Forming a High Level Expert Group to Strengthen Global Gender Justice

INEQUALITIES

Forming a High Level Expert Group to Strengthen Global Gender Justice

In a groundbreaking initiative to address gender-based injustices, the Center for Human Rights and Global Justice at New York University School of Law together with the American Society of International Law, University of Pennsylvania Carey Law School’s Women, Law, and Leadership Project and the University of Oxford’s Bonavero Institute for Human Rights formed the High-Level Expert Group on Gender Persecution and Gender Apartheid.

The High-Level Expert Group is led by Baroness Helena Kennedy of The Shaws KC, a Member of the House of Lords and founder of the Bonavero Institute of Human Rights; Catherine Amirfar, Partner and Co-Chair of the International Disputes Resolution Group and Public International Law Group at Debevoise & Plimpton LLP; Rangita de Silva de Alwis, a Senior Fellow at Penn Carey Law and Member of CEDAW; and Ghizal Haress, a former Ombudsperson for the Islamic Republic of Afghanistan and visiting professor at the University of Toronto.

The group is comprised of an esteemed array of global experts and human rights defenders who bring to bear a wealth of knowledge and expertise, including José E. Alvarez, NYU School of Law Herbert and Rose Rubin Professor of International Law.

The High-Level Expert Group seeks to address gaps in the existing international legal framework addressing gender-based crimes, including by examining the basis for gender apartheid and gender persecution under international law, developing the definitions and framework for addressing these crimes, advancing accountability efforts against perpetrators of gender-based crimes, and centering the voices of victims and those directly affected by gender apartheid and gender persecution.

Through this newly-launched initiative, NYU Law students have the opportunity through research to be part of the ongoing efforts to achieve justice for victims of gender-based apartheid and/or persecution around the world. A myriad of legal research assignments on topics ranging from gender-based crimes under international law to human rights protections against gender-based discrimination will be carried under the direct supervision of pro-bono attorneys at a local NY firm supervised by Prof. Alvarez.

August 28, 2024 Youssef Farhat Student Program

Mexico Must Extend Cartagena’s Protection Principles to Haitian Asylum Seekers

HUMAN RIGHTS MOVEMENT

Mexico Must Extend Cartagena’s Protection Principles to Haitian Asylum Seekers

Intersecting crises in Haiti have left tens of thousands of Haitians no choice but to flee their country, and Haitians who fled in prior years are unable to return home. A report by Centro de Derechos Humanos Fray Matías de Córdova A.C. and the Global Justice Clinic shows why Mexico–and, by extension, all countries that have signed the Cartagena Declaration on Refugees–must grant Haitians refugee status.

The report comes at a critical moment. Haiti currently faces extraordinary violence and a near-complete collapse of state institutions. Armed groups killed more than 1,500 people in the first three months of 2024, displaced more than 360,000 people within Haiti’s borders, and seized control of the capital, ports, and hospitals. Sexual violence is endemic. Escalated violence and targeted attacks on government infrastructure in March 2024 plunged Haiti into a two-months long state of emergency.

Mexico is one of the many countries that Haitian people have migrated to in the past decade. Tens of thousands of Haitians enter Mexico every year. Mexico has incorporated the Cartagena Declaration–which provides a broader definition of “refugee” than the 1951 Refugee Convention and 1966 Protocol–into its domestic law, legally binding it to grant refugee status to people who, based on an objective analysis of the circumstances in their country of origin, meet the elements of the declaration. This report establishes how three of the Declaration’s elements–generalized violence, massive violations of human rights, and other circumstances that seriously disturb public order–are pervasive in Haiti.

Between 2021 and 2023, Mexico approved approximately 5,200 out of more than 110,000 Haitians’ refugee applications — representing a 4.6% approval rate. In those years Haitians were also the nationality that filed the most refugee applications in Mexico.

This disproportionately low approval rate of Haitian applicants, who by any measure face persecution and extremely challenging conditions at home, flies in the face of Mexico’s legal obligations to establish nondiscriminatory migratory procedures.

Enrique Vidal, Interim Director of CDH Fray Matías.

Haitians living outside of Haiti often lack access to basic human rights, face anti-Black discrimination, and in many countries, live under the threat of being sent back to Haiti. Pathways to legal status in other countries are essential for Haitians seeking safety, but governments rarely grant legal status to Haitians and, when they do, protections are often temporary.

Recognizing Haitian nationals as refugees under the Cartagena Declaration is one necessary step to correct the systemic denial of Haitians’ rights. In doing so, Mexico could pave the way for greater protection of human rights in the hemisphere.

Mexico has the opportunity to be a leader in protecting the rights of Haitian people in the region. Governments throughout the region must assess country conditions objectively, and cease to discriminate against the Haitian people.

Gabrielle Apollon, Director of the Haitian Immigrant Rights Project at the Global Justice Clinic, in light of the upcoming 40th anniversary of the signing of the Cartagena Declaration.

GJC and CDH Fray Matías launched the report, in Spanish, in Mexico City in late April 2024. They met with representatives of Mexican government agencies, including the Comisión Mexicana de Ayuda a Refugiados (Mexican Commission for Refugee Assistance) and the Secretaría de Relaciones Exteriores (Secretariat of Foreign Affairs) to urge them to apply the Cartagena Declaration to Haitian nationals. GJC and Fray Matías staff also observed firsthand the inhumane living conditions that many Haitian migrants and asylum-seekers endure in migrant encampments in Mexico. These conditions underscore the urgency of providing greater refugee protections for Haitians.

Today, GJC and CDH Fray Matías make this report available in English. Although the Mexican government remains the primary advocacy target, this report presents the case for all signatories to the Cartagena Declaration to extend refugee protection to Haitian nationals, and for countries throughout the Hemisphere to provide maximum protections to Haitian migrants and asylum-seekers.

