Nexus Magazine Fall Edition 2014 by Nexus Magazine

9 2014 FALL

SPOTLIGHT ON THE MIDDLE EAST:

THE ISRAEL / PALESTINE CRISIS AND THE ICC’S REACTION / 23 STORY: GENOCIDE / 28

OPINION: THE ISSUE OF ISLAMOPHOBIA / 25 OPINION: INDIGENOUS PEOPLE’S RIGHTS / 36 DEBATE: SYRIAN INTERVENTION / 40 1

ALUMNI: BRUSSELS/ HONG KONG / 42

COLOPHON NEXUS MAGAZINE FALL 2014 / 2015 Date of Publication 2 December 2014 Nexus Nexus Student Association nexus@rug.nl Nexus Magazine Committee 2014-2015 Bart van der Geest (Editor in Chief) Ana Arnaoutoglou-Amza (Secretary) Nathalie Bienfait Ivonna Beches nexusmagazine.law@gmail.com Founder Nexus Magazine Gemma Torras Vives Graphic Design Bart van der Geest Cover Photo Saba Tariq Logo RE_Oslo Authors Nexus Dutch Support Group Committee / Bart van der Geest / Ana Arnaoutoglou-Amza / Ivonna Beches / Jill van de Walle / Nathalie Bienfait / Claudia Skibniewski / Tiana Danielle Xavier / Rutger Metsch / Theresa Stiegler / Lisa Weihser / Christian Skrivervik / Cameron White / Aleskandra Markowska Special Thanks To Saba Tariq / Josefien Vreeken

TABLE OF CONTENT 3 4 6 8 14 18 22 25 28 30 36 40 42 46 48 50

Letter from the Magazine Committee Editor’s note / Dutch Support Group Upcoming Nexus Events / Interview First year rep. INGO’s in infra-state conflicts The Fall of the Berlin Wall Modern day slavery in perspective The right to adequate food The issue of Islamophobia Story: Genocide The Israel / Palestine crisis and the ICC’s reaction Indigenous People’s Rights Debate: Intervention in Syria Alumni: Brussels/ Hong Kong TED TALKS: ‘Aid vs. Trade’ Hong Kong Protests Bibliography

NEXUS FALL 2014 |

LETTER from the Magazine Committee Dear readers, Last year proved to be a very successful year for the magazine, as we began with upgrading its visual looks and then went from producing two issues to four; one for every season! This year we are no less ambitious and it is our intention to make the magazine look, sound and feel just as good, if not better. We hereby present you our first issue of the year and we are glad to share this publication with all Nexus members and others who are interested in our work. We strive to make this magazine a place to acquire knowledge, and be a place for open discussion on subjects that YOU are interested in. Our mission is to produce articles that matter to you, and our goal is to improve and practice communi-cation skills, creative thinking, career development, organizational skills and leadership. Take initiative and join our legal community! What makes Nexus Student Association most interesting is the diversity of people and ideas. Therefore, we encourage your contribution, opinion and ideas to the development of this magazine. This project is from and for all students! We hope that you will enjoy this first issue of the academic year 2014 - 2015, and we look forward to receiving your input! - Nexus Magazine Committee 2014 - 2015

(

The Nexus Magazine Committee independently obtained and organized the content of this magazine and is responsible for the publication of the Nexus Magazine. The opinions and ideas expressed by authors of articles in this magazine are solely the opinions and ideas of those authors and ( do not necessarily represent the opinions and ideas of this magazine or its editors or publishers.

PHOTO: SABA TARIQ / LEFT TO RIGHT: IVONNA BECHES / BART VAN DER GEEST / ANA ARNAOUTOGLOU-AMZA / NATHALIE BIENFAIT 3

)

EDITOR'S NOTE : Why human rights? TEXT: BART VAN DER GEEST versal Declaration of Human Rights (UDHR). It’s an important day for us to celebrate, but also to commemorate, educate, promote and reflect on the principles that form the UDHR, acknowledging the fact that some of the rights that we take for granted – such as the right to education or the right to receive medical care - are not equally available to people in other parts of the world. In the past 20 years, there has been a tremendous growth in how we think about and apply human rights, both at a national and international level. This has led to many positive results, such as the advancement of women’s and LGBT rights; the recognition of economic, social, cultural, civil and political rights and the establishment of a right to reparation for serious violations of human rights. Still, many challenges lie ahead in the struggle to promote and enhance the dignity, freedom and rights of all human beings, and we must strive to solve them.

BART VAN DER GEEST / LLB 2

It has been a long ride, but we’ve finally finished editing the first magazine edition of this academic year (2014-15)! In these first few months, the magazine committee has been working very hard to pick up the threads from last year, with the departure of our amazing former editors Christian Skrivervik and Jill van de Walle, and get the magazine back to its full potential. Our two newest members, Nathalie Bienfait and Ivonna Beches, have been of great help in this turbulent, albeit enjoyable learning process, and we are glad to have them join us on the team. As you may know, it is our mission to provide you with articles and material that matter to you as law students, which you are motivated to read alongside your studies. See it as a gateway to knowledge, a font of wisdom, or just simply a forum for ideas; ultimately, a place where you can discuss and share subjects that you are interested in. The theme that we’ve chosen for this edition is ‘human rights’, a topic we’ve purposely kept broad in order to have a wide range of topics and articles for you to enjoy. December 10 marks the 21st anniversary of the adoption by the United Nations (UN) of the Uni-

In this issue, our writers and contributors have kindly taken their time to adress some of these challenges, including the right to food (Claudia Skibniewski), modern day slavery in Qatar (Ivonna Beches), Islamophobia (Tiana Danielle Xavier), war crimes committed by Israel (Lisa Weihser) and last but not least, the rights of indigenous people (Jill van de Walle). Furthermore, as we always try to come up with new ideas for the magazine, we have introduced a new feature in this issue: a short story on the topic of genocide, written by Ana Arnaoutoglou-Amza. I whole-heartedly recommend that you give it a read, because it hit me deep down in my heart. Keep a box of tissues by your side, you have been warned! As a final note, I would like to thank all contributors, helpers, readers and our wonderful photographer, Saba Tariq, for making this first edition a reality. This magazine has been conceived for you, YES YOU! Therefore, we rely on your feedback, your collaboration and your comments in order to keep producing the magazines that you want to read. On behalf of the Nexus Magazine Committee: please enjoy!

EDITOR’S NOTE NEXUS FALL 2014 |

LETTER FROM THE Dutch support group TEXT: DUTCH SUPPORT GROUP / PHOTO: SABA TARIQ

Dear Nexus Members,

The academic year of 2014/2015 is well underway and by the time this is published you will have had your first exam period of the year. If you are a first year student you will also have encountered the strange, Dutch way of life. Riding bikes like mad men, but also issues regarding the bureaucracy and other problems which you might have faced. Especially regarding issues that you have with the Dutch bureaucracy and letters that you get from any institution that requires your attention, Nexus has established the Dutch Support group. We are a group of native Dutch speakers who are willing to help you with anything you can think of such as translating any letters you receive or making official phone calls. If you have any problems there are various ways through which you can contact us: at the start of the second block we will be handing out cards with all the information but for now it is good to know that you can reach us by: Email: nexusdsg@gmail.com Facebook: https://www.facebook.com/ groups/DutchSupportGroup/ Groetjes, Thom Wittendorp, Bob Roth and Eline Hangelbroek (The Dutch Support Group)

UPCOMING NEXUS EVENTS December Tuesday 2 : Guest Lecture On the topic of Catalonia and its possible separation/ independence from Spain, and the legal ramifications thereof. The lecture will held by highly respected professor Brus, Ms. Julia Orti Costa, an LLM student from Catalonia and professor Lobo-Guerrero.

Friday 5 : Mock Trial Drop by for a mock trial organized by the Nexus Debating Committee. This is a chance to practice your law skills!

Tuesday 16 : X-MASS PARTY An Awesome Grand Christmas party with the association for Dutch International and European law students (vintres) and the ICT law students (LIS@).

February/April TBA : Masterâ&#x20AC;&#x2122;s Dinner TBA : Conference In Februari or April, Nexus is organising its own conference. You will hear more about this soon!

NEXUS FALL 2014 |

Interview with First year rep : JONAH THOMPSON! TEXT: NATHALIE BIENFAIT / PHOTO: SABA TARIQ

Ok Jonah, first of all, where are you from?

I’m from a small town called Midhurst in the county of West Sussex, England. I live ‘out in the sticks’ in a national park named the South Downs national park. It’s a very typical English town, and was ranked second best place in the country to live! Midhurst is characterised by its castles, farmers, polo and horse racing. I miss it a lot and often reminisce over my morning cups of tea. Groningen is so busy in comparison to my town - which often surprises other international students, because they see Groningen as a small city.

And why else did you come to Groningen?

I always knew I wanted to go abroad, it was partly financial because the UK degrees are so expensive; for the new experiences and new people I knew I would meet - I always like experiencing and learning about new things. I also knew that the quality of the degree and the quality of the international environment is exceptional here. As well as that I wanted to get away from the ‘island mentality’ in England which I find very frustrating.

