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Japan’s Lay Judges and Implications for Democratic Governance

May 11, 2012
By 19600

On a sunny January morning in 2010, I sat high above the bustling streets of Tokyo in the central offices of the Japan Federation of Bar Associations (JFBA), speaking with a professor and noted scholar of Japan’s newest judicial incarnation, the saiban-in seido, or “lay judge system.” As I listened and learned more about the Japanese lay judge system that January morning, I found it amazing that it was my position as a Sylff fellow that had led me here.

The sign in front of the Supreme Court of Japan.

The sign in front of the Supreme Court of Japan.

In May of 2009, Japan began formal operations of the saiban-in seido, a quasi-jury method of trial adjudication that blends elements of the Anglo-American jury and the European lay assessor adjudicatory systems. Mandated by the Lay Judge Act of 2004, this system represents the first time that Japanese citizens have been asked to formally participate in the criminal adjudicatory processes of the state since 1943. At its core, the Lay Judge Act established a form of criminal trial adjudication where citizen jurists serve with and work alongside their professional counterparts on trials where the offense falls within a limited range of high crimes.

Under the saiban-in seido, in cases where the defendant contests his or her guilt, the judicial bench is composed of three professional judges and six lay civilians chosen from the population at random. These mixed tribunals are charged with not only determining the guilt of the defendant but also the sentence to be imposed. Decisions and judgments by the lay judge panel are based on majority vote, although any valid verdict is required to include the votes of at least one professional judge and at least one lay jurist. On a sunny January morning in 2010, I sat high above the bustling streets of Tokyo in the central offices of the Japan Federation of Bar Associations (JFBA), speaking with a professor Continue reading

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Japan Is as Strong as Ever

July 29, 2011
By 19644

The author visited Japan a little more than a month following the Great East Japan Earthquake to participate in a Building a Better Asia retreat to discuss key issues confronting society and deepen friendships. Here, he offers words of encouragement and support for the country, drawing on his experience in the reconstruction efforts after the Indian Ocean tsunami.

No single human being on earth ever expects a disaster. Yet, great men are those who prepare for the worst and come out better after the inevitable strikes. And no people have a stronger passion for life and resilience than the Japanese.

* * *

On March 11, I received a call from my wife that a tsunami had struck Japan. Working at a TV station in Jakarta, the capital of Indonesia, my wife got the information more quickly. On the way home from downtown, I noticed that every TV channel was broadcasting the situation, reminding me on the earthquake and tsunami in Aceh.

My wife and daughter(right) with her Japanese-Indonesian twin cousins during their visit to Jakarta

My wife and daughter(right) with her Japanese-Indonesian twin cousins during their visit to Jakarta

On that day, I had already planned to get my visa to visit Japan. I was scheduled to visit the city of Nara to participate in the Building a Better Asia (BABA) retreat. Colleagues and relatives questioned my decision. “Do you really want to visit Japan?” They were worried about the aftermath, and more about the nuclear reactor accident.

The moment the tsunami hit, I remembered my friends in Japan, many of whom I met though Sylff and BABA. My wife and I also tried to find news about relatives who live and work in Tokyo, including those who had just paid us a visit several weeks before.
In the midst of uncertainty I reassured myself that the tsunami early warning system would give people time to evacuate. In addition, urban planning and management would, no doubt, give citizens an opportunity to flee from trouble.

Abandoning all hesitation and worry, I immediately applied for a visa at the Japanese Embassy. Japan and I are so close; it’s the closest connection I have with any foreign country.

When a tsunami hit Aceh in 2004, Japanese aid was among the first to arrive. In an emergency situation, seconds can make the difference between life and death. Moved to help survivors, I decided to participate in post-tsunami reconstruction projects. One was channeling aid from a Japanese fishing community to restore people’s livelihoods in coastal areas. Few years back, I had obtained a postgraduate degree in anthropology at the University of Indonesia thanks to the fellowship I received from Sylff.

There was no reason for me to shy away from the call to visit Japan.

Compared to my days in Aceh, the region has become much more developed now. It has historically been an area of military conflict, from Dutch colonization and the spice trade to the natural resource conflicts of modern Indonesia.

The tsunami unexpectedly created an impetus for peace in Aceh. It destroyed the military installations of both the government army (TNI) and the Free Aceh Movement (GAM) separatist militia. Amid the destruction, both parties could see for the first time that there was no future for Aceh without peace. Conflict had to be settled to rebuild Aceh and make it better. On August 16, 2005, through the mediation of Martti Ahtisaari, the Nobel Laureate and former president of Finland, the Indonesian government and GAM signed the Helsinki MOU ending the 29-year insurgency in this resource-rich province.

Peace made the reconstruction and rehabilitation process much faster. Amidst conflict, there was no certainty for anyone. Now, construction plans could be put into place, and people would know when their home would be finished. There was also much less danger in delivering aid—money, food, and building materials—to tsunami-affected areas, particularly remote ones.