May 24, 2024. For more information, please contact Gabrielle Apollon (English and Kreyòl) or Ellie Happel (English, Kreyòl, Spanish).

May 23, 2024 Youssef Farhat Uncategorized

Co-creating a Shared Human Rights Agenda for AI Regulation and the Digital Welfare State

TECHNOLOGY AND HUMAN RIGHTS

Co-creating a Shared Human Rights Agenda for AI Regulation and the Digital Welfare State

On September 26, 2023, the Digital Welfare State and Human Rights Project at the Center for Human Rights and Global Justice at NYU Law and Amnesty Tech’s Algorithmic Accountability Lab (AAL) brought together 50 participants from civil society organizations across the globe to discuss the use and regulation of artificial intelligence in the public sector, within a collaborative online strategy session entitled ‘Co-Creating a Shared Human Rights Agenda for AI and the Digital Welfare State.’ Participants spanned diverse geographies and contexts—from Nigeria to Chile, and from Pakistan to Brazil—and included organizations working across a broad spectrum of human rights issues such as privacy, social security, education, and health. Through a series of lightning talks and breakout room discussions, the session surfaced shared concerns regarding the use of AI in public sector contexts, key gaps in existing discussions surrounding AI regulation, and potential joint advocacy opportunities.

Global discussions on the regulation of artificial intelligence (AI) have, in many contexts, thus far been preoccupied with whether to place meaningful constraints on the development, sale, and use of AI by private technology companies. Less attention has been paid to the need to place similar constraints on governments’ use of AI. But governments’ enthusiastic adoption of AI across public sector programs and critical public services has been accelerating apace around the world. AI-based systems are consistently tested in spheres where some of the most marginalized and low-income groups are unable to opt out – for instance, machine learning and other technologies are used to detect welfare benefit fraud, to assess vulnerability and determine eligibility for social benefits like housing, and to monitor people on the move. All too often, however, this technological experimentation results in discrimination, restriction of access to key services, privacy violations, and many other human rights harms. As governments eagerly build “digital welfare states,” incorporating AI into critical public services, the scale and severity of potential implications demands that meaningful constraints be placed on these developments.

In the past few years, a wide array of regulatory and policy initiatives aimed at regulating the development and use of AI have been introduced – in Brazil, China, Canada, the EU, and the African Commission on Human and Peoples’ Rights, among many other countries and policy fora. However, what is emerging from these initiatives is an uneven patchwork of approaches to AI regulation, with concerning gaps and omissions when it comes to public sector applications of AI. Some of the world’s largest economies – where many powerful technology companies are based – are embarking on new regulatory initiatives with impacts far beyond their territorial confines, while many of the groups likely to be most affected have not been given sufficient opportunities to participate in these processes.

Despite these shortcomings, ongoing efforts to craft regulatory regimes do offer a crucial and urgent entry point for civil society organizations to seek to highlight critical gaps, to foster greater participation, and to contribute to shaping future deployments of AI in these important sectors.

In hosting this collaborative event on AI regulation and the digital welfare state, the AAL and the Center sought to build an inclusive space for civil society groups from across regions and sectors to forge new connections, share lessons, and collectively strategize. We sought to expand mobilization and build solidarity by convening individuals from dozens of countries, who work across a wide range of fields – including “digital rights” organizations, but also bringing in human rights and social justice groups who have not previously worked on issues relating to new technologies. Our aim was to brainstorm how actors across the human rights ecosystem can, in practice, help to elevate more voices into ongoing discussions about AI regulation.

Key issues for AI regulation in the digital welfare state

In breakout sessions, participants emphasized the urgent need to address serious harms that are already resulting from governments’ AI uses, particularly in contexts such as border control, policing, the judicial system, healthcare, and social protection. The public narrative – and accelerated impetus for regulation – has been dominated by discussion of existential threats AI may pose in the future, rather than the severe and widespread threats that are already seen in almost every area of public services. In Serbia, the roll-out of Social Cards in the welfare system has excluded thousands of the most marginalized from accessing their social protection entitlements; in Brazil, the deployment of facial recognition in public schools has subjected young children to discriminatory biases and serious privacy risks. Deployments of AI across public services are consistently entrenching inequalities and exacerbating intersecting discrimination – and participants noted that governments’ increasing interest in generative AI, which has the potential to encode harmful racial bias and stereotypes, will likely only intensify these risks.

Participants also noted that it is likely that AI will continue to impact groups that may defy traditional categorizations – including, for instance, those who speak minority languages. Indeed, a key theme across discussions was the insufficient attention paid in regulatory debates to AI’s impacts on culture and language. Given that systems are generally trained only in dominant languages, breakout discussions surfaced concerns about the potential erasure of traditional languages and loss of cultural nuance.

As advocates work not only to remedy some of these existing harms, but also to anticipate the impacts of the next iterations of AI, many expressed concern about the dominant role that the private sector plays in governments’ roll-outs of AI systems, as well as in discussions surrounding regulation. Where tech companies – who are often protected by powerful lobby groups, commercial confidentiality, and intellectual property regimes – are selling combinations of software, hardware, and technical guidance to governments, this can pose significant transparency challenges. It can be difficult for civil society organizations and affected individuals to understand who is providing these systems, as well as to understand how decisions are made. In the welfare context, for example, beneficiaries are often unaware of whether and how AI systems are making highly consequential decisions about their entitlements. Participants noted that human rights actors need the capacity and resources to move beyond traditional human rights work, to engage with processes such as procurement, standard-setting, and auditing, and to address issues related to intellectual property regimes and proliferating public-private partnerships underlying governments’ uses of AI.