What about your Dutch? Can you say ‘Groningen’ yet?

Yes, I can say Groningen! And I live with Dutch people, so they help me with my Dutch, while I correct their English. I also did Tinder in Dutch for a while which was quite funny, because I got my flatmates to help me to talk to people, but the conversations floundered when I made silly grammatical mistakes and the girls got really confused, so I stopped that pretty soon! 7

So, why did you want to apply to be the first-year representative?

I thought it would be a silly opportunity to miss, because of the networks I can form within the association; there are so many people who have links with Nexus and I wanted to meet as many people as possible. I also wanted the challenge of having a diverse role, and balancing it with work and other hobbies, like sports and music.

I know you took a gap year; what did you do in that time? Yes I worked in France this past year. I lived in the region of Savoie on a mountain working in a French hotel. I also managed to greatly improve my French, which has given me a hunger to learn more languages. As well as that, I spent time in Nepal because I had contacts there, which was an amazing experience for a westerner like me; it was during a period of political unrest as a result of an election, so several exciting things happened like a bomb being diffused on the street in which I was staying (it was then carried off by a policeman on a bicycle)!

What other things do you think are important for us to know about you?

I have two dogs back in England - one white labrador called Winnie and she’s 11 years old, and a spaniel called Lulu who is 3 years old and a little bit mad!

OPINION

INGO’S IN INFRA-STATE CONFLICTS GOOD INTENTIONS GONE BAD? In a world where conflict is increasingly taking place within the borders of States, it is similarly becoming relevant to examine the roles of different actors within such conflicts. In infra-state conflicts there are several situations where INGO’s can play a crucial role, namely in the prevention of such conflicts; assistance during such conflicts; efforts to end such conflicts; and efforts to reconcile and rebuild after such conflicts. Such efforts by INGO’s are mostly considered to be ‘good’, but one should be careful to assume that this is always the case. Arguably, the work done by INGO’s is often glorified because of good intentions, but in real life, there are a number of serious issues relating to how INGO’s operate in infra-state conflict today.

... Consequently, this paper seeks to elaborate on the different roles INGO’s can play in such conflicts, whether those roles are ‘good’ or ‘bad,’ and how positive contributions can be increased.

TEXT: CHRISTIAN SKRIVERVIK PHOTO: NICOLA MULINARIS

NEXUS FALL 2014 |

1 PHOTO 1: LOUISA GOULIAMAKI/AFP/Getty Images - UKRAINE

Definitions

A Non-Governmental Organization (NGO) as an analytical category remains complex and unclear and is, therefore, very difficult to define. This is because it is impossible to generalize this group of very diverse organizations as they vary from large formal bodies to small informal groups and societies (Lewis, 2009). However, by limiting the definition to only encompass international non-governmental organizations (INGO’s), characterized as having primarily a humanitarian (non-profit) motive (as opposed to a commercial motive), we may limit ourselves to utilize the Words Bank’s rather vague definition, which defines NGO’s as: “private organizations that pursue activities to relieve the suffering, promote the interests of the poor, protect the environment, provide basic social services, or undertake community development” (World Bank, glossary).

Roles

In general terms, the work undertaken by INGO’s is usually analyzed as having three main components, namely the work as the (1) implementer, the (2) catalyst and the (3) partner. Firstly, as the implementer, INGO’s mobilize resources to provide goods and services to people that need them (Heyse, 2011). Such service delivery takes place over a broad spectrum of fields, which will be discussed in more detail below. During recent years, this role has become more prominent as INGO’s are often “contracted” by donors or governments to carry out specific tasks in return for payment. Secondly, the role as the catalyst can be defined as an INGO’s ability to promote social transformation. This includes inspiring, facilitating and contributing to improved thinking by lobbying for or advocating change. Thirdly, as the partner, INGO’s work with governments and the private sector on joint activities bringing INGO’s into mutually beneficial relationships with other sectors (Lewis, 2009). Now, specifically related to intra-state conflicts (which can be defined as a conflict between a government and one or more opposition groups, without foreign intervention), there are four different situations in which INGO’s may play a crucial role namely in the prevention of such conflicts; assistance during such conflicts; efforts to end such conflicts; and efforts to reconcile and rebuild after such conflicts. In order to prevent intra-state conflicts from arising, INGO’s may provide immediate assistance that aims at reforming the current state of affairs that provoke the different factions of the potential conflict. This may include, amongst others, mobilizing grassroots participation toward conflict prevention or participation in the policy process. Such efforts may also be put in place long-term in order to maintain efforts to influence and change local norms and attitudes (Steinsson, 2014). In such situations, their role as the catalyst is imperative as the main objective is social transformation as a tool to prevent escalating tensions.

PHOTO 2: DOCTORS WITHOUT BORDERS PHOTO 3: BRENDAN BANNO / POLARIS IMAGES - DAADAB REFUGEE CAMP

NEXUS FALL 2014 |

However, during such conflicts, supplying ‘handson’ (or tangible) aid becomes the primary objective. The conflict may have caused the local population to need food, water, shelter, medical assistance and other necessities, which subsequently INGO’s may provide (Lewis, 2009). Evidently, in many conflict situations, such relief can only be provided for by INGO’s, as opposed to domestic or foreign governments, because of the neutral nature of the organizations (whether INGO’s actually are 100% neutral is a topic for another paper). Furthermore, as a result of their presence, INGO’s may bring attention to the conflict, provide information internationally and shame specific actors in the conflict for their actions – which subsequently can lead to reactions from the international community (Steinsson, 2014). Consequently, the role as implementer is vital during intra-state conflicts (although the role as partner should not be underestimated), as INGO’s can provide for the immediate needs of the local populations and their access can keep the international community informed on current events. In efforts to bring an end to intra-state conflicts, INGO’s may seek to influence the different factions of the conflict and communicate ideas for solutions. An INGO can do so by e.g. acting as a mediator between the different actors and actively advocate for change in public policy. Moreover, INGO’s may pressure the international community to make efforts to end the conflict, e.g. through lobbying in international forums or promoting global grassroots movements. Additionally, in post-conflict environments, INGO’s can help rebuild vital infrastructural institutions (such as schools and hospitals), strengthen structural factors (such as reducing political discrimination and decreasing human rights violations) and promote reconciliation (by establishing truth commissions or other basic judicial processes), which may lessen the chance of escalating tensions and renewal of the conflict (UN, Handbook). As a result, their role as the catalyst yet again is imperative, as compromises must be made by all parties in order to reconcile, end the conflict and prevent renewal.

CHRISTIAN SKRIVERVIK / LLB 3

Are INGO’s ‘all good’?

Generally, the work done by INGO’s can be considered ‘good’ as they (mostly) address infra-state conflict situations with the best intentions and perform tasks that other institutions, such as governments (domestic or foreign), are either unwilling or unable to perform. However, one must be careful to assume that all work done by INGO’s is ‘good’ as there are several ‘bad’ issues relating to the work of INGO’s in infra-state conflicts, some of which will be illustrated below. On several occasions, INGO’s have unintentionally been supporting the war economy and subsequently compromised human security. By bringing resources and aid into conflict zones, INGO’s may risk prolonging the conflict and the violence, if said aid is stolen or paid as ‘tax’ to violent insurgents for access. Unfortunately, there are several recent examples where such appropriation has taken place, e.g. in Somalia where an estimated 80% of all humanitarian aid has directly or indirectly ended in the hands of insurgents; or in Afghanistan where an estimated 40% of the aid provided by Goodland was given to rebels as a form of taxation (Nunn, 2014). Waring is expensive, and by supplying warring parties with resources, INGO’s may be indirectly fueling the violence they are trying to prevent. Furthermore, INGO’s do not always consider the implications and effects of their actions and decisions. E.g. when humanitarian aid is not accompanied by capacity building (the transfer of resources

PHOTO 4: BRENDAN BANNO / POLARIS IMAGES - DAADAB REFUGEE CAMP

and knowledge), the refugees receiving the aid risk becoming dependent on that aid and subsequently become permanently displaced, deprived of the opportunity to improve their lives (Kopinak, 2013). Another example is well-intentioned shaming of certain groups in a conflict, aimed at bringing attention to occurring human rights violations, but instead having adverse effects. Although the evidence remains disputed, some studies show that shaming may actually increase human rights violations, and evidently, several terrorist organizations thrive on the international publicity such shaming may provide. Other unintended ‘bad’ consequences include the false economy a sudden large influx of aid and aid workers can create in a conflict area, and the potential ‘brain drain’ caused by recruitment of local professionals to work with INGO’s instead of local institutions. Therefore, it is imperative that INGO’s act responsibly in order to limit unintended adverse consequences.