The smiling faces of Acehnese children welcome peace and post-tsunami reconstruction ©Agus Sarwono

The smiling faces of Acehnese children welcome peace and post-tsunami reconstruction ©Agus Sarwono

Even then, reconstruction and rehabilitation was very difficult. Due to the legacy of conflict, it was not easy for the Aceh people to work together. Differences in political views between those who had supported and were against independence raised suspicions, resulting in a clumsy start for everybody. To make them work together, donors injected a large amount of money. The cash for work, ironically, acted to preserve cultural egoism and materialistic values. It further led to the demise of social capital of local communities. Had not the government, donors, community leaders, and social workers begun to realize what was happening, people would still be suffering from aid dependency. I strongly believe, though, such dependency would not happen in Japan.

I may not have the opportunity to directly assist the rehabilitation and rebuilding of Miyagi and surrounding areas today. But after visiting Japan, I can confirm what many have already said about how big this country is and how strong the people are in the face of disaster.

What makes Japan unique is its ability to rise from calamity. Only hours after the earthquake and tsunami, people started looking for survivors, cleaning and repairing their houses and neighborhoods. They sang “Ue o muite arukō" (Let’s walk with our faces turned up), known as the "Sukiyaki" song in the English-speaking world, to lift their spirits and seek a better future.

Me on the right and the smiling students during my visit to Osaka

Me on the right and the smiling students during my visit to Osaka

The capacity to work together for reconstruction will be crucial for survivors to remain strong. Without it, people will come to rely on external support. Indeed, the reconstruction effort has brought new hope, instead of long mourning.

Damage and gloom have been limited to areas affected by the tsunami. However, the information received by people outside Japan has given the impression that the situation is much worse. It’s not as bad and dangerous as many people may think.

Away from the tsunami-affected areas, Japan is still as strong as ever. Big cities remain crowded, yet neat and clean. The countryside is as green and fresh as ever. People still lead their daily lives very normally, full of self-discipline. Each community and group celebrates its cultural heritage proudly, yet respectfully. Even amid the ruins of the tsunami areas, buildings are still sturdy and neat.

Japan is alive and near. So there is no reason for anyone to cancel a visit to Japan. Let us help by flooding the country with visits to cities and cultural centers throughout the country. Let us support them by spreading joy and hope!

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The Mechanism behind the Egyptian ICT Revolution and Its Connotations

May 13, 2011
By 19665

Hosni Mubarak, who had ruled Egypt for 30 years, was forced to step down in a surprising turn of events that no one could have foreseen. He succumbed to the antigovernment protests that suddenly erupted in response to calls via the Internet. Mubarak’s resignation proved to the world that ordinary citizens have the power to overturn a governance structure that had been considered absolute.

The protagonists of the recent revolution were netizens, or citizens embodying the Internet. New information and communication technologies such as mobile phones and the Internet came into widespread use in Arab countries from around 2000. Today, particularly in urban areas, the medium of the Internet has become a natural part of everyday life for Egyptian youths, who comprise more than half of the nation’s population. Thus emerged Arab netizens. (read more)

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Rethinking Human Rights in a World of Increased Inequalities

July 15, 2008
By 21137

It is my great and humble honour to have this opportunity to share with all of you some reflections that come from my research, teaching and social life experiences inspired by the urgent need to not forget those who are forced to live in abject poverty, deprivation, persecution, global racism and patriarchy as well as imperial interventions and other forms of organized violence. I express my deep thanks to the organizing committee of the SYLFF Asia/Pacific Regional Forum. It feels very good to be amongst many people with different accents for after all, all accents are beautiful. They reflect a tiny part of the great human, social, cultural and ecological heterogeneity of humanity and the planet.

Let me begin my address today by saying that one of the greatest ironies of our times is that human rights have become very much the language of progressive politics around the globe as well as a powerful tool to justify increased weaponization, militarization, global racial profiling and war amidst unprecedented levels of poverty and social inequality, and unprecedented levels of the accumulation of wealth in fewer hands, both locally and globally. This is happening at times when patriarchal ideological practices are being transformed but not disappearing. Nowadays, global patriarchy under the excuse of protecting women, children and national securities is becoming a mask to invade other countries and to curtail fundamental social justice gains in the global north as well as in the global south. As the late Iris Young, a feminist political philosopher from the United States, convincingly demonstrated, patriarchy is being renovated as part and parcel of the logic of masculinist protection that helps account for the rationale leaders give for deepening a security state and its acceptance by those living under their rule (2007: 133). Young’s analysis, however, is not incorporated in the vast field of human rights mainstreaming discursive practice. This regime has established, as a hegemonic truth, the idea that formal legal equality means concrete equality when in fact the ideology of formal equality has co-existed with colonialism, slavery, patriarchy and heterosexism, and with a globally skewed distribution of wealth and income. The recognition of the co-existence of power and wealth in fewer hands, fiercely protected by the rule of law—including through the use of sanctioned organized violence alongside abject poverty—is an urgent call to rethink human rights in a world of increased inequalities together with the proliferation of different forms of violence. Scholar Shelley Wright has offered some important reflections on the paradoxes of power inequality and its main beneficiaries. It is appropriate, therefore, to quote her at length for she points out that, "Economic and social redistribution through industrialization and globalization can also create conditions conducive to violence. The globalization of a Euro-American economic model may have created conditions for peace and prosperity for Western Europe and its former white settler colonies such as the United States, Canada and Australia, but it has not necessarily resulted in such benefits for the rest of the world" (Chowdhury 1995; Cowen and Shelton 1996; Escobar 1995; Rajagopal 2000; Seabrook 1993; Wright 2000).