These issues are compounded by the fact that, in many instances, AI-based systems are designed and built in countries such as the US and then marketed and sold to governments around the world for use across critical public services. Often, these systems are not designed with sensitivity to local contexts, cultures, and languages, nor with cognizance of how the technology will interface with the political, social, and economic landscape where it is deployed. In addition, civil society organizations face additional barriers when seeking transparency and access to information from foreign companies. As AI regulation efforts advance, a failure to consider potential extraterritorial harms will leave a significant accountability gap and risk deepening global inequalities. Many participants therefore noted both the importance of ensuring that regulation in countries where tech companies are based includes diverse voices and addresses extraterritorial impacts, but also to ensure that Global North models of regulation, which may not be fit for purpose, are not automatically “exported.”

A way forward

The event ended with a strategizing session that revealed the diverse strengths of the human rights movement and multiple areas for future work. Several specific and urgent calls to action emerged from these discussions.

First, given the disproportionate impacts of governments’ AI deployments on marginalized communities, a key theme was the need for broader participation in discussions on emerging AI regulation. This includes specially protected groups such as indigenous peoples, minoritized ethnic and racial groups, immigrant communities, people with disabilities, women’s rights activists, children, and LGBTQ+ groups, to name just a few. Without learning from and elevating the perspectives and experiences of these groups, regulatory initiatives will fail to address the full scope of the realities of AI. We must therefore develop participatory methodologies that bring the voices of communities into key policy spaces. More routes to meaningful consultation would lead to greater power and autonomy for previously marginalized voices to shape a more human rights-centric agenda for AI regulation.

Second, the unique impacts that public sector use of AI can have on human rights, especially for marginalized groups, demands a comprehensive approach to AI regulation that takes careful account of specific sectors. Regulatory regimes that fail to include meaningful sector-specific safeguards for areas such as health, education, and social security will fail to address the full range of AI related harms. Participants noted that existing tools and mechanisms can provide a starting point – such as consultation and testing requirements, specific prohibitions on certain kinds of systems, requirements surrounding proportionality, mandatory human rights impact assessments, transparency requirements, periodic evaluations, and supervision mechanisms.

Finally, there was a shared desire to build stronger solidarity across a wider range of actors, and a call to action for more effective collaborations. Participants from around the world were keen to share resources, partner on specific advocacy goals, and exchange lessons learned. Since participants focus on many diverse issues, and adopt different approaches to achieve better human rights outcomes, collaboration will allow us to draw on a much deeper pool of collective knowledge, methodologies, and networks. It will be especially critical to bridge silos between those who identify more as “digital rights” organizations and groups working on issues such as healthcare, or migrants’ rights, or on the rights of people with disabilities. Elevating the work of grassroots groups, and improving diversity and representation among those empowered to enter spaces where key decisions around AI regulation are made, should also be central in movement-building.

There is also an urgent need for more exchange not only across the human rights ecosystem, but also with actors from other disciplines who bring different forms of technical expertise, such as engineers and public interest technologists. Given the barriers to entry to regulatory spaces – including the resources, long-term commitment, and technical vocabularies imposed – effective coalition-building and information sharing could help to lessen these burdens.

While this event brought together a fantastic and energetic group of advocates from dozens of countries, these takeaways reflect the views of only a small subset of the relevant stakeholders in these debates. We ended the session hopeful, but with the recognition that there is a great deal more work needed to allow for the full participation of affected communities from around the world. Moving forward, we aim to continue to create spaces for varied groups to self-organize, continue the dialogue, and share information. We will help foster collaborations and concretely support organizations in building new partnerships across sectors and geographies, and hope to continue to co-create a shared human rights agenda for AI regulation for the digital welfare state.

As we continue this work and seek to support efforts and build collaborations, we would love to hear from you – please get in touch if you are interested in joining these efforts.

November 14, 2023. Digital Welfare State and Human Rights Project at NYU Law Center for Human Rights and Global Justice, and Amnesty Tech’s Algorithmic Accountability Lab.

November 14, 2023 Youssef Farhat Uncategorized

What I Should Have Said to Fernando Botero

HUMAN RIGHTS MOVEMENT

What I Should Have Said to Fernando Botero

Your art is a provocation to viewers to ask: what is our role in safeguarding human rights? A reflection on meeting Colombian artist Fernando Botero.

Image from Slideshow: The Botero Exhibit at Berkeley Law

I was privileged to have met world-famous Colombian artist, Fernando Botero, who died last month [September 2023] at age 91, when he visited the University of California, Berkeley in 2007. I teach human rights at the law school, and the artists came to campus for the exhibit of his 2005 Abu Ghraib series. The canvasses and sketches depict the horrors of Iraqi prisoner abuse by US soldiers, based on leaked photographs taken by service members at the Abu Ghraib prison facility.

Overwhelmed by the paintings and awe-stuck by the artist who created them, I fumbled my few seconds with Mr. Botero. My memory is that I offered an anodyne appreciation of his work. If I could speak with him now, here is what I would say:

Mr. Botero, every day I enter the law school I try to keep in mind that the job of law professors is to train the next generation of lawyers to embody the highest values of the profession. It is true that we teach law students how to analyze the law, how to evaluate the strength of arguments, and how to weigh the equities in any given case. But law is not a set of rules that lawyers discover or inherit. Law is made through human intervention, in the form of legislation, interpretation by lawyers, as well as judicial decisions. You made vivid the power that legal professionals have to strengthen or to destroy the rule of law fabric that sustains humanity.

Your art is a provocation to viewers to ask: what is our role in safeguarding human rights?