Yet, other problems relate to INGO’s’ dependency on donor satisfaction and funding. In order to provide goods and services to the people that need them, INGO’s are dependent on donors supporting their cause financially (Kopinak, 2013). This means that INGO’s are answerable to the donors, not the recipients of the aid, which suggests that donor satisfaction may trump recipient satisfaction (Werker, 2008). As a result, several issues arise. Firstly, the quality of the goods and services provided can remain unchallenged. Secondly, INGO’s may be reluctant to disclose projects that have gone wrong, leading to a lack of transparency, which also limits the opportunity to learn from past mistakes. Thirdly, it has been suggested that certain INGO’s discard complicated longterm projects and prioritize short-term ‘sexy’ projects with immediate positive effects, in order to secure donor satisfaction and funding (Kopinak, 20013). Consequently, there is a clear lack of accountability, transparency, and efficiency in the way INGO’s work today. NEXUS FALL 2014 |

INGO’s is adhering to the Human Accountability Partnership (HAP) International, developed by some major INGO’s including CARE, Oxfam GB and Save the Children. It is a self-regulatory initiative aimed at developing operations, securing practices and ensuring accountability to the beneficiaries of aid. Although the HAP contains several valuable ideas, it is not as far-reaching, and other references should be made (Barber, 2008). According to Barber and Bowie, there are several prescriptions for which INGO’s can do less harm and more good. Firstly, donors should be educated on good NGO practice. In doing so, unsatisfied donors can demand that INGO’s do the right thing. Secondly, an association of NGO’s should be formed. Not only would this increase efficiency, but also transparency as NGO’s could learn from each other’s mistakes. Thirdly, consistency and reliability should be prioritized. By negotiating long-term funding without black-out clauses, INGO’s would be able to sustain long-term operations without fearing sudden lacks in funding. Lastly, national capacity building should be highlighted. This is to ensure that the society receiving aid should be able to sustain itself after the INGO has fulfilled its duties (Barber, 2008).

Less harm, more good

In order for INGO’s to mitigate unintentional adverse effects of their operations, it is often suggested that INGO’s use the ‘Do No Harm’ principle, which through its application seeks to understand the relationship between aid and conflict, avoid negative effects of developmental interventions and discover opportunities to avoid conflict. The ‘Do No Harm’ framework is often a beneficial tool, but is not always a feasible option for INGO’s working in certain conflict zones, where the conflict situation may be difficult to comprehend and access to information limited. However, by adhering to the ‘Do No Harm’ principle as far as possible, INGO’s would be able to make educated decisions, which subsequently should lessen the adverse effects of their operations. Other authors have suggested regulating INGO’s on an international level, but due to the complex and individual nature of INGO’s and their work it would be difficult to develop international legislation without impairing their efficiency (Steinsson, 2014). As it stands today, a good starting point for all

Conclusion

This paper has illustrated the different roles that INGO’s can play in infra-conflict situations. Initially, it is easy to assume that the roles carried out by INGO’s can be labeled as ‘all good’, but this paper has shown that INGO’s do cause serious harm during infra-state conflicts by not considering the implications and effects of their actions and decisions. Additionally, this paper illustrates that there is a clear lack of accountability, transparency, and efficiency in the way INGO’s work today and that there is a large potential to increase the positive contributions. However, by adhering to the ‘Do No Harm’ principle as far as passible and the Human Accountability Partnership (HAP) International Framework, INGO’s should be able to mitigate the unintended adverse effects of their work and secure accountability to their beneficiaries. Furthermore, by applying the several prescriptions offered by Barber and Bowie, INGO’s may indeed do less harm and more good. Disclaimer: sources can be found in the bibliography in the end of the Magazine.

OPINION

The FALL OF THE BERLIN WALL: REMINDER OF A DIVIDED WORLD TEXT: BART VAN DER GEEST / PHOTO: ABHIJEET RANE

When the Berlin Wall was still standing, it bore witness to some of the greatest pro-democracy speeches of the 20th Century. U.S. President J.F. Kennedy declared in 1963 “Ich bin ein Berliner” and later in 1987, President Ronald Raegan demanded the Russians “Tear down this wall” because “it cannot withstand faith; it cannot withstand truth; [it] cannot withstand freedom”. The speeches remain just as meaningful 25 years later, although the wall is almost entirely gone. Speaking during the celebrations, German Chancellor Angela Merkel called the fall of the wall proof that dreams could come true, adding that its collapse offered hope to troubled regions where “freedom and human rights are threatened or even trampled on”. Though Soviet leader Mikhail Gorbachev’s message proved grimmer, it is much more

likely to be remembered; in his speech he warned that recent tension between the West and East are causing a new Cold War. The 83-year-old, eighth and final Soviet leader, whose reforms led to events that brought the collapse of the Iron Curtain, urged the West to rebuild its ties with Russia, warning that a breakdown in dialogue between major powers is of enormous concern right now. “The world is on the brink of a new Cold War. Some people are even saying that it’s already begun.” The anniversary, commemorating 25 years of peace and stability in Europe, thus serves as a good reminder of the fact that current East-West relations aren’t what they should be. While all eyes are fixed NEXUS FALL 2014 |

on Germany, the conflict in Eastern Ukraine still continues. Now it is said that the European Union and the U.S. are weighing further sanctions against Russia’s economy after there was reported movement of tanks, artillery and combat troops into Eastern Ukraine. The conflict has thus far claimed 4,000 lives since fighting began in mid-April, in what has become the worst geopolitical standoff between the two major powers since the Iron Curtain. Though destroyed, the wall is still technically there, only it has been shifted to the East in the Ukraine, where it conveniently separates the West from Russia. However, people should not only be reminded of tensions with Russia. Today, dozens of walls and border fences continue to separate nations or territories across the world and there seems to have been an increase in walls over the past decade. Merkel did not cite any specific examples, although she would have had plenty to choose from. Ironically, she decided not to mention Israel’s separation wall which splits the country from the West Bank and has divided and caged millions of Palestinians for almost two decades. The Israelis argue that the wall has decreased the number of suicide attacks on their soil, yet it has been ruled illegal by the International Court of Justice, who described it as the widespread confiscation and destruction of Palestinian property. The barrier also “causes serious humanitarian and legal problems” and goes “far beyond what is permissible for an occupying power”, the International Committee of the Red Cross has stated. We can dream about breaking down every wall in the world, but this wall isn’t going to fall as long as Germany and its Western Allies continue to support Israel. Their support for Israel constitutes an obstacle for many Palestinians’ dreams of establishing a viable state of their own. The walls that are supposed to prevent Middle Eastern and North African refugees from reaching a Member State of the European Union are also reason for concern. An activist group called “Center for Political Beauty” claimed they had stolen Berlin Wall memorial crosses and relocated them to several EU border fences to draw attention to the death of thousands of people trying to cross EU external borders in the past few years. “While the whole of Germany is preparing to commemorate the fall of the Berlin Wall 25 years ago, there are new walls around Eu15

BART VAN DER GEEST / LLB 2 rope, where at least 30,000 people have capsized,” the group wrote on its website. Between August 2012 and July 2014, at least 218 migrants died in the Aegean Sea that separates Turkey from Greece. According to human rights organizations, the Greek coast guard forced some of them back into the open sea, where they drowned. The 2,000 mile border separating the U.S. from Mexico is no less dangerous. More than 2,100 migrants have died trying to cross through the desert since 2001, a figure 15 times larger than the 136 people who lost their lives attempting to cross the Berlin Wall. Despite the fact that the number of illegal crossings has plummeted to about a quarter of its 1986 peak of 1.7 million, U.S. officials continue to militarize the borders. The U.S. government now patrols nearly half the Mexican border using drones alone, hoping to control desolate stretches where there are no agents, camera towers, ground sensors or fences. The fall of the Berlin Wall is a crucial event in European history. Its anniversary, commemorating the 138 people who died trying to cross the inner-German border and celebrating the re-unification of a once divided Germany, also serves as a good reminder that there are currently still tensions. There are also still many walls that divide the world and deprive people of their human rights, going from Israel to North Korea to Pakistan. In celebrating freedom, Germany must not forget the walls it helped build in other parts of the world and it must take responsibility in tearing them down. I hereby refer to Pope Francis’ wise words: “where there is a wall, there is a closing of hearts. We need bridges, not walls.”