The effects of unrestrained trade liberalization have given rise to serious levels of violence from the wars over resource industries in Liberia, Sierra Leone, the Congo and Angola (diamonds, gold, copper) to the infliction of intolerable working conditions on people in factories throughout the developing world. The fragmentation and civil war in Yugoslavia can be directly traced to severe economic policies imposed by the IMF and other international economic institutions in the 1980s (Orford 1997). Expropriation of land for the development of cash-crop agriculture has increased the flow of people into urban centres, disrupting traditional economic patterns, community life and political stability, leading to high levels of state-sanctioned violence, workplace harassment, assaults and killings (Waring 1996) [2005: 161].

The imperial logic of masculinist protection, supported by many women, as Iris Young notes (2007), is fundamental in understanding the today’s world-wide increased inequalities for it positions leaders, along with some other officials such as soldiers and firefighters, as protectors, and the rest of us in the subordinated position of dependent, protected people (2007:133).

Patriarchal militarism however, is not new. It was part of direct colonial ruling since the end of the 15th century through the conquest of the Americas. Along with race as a powerful tool of social classification and the appropriation of labour and material resources (Quijano 2000), military patriarchy is part of what legal scholar Anthony Anghie calls the civilizing mission, the grand project that has justified colonialism as a means of redeeming the backward, aberrant, violent, oppressed, undeveloped people of the non-European world by incorporating them into the universal civilization of Europe (2005).

This civilizing mission, Anghie adds, was based on the idea that fundamental cultural difference divided the European and non-European worlds in a number of ways. For example, the characterization of non-European societies as backward and primitive legitimized European conquest of these societies and justified the measures colonial powers used to control and transform them (2005:3).

Sociologist Anibal Quijano notes that the civilizing mission, although officially closed, has endured the life of direct colonial ruling. It informs the current global modern colonial system of power (2000). The civilizing mission mentality feeds today’s common idea that the global north is the inventor of human rights and of their respect and promotion, and the global south is the prototype of a human violator because it still is trapped in pre-modernity. This mentality means, in other words, that “Third World” peoples are incapable of creating liberating knowledge that can serve the entire humanity, especially women, indigenous people and those forced to live in poverty. Under this mentality, “First World” people are inherently invested with “superior qualities,” a binary that only helps the already privileged both in the global north and the global south. This binary culturalizes fundamental demands for social justice. Culturalization is a process that describes “an exclusive focus on culture, understood as frozen in time and separate from systems of domination” (Razack 2004:131).

Challenging this mentality in the field of human rights is extremely important to counteract the all too easy assumption that the global south is the receptor of human rights knowledge whose epicenter is the global north. The term “human rights” may have been coined in non-western spaces but the knowledge and practice of what is just and unjust, individually and collectively is not the private property of certain people or geography. Indeed, knowledge on social and cultural justice has existed both as philosophies and practices in many ancient and heterogeneous civilizations, including, of course, those that flourish in Europe.

Rethinking human rights would mean being able to recognize that in the name of human rights, democracy, prosperity and freedom, terrible crimes and inequities have been perpetuated. As Singer points out, “When we ask ourselves whether a social or legal practice works, we must ask ourselves, ‘works for whom?’ Who benefits and who loses from existing political, economic, and legal structures?” (1990:1841 quoted in Nyamu Musembi, 2005: 32). Such an approach acknowledges the concreteness of unequal power relations within and between nations as well as the existence of hierarchical relationships between the global South and the North. Consequently, we cannot bypass these asymmetries in order to paint a conveniently nice picture of abstract inclusivity. Nevertheless, conventional theories and policies dealing with transnational issues locate these asymmetries as part of the so-called “clash of civilizations,” which is another way of saying that socio-economic and political exclusions do not have anything to do with the shape of our world today for it is the “culture of the other” and his/her “inherent violent un-civilization” that are the problems.

Canadian feminist scholar Sherene Razack notes that there is a revival of the logic that there is an irreconcilable clash between the West and the rest of the world (2004), under which the West is a defender and promoter of human rights and the rest of the world is a violator of human rights. Because “the rest” is overtly patriarchal and uncivilized, therefore unfit to democracy and to the creation of innovative knowledge (Ibid).

Why are these insights not influencing the mainstream world of human rights expertise? It would be extremely difficult to pinpoint a correct response. However, one of the reasons for this purposeful oblivion may be the human rights regime as it helps maintain the illusion that it is possible to escape the general consequences of social inequalities locally and globally by immersing ourselves in the world of abstract equality and the rule of law even when there is countless information that says otherwise. For instance, the United Nations reported in 2003 that there were more than a billion people living in poverty. Numbers alone do not say much but if for an instant we try to imagine ourselves with no food, no shelter and being harassed and persecuted, we then may change our approach to cold numbers about poverty and empty discourse on the rule of law and formal equality as representing human rights. While many do not have to think about the availability of food for their next meal or of a roof over their heads alongside their entitlement to their cultural identities and the inherent respect because they are women, disabled, etc., the majority in the world still demand the foundational right to have rights. And this, dear audience, is a fundamental difference between human rights as theory and human rights as practice.