Government lawyers drafted the rules of interrogating prisoners captured in the so-called War on Terror, setting the background norms for the torture of prisoners perpetrated by guards and recorded on film as trophy shots. And lawyers created the rules for the treatment of so-called enemy combatants the United States held at Guantanamo Bay. I interviewed dozens of former detainees, men never charged with a crime, who endured years of mistreatment proscribed by US government lawyers in violation of international law. Government lawyers and politicians led the public to believe that harsh treatment, even torture, of suspected terrorists was necessary to keep us safe. Your art asks us to confront this bargain and to reconsider what we become as a nation, if we accept that premise, and you offer us a way forward.

You said at the time of the exhibit that your outrage that the United State, which has stood for democracy and rule of law, would commit such abuse motivated you to paint the series. Your Abu Ghraib collection conveys the suffering of Iraqi prisoners. Yet through your iconic style of voluminous forms, you also render the victims literally larger than life and give their bodies a weight that suggests a hyper-permanence. Their humanity outlives the outrages inflicted on them by US soldiers. Humanity will endure in spite of depredations, but whether ruptures in rule of law are mended by justice is up to us. And I think this is what you meant when you said about these works that: “Art is a permanent accusation.”

Thanks to your permanent gift of the series to the university, I can view a few of the canvasses on display at our law school. Viewers must investigate the causes of US descent to systematic torture and the path to correct the injustice. The paintings accuse the audience of the dangers of believing that we must trade human rights for security; that it is acceptable to strip individuals of dignity simply by their being called a terrorist by a powerful state. The paintings accuse lawyers of their role in justifying rules that strip individuals of fundamental due process protections against arbitrary arrest, imprisonment, and torture.

Today, we find ourselves in the midst of another shocking rollback of fundamental rights and inversion of the rule of law, this time closer to home. The Supreme Court’s overturning of Roe v. Wade ushers in an era in which forced pregnancy, a form of torture under international law, is legal in the United States. There is a dangerous throughline from Abu Ghraib to the Dobbs decision: when we dehumanize one category of persons and legalize control over their bodies through direct or indirect violence, we make it easier to apply the same logic to an ever-expanding menu of targets.

It is more than two decades after 9/11 and we as a society have not yet answered your accusation, Mr. Botero, to our detriment. Yet progressive lawyers and students continue to name torture and fight injustice when it is unpopular to do so. Justice remains a work in progress, which is why we need compelling art, like yours, to continue to challenge us to action.

October 4, 2023. Laurel E. Fletcher, Visiting Scholar (Fall 2023).
Laurel E. Fletcher is Chancellor’s Clinical Professor of Law at UC Berkeley, School of Law where she co-directs the International Human Rights Law Clinic and the Miller Institute for Global Challenges and the Law.

This post reflects the opinions of the author and not necessarily the views of NYU, NYU Law or the Center for Human Rights and Global Justice.

October 4, 2023 Youssef Farhat Product

Law Clinics Condemn U.S. Government Support for Haiti’s Regime as Country Faces Human Rights and Humanitarian Catastrophe

HUMAN RIGHTS MOVEMENT

Law Clinics Condemn U.S. Government Support for Haiti’s Regime as Country Faces Human Rights and Humanitarian Catastrophe

To mark the second anniversary of the assassination of Haitian President Jovenel Moïse, the Global Justice Clinic and the International Human Rights Clinic at Harvard Law School submitted a letter to Secretary of State Antony Blinken and Assistant Secretary Brian Nichols calling on the U.S. government to cease to support the de facto Ariel Henry administration. Progress on human rights and security and a return to constitutional order will only be possible if Haitian people have the opportunity to change their government.

English

Kreyòl

In the wake of Moïse’s murder and at the urging of the United States, Dr. Henry assumed leadership as de facto prime minister. The past two years, Dr. Henry has presided over a humanitarian and human rights catastrophe. He has consolidated power in what remains of Haiti’s institutions, and has proposed to amend the Constitution in an unlawful manner. Further, there is evidence that ties Dr. Henry to the assassination of President Moïse. Despite the monumental failure of Dr. Henry’s government, the United States continues to support this illegitimate and unpopular regime.

The letter declares that any transitional government must be evaluated against Haiti’s Constitution and established human rights principles. Proposals such as Dr. Henry’s that violate the spirit of the Constitution and further state capture cannot be a path to democracy.

This post was originally published as a press release on July 10, 2023 by the Global Justice Clinic at NYU School of Law, and the International Human Rights Clinic at Harvard Law School.

July 10, 2023 Dev Account Uncategorized

Relocation Now, Mine-Affected Communities in the D.R. and their Allies tell Barrick Gold

CLIMATE & ENVIRONMENT

Relocation Now, Mine-Affected Communities in the D.R. and their Allies tell Barrick Gold

As Barrick Gold prepares to hold its Annual General Meeting in Toronto tomorrow, Dominican communities impacted by the company’s Pueblo Viejo mine and their allies have issued an open letter to the company demanding immediate community relocation.

English

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The letter from Espacio Nacional por la Transparencia en las Industrias Extractivas (National Space for Transparency in the Extractive Industry (ENTRE) and the Comité Nuevo Renacer, alleges grave harms to nearby communities’ health, livelihoods, and environment due to the mine’s operations. The letter also raises concerns about Barrick’s plans to expand the Pueblo Viejo mine––already one of the world’s largest gold mines–– including by constructing a new tailings dam. Dominican, Canadian, and U.S. based allies, including the Global Justice Clinic, signed on to the letter in solidarity.

Last month, communities affected by Barrick mines in Alaska, Argentina, the Dominican Republic, Nevada, Pakistan, Papua New Guinea, and the Philippines came together in a Global Week of Action, calling out the gap between Barrick’s rhetoric on human rights and its record. GJC works in solidarity with communities near Cotuí impacted by Barrick’s operations.

This post was originally published on May 1, 2023.