THEME

HUMAN RIGHTS NEXUS FALL 2014 |

MODERN DAY SLAVERY IN PERSPECTIVE:

AN EXPLANATION OF THE KAFALA SYSTEM IN QATAR /18

THE RIGHT TO ADEQUATE FOOD:

REAFFIRMING THECOMMITMENT 10 YEARS AFTER THE RIGHT TO FOOD GUIDELINES /22

THE ISSUE OF ISLAMOPHOBIA /25 STORY: GENOCIDE /28 SPOTLIGHT ON THE MIDDLE EAST:

THE ISRAEL / PALESTINE CRISIS AND THE ICC'S REACTION /30

MAKING THE SAME MISTAKES:

The importance of the rights of indigenous peoples /36

PHOTO: ALBERT GONZALEZ FARRAN, UNAMID

14 November 2012. El Geneina: Joint workshop on basic human rights organized by UNAMID Human Rights section and local NGO Chield Friends Organization, for a hundred children, most of who are orphans. 17

OPINION

Modern day slavery in perspective: an explanation of the Kafala system in Qatar TEXT : IVONNA BECHES / PHOTO : HABEEB ABU BUTTAIM ©

IVONNA BECHES / EXCHANGE

“

On the 2nd of December 2010 in Zurich, it was

announced that the state of Qatar would be hosting the 2022 Fifa World Cup. Qatar, a relatively small country in the heart of the Gulf started preparations straight away. Now, four years on, a series of human rights violations collectively labelled as “modern day slavery”, have been uncovered by various human rights organisations. The most wellknown study on the matter, entitled “The Dark Side of Migration: spotlight on Qatar’s construction sector ahead of the World Cup” was carried out by Amnesty International in 2013, and involved an in-depth analysis of some of the most shocking practices present particularly in Qatar’s low income labour sectors. NEXUS FALL 2014 |

” 18

Introduction to the State of Qatar Qatar is a state in the Middle East, located at the heart of the Arabian Peninsula and bordered by Saudi Arabia and the Persian Gulf. The official language is Arabic but English is also widely-spoken due to the large number of expatriates living and working in the country. In fact, there are approximately 1.38 million foreign nationals working in Qatar, making up 94% of the total labour force. This has an important impact on the way in which labour laws are enforced and regulated within the country. With regards to the legal system, Qatar is a hereditary Emirate, meaning that the country is ruled by the male heirs of the Al-Thani family, who consec utively take on the role of Emir. According to its Constitution, which came into effect in 2005, the governance system is mostly democratic, and is based on the principle of separation of powers. The legislative role is taken on by the Shoura (Advisory) Council; executive power is exercised by the Emir with the assistance of the Cabinet and courts exercise judicial authority independently. It is worth noting that in 1916 Qatar became a British protectorate, which allowed the latter state to establish their own court system, independent from the local courts that administered Sharia law. Since October 2004, however, the judicial system in Qatar has been officially unified.

Labour Law in Qatar The relationship between employers and employees is regulated by Law no. 14 of 2004. The statute covers everything from wage regulation to the rights of employees in the workplace, including the requirements for employment of both Qatari and non-Qatari residents and appropriate grounds for dismissal. By all accounts the statute is in line with the Qatar’s responsibilities under international law – the state has ratified five out of eight International Labour Organisation Conventions. Nevertheless, in the wake of preparations for the World Cup it was discovered that workers involved in building facilities and stadiums for the event were paid as little as €6 a day and worked up to 30 days a month, in direct violation of the country’s labour 19

laws. In addition, the accommodation facilities tend to vary greatly depending on the company providing them. While some companies choose to invest in appropriate housing, most do not. It is also worth noting that some of the best accommodation is provided following the reasoning that well-settled workers are more productive, with little consideration for their basic human rights. Given that such violations breach both international and domestic statures, the question that arises is how and why this type of behaviour on the part of employers is not being policed by the state. As pointed out by Amnesty International, the problem lies less with “the actions or failures of [individual employers]” and more with the “systemic problems in the way migrant workers’ employment is regulated, and the procedures [required] for them to obtain identity documents and leave the country.” Thus the problem does not lie in Qatar’s labour law itself so much as in the kafala (sponsorship) system which is partially codified in Law no.4 of 2009 Regulating the Entry and Exit of Expatriates in Qatar and their Residence and Sponsorship. The statute as well as the system itself exclusively affect the working conditions of expatriates, and allow for practices which at times can be in direct conflict with the official labour law.

The Kafala System – a culture of exploitation The aforementioned statute sets out that every expatriate who is to be granted a work visa in Qatar must have a sponsor, whom must also be their employer whether they are a Qatari national or a company established in Qatar. The main official powers held by the sponsor are: the ability to prevent their employee from changing jobs, the power to forbid their employee from leaving the country and the authority to terminate the worker’s employment or residence permit at any time. Yet the system as a whole transcends the boundaries of the statute. Sponsors often use their power and influence to bypass the protection provided on paper by both national and international labour laws. The main disabling factor of this phenomenon is the inability of abused migrant workers to transfer their employment or leave the country when they wish to.

This happens in part as a result of the charge of ‘absconding’ as detailed in Article 11 of the 2009 statute Regulating the Entry and Exit of Expatriates in Qatar and their Residence and Sponsorship. It states that:

PHOTO 1 : CONSTRUCTION WORKERS ARE SUBJECTED TO SUBSTANDARD LIVING CONDITIONS PHOTO 2 : BUILDING ©

“Any expatriate permitted to enter or reside in the state for a particular purpose or for business with any particular entity shall not act in breach of the relevant purpose and shall leave the state upon the depletion of such purpose, the completion of such business or the cancellation of the residence for any reason whatsoever.” The circumstances and seriousness of the breach are largely dictated by the sponsor who decides what responsibilities the employee has towards them. The punishment, however, is enforced by the government, or more specifically by the Ministry of Interior, which, coincidentally, is also responsible for the provision on the protection for workers seeking to transfer jobs (and thus sponsors), or simply escape from abusive sponsors. The result of a charge of ‘absconding’ being levelled against an expatriate is most often long term detention, followed by deportation enabled by the Search and Follow up Department, a specialized branch of the Ministry of Interior. In a 2012 interview with Amnesty International the director of the Search and Follow up Department stated that out of approximately 12,000 workers charged with violations of the sponsorship law each year, only around 50 were able to successfully challenge their deportation orders. This suggests that there is an alarming lack of due process available to people who may be victims of exploitation.

Furthermore, the remit of the offence is greatly extended by the requirement of an exit permit. Qatar’s Constitution allows domestic law to have provisions limiting the freedom of residence and movement afforded to persons within the country and the 2009 statute sets out that expatriates must be issued with an exit permit whenever they want to leave the country for any purposes. The Ministry of Interior issues exit permits on the basis of a request filed by the sponsor, thus placing the mobility of expatriates solely within the hands of their employers. The system of issuing exit permits has recently been reviewed and has become easier to access, to the point where it is no more than a mere formality that should not take more than a few minutes, but the power afforded to sponsors is still very real.

Particularly within the construction sector as well as other low-income labour sectors, this ‘formality’ is coupled with a practice officially deemed illegal: passport confiscation. Article 9 of the same statute which implements exit permits makes the practice of employers holding onto the passports of their employees, after residence procedures are completed, illegal and subject to a fine of up to QAR 50,000 (€ 11,000). Nonetheless, according to a 2012 survey funded by the Qatar National Research Fund, out of 1,189 low-income labour migrants, 90% stated that their passports were being held by their employers and 21% said they “rarely or never” receive their salaries. Recently, the government has been improving the NEXUS FALL 2014 |

provision of services to migrant workers and mainly through electronic government services, in an attempt to make tasks such as securing residence permits and renewing residencies simpler and more accessible for expatriates. Part of this policy includes introducing electronic kiosks where workers can lodge labour complaints. However, the government has also introduced a phone application, allowing sponsors to quickly lodge complaints against missing or runaway workers. This procedure also encourages sponsors to submit the passports of absconding workers within 48 hours to the Search and Follow Up

Department, suggesting that the government is well aware of the practices of employers and is willing to indirectly support them. Indeed, a 2010 survey attempting to discern Qatari nationalsâ&#x20AC;&#x2122; opinions about the kafala system found that almost half wanted the system to be stricter. It is in this context that the human rights violations uncovered by Amnesty International, Human Rights Watch and other international organisations take place.

Reform to the system Some progress has fortunately been made recently with Qatar announcing that reforms to the kafala system would be introduced in a bid to improve the situation of migrant labourers. Changes such as replacing the sponsor system with a contract system, and increasing fines for labour law violations are more than welcome, but unfortunately they only scratch the surface of the problem. The government has, for the moment, remained fairly inflexible on the issue of exit permits, and has not acknowledged the need for a minimum wage standard. In addition, even the changes currently proposed need to be approved by the Shura Council first, with the preliminary target date for full implementation being in 2033, well after the end of the 2022 world cup. While it is worth hoping that the situation will improve in the future and it is important to note that the discourse triggered by international investigations should not be dismissed, Qatar has a long way to go before they can be deemed to meet basic labour and human rights standards in practice, like they do on paper.