Legal formal equality, as important as it is, is simply insufficient to reduce poverty, unemployment, racism, and violence because whether human rights experts like it or not systemic oppressions are interconnected and they are lived by millions on this planet. We have sufficient research that demonstrates this fact but we also have research that demonstrates the opposite. Therefore to say that we are defending and promoting human rights is not implicitly just. We need to ask unpopular questions to come up with new and more honest ways to bring about social and cultural justice. We need to ask whose human rights are more protected and whose human rights are ignored and denied. Moreover, these are poignant issues about leadership understood broadly and not as the property of politicians and privileged people.

Long ago diverse grass roots social movements in the global south and many in the global north demonstrated the incongruities of an abstract and universalistic doctrine of human rights in the face of gruesome economic exclusion, political persecution under state terror and the spreading of violence against women. Critical scholars, such as Frantz Fanon also observed long ago that forcing people to live in poverty, to lack education and to daily encounter humiliation based on race, ethnicity, culture, language, and religion are intertwined realities, which at the end, dehumanize entire populations. Brilliantly he reflected that the damnés cannot go to hell for they are already in hell (in Maldonado-Torres 2006). Therefore, to assume that human rights are by de facto at the service of the human condition is not only naïve but dangerous for it is not all humans’ humanity that is included in this assertion but the humanity of some at the expense of the humanity of the majority.

Poverty, imperial wars and its daily and deadly impacts, I am afraid, are dehumanizing all of us because they are becoming a “normal” part of life and when something as deadly as poverty, state terror and war become so obviously “natural” we can continue saying that we support equality and the dignity of all humans and in fact contributing to and perpetuating the hierarchy of humanity in which some humans count as humans, some lives count as lives and some deaths deserve to be grieved.

As part of my urgent call to rethink human rights is the invitation to reflect about the ideological practice to represent persecuted, impoverished and victimized peoples as passive victims in need of salvation for it has serious implications such as indirectly feeding the dichotomy of “deserving and undeserving victims of human rights violations,” where “deserving victims” are thought and treated as “truly innocent and apolitical,” and “undeserving victims” as “partisans, collaborators and even terrorists.” My research as well as others’ attests to this fact (Martinez 2000, 2002, 2005; Grandin 2004, 2006; Jonas 1991, 2000; Razack 2004). Victimized people are survivors who have not created systemic violations of human rights. Feeding the industry of victimology even with the best intentions is not wise leadership; it is the continuation of colonial paternalism and maternalism at best, and indirect and direct racism and Orientalism, at worst.

Paternalistic and maternalistic victimization is dangerous because as soon as political conditions change as it has happened after the tragedy of September 11, 2001, the other face of victimization surfaces: the vilification and demonization of peoples and cultures as threats to the nation, to progress, and to human rights to the point that many men and women legally lose the little humanity attached to their bodies, minds and spirits. They become disposable or “bare life” (Homo Sacer) in Agamben’s terms (1998). In either case, the inferiorized “Other” is seen as lacking creativity to create knowledge and lacking ability to be a progressive actor that dreams of the possibility of another just world.

Keeping in mind the urgency to rethink human rights in a world of increased inequalities and to decolonize and de-victimize survivors and community leaders as a relevant step towards the creation of a new leadership in human rights, I would like to invite you to watch a short video that demonstrates part of the effects of transnational corporate mining in Guatemala, an economic activity portrayed as a good development strategy for a society torn by four decades of state terror during which more than 200,000 people were killed, 83% of which were indigenous people and the rest Mestizo men and women who struggled in practice for an integral vision and practice of human rights (CEH 1999). The video titled “Violent Evictions At El Estor, Izabal, Guatemala” shows how,

"On January 8th and 9th 2007, hundreds of police and soldiers in Guatemala forcibly evicted the inhabitants of several communities who were living on lands that a Guatemalan military government had granted to Canadian mining company INCO in 1965. Local indigenous populations claim the land to be theirs, and resent the exploitation of an outside corporation. Canada’s Skye Resources now lays claim to the land, and paid workers a nominal sum to destroy people’s homes. With the force of the army and police, company workers took chainsaws and torches to people’s homes, while women and children stood by. Skye Resources claims that they maintained 'a peaceful atmosphere during this action' (Rights Action 2007)." This video is available at http://www.rightsaction.org.