May 1, 2023 Dev Account Uncategorized

Extraordinary Conditions: A Statutory Analysis of Haiti’s Qualification for TPS 1

CLIMATE AND ENVIRONMENT

Extraordinary Conditions

A Statutory Analysis of Haiti’s Qualification for TPS 1

This report presents the extraordinary conditions in Haiti that prevent nationals from safely returning. This report also discusses the unique political moment in which Haiti finds itself—a moment which contributes to the country’s challenges with stability and security, impeding its ability to safely receive its nationals. But it also shows where progress has been made, demonstrating that the conditions described here—while together constituting a pressing social and public health crisis—remain temporary.

Download Report

Since the U.S. government designated Haiti for Temporary Protected Status (TPS) in January 2010 after one of the world’s worst natural disasters, the country has undergone two additional catastrophes: the outbreak of cholera, introduced into Haiti’s waterways through reckless sanitation at a United Nations military base, and Hurricane Matthew, the strongest hurricane to hit Haiti in more than half a century. The Department of Homeland Security (DHS) designates countries for TPS in cases of ongoing armed conflict, natural disaster, or other extraordinary and temporary conditions that prevent the nationals of those countries who have emigrated from safely returning to their home country. The DHS redesignated Haiti for TPS in 2011, emphasizing the gravity of the damage that the earthquake had caused and the severity of one of the world’s worst cholera outbreaks. TPS has been extended for Haiti four times since redesignation.

The conditions for which TPS is in effect remain, making it unsafe for Haitian nationals to return. These conditions include a housing crisis that has left families stranded in camps and in unsafe, makeshift shelters to this day; a cholera outbreak, sparked by United Nations troops just 10 months after the earthquake, which has caused nearly 10,000 deaths and more than 815,000 cases of illness—in a country of fewer than 11 million people; and a period of extreme hunger and malnutrition caused by drought and storms and exacerbated by the economic shocks of the earthquake and Hurricane Matthew. Matthew hit one of Haiti’s key food-producing areas.

Although these events and conditions are extraordinary and harsh, they are temporary. The Haitian government has made impressive progress in reducing the number of cases of cholera and resulting deaths. As of 2017, Haiti finally has an elected president and a full parliament, for the first time since 2012.

This report presents the extraordinary conditions in Haiti that prevent nationals from safely returning today. This report also discusses the unique political moment in which Haiti finds itself—a moment which contributes to the country’s challenges with stability and security, impeding its ability to safely receive its nationals. But it also shows where progress has been made, demonstrating that the conditions described here—while together constituting a pressing social and public health crisis—remain temporary.

April 26, 2023 Dev Account Uncategorized

What are post-PACT Act possibilities for recognition and compensation of Iraqi victims of war toxins?

AREA OF WORK

What are post-PACT Act possibilities for recognition and compensation for Iraqi victims of war toxins?

The US PACT Act, enacted in 2022, offers unprecedented healthcare and compensation for 3.5 million US military veterans suffering from illnesses linked to toxic exposure. What are the possibilities for comparable recognition and support for Iraqi civilians who continue to live amidst the same war toxins, and what role can international law play in achieving justice?

April 2023 marks eight months since the PACT Act (Promise to Address Comprehensive Toxics Act) went into effect in the United States in August 2022. The PACT Act is “the most significant law ever helping victims exposed to toxic burn pits,” as described in US President Joe Biden’s February 2023 State of the Union address. Indeed, the PACT Act unprecedentedly offers healthcare and disability compensation for approximately 3.5 million veterans harmed by burn pits and other toxic exposures. It not only promises long awaited compensation for veterans who served in the US wars in Iraq and Afghanistan beginning in 2003 and 2001 respectively, but also covers veterans harmed by herbicides during the Vietnam War, 1990–91 Gulf War veterans, and those who served in numerous other locations including Syria, Yemen, Lebanon, and many more. Veterans will be presumed eligible according to dates and locations of service, and no longer have to prove the direct link between their exposure and their illness, often an impossible task.

No comparable mechanism is in place, however, to recognize and assist civilians facing ongoing toxic assaults in contaminated environments, including in Iraq. Iraqi civilians suffer from disturbingly high rates of congenital anomalies (birth defects) and cancers, leading to conditions of inescapable health devastation, something I deem “toxic saturation” in my research.

Does the PACT Act offer any hope for comparable support for non-US civilians? Or does the Act represent the latest iteration of a deeply flawed approach when it comes to the US’s response to victims of war toxins? In this post, I address these questions as they impact Iraqi civilians, and examine international law’s role for addressing irreparable harm experienced by civilians forcibly exposed to war toxins.

The Scale of “Toxic Saturation”

A 2019 Environmental Pollution study documented that children living in proximity to a US military base near Nasiriyah, Iraq, had an increased likelihood of congenital anomalies including neural tube defects (such as spina bifida, anencephaly, and hydrocephalus), congenital heart diseases, and musculoskeletal malformations (including missing right hand and paralyzed clubfoot). Doctors in Fallujah have long reported a staggering post-2003 surge in birth defects.

It is important to understand the scale of war toxins that the US military and its allies introduced to Iraq. More than 780,000 rounds of depleted uranium (DU) were used in 1991, and more than 300,000 rounds in 2003, as reported by Dutch peace organization PAX. As explained by the US Department of Veterans Affairs (VA), “DU is a potential health hazard if it enters the body, such as through embedded fragments, contaminated wounds, and inhalation or ingestion.”

The US military admits to using white phosphorus as an incendiary weapon in Fallujah in 2004. Incendiary weapons, as explained by Human Rights Watch (HRW), “produce heat and fire through the chemical reaction of a flammable substance, cause excruciating burns and destroy homes and other civilian structures.” The US later used white phosphorus again in Iraq and Syria in operations targeting the Islamic State. As described by HRW’s Stephen Goose, “No matter how white phosphorus is used, it poses a high risk of horrific and long lasting harm in crowded cities like Raqqa and Mosul and any other areas with concentrations of civilians.”