The right to adequate food:

Reaffirming the commitment 10 years after the Right to F TEXT: CLAUDIA SKIBNIEWSKI If there is one thing humanity has in common, it is the `need for food´. Nutrition has been targeted as a keystone of human relations since ancient times and is understood as sacred for many cultures, being the epicentre of communities, policies, laws and religious rituals (Rukmani, 200:104). In recent history, the right to food has been codified in several international legal binding documents, acknowledging, at a global level, the importance of proper nutrition (Knuth; Vidar, 2011:9). Nevertheless, the understanding of this right differs widely depending on region, social class and cultural background. In light of the 41st session of the Committee of Food Security of the FAO held in October 2014, we celebrate 10 years since the publication of the Voluntary Right to Food Guidelines and revisit the key features of the right to adequate food. What is the right to food? The right to food is present in several international conventions. As a starting point, we shall look at

article 25 of the UDHR, which states: “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control” (UDHR, 1948:5). From this article, it is inferable that the right to food does not consist of an individual right in itself, but a part of a set of interrelated and interdependent human basic needs. Moreover, this right is further developed in article 11 of the International Covenant on Economic, Social and Cultural Rights, which introduces the responsibility that States bear towards the implementation of this right: 1. The States Parties to the present Covenant recognize the right of everyone to an adequate standard of

NEXUS SPRING 2014 |

Food Guidelines living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international cooperation based on free consent. 2. The States Parties to the present Covenant, recognizing the fundamental right of everyone to be free from hunger, shall take, individually and through international cooperation, the measures, including specific programmes, which are needed (ICESCR, 1966:7). Having seen that interdependence with other human rights and State responsibility are the two main parts of the right to adequate food, it is possible to affirm that the right to food does not only focus on setting a number of calories that must be consumed, but also the availability and adequacy of the nutrients. As

CLAUDIA SKIBNIEWSKI / LLB 1

such, the main elements of the right to food are availability, adequacy and accessibility (FAO, 2004:5). ‘Availability’ is understood as the production of enough food both for the present and further generations, thus emphasizing the responsibility that the international community has with regard to sustainable development. We could say that the right to food and all the initiatives derived from it are found in the framework of the principle of precaution, understood as a way to integrate all the spheres of development; social, economic and environmental. On the other hand, ‘adequacy’ relates to the quality of the food and its accessibility, taking into consideration non-nutrient factors such as the cultural dimension, religious values attached to food as well

as the customer’s perception (Ziegler, 2011:30). Lastly, ‘accessibility’ refers to the possibility for individuals to purchase nutritional goods, without it impacting accessibility to other necessities, such as housing or education. Under accessibility comes also the prohibition on discrimination, assuring access to food for everyone, regardless of their mental or physical condition (Ziegler, 2011:32).

amount of olive oil for the preparation of their meals, contrasting with northern European countries where butter is used as the main source of fat. If olive oil can be considered as an indispensable product for the diet of the people living in Southern Europe, it is of common sense that the national authorities of these countries provide subsidies to the agricultural production of this product, as well as control its market price. They will not subsidise the production of butter to the same extent, since its population does not regard it as a pressing necessity. In sum, three main obligations were identified in General Comment 12 by the ECSR and these were later assumed by the Right to Food Guidelines that was established in 2004: the obligations to protect, respect and fulfil. These obligations are not formulat ed in an absolute manner but are meant to be implemented ‘progressively’, aiming to achieve at least the minimum standard of being free from hunger.

National implementation The right to adequate food has been formally recognized by a vast majority of States; however, even if they recognize the existence of this right, it isn’t rightfully applied and extended to the citizens of each state. According to General Comment 12 of the UN Economic and Social Council of 1989, States have the primary responsibility to develop this right, as they are the most qualified entities to cater for the specific necessities of their citizens. As human rights are based on moral principles, and these are shaped according to cultural practices, the local dimension of this human right is of most importance and is evidenced in our daily consumer practices. For example, in Mediterranean countries, people use an extensive

Reaffirming the importance of the Right to Food Guidelines Major achievements have been accomplished since the adoption of the Voluntary Guidelines; it served as the main guide for governments in applying food security policies and it contributed greatly to the development of major international challenges, such as the Millennium Development Goals. As such, in its 41st report, the Committee of Food Security of the FAO reaffirmed that there was a general commitment towards the progressive application of the right to food. The Committee encouraged governments to promote policies that are in coherence with the Guidelines and it noted that nutrition is the essential element of food security. It also urged a further involvement on the part of governments in order to achieve a general minimum standard of food security. Nevertheless, in the coming years, special attention must be paid to some of the most vulnerable sectors of society: the integration of gender equality and women’s empowerment in the design of food policies as well as non-governmental stakeholders. PHOTO 1: FAO ©/ HENG CHIVORN PHOTO 2: THE SALVATION ARMY PHOTO 3: IEEE SPECTRUM PHOTO 4: UNIKTOUR ©

NEXUS FALL 2014 |

OPINION

TEXT: TIANA DANIELLE XAVIER / PHOTO: ARND WIEGMANN / REUTERS

THE ISSUE OF ISLAMOPHOBIA The term ‘ISLAMOPHOBIA’ was first introduced in the 1991 Runnymede Trust Report as an ‘unfounded hostility towards Muslims, and therefore fear or dislike of all or most Muslims.’ The report was based on the following views: Islam is monolithic and cannot adapt to new realities. Islam does not share common values with other major faiths. Islam as a religion is inferior to Western faiths as it is archaic, barbaric and irrational. It is a violent political ideology and supports terrorism. Debates on integrating devout Muslims into society are not uncommon in the world. As I haven’t delved deep into the subject, it would be unjust to say that I have the required knowledge to provide a solution. Providing a thorough analysis of pure truth would entail years of research into the teachings of the Holy Qur’an and into its correct contextual interpretation. This article does not hold a solution. It is not a biased 25

TIANA DANIELLE XAVIER / LLB 2

perception, nor is it written to persuade you to take a stance. It is simply a point of view. Truth be told, after deciding to write on this topic, I had trouble assembling my thoughts, yet I followed my instincts which I trusted would guide me through this piece. Even if, when interpreted in a non-contextual manner, there seem to be verses in the Holy Qur’an insinuating the use of violence (apart from self-defense), there are also these verses: “There is no compulsion in religion. Truth stands out clearly from falsehood; whoever rejects evil and believes in God has grasped the most trustworthy hand-hold that never breaks. And God is All-Hearing and All-Knowing.” (Qur’an 2:256) “...Whoever kills an innocent soul it is as if he killed the whole of Mankind. And whoever saves one, it is as if he saved the whole of Mankind...” (Surah Al Maidah, Chapter 5 Verse 32)

The teachings of Islam through a secular, modern and contextual interpretation are unequivocally peace driven. That being said, it is fundamental to ascertain which Islam I am speaking about. Is it the Islam that inculcates peace and is represented by the Holy Quran or is it the Islam as a totalitarian ideology, which leads to radical or extremist behaviour and is represented by a minority of ‘followers’? Should the latter, forming a true threat to society, even be seen as validly representing Islam? A religion, according to the Oxford dictionary is ‘the belief in and worship of a superhuman controlling power, especially a personal God or gods’. Another definition of religion states that it is ‘a pursuit or

interest followed with great devotion.’ These two definitions describe two different religions to me. The question is: what does religion mean to you? Contrary to what the media tells us, the power of choice gives you a much wider scope of comprehending reality. Many countries around the globe, let alone in Europe, are currently seeing the emergence of right-wing populist movements, which stoke hatred against Islam and exploit the fears of the people; this phenomenon is gradually finding more reception. How worried are you by these movements? Will they become established at some point? Perhaps so, provided you choose to do nothing about it. As Burke once said, ‘all that is necessary for the triumph

of evil is that good men do nothing’. There are a couple of fundamental questions that we should ask ourselves: are the religious components of Islam claiming to emanate peace really just a cover-up for all the other legal, political, social, economic and military components? Is it true that Islam is a violent political ideology that shares absolutely no common values with other cultures and is it in fact inferior to Western culture? Don’t cultural, nationalistic, social, political, and economic factors also influence religious radicalism? Is it really just a coincidence that acts of terrorism are evident mainly among Muslims? When realizing this, are we ignoring the fact that the vast majority of Muslims actually suffer more from acts of terrorism and violence than non-Muslims do? Is it right to subjugate women to confined rights? Do you have the right definition of the word Jihad? What is the correct definition? Is your definition similar to the definition of those us-

ing it to justify terror or the ones who use it merely as an inner struggle against themselves and their sinful desires? Should you be justified in your act of avoiding a Muslim for fear of hostile actions? Is it justifiable to categorize all Muslims as an identical group of people who are violent and who hold neither respect nor value for people other than their kind? Should you be justified for discriminating against religion and against people? Across Europe, such as France and Belgium along with certain regions in Spain and Italy, certain laws have been adopted that are contrary to the EU’s Employment Framework Directive which holds that different treatment on grounds of religion is discriminatory. These laws forbid Muslim women from wearing the burka (body-covering veil) or the niqab (face-covering veil apart from the eyes). Do these laws infringe on religious liberties? Or do these veils pose a threat to security and oppress women? AmNEXUS FALL 2014 |

nesty International issued a report entitled Choice and Prejudice: Discrimination against Muslims in Europe, stating that such laws institutionalize stereotypes leading to Muslims being denied employment and educational opportunities. There is no universal consensus on this, yet there are women filing cases for infringements of their liberties to wear what they please as a practice of religion. It seems ridiculous to declare that a devious and harmful act committed by a Christian or a Jew is induced by his religious teachings, instead of other factors surrounding him. In addition, it would be unreasonable to discriminate against all Christians or Jews on the basis of that single act. So why are we treating Muslims differently by associating these acts with Islam? Why are we disrespecting another religion that has existed for over 1400 years? Coming from a country of which the majority of the population consists of Muslims subject to Sharia Law, I am well aware of the atrocious remarks and acts performed by individuals who happen to be Muslim. Many of them have made Malaysia infamous with their downright ridiculous remarks, from the bid to ban Oktoberfest on grounds that it is offensive to the community, to attempts to issue fatwa’s (an interpretation of the Holy Quran and Prophet Muhammad’s teachings) declaring any organization or publication that promotes liberal and pluralistic religious thinking as unlawful and deviant to Islamic teachings. An organizer of an event received death threats for attempting to insult Islam when he invited Muslims to touch dogs. Yes, atrocious. In Malaysia, Malays are now in danger of being classified as ‘deviant’ if they have liberal or progressive views about life and the world. However, there are voices such as ‘Sisters in Islam’ that are speaking out against these people. Sisters in Islam is an organization that seeks to promote the rights of Muslim women based on the principles of equality, justice and freedom that are found in the Qur’an. Thus, which one of these groups truly represent Islam? Perhaps the more fundamental question is: is it for you to decide? Are you entitled to declare a religion that is followed in different ways by different people, a non-peaceful religion that is based on violence? Or rather, is it for you to uphold the freedom of religion and the right not to be discriminated against based on religion? 27