References

    • Agamben, Giorgio. 1998. Homo Sacer: Sovereign Power and Bare Life. Standford: Standford University Press.
    • Anghie, Antony. 2005. Imperialism, Sovereignty and the Making of International Law. Cambridge University Press.
    • Comisión del Esclarecimiento Histórico -CEH-. 1999. Guatemala Memory of Silence TZ'INIL NA'TAB'AL. Report of the Commission for Historical Clarification. Guatemala. CD Spanish Electronic version.
    • Grandin, Greg. 2006. Empire’s Workshop. Latin America, The United State, And The Rise of the New Imperialism. New York: Metropolitan Books.
    • Grandin, Greg. 2004. The Last Colonial Massacre. Latin American in the Cold War. Chicago and London: The University of Chicago Press.
    • Jonas, Sussane. 2000. Of Centaurs and Doves. Guatemala's Peace Process. Boulder, Colorado: Westview Press.
    • Jonas, Sussane. 1991. The Battle for Guatemala: Rebels, Dead Squads, and U.S. Power. Boulder, Colorado: Westview, Press.
    • Maldonado-Torres, Nelson. 2006. The Time of History, the Times of Gods, and the Damnés de la terre. Worlds & Knowledges.
    • Martínez Salazar, Egla J. 2005. The Everyday Praxis of Guatemalan Maya Women: Confronting Marginalization, Racism and Contested Citizenship. Doctoral Dissertation, York University, Canada. Unpublished Manuscript.
    • Martínez, Egla J. 2002/2003. Peace as a Masquerade: Militarization and Post-War Terror in Guatemala. Canadian Woman Studies. Volume 22, Number 2. Pp. 40-46.
    • Martínez-Salazar, Egla. 2001. "Development and coercion in the Maya-Tzutuhil community of Santiago Atitlán, Guatemala." In Desfor, Gene, Deborah Barndt & Barbara Rahder Eds. Just Doing It: Popular collective action in the Americas. Montreal, New York & London: Black Rose Books.
    • Nyamu-Musembi, Celestine. 2005. “Towards an actor-oriented perspective on human rights.” In Kabeer, Naila, Editor, Inclusive Citizenship. Meanings and Expressions. London & New York: Zed Books.
    • Quijano, Anibal. 2000. Coloniality of Power, Eurocentrism, and Latin America. Nepantla: Views from South, 1.3
    • Razack, Sherene. 2004. Imperilled Muslim Women, Dangerous Muslim Men, and Civilised Europeans: Legal and Social Responses to Forced Marriages. Feminist Legal Studies 12.
    • Rights Action. 2005. Skye Resources to buy Exmibal properties and legacy in Guatemala. Info@rightsaction.org/
    • Rights Action. 2007. News and Reports on Human Rights in Guatemala. http://www.rightsaction.org (Accessed on November 16 and December 26, 2007).
    • Wright, Shelley. 2001. International human rights, decolonization and globalization: becoming human. London/New York: Routledge.
    • Young, Iris. 2007, Global Challenges. War, Self-Determination and Responsibility for Justice. Cambridge, UK: Polity.
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Human Rights in the Middle East — A Voice from Palestine

July 15, 2008
By 19592

What I will do today will be to serve as a voice for a people whose heritage I share, with the hope that in articulating the suffering of that one group of people I will be shedding light on all types of suffering being experienced by human beings all around the world. I know very well that when I am addressing SYLFF fellows, I am actually addressing souls who are ardently debating issues in societies where the hum of human voices is, in fact, heard. I and others of my generation have the obligation to be the voice of our people because these people have lacked a voice, especially in the United States, and I believe that the current generation of young people around the globe who are like-minded need to be a collective voice for the oppressed wherever oppression occurs. Being a voice is important, but it is not enough. After giving rise to ideas and then articulating them in words, a person or group must recognize the need for action.

When formulating human-rights laws, four points should be kept in mind: (1) UN Charter Article 55 (the UN Bill of Rights, including universal respect for human rights), and making clear the relationship between peace and human rights; (2) These rights are universal; (3) World conferences on human rights issues help to raise awareness of these issues and how important they are; and (4) It is necessary to proliferate these rights by making them more precise and utilizing realistic implementation mechanisms.

I believe that my people have not had their human rights respected since being subject to Israeli occupation 40 years ago. Close your eyes and imagine with me. Imagine yourself tied to a pole with your hands cuffed behind your back and tied to that pole. Your feet also are tied to it. Your eyes are blindfolded and your mouth is taped shut. How would you feel? How would you feel being completely under the control of someone else, having no control of yourself or anything around you? How would you feel being so completely helpless? This is exactly what occupation has done to my people, who are not merely being controlled by the environment around them, but rather being subject to an invasion and control of their souls. This coercive control of the physical and spiritual elements of Palestinians individually and collectively has resulted in widespread violations of their human rights and also has failed to bring security to either the Israeli or Palestinian civilian populations.

That control has manifested itself in various forms, including:

    • Israel’s land grabbing and water grabbing by building the apartheid wall, confiscating arable land, and building and expanding settlements. The wall has created cultural and social divides between the Palestinian people such that a family cannot even get together for a social event.
    • The Israeli checkpoint system is another physical manifestation of the control. Around the West Bank there are about 500 checkpoints, manned by Israeli soldiers. Palestinian people are treated very badly at these checkpoints.
    • There are around 11,000 Palestinian soldiers being held in Israeli jails and detention centers. Some prisoners have been held in “administrative detention” (without being charged with crimes, and without legal recourse) for years. Some 200 female Palestinian prisoners are held inside Israeli jails, some of whom have had to give birth to their children while in captivity, with their children kept imprisoned with them until they are two years old.
    • Israeli settlements are an outrageous grab of Palestinian land and resources. There are 410,305 Israeli settlers living on occupied Palestinian land.
    • About 4,000 Palestinians have been killed by Israeli forces and settlers since the beginning of the Second Intifada in 2000.
    • The Israeli practices and the current international boycott placed on the Palestinian people in the wake of the latest Palestinian elections for the legislative council have led to dire humanitarian conditions all over the West Bank and Gaza Strip.

In order to deal with such grave violations of human rights, I believe that there is first a need for courage and vision. The mechanisms implemented by the international organizations—such as monitoring, state reporting, and treaty committees—are essential because they document such violations and raise the international community’s awareness of the violations. It is extremely important to hold countries to their commitments as enshrined in international and bilateral agreements, and such agreements should include clauses that respect and safeguard human rights. I wish to conclude by quoting the late U.S. President John F. Kennedy, who rightly said, “United … there is little we cannot do in a host of cooperative ventures. Divided … there is little we can do … for we dare not meet a powerful challenge, at odds, and split asunder.” Together we, SYLFF fellows and young leaders, can achieve a great deal in facing perpetrators of human-rights violations.