Another key source of toxic exposure for veterans is burn pits. As I wrote for Al Jazeera in August 2022, burn pits are open air pits of military waste, sometimes as large as football fields, used to burn and destroy weapons, chemicals, plastics, and medical and human waste, typically using jet fuel. Joe Biden has been vocal about his son Beau’s fatal brain cancer, believed to be caused by exposure to burn pits while serving with the US military in Iraq and working in Kosovo.

International Law and Compensation for Health Destruction

Compensation is essential for providing medical care and lifetime assistance to Iraqis struggling to survive due to toxic saturation. Veterans have faced health devastation following relatively short-term exposure, while civilians have been left behind to languish amidst war toxins. As noted in my research on water access, however, international law faces significant enforceability challenges regarding reparations for victims of environmental destruction in the context of armed conflict.

The US in particular has a discouraging track record. The US government long denied illnesses linked to deadly, dioxin-containing herbicides, including Agent Orange, experienced by Vietnam War veterans. Funding dedicated to Vietnamese civilians and environmental clean-up has been a mere fraction of what is needed, especially as children continue to be born with severe congenital anomalies nearly fifty years after the Vietnam War ended in 1975.

In principle, international law clearly provides the basis for reparations for Iraqi civilians. Additional Protocol I (1977) to the Geneva Conventions addresses the illegality of environmental damage and health destruction, and reparations for harm caused. Article 55 requires that care is taken in warfare “to protect the natural environment against widespread, long-term and severe damage.” This protection prohibits methods “which are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population.” Article 91 states that parties that violate international humanitarian law shall “be liable to pay compensation.” The Environmental Modification Convention forbids military “environmental modification techniques having widespread, long-lasting or severe effects as the means of destruction, damage or injury.”

Furthermore, monetary compensation is not the only aspect of reparations currently being denied for Iraqis. As Christine Evans writes, “There is a common misconception that reparations are synonymous with monetary compensation” when reparations actually encompass financial and non-financial meanings: “restitution, compensation, rehabilitation, satisfaction (disclosure of the truth), and guarantees of non repetition.”

Following the significant agreement on “loss and damage” funding at COP27 in November 2022, compensation for developing countries impacted by climate disasters, long on the agenda of climate justice advocates, was brought to the center of the world stage, though much work remains to be done to ensure compensation is provided to those in need of it.

Comprehensive environmental justice requires that all victims of environmental injustice, including both victims of the climate crisis and of toxic environmental assaults during and following war, are recognized and compensated. The PACT Act is an overdue victory for veterans and sets a precedent for compensation following wartime toxic exposure. The US government cannot stop here, only recognizing veterans affected by war toxins. The US must be pressured to acknowledge the existence and suffering of Iraqi civilians and all people harmed by war toxins, and to provide the care and compensation that is owed to them.

April 21, 2023. Carly A. Krakow, Visiting Scholar (AY 2022-2023)
Carly A. Krakow is a writer, journalist, faculty member at the NYU Gallatin School, and completing her PhD in International Law at the London School of Economics as a Judge Rosalyn Higgins Scholar and Modern Law Review Scholar.

This post reflects the opinions of the author and not necessarily the views of NYU, NYU Law or the Center for Human Rights and Global Justice.

April 21, 2023 Youssef Farhat Post

Rhetoric vs Record: Communities Call out Barrick for Falling Short on Human Rights

CLIMATE AND ENVIRONMENT

Rhetoric vs Record: Communities Call out Barrick for Falling Short on Human Rights

Representatives of communities impacted by Barrick Gold’s mining operations claim the company systemically ignores their concerns. Despite President and CEO Mark Bristow’s claim that “recognizing and respecting human rights have long been a fundamental value” for the company, people living near Barrick operations in the Dominican Republic, Argentina, Tanzania, Papua New Guinea, the Philippines, Pakistan, and the United States tell a different story.

As Barrick prepares for its Annual General Meeting on May 2nd, frontline communities are launching a Week of Action from April 11-16 calling out the gap between Barrick’s rhetoric and record. They claim oppressive violence, perpetual water pollution, violations of Indigenous Rights, and destroyed livelihoods. Their experiences call Barrick’ social license to operate into question.

These community leaders are calling on Barrick to turn its rhetoric into reality: to listen to their demands, act transparently, and remedy the harms they have already experienced. Below are their statements.

“Barrick’s proposed Donlin Gold mine puts the Yup’ik and Cup’ik ways of life in harm’s way for the rest of time. Our people rely on our river and fish for food security and risking contamination with toxic slurries stands against our traditional values, which is shown with wide Tribal opposition to the Donlin project. I encourage Barrick to revoke their investment in Donlin Gold and the exploratory efforts 35 miles away. Barrick and partners do not have a social license or a relationship with the Tribes and it is important to understand for-profit Native corporations do not represent our people. Barrick does not have our consent.”

Statements

Anaan’arar, Sophie Irene Swope, Mother Kuskokwim Tribal Coalition, Southwest Alaska’s Yukon-Kuskokwim Region

“Barrick has spilled toxic chemicals into the water of the Jáchal River multiple times, while operating in the heart of the San Guillermo Biosphere Reserve, an ecologically sensitive area. They have not been transparent about their impacts, which violates our democratic institutions. The solution is for the company to leave.”

Domingo Jofré, Asamblea Jáchal No se Toca, San Juan, Argentina

“We have been calling for more than 20 years for justice for the people of the Island of Marinduque whose lives and livelihoods continue to be affected by the contamination of our rivers and marine areas from almost 30 years of irresponsible mining. Barrick is fighting us in our courts rather than providing the compensation we need to do the clean-up ourselves. Marinduqueños have waited long enough, it is time that Barrick lives up to its claims of being a responsible company and takes responsibility for the mess left behind in Marinduque.”