Just as Sisters in Islam exists in Malaysia, the Free Muslims Coalition exists in the US, the Muslims against Terrorism exists in Canada, the Ahmadiyya Muslim Community exists in UK, along with other organizations around the world and along with fatwas and other statements issued which condemn attacks on innocent civilians. Now, is it coincidental that they are largely ignored by newspapers, television news, radio news and other media outlets? The perception put forth here does not ignore the fact that there should be more of a global outcry by all Muslims, showing their rejection of radical acts that condemn their religion. However, even if you do not hear of these outcries, that does not justify ones act of condemning the Islamic religion or discriminating against it. Often this discourse is not a discourse between Islam and the West, or between Islam and other religions. It is a discourse between extremists of all religions and the moderates of all religions (as it would be absurd to ignore their existence). The threat of Islamization in the West should only be worrying if you agree with extremists that Islam is not a religion of peace. The only difference is that you are not a follower of that faith. What happens to the moderates, making up the majority of that faith, once you decide that Islam is not a religion of peace? What is the solution? Should they denounce their faith? Or should our society show more approval towards interpretations of the Qur’an that do take a genuine look at the Scriptures? Violent acts of terrorism and extremists claimed to be committed in the name of Islam are of no importance, unless you give them importance. They feed the fire of a phobia that should not exist. These claims find no basis in religion and should truthfully be seen as criminal acts, should you choose to denounce it and let your conscience prevail. You have the power of choice. Choose wisely. This isn’t purely an Islamic issue. This is your issue too. PHOTO 1: ACTION PRESS/ REX A demonstration against the building of a mosque with minarets in Mulheim, Germany. PHOTO 2: REUTERS Brussels: pasted signs are seen under an antiIslam grafitti during a protest against Islamophobia.

GENOCIDE

STORY

This story is purely a figment of imagination and is inspired by no real-life events!

Their screams rose high into the night. There were

dozens of them, intertwining to create a dark, twisted and absolutely frightening melody of anguish. She could see fires raging down in the village. A bright, red flame swallowed by the velvet satin of darkness. Irina didnâ&#x20AC;&#x2122;t flinch. She gripped the candle she had been holding tighter and pressed her eyes shut. She prayed, perhaps for the last time; she prayed with every single bit of life that she had left in her that she and her family might be delivered from what was to come. Yet she knew much about the hatred of men. Too much. So she prayed for strength instead. It grew quiet...they were coming for her now, for the last house of the village. She could feel them drawing closer with every passing second. The door made a loud bang as it hit the wall. She had known for a long time that this day might come, yet never in her wildest dreams had she imagined the feeling of absolute terror that rushed through her veins as she blew off the candle and turned away from the windows. She expected faces but she was left staring at nothing but dark masks and silhouettes that she could barely make out. It had gone pitch black when she had blown off the candle. In the deepening darkness she saw the end of a cigarette glow bright and then fade as one of the men flicked it to the ground and stepped forward to grab her arm with strength close to inhuman. Irina did not fight or struggle but let herself be pushed through the parting gathering of men. She felt the cold touch of a gun at the back of her head and shivered as they shoved her out the door. The sight that greeted her made her stagger and almost lose her footing. There was a line of people all standing facing her house. She looked at their frightened faces, some old, some young but all of them familiar to her. People she had grown up with, loved and cared for. For a moment, she felt like time had stopped in its tracks as she got lost in those eyes that

had once held joy and happiness, but they were now filled with fear. She raised her face into the night and sent out a silent scream of anguish, wishing with ardor that her prayers would be heard and that, however silly it might sound even in her head, the skies would part and a saviour would fly down to earth, engulfed in a beam of warm, bright, light. She longed to feel his soft wings wrapping around her, promising a life far away from this worldly sorrow, far removed from pain and suffering, even from death. The moment passed and she came down to earth with a shattering thud. The night was just as black as she had left it and the situation just as dire. A chill ran down her spine as she breathed in; the smell of death and rotten corpses filled the cold night air. The snow was cold beneath her bare feet, the wind stung as it hit her exposed skin but she wasnâ&#x20AC;&#x2122;t bothered, it made her feel a little more alive, for she was dead already. Her white hair was flown back from her face as she was shoved in line with the others. She had no fear left for herself, no pity to feel or tears to shed for she had lived a long and prosperous life; her only concern were the others, the NEXUS FALL 2014 |

STORY

ANA ARNAOUTOGLOU-AMZA/ LLB 2

TEXT: ANA ARNAOUTOGLOU-AMZA children, fathers, mother, brothers and sisters who had yet to experience the sweet taste of life. The men shouted at each other, their voices rough and emotionless. They were pushed into motion. She looked up at the dark skies and felt a pang of regret gripping her heart as she saw clouds covering the moon that she had so often gazed upon from the exact same place in the clearing. The footsteps of her fellow village men echoed in the night as they carried on walking in silence to the place that she knew would hold their death. They dared not speak, or beg for mercy for they knew all too well that they would receive none. She allowed herself to wander off amongst thoughts and memories of a time long since gone, before she cleared her mind and prepared for the horror that was to come. She looked around with blank eyes, and tried to shut herself off from the sobs and screams that had broken out amongst the people as they vaguely started distinguishing the pile of corpses that lay towards the edge of the clearing. Ghosts of those who had passed rushed by them as they kneeled in the cold 29

snow, just like the others before them had done, and tried with all of their might not to look down at the blood-soaked snow. The wind was now howling with an uncontrollable furry, making the trees bow and twist all around them. Under the cold touch of moonlight, it almost looked like they were dancing, a graceful and violent dance of death. Small clouds of steam formed in front of everyoneâ&#x20AC;&#x2122;s faces and even the men grew still and quiet for a moment, preparing themselves, taking everything in. They fired. She felt herself being thrown backwards by the sheer force with which the bullet hit her. The sharp pain faded away in seconds as she fell to the side, too weak to do anything else. The world swam around her and the night grew even colder and darker. A wolf howled in the distance; a perfect, lonely, awe-inspiring cry deep into the mountains. It almost sounded like it was mourning for their passing. A fitting welcome to the land of the dead, she though. She tried turning her head around, so that she may for one last time glance upon the woods that had for years served as a home to her but she could not. Irina closed her eyes as two men grabbed her feet and arms and carelessly threw her next to the others, no doubt thinking her dead. She was just another body, added to the already massive mound of cadavers. She allowed herself to cry a single crystal tear, as she felt the breath of life leave her body, for cruelty had taken hold of manâ&#x20AC;&#x2122;s heart. An entire people wiped out in mere days. Centuries of culture wiped off the pages of history... PHOTO 1: PAINTING BY JUDITH DAZZIO

SPOTLIGHT ON THE MIDDLE EAST: THE ISRAEL / PALESTINE CRISIS AND THE ICC’S REACTION

TEXT: LISA WEIHSER / PHOTO: MOHAMMED TALATENE - APA IMAGES

NEXUS FALL 2014 |

OPINION

LISA WEIHSER / LLB3

Misery − Bloodsheds − Humanitarian crisis

What is happening right now in the region?

Three words are simply not enough to describe the horrific situation that is ruling daily life of thousands of Palestinian people in Gaza as well as in the West Bank territory.

The recently escalated war began in June this year with the killings of three Israeli teenagers in the West Bank to which Israel quickly responded with air strikes in Gaza and numerous arrests of Hamas members in the West Bank. The most controversial aspect of the trigger of the conflict is that there does not exist unified evidence that ties the crime to Hamas. Despite Palestinian President, Mahmoud Abbas, statements that Mr. Netanyahu, Israel’s prime minister, has no proof of Hamas involvement, Israel holds Palestine and its so-called “terrorist organization”, Hamas, responsible. It didn’t take long until casualty offences skyrocketed and Hamas launched rockets towards Israeli villages as a revenge for the mass destructions caused by earlier Israeli air strikes.