Thank you.

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New Global Leadership as a Guardian of Human Rights and Human Security

July 15, 2008
By 20992

Mr. Svilanovic chairs Working Table I [Democratization and Human Rights], Stability Pact for South Eastern Europe. He served as the minister of foreign affairs of Serbia and Montenegro from 2000 to 2004. He received a SYLFF fellowship in 1990–1991 while working on his master’s thesis in civil procedure at the University of Belgrade.

 

Human Security: A Vague Concept

It is common knowledge that maintaining the territorial security of nation-states through military power has failed to improve their total human condition. In response, the international community has moved to combine economic development with military security and other basic human rights to form a new concept of "human security." Unfortunately, by common assent the concept lacks either a clear definition or any agreed-upon measure of it. Some commentators argue that human security represents a new paradigm for scholars and practitioners alike. Despite these claims, however, it remains uncertain whether the concept of human security can serve as a practical guide for academic research or governmental policymaking, simply because not all neologisms are equally plausible or useful.

 

The Reality concerning Human Security

Sometimes reality is so brutal and so obvious that neither academic definitions nor a consensus is needed in order to conclude that someone’s security and basic human needs and rights are being severely jeopardized. The international community has no clue about how to improve the situations in Iraq and Afghanistan, which are among the world’s 10 most-insecure countries for living, sharing the top-worst-10 positions with 8 countries in Africa. In Iraq and Afghanistan efforts are being made, not only through humanitarian operations but via a military presence, intended to impose some kind of democratic regime. So what can we expect from common efforts to root out poverty and fatal but curable diseases in Africa?

 

A Call for New Global Leadership

Obviously, what is needed is new global leadership with a new approach, presented by different actors in the political and social arenas, that can set deeper the roots of our commonly shared values where they have already been seeded, as in Eastern Europe, but even more important, to work out how we can spread the seeds of the crops we cultivate to where the soil is not yet ready but where many would benefit from their yields, as in Africa. Whether we want it or not, whether we like it or not, whether we see it as a paradox or not, we are jumping into a global order that is not so obvious, that no one fully understands. Whether we understand this new order or not is one issue, but we almost have no choice but to cope with this situation, because it influences our daily lives. It would be good if we would learn more about globalization trends, because this knowledge might help us to know how to conduct our lives under the new circumstances. In contrast to what one might rely on and assume as given, human-rights protection, sustainable peace, development and social cohesion, which are the main features of human security, are not only a matter of concern for national and international decision-makers, but are first and foremost the responsibility of every citizen.

 

The Side Effects of Economic Growth

We can say with great certainty that the foundations of our society have been severely shaken by the economic, social, and cultural revolutions of the later part of the 20th century. A great many of the solutions and structures that existed in the past have been destroyed by the extraordinary dynamism of the economy in which we live. This is throwing an increasing number of men and women into a situation in which they cannot appeal to clear norms, perspectives, and common values, in which they do not know what to do with their individual and collective existence. This is true of institutions such as the family, but also of political institutions that were the foundation of our civilization—the public sphere. Politics, parties, newspapers, organizations, representative assemblies, and states—none of these operate as they used to and as we had supposed they would continue to operate for a long time to come. At present there are no global-scale regulations or institutions that say what we should do or should not do regarding some of the newly emerging challenges, such as the fight against terrorism and nuclear proliferation. In the case of Kosovo, for instance, the current international community is divided on how to resolve the situation. Meanwhile, more often than we would like, we find ourselves without clearly applicable laws that, in this period of global transition and transformation, must be replaced by deeply rooted and widely accepted values and principles to guide us forward. The modern economy cannot operate endlessly without some kind of reference to social traditions and to a new set of values and patterns for collective actions, including those to promote social cohesion and education for democratic citizenship.

 

Potential Leaders to Improve Human Security

Globally cherished icons can dramatically improve human security. Instead of presenting any conclusion that should contain a definition of what new global leaders who might become guardians of improvement of human security worldwide should be, let me draw your attention to the work of one of today’s top fashion models, Liya Kebede from Ethiopia, whose annual earnings total millions of U.S. dollars. Most of you know her from the cover pages of VOGUE magazine, but she has also created the Liya Kebede Foundation dedicated to the welfare of mothers and children (see http://www.liyakebede.com/foundation/lkfoundationhome.html), and she is a WHO Goodwill Ambassador for Maternal, Newborn and Child Health. Her foundation’s mission is to raise awareness of the need to improve the conditions of mothers and children and to fight the horrible facts that each day an average of 1,600 mothers die from complications related to pregnancy and childbirth, and that nearly 11 million children die each year before they reach their fifth birthday, including 4 million who die within the first 28 days of life. Liya is not only a goodwill ambassador who serves as a good example for other influential global celebrities who easily attract public attention, but she is becoming a real global leader herself and a guardian of human security in Africa.

Thank you.