Elizabeth Manggol, Marinduque Council for Environmental Concerns, Marinduque, Philippines

“We have never stopped advocating for justice for the many men, women, and children who have become the victims of the Porgera Joint Venture mine, through the pollution of our rivers, through the house burnings by mine security and police, and through the rapes and killings and beatings of our Ipili and Engan Indigenous people by mine security and police. We oppose Barrick reopening the mine until all the victims of Porgera Joint Venture have been fairly compensated and until we know that Barrick will clean up the mine waste that surrounds our houses.”

James Wangia, Akali Tange Association, Porgera, Papua New Guinea

“Last December, Barrick Gold reached an unlawful agreement with the central government of Pakistan to extract gold and copper from the Reko Diq mining site. The locals in Balochistan, especially the locals surrounding the mining sites in Chaghi District, did not consent to this project. This violation not only threatens the region’s autonomy and environment but also exacerbates the difficulties already faced by the suppressed local population. Barrick Gold must disclose every detail of the agreement to the masses and the media, and stop working until the local people approve the project.”

Lateef Johar Baloch, A Human Rights Defender with main focus on Balochistan, affiliated with Human Rights Council of Balochistan (HRCB).

“Barrick says they bring progress, but we are one of the poorest provinces in the country, even though we live next to one of the largest gold mines in the world. In 2012, Barrick Gold built the El Llagal tailings dam at the Pueblo Viejo mine. Twenty-one streams have dried up and the project has impacted two principal rivers, the Llagal and the Maguaca. Now, we receive drinking water from the government. We want to ask: if the company is allowed to destroy the streams and rivers that provided water to six communities, why hasn’t there been any efforts to relocate us to another area without all of the pollution and with access to water?”

Leoncia Ramos, Comité Nuevo Renacer, Cotuí, Dominican Republic

“The environmental impacts generated by Barrick Gold have been devastating culturally and spiritually for the Western Shoshone, and yet the company claims to ensure responsible mining practices that respects, protects, and preserves our cultural heritage. Barrick’s attempt to mitigate for the protection and preservation of Western Shoshone cultural heritage is to provide funding to assist with establishing a cultural center and language program, funding support for local cultural activities, and trips for the elders to attend other cultural gatherings. This may all sound and look good but is it? Eventually, Western Shoshone people will become totally dependent on funding from an industry that sets out to destroy our homelands. There is no long-term benefit in the destruction of our land and culture.”

Mary Gibson, Western Shoshone Defense Project, Newe Sogobia, Nevada, United States

In addition to the statements above, Tanzanian Kuria peoples from villages surrounding the North Mara Gold Mine are currently in court in both the UK and Canada claiming excess use of force by mine security and police guarding the mine leading to deaths and maimings.

This post was originally published as a press release on April 11, 2023.

The Global Justice Clinic partners with social movements and community organizations to prevent, challenge, and redress economic, racial, and climate injustice, while training the next generation of social justice lawyers. Statements of the Global Justice Clinic do not purport to represent the views of NYU, if any.

Earthworks is dedicated to protecting communities and the environment from the adverse impacts of mineral and energy development while seeking sustainable solutions.

MiningWatch Canada works toward a world in which Indigenous peoples can effectively exercise their rights to self-determination, communities must consent before any mining activities may occur, mineworkers are guaranteed safe and healthy conditions and there is effective access to justice and reparations for mining harms.

April 11, 2023 Dev Account Uncategorized

Prevention economies in Kenya: Peace, Power & Pragmatism?

PREVENTION AND CONFLICT

Prevention economies in Kenya: Peace, Power and Pragmatism?

While international security interests continue to hijack the ‘triple nexus’, local CSOs have used Preventing and Countering Violent Extremism (P/CVE) to allocate and redirect resources to their own needs, secure their mission in the face of a shrinking civil society space, and protect themselves from direct security interventions.

The Emergence of the ‘Preventing and Countering Violent Extremism’ Agenda

“Conflict prevention” is an umbrella term for a variety of interventions in the peacebuilding field that aim at addressing factors that could lead to violent conflict. SDG 16 in the UN 2030 agenda makes an important contribution to the realm of conflict prevention with the target goal to “Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels.” After years of hard counter-terrorism strategies, preventive measures to address the root causes of radicalization have also gained traction in the Global War on Terror. The United States, supported by the United Nations, have played a central role in this paradigm shift and the introduction of the concept ‘Preventing and Countering Violent Extremism’ (P/CVE), which replaced the dominant notion of ‘Counter-Terrorism’ (CT) in policy spaces in 2015. P/CVE has since become the globally accepted security strategy to address violent extremism, by underscoring a whole-of-society approach, as well as the localization of the fight against terrorism. While P/CVE is very much a security strategy, the agenda is now also closely linked to SDG 16 through the emphasis on strengthening civil society and government institutions, building social cohesion and resilience, addressing local grievances and respecting human rights. At the core of this union between P/CVE as a security strategy and peacebuilding lies the concept of ‘human security’, which is defined by the UNDP as ‘freedom of want’ and ‘freedom of fear’. ‘Human security’ focuses on the individual grievances that may incite violence. Consequently, many security approaches are no longer solely based on military power, but include humanitarian, development, and peacebuilding initiatives. Within this vein, CSOs have thus become integral to the realization of the agenda. As a result, critics argue that P/CVE has securitized and co-opted the civil society space, thereby forging a dangerous liaison between security actors and CSOs.