In order to understand how the conflict escalated into such a humanitarian crisis, one must look far back in history to the development of the State of Israel and Palestine. As far back as the early 20th century, European Jews began escaping prosecution and moved into the former mostly Arab-Muslim region, which was part of the Ottoman Empire. Communal violence between Jews and Arabs reached a peak in 1947 and the United Nations approved the Partition Plan for two separate territories, Jerusalem remaining a special zone for both peoples. Therefore, what began as a relatively limited conflict rapidly evolved into a dramatic ground offence and Israel tried to justify its occupation of Gaza and the West Bank on grounds of security reasons to protect Israel from Palestinian attacks.

What is the role of the International Criminal Court in the conflict? It is a highly debated issue whether or not Palestine can bring a claim before the ICC on grounds of illegal settlements or war crimes committed by Israel on ‘Palestinian territory’. Millions of Palestinians previously residing in areas that have now been claimed by Israeli settlers had to leave their homes and move to other, non-occupied zones. Many Palestinians are determined to defend their land and homes with their lives in order to resist Israeli settlements, whilst others flee their homes and seek refuge in refugee camps in Palestine or in neighboring States such

as Lebanon, Syria and Jordan, hoping for a more peaceful life.

on the Montevideo Convention or any other established theory.

Due to Israel’s complex legal mechanisms allowing it to take control of over fifty percent of the land in West Bank, internationally known campaigns such as the “Olive Tree Campaign” help to defend Palestinian land, which has been abandoned and uncultivated by Palestinian farmers for a continuum of at least three years. The campaign, which is composed of thousands of international volunteers, plants olive trees on this so called “waste land” and seeks therewith to push back Israeli settlements. One might think that this is practice isn’t allowed, but Israel legally supports the annexation with the by Israeli lawmakers almost unaltered 1858 Ottoman Land Code. Altogether, those laws aim at governing several areas related to acquisition of territory, its utilization and disposition, including State owned land.

Assuming the Court takes the 1933 Montevideo Convention as a guide, Palestine should possess “… (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states.” It then can be argued that due to its scattered territory constituting rather pieces of land instead of a uniform territory and clear territorial delimitations of Gaza and West Bank, Palestine does not fulfill the criteria. Since these criteria are just one of many and also subject to broad interpretation, not all hope is lost for Palestine just yet. It could still become a member if it applied and accepted the courts jurisdiction regardless of Israel’s non-ratification of the Rome Statute, which leads to another important question.

If Palestine was allowed application to the ICC, the Court could prosecute all major international crimes committed since its establishment in 2002, which might have dramatic consequences for both Israel and Palestine in terms of international law violations. Since Palestine’s first unsuccessful application to join the ICC in 2002, Palestine’s status of a ‘non-State’ has evolved. In 2012 Palestine was finally officially declared a non-member observer state. In order to attempt to shed more light on the role of the ICC in this conflict, two pivotal questions must be considered.

1. Can Palestine as a non-member observer declared by the UN General Assembly become a member of the ICC Statute? According to Article 4 of the UN Charter, membership to the UN is available to all peace-loving States. The term non-member observer puts Palestine in a state of limbo as to whether or not it is considered a State. Neither the Security Council nor the General Assembly have dared to directly address the matter. While the question of statehood has never been the ICC’s competent area to rule upon, the ICC Statute does not suggest any criteria for determining statehood. As a result, the prosecutor of the ICC is free to determine Palestine’s status under the Statute based

2. Could the ICC rule, regardless of Israel objecting to the investigations? In view of the by the ICJ Monetary Gold principle which extends as much to the ICC as well as to other tribunals operating in the field of international law, the Court has no such power to exercise jurisdiction when legal interests of a non-consenting state are at stake. This again makes international law encounter increasing international legal gaps unable to be filled without the consent of States. Further regard must be had to the nature of the crimes committed and whether they fall under the four major international crimes dealt with by the ICC. The settlements by Israel on Palestinian territory formally referred to, as ‘transfer’ constitute a grave breach of the Geneva Convention under Art. 8(2)(b) (viii) Rome Statute. Thus, the problem is that Israel officially has only established settlements in Area C, which does not belong to Palestinian territory, since Palestine has declared it an Israeli administered area in the Oslo Accords. Moreover, Israel claims that it cannot control all settlements including unofficial ones beyond Area C and therefore foregoes responsibility for any settlements further their administrated zone. As a result, carrying out investigations on grounds of illegal

NEXUS FALL 2014 |

PHOTO 1: MARCO LONGARI/ GETTY IMAGES PHOTO 2: LISA WEIHSER 1

settlements and the illegal Apartheid Wall as mentioned in the ICJâ&#x20AC;&#x2122;s Wall Opinion, would lead to no satisfactory result for the Palestinians. Rather, eventual investigations should focus on the humanitarian side of the conflict and Israelâ&#x20AC;&#x2122;s obligations under the Fourth Geneva Convention pursuing which it needs to protect civilians of the occupied territory of Palestine, regardless of the status of the territory on which they reside. Besides International Humanitarian Law provisions, the founding instrument of International Human Rights Law, namely the Universal Declaration of

Human Rights from 1948, which Israel ratified, holds Israel responsible. The founding provisions have been incorporated into several conventions and hold Israel responsible for not respecting the right of every person to freedom of movement, to work, to an adequate standard of living, to education, to adequate healthcare and to family life. These provisions can be argued to having been violated by Israel since it is not only required to respect these rights on its own sovereign territory, but just as much it is required to apply them to persons living under its occupation and control.

International political pressures on the ICC rulers for alleged war crimes, which the ICC rejected It is evident that political interests of primarily Israel itself and the United States of America play an important role in the situation. Also France and the United Kingdom have expressed deep concern about the resort to the ICC, as according to them it would undermine final peace negotiations. “The argument that Palestine should forego the ICC because it would harm peace talks rings hollow when 20 years of talks have brought neither peace nor justice to victims of war crimes,” said Joe Stork, deputy Middle East director at Human Rights Watch. “People who want to end the lack of accountability in Palestine and deter future abuse should urge President Abbas to seek access to the ICC.” It is shocking and almost ironic how three of the world powers can credibly suggest that continued impunity for major international crimes helps bringing an end to the conflict.

What would be the consequences of Palestine bringing a case against Israel? If Palestine succeeds in bringing the ICC to investigate and examine the situation in this area, one could argue that Israel will finally be held responsible for their acts and the investigations would put an end to Israel bending international law to its advantage. Additionally, the ICC would then subject Israel’s legal innovations to judicial review. On the contrary, the ICC is not almighty and only has complementary jurisdiction, thus it would be powerless if Israeli national courts decided to try and to decide the cases themselves. A famous example for this situation is Libya and the trial of Saif al-Islam Gaddafi, the State’s former leader. Libya has refused to leave him to the ICC since the arrest warrant in June 2011. Even though there does not seem to be any movement toward a fair full trial, once again, it becomes apparent that the ICC certainly is powerful but only as long as the State consents. Another situation, which could tremendously impact the situation in the Palestine and Israel conflict, is the Egyptian precedent. Former Egyptian President Morsi had asked the ICC to prosecute the States current

on the grounds that Morsi has no ‘effective control’ of Egypt any longer and cannot act on behalf of Egypt. The exact same rationale would fit the Palestine situation where President Mahmoud Abbas might not have ‘effective control’ over the Palestinian territory either. Nevertheless, speaking from a reasonable person’s standpoint, if there is a choice between a legal intifada where court proceedings decide on the legal situation in the area, and an actual intifada, in which civilians are being killed and the suffering reaches a peak in the conflict, the former should naturally be preferred. Even though Western powers among which the United Kingdom and France are the biggest contributors to the ICC budget, threaten to halt their donations, Israel’s impunity for clear violations of international law needs to end immediately. This would finally lead to the promotion of an eagerly awaited peace process in the area and simultaneously maintains the integrity of international law and the ICC. Therefore, on the one hand Israel would surely have to count with severe punishments for ongoing attacks on civilian targets and especially for the air strike aimed at destroying schools amongst which there was the UN school, killing at least 19 people who had sought shelter there. On the other hand, Palestine cannot expect to being treated as the only suffering party in the conflict either and has to anticipate punishments for launched rockets towards Israeli territory forming part of war crimes under the Rome Statute. Even though Hamas has far less precise and sophisticated weaponry than Israeli forces, the ICC will not disregard the revenge.

