansas and Uganda, popular anti-LGBT sentiment has expressed itself and hidden behind facially non-discriminatory statutes.  A reasonable judge would strike, sec. 19(1) of the Sexual Offences Bill because the provision, “substantially burdens the privacy rights of opposite-sex and same-sex individuals who engage in private, consensual sexual conduct in the bedroom.”  Cole at 163.  This same reasoning was used by the Arkansas Supreme Court to strike down the popular referendum because prohibiting unwed co-habitating couples from fostering or adopting children, “substantially burdens the privacy rights of opposite-sex and same-sex individuals who engage in private, consensual sexual conduct in the bedroom.”  Id.  In Arkansas and Uganda, the right to privacy should clearly protect consensual, non-commercial, private same-sex activities.  Therefore, a state’s ability to legislate against private, consensual, non-commercial, same-sex activites is greatly circumscribed by the right to privacy.

But given the popularty of anti-LGBT attitudes, relying on the right to privacy for LGBT rights has its limits.  For instance, in the South Africa Constitutional Court’s recent decision of Le Roux and others v Dey and others, [2011] ZACC 11, the majority found a photograph of two men engaged in sexual conduct with the faces of a school principle and deputy principle super-imposed over the picture to be defamatory because a reasonable person would have found the picture of men, “behaving in a lewd and indecent way,” to have “render[ed] them [the principle and deputy principle] the objects of contempt and disrespect.” Id. (majority opinion, Brand AJ) at para. 107.  Although, the dissent of Justice Edwin Cameron, the first openly gay Constitutional Court Justice, eschewed this majority opinion, the majority’s opinion is  likely an accurate reflection of anti-LGBT sentiment in South Africa, and probably also, Arkansas, Uganda, and many other places in the world.

In short, legal doctrine for LGBT rights generally sounds like, ”It is OK to gay, but just keep it private.”

LGBT rights cannot rely solely on the right to privacy if advocates intend to continue to use the judiciary to protect LGBT individuals’ rights in the public sphere.  Judges carry with them the same biases and judgments as others in their culture and society, as clearly demonstrated by the Le Roux case.

What if same-sex activities are public, consensual, and non-commercial?  This is surely what will be on the United States Supreme Courts Justices minds if and when they consider California’s Proposition 8 banning same-sex marriage.  Though courts deserve recognition for the fair application of the right to privacy for LGBT individuals, it is hard to predict or foresee how judges will work to protect LGBT rights in the public sphere given the apparent popularity of anti-LGBT attitudes.  In the end, unfortunately I believe, judiciaries will be hesitant to extend protections for LGBT individuals into the public sphere.

It is time for LGBT advocates to increase their efforts in legislatures to protect rights from impermissible restrictions.