Securitization of the Civil Society Space in Kenya

In the first years, after its global adoption in 2015, the P/CVE agenda was implemented through National Action Plans (NAPs) with great enthusiasm from the international community. Particularly, the United States supported its allies around the world in the adoption of the agenda through technical assistance and donor funding. Kenya is one of the US’s main strategic allies in the Global War on Terror in Africa and has been at the forefront of adopting the P/CVE agenda in the last 7 years. While donors decreased their funding through COVID-19 and the presidential election in 2022, P/CVE is still one of the main donor priorities in Kenya to this day. Since the introduction of P/CVE in 2016 through a National Action Plan (NAP), many CSOs have geared towards the implementation of P/CVE programs to access funding for their programs. The international donor industry, which is heavily influenced by security interests in the Horn of Africa, has thus very much impacted the civil society space in Kenya. As the Kenyan government considers violent extremism a national security issue, every organization that implements P/CVE must report to the National Center for Counterterrorism (NCTC) under the 2012 Prevention of Terrorism Act (POTA) since a 2019 amendment. CSOs therefore have to report to the authorities about P/CVE programs, which can include sensitive information about the program participants. As a consequence, local communities have accused CSOs of espionage and surveillance, thereby criticizing the alignment of aid programs with security interventions. While the securitization of the civil society space in Kenya through the integration of security strategies into aid programs in the name of prevention has certainly led to many trust issues between CSOs and local communities, the question of agency and resistance of CSOs is central in understanding P/CVE in Kenya. CSOs are subject to complex negotiations between international security agendas, funding scarcity, and local agency. I will briefly discuss the entanglement of the security-oriented P/CVE agenda in three key areas in the aid architecture: human rights (1), humanitarian and development aid (2), and peacebuilding (3).

The Entanglement of P/CVE with the Aid Architecture

In the aftermath of heavy security crackdowns against Muslim communities after the Westgate mall attack in 2013 and counter-terrorism operations along the coast, Kenyan human rights organizations were very vocal about the human rights violations including forced disappearances and extrajudicial killings committed by Kenyan security forces and brought international attention onto the situation. As a response, the government listed two leading human rights organizations as terrorist entities which resulted in the freezing of their bank accounts. After a legal battle the court finally ruled the accusation as unjust and commanded the unfreezing of assets. Nevertheless, the incident sent a clear message to human rights organizations nation-wide. It is therefore, perhaps, surprising how many human rights organizations are currently actively implementing P/CVE programs despite of the previously mentioned issues. While the P/CVE agenda commits to a human rights-based approach to preventing violent extremism, the often-times close involvement of security forces in the implementation of P/CVE also endangers the integrity of CSOs. I would argue, however, that P/CVE can and should also be understood as part of a pragmatic response by human rights organizations that engage in a difficult balancing act between shining light onto human rights violations and their own security. The close relationship with the government and security forces in the implementation of P/CVE seems to allow human rights organizations to expose certain incidents without feeling immediate repercussions. Additionally, at the coast, CSOs established a consortium to protect each other from similar accusations. Human rights organizations and other CSOs also contest the 2019 amendment of POTA that obliges all organizations that implement P/CVE to report information to the NCTC. They are thus forced to find a pragmatic path between dialogue with the security forces and protection of their own work.

Humanitarian and development programs are frequently also part of P/CVE responses in Kenya. Especially in the North-Eastern region of Kenya, humanitarian and development interventions converge with security strategies to tackle violent extremism. The climate crisis has led to the worst droughts and food emergency situation in forty years. The redirection of funding channels to European countries through the Ukraine war and global wheat price crisis also partly contribute to the lack of funding to address humanitarian needs in the region. Additionally, foreign actors often prioritize other countries as they consider Kenya as a middle-income country. Since P/CVE continues to be a funding priority for many donors in the North-Eastern region of Kenya, many local CSOs apply for P/CVE funding to allocate resources and later redirect them to humanitarian assistance programs. Local CSOs, in asserting their agency, therefore also take advantage of the P/CVE industry to access funding that they would otherwise not receive in a situation of humanitarian emergency.

Finally, peacebuilding CSOs in particular have shifted their focus to the implementation of P/CVE as a consequence of the huge donor funding supply for these programs, oftentimes using the labels of “P/CVE” and “peacebuilding” interchangeably. While both P/CVE and peacebuilding are very broadly defined terms, the label P/CVE raises a lot of suspicion in local communities and creates security risks for local aid workers who implement these programs. Nevertheless, P/CVE is also an instrument for local communities to keep security forces at arm’s length. Many P/CVE programs contain community policing as an integral element which redirects security governance to the local community. It appears that local communities are able to contain direct police engagement in the community, which decreases incidents of police brutality against youth. While many local peacebuilders explain how violent extremism actually is not a main concern in their communities, P/CVE seems to be an important tool to not only gain funding but again paradoxically help secure the community against government crackdowns.

Ultimately, local CSOs in Kenya demonstrate great pragmatism in the implementation of P/CVE by balancing security concerns and local needs within an increasingly competitive donor market. At the beginning, P/CVE might have been a top-down approach to tackle local insecurities that are of concern for international actors and global stability. While international security interests continue to hijack the ‘triple nexus’, local CSOs have used P/CVE to allocate and redirect resources to their own needs, secure their mission in the face of a shrinking civil society space, and protect themselves from direct security interventions.

April 11, 2023. Nora Naji, Visiting Scholar (AY 2022-2023)
Nora Naji is a PhD candidate at the University of Basel, and an associated researcher at swisspeace. Her dissertation ‘Commodifying peace: Intimate warfare and prevention economies in Kenya’ builds on the securitization premise and sets out to situate the agenda of “Preventing and Countering Violent Extremism” (P/CVE) in Kenya within a larger discussion of prevention economies.

This post reflects the opinions of the author and not necessarily the views of NYU, NYU Law or the Center for Human Rights and Global Justice.

April 11, 2023 Youssef Farhat Post