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Kenya’s Post-Election Violence

July 14, 2008
By 19741

Have colonial ghosts come back to haunt Kenya? Taking a look at the recent violence that spread across what was one of the most politically stable countries in Africa, and asking why such a steady country faced such sudden tremulous times, a Kenyan anthropologist, engaged in human rights issues, gives us his perspective.

Kenya, one of the most politically stable countries in Africa, is found on the east horn of the African continent. The country gained its independence from the British in 1963 after years of armed struggle and diplomatic negotiations led by a generation of leaders who are still in active politics today. Diverse interests that have accumulated over time, especially in businesses, have continued to control the country’s politics, and when a motley crew of younger opposition politicians upstaged them in elections last year, the old leaders just dug in and refused to leave. Widespread violence followed. The government, for a time, continued to play truant and refused to enter into any meaningful form of power sharing agreement with the opposition, even amidst talks chaired by former United Nations secretary-general Kofi Annan and backed by the international community, in particular the European Union, the United States, and the United Kingdom. This essay attempts to put this story into perspective.

 

Kenya’s Post-Election Violence

For the better part of the first two months of the year, Kenya’s political situation remained fluid, tense and unpredictable. The country was not holding, and a bloodbath loomed after weeks of ethnic violence precipitated by a suspected electoral fraud that returned President Mwai Kibaki of the Party of National Unity to power. As wide sections of the population tottered from the consequences of internal strife, a nebulous search for peace began in Nairobi: the National Dialogue and Mediation forum, chaired by Kofi Annan, with the assistance of a panel of preeminent African leaders.

At the talks the opposition party, the Orange Democratic Movement (ODM), first decamped from its earlier radical position to press for the resignation of President Kibaki to allow for fresh presidential elections, opening the way for the negotiations. The ODM had refused to recognize Kibaki as the president, and during the first few statements from him at the start of the talks, the ODM threw tantrums and almost boycotted the parley after Kibaki referred to himself as the duly elected president of Kenya. The ruling party dodged the reconciliation spirit of the talks and failed to read the intensity of local and international pressure to work on a solution to the impasse. It required the intervention of African Union Chairman and Tanzanian President Jakaya Kikwete and US Secretary of State Condoleezza Rice, who warned the parties of dire consequences if the peace processes were to be derailed. The big stick wielded by the two seemed to have worked, as a new peace accord has now been reached between the warring parties and Kenya will soon have a premier and a president, with both sharing executive powers. The grand coalition agreement will be constitutionalized.

A host of local and international observers in the polls, including the European Union observation team and the Commonwealth, agreed in their reports that the December 2007 elections, particularly the presidential vote tallying, was marred with incompetence and spurious tallying. In a multiethnic society of about 40 distinct ethnic groups, Kenya was firmly jolted by the disputes. At the Annan talks it was also agreed to form a review committee to establish the facts behind the election fiasco, as well as to create a Truth, Justice, and Reconciliation Commission to help in reconciling Kenyans and addressing historical grievances that were partly the reasons for the conflicts.

The electoral differences have been very costly for the country: About 1,500 Kenyans died in the post-electoral skirmishes, 350,000 people were displaced from their homes, and many continue to live as internally displaced refugees in temporary camps across the country. Businesses have been stalled, moreover, and by local estimates over US$2 billion losses to businesses have been counted. Any more dithering on the peace talks, and the impatience and war-mongering culture that was beginning to take root in the country would have led Kenya to an eventual paralysis and even collapse. But how did Kenya get to that point in the first place?

Sworn in on a wheelchair after a near-tragic road crash at the height of the 2002 general election campaigns, President Kibaki owed much to his coalition partners for the National Rainbow Coalition euphoria and sense of unity that won him the victory. His last weeks of campaigning found him confined to a wheelchair, but an amalgamated league of campaigners from the coalition’s leading party stalwarts—then known as the Summit—crisscrossed the country on a platform of change.

With the Kenya African National Union’s trouble-free concession of defeat, Kenya’s had been an exemplary political transition in Africa. But that was then. Kibaki faced his reelection against a strong opposition coalition headed by the man who ironically is credited for his presidency, Raila Odinga, and an array of his former ministers.

At his inauguration in 2002, Kibaki and his government promised a new constitution and an end to official corruption, political patronage, and nepotism. It would be these pledges, on the political front, rather than promises of economic revitalization that would dog the Kibaki administration over the coming years. In effect, the Kibaki regime would defend its reelection plan on account of a healthy economy, with a growth rate of 8 percent up from the tottering levels of 2002. However, it had not fulfilled most of the political pledges, particularly those to draw up a new constitution and end high-level corruption. Worse still, the Kibaki administration seemed to have come to revolve around a cabal of ethnic state operators who apparently convinced him to rubbish the preelection Memorandum of Understanding on a power-sharing agreement with his former colleagues.

 

A Tight Race?

Although a tight election was developing and many pollsters pointed to a close finish, in the minds of many Kenyans it was never to be as contentious and as bloody as it became. Both the Party of National Unity and the ODM attracted huge support across the country. In the end, the Electoral Commission of Kenya released the results of only 209 constituencies (following nullification of the results in 3 constituencies), indicating that the president had won with about 200,000 votes ahead of the ODM presidential candidate, Raila Odinga, and inviting instant dispute. By this time, live broadcasting of the vote tallying process by the media had been banned, and Nairobi was reduced to a police state with heightened security patrols and closures of certain roads. What, then, led to the vicious post-electoral violence in the country?

According to the prediction of former president Moi, multipartyism was bound to bring about tribal tensions and deepen regional divisions in the country. The former president was himself an expert in divide-and-rule tactics of administration. At the height of fervent campaigns for political reforms in Kenya in the 1980s, he opposed political pluralism on the claim that the country was not cohesive enough. Multiparty democracy was finally reintroduced in Kenya in 1991, but early elections in 1992 and 1997 saw poll violence, especially in the Rift Valley parts of western Kenya and the coast of Kenya.

In Kenya’s politics, the capture of safe votes is often strengthened by filial connections between the contestants and electorate. Politicians of the above communities found it expedient to throw out voters from the immigrant settler population so that their declarations of “party zones” would be realized. The Rift Valley was declared a Kenya African National Union zone, and other parties were warned against venturing into the area. Accordingly, this occurrence also fulfilled Moi’s prophecy on political pluralism. In 1997 these conditions were repeated with varying tactics and consequences. Official coverups and impunity often followed state involvement in the clashes. In 1993, though a parliamentary select committee to investigate and make recommendations on the clashes was set up in Kenya, nothing followed. Another Judicial Commission on Tribal Clashes finished its work in 1999, but neither the Moi administration nor the Kibaki administration implemented its recommendations.

 

Colonial hangover or ethnic complexity?

The divide-and-rule administration tactics, although a legacy of the British colonial administration in Kenya, were polished under the Kenya African National Union regime. State appointments, budgetary allocations, and a distribution of public goodies appear to strictly follow the beacons of ethnic loyalty and closeness to state power. This manner of distributing the national cake is a major cause of the ethnic discontentment and, with the imperial powers of Kenya’s presidency, can be a harbinger for chaos. Figuratively speaking, communities that find themselves at the periphery of power mobilize against the status quo on the basis that it wants the plate to go around. “It is our turn to eat” is an oft-quoted maxim in Kenya’s campaigns.

The communities feeling displaced and marginalized from the center of power by the Kibaki administration bandied together in the ODM against the government. When it lost the opportunity to stage a takeover, therefore, this was going to be painful and frustrating. If it had been through an illegitimate loss in the polls as has been alleged, the violence could only have been expected as a logical consequence of anger and frustration. Deep-seated anger against the Kikuyus, seen to have dominated power and the consumption of the national cake since Kenya’s independence in 1963, can no doubt be blamed for this eventuality. Although the Mau Mau war of independence was related to the Kikuyu uprising against the colonialists for their loss of land, the departing crown bequeathed a shamelessly exploitative and divisive state machinery to the new power elite under Jomo Kenyatta, a Kikuyu. With a relatively more educated working class and a better physical infrastructure inherited from the white administrators, Kenyatta capitalized on these advantages to make the Kikuyu a powerful and envied community in the country’s post-independence economic takeoff.

After the declaration of the state of emergency in Kenya in 1952, the British government followed with a land rationalization plan known as the Swynnerton Plan. Under the plan, the British would encourage the newly independent Kenya money to buy back the “White highlands” formerly settled by the colonialists. When the colonial farmers departed, an expansive swathe of land was left uninhabited in a region previously owned by the Kalenjin and Maasai. However, the pastoralist Maasai had in any case lost their claim to a large part of the Rift Valley land through the 1904 and 1911 agreements with the British colonial administration. On the part of the Kalenjins, they witnessed their supposed ancestral land annexed by the independent government and dished out to mainly Kikuyu settlers after independence. This Kikuyu resettlement plan was backed only by a section of the Kalenjin politicians. By 1971, over half of all arable land in the Northern Rift Valley, settled by Kalenjins, were in the hands of new Kikuyu buyers. Without any solution to this historical grievance, Kalenjin-Kikuyu clashes in these areas are bound to recur.

Like the celebrated Mau Mau episode in Kikuyu nationalism, the Kalenjins treasure their brave history too. The community of the Kalenjins was at the forefront in opposing colonialism. When the East African Railway line reached the region, it sparked off the Nandi resistance led by the legendary Orkoiyot Koitalel Arap Samoei from 1905 to 1911. This nationalism has stayed alive in the whole Kalenjin community and political tradition.

But the media culture cannot escape censure. Although the country has a fairly credible independent and free press, Kenya’s media took sides, perceivably to serve ethnic interests in the campaigns. Camouflages of such ethnic interests abet serious frustrations and can spread hate propaganda and falsehoods or become a war-mongering tool. Kenya’s ethnic media stations remained culpable for stroking negative ethnic emotions throughout this period.

It is now important that durable solutions are found to avert a repetition of similar scenes in Kenya’s future. The suggestion to deal with matters of transitional justice, encapsulated in the need for a justice, truth, and reconciliation organ, is still necessary and urgent. This will help to understand and prescribe solutions to Kenya’s enduring pains and grievances. In the near future, emphasis on the return to lasting peace is important, but to seriously address it, constitutional and legislative agreements for power sharing and other solutions to mass poverty are imperative. Finally, for justice to prevail, Kenya’s legislative institutions must attend to the inadequacies in the law instruments and the judicial institutions that adjudicate them. What makes public leaders hesitate to use legal channels to address grievances will only set the stage for bigger chaos.



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