My personal experience during my summer in the region The conflict started whilst I was spending my summer travelling around Israel and Palestine. Having been directly confronted with the happenings and as to what I have experienced, on the one hand I surely felt great tensions between the two nations because of both sides attacks but on the other hand when talking to both, Jews and Arabs, they sometimes feel shameful for their governments and rulers, and ask themselves why it seems so impossible to pursue the NEXUS FALL 2014 |

A Palestinian boy looks at statues made of fibreglass and covered with clay in the east of Gaza City, by Palestinian artist Eyad Sabbah. They depict his countrymen fleeing their houses from Israeli shelling during conflicts between Israel and Hamas. PHOTO: MOHAMMED SALEM - REUTERS

roadmap for peace. Civilians are being killed every day and the disaster can no longer be carried out on the shoulders of innocent people. Without the courts intervention, there exists too much distrust and too much division between the two governments to be able to solve the conflict any time soon. Having met a Palestinian refugee, Muhanad Quaisy, who is currently working for the â&#x20AC;&#x2DC;Joint Advocacy Initiative: The East Jerusalem YMCAâ&#x20AC;&#x2122;, I used this opportunity to ask him more about the situation inside the camps. He told me about just one of many refugee camps in Palestine, named Deheishe. Today, this camp accommodates 15,000 inhabitants facing severe everyday problems. According to Mr. Quaisy, the misery cannot be denied any longer and since the camps are still controlled by Israel, water supply is 35

short, trash piles up in the streets due to nonexistent waster disposal, medical equipment and medications are short and schools cannot cope with overcrowded classrooms making efficient teaching impossible. To my chance, I also got to interview a former Israeli politician and politics scholar; when I asked for his opinion about the role of the International Criminal Court in the Israel Palestine conflict, he responded saying that he thinks it is very unlikely that Palestine will resort to applying to the Court. He firmly believes that Palestine is merely threatening Israel in order to raise attention in the international community hoping for the change of opinion about Israel and its actions.

OPINION

MAKING THE SAME MISTAKES: The importance of the rights of indigenous peoples TEXT: JILL VAN DE WALLE / PHOTO: GETTY IMAGES

“

On the 22nd and 23rd of September this year, the United Nations held its first World Conference on the Rights of Indigenous Peoples in order to finally commence the pursuance of the objectives of the United Nations Declaration on the Rights of Indigenous Peoples, and additionally, to increase attention for this forgotten issue in Human Rights protection. Whether or not the conference will really have substantive and lasting results remains to be seen, but at least an independent platform of discussion was given to the representatives of no less than 370 million indigenous people; the forgotten five percent of the world’s population.

Who are indigenous peoples? The most prominent historical example that comes to mind concerning the abuse of indigenous peoples is the killing and enslavement of the native peoples of the Americas that occurred with the expansion of the Spanish and the English empires. Nowadays, the general image of “indigenous peoples” seems to be that of forgotten tribes in the depths of the rainforest, closer to hunter-gatherer-like societies than to our modern ones. However, this does not come closely to the truth, as these 370 million indigenous peoples are spread out over more than 70 countries,

NEXUS FALL 2014 |

Given the fact that indigenous people are extremely diverse, an official definition has not been adopted by any of the UN system-bodies. However, indigenous people are commonly referred to as those people who inhabited a country or a geographical region at a time when people of different cultures or ethnic origins arrived. Those who arrived mostly established their dominance through conquest, occupation, settlement or other similar means. Several well-known examples of this practice involve western powers. Indigenous peoples often found their culture and lands overridden by more dominant cultures which thought them to be more â&#x20AC;&#x153;primitiveâ&#x20AC;?. This mind set tends to be the root of the problem.

The Example of the Indigenous Peoples of West Papua

JILL VAN DE WALLE / LLB 3

and live within many different climates, societies and cultures. The issue does not only concern far-away forgotten places, but also many important international actors. Examples of countries which are home to indigenous populations are Australia, Finland, the United States, Russia, Japan, Israel, Brazil and many, many others. Therefore, the issue of indigenous peoples concerns the national policy of a substantial part of the worldâ&#x20AC;&#x2122;s states. However, its impact is not solely national, as the rights of indigenous peoples closely concern environmental issues and many other grave human rights violations such as genocide and crimes against humanity, all issues that are in need of international attention.

A good example to show the gravity of the issue concerns the country I am right now: Indonesia. This is a country which is the home of many different tribes who all live spread across the different islands of the archipelago. However, even though Indonesia is home to so much diversity, the government does not always support this fact as much at it appears to. The most dominant example concerns many of the tribes located in West Papua, the western half of the island of New Guinea, where a struggle for independence has affected the indigenous peoples of the island for nearly 30 years. What actually happened in these years is unknown, as the island is closed for foreign journalists. However, military forces have been widely used in the region and it is under strong military control by the Indonesian government. Allegedly indigenous peoples are forced to migrate, as there are many reports of the rejection of land and property rights by the indigenous population. The Indonesian government is accused of the systematic killing of the peoples to suppress the resistance and the independence movement. Amnesty International estimates that more than 400,000 individuals have been killed in the struggle. Indigenous peoples are in need of international attention because of their interrelation with other international issues. Phenomena such as economic globalization and climate change can have severe impacts on indigenous peoples. This is why so many

indigenous peoples’ rights are violated for reasons no less than to obtain certain resources from their native lands. The same can be seen in West Papua, where the land is rich with minerals and forest, which has encouraged logging and deforestation to enable the production of resources such as palm oil. Indonesia is the world’s biggest producer of palm oil, providing about half the world’s supply. Palm oil is used in much of the processed foods that we consume daily. Destruction of all these national resources trough corruption and deployment of force does not only concern the indigenous peoples of these areas but therefore also concerns many other important environmental issues. Through the protection of indigenous peoples’ rights to their land, the actual resources will effectively be protected, as indigenous peoples have lived on these lands in harmony for centuries. Other examples of the suppression of indigenous peoples are plentiful and are not contained to only one place. These include the denial of citizen’s status (e.g. Rohingya people in Myanmar), the denial of rights that other citizens enjoy such as the right to education and healthcare (e.g. average infant mortality among indigenous children in Panama is over three-times higher than that of the overall population) and many other forms of systematic and targeted abuse and killing .

Protection under International Law Indigenous peoples are arguably one of the most disadvantaged and vulnerable groups in the world today and therefore in need of specific protection. Since it concerns many people not contained to one geographical region, many relevant international issues, and a great deal of essential human rights violations, protection under international law as opposed to national law seems necessary. It has long been an issue in history, although it was deemed quite logical by Western powers in the era of colonialism, to take dominion over countries with cultures labeled as more “primitive” than those of western societies. This changed after World War II, when the claim of a superior Western civilization was questioned. European countries began to concede territories, and many indigenous groups started to move towards a stronger collective belief that they should have more rights to determine their own destiny.

The protection of their rights under international law started with Convention 169 of 1989, under the International Labor Organization (part of the UN system), concerning important laws regarding tribal peoples. This convention obliged governments to identify the lands and protect their rights, concerning their land ownership. Moreover, and although this is just a first step, it ensures recognition of tribal peoples’ cultural and social practices and guarantees respect for these customs and for their natural resources. It is an effective tool for protection of indigenous peoples rights, however, only 22 countries have ratified the convention thus far, with many important states refusing to ratify it, immobilizing the convention. As mentioned in the introduction, the UN has recently adopted the United Nations Declaration on the Rights of Indigenous Peoples (adopted 13 September 2007), hereby recognizing the need to acknowledge the urgency of the issue. As we know, a General Assembly Declaration is not a legally binding instrument under international law. However, it does demonstrate a development of international legal norms and a commitment of the member states to move into certain directions. Nevertheless, whether this is actually the case remains to be seen. There was, naturally, much criticism directed towards the declaration. This mostly concerned issues such as the right to self-determination, access to land, territories, resources and the lack of definition of the term “indigenous”, problems which all resurface every time the discussion is re-opened. This concerns certain practical matters, such as the possibility of abuse of the ability to nullify national law and the ignorance of the rights of third-parties on land and other cultural objects. Australia argued that certain practices can be hard to accept, such as customary corporal and capital punishment. The declaration was nevertheless endorsed however, since it is not binding, but this does not cede these objections which remain important. Practical issues such as these increase the difficulty of the acceptance of an actual binding piece of legislature that will ensure the protection of the rights of indigenous peoples definitively. PHOTO 1: ROMEO GACAD/AFP/GETTY IMAGES PHOTO 2: MATTIAS KLUM/NG/GETTY IMAGES PHOTO 3: AFP

NEXUS FALL 2014 |

A tribe in Papua was exploited by a palm oil plantation that paid just $934.16 for 14.2 hectares of forest, environmental groups have said. (Picture to the right) 3

Conclusion History shows us how long indigenous peoples have been subject to violations of rights and targets of practices such as ethnic cleansing. This is not a problem that occurred between the colonizing British and the Native Americans, it is a modern-day problem that is too often forgotten, since it concerns national struggles often silenced by States. A horrific example is that of the Tibetans in China, who protest through self-immolation. We look back with horror to the killing of the Native Americans for farming land and the Amazonian Indians for rubber plantations. However, nowadays, we should look with horror to the systematic removal of the indigenous peoples of West Papua from their lands in order to produce palm oil. The story did not change.

A group that is as systematically and constantly targeted as indigenous people is in need of better protection under international law and more attention should be given to the issue to promote awareness. With effective legislative matters, which protect land rights and cultural identity whilst keeping in mind practical matters, a change could be made. The first World Conference on the Rights of Indigenous Peoples has been held, and everybody agreed the issue deserved more attention. From here on out, actual steps should be taken and binding legislation should come into place. One can not repeat history forever. For more information: organizations that work hard on the rights of indigenous peoples and that are worth mentioning and following is the United Nations Permanent Forum on Indigenous Issues (http://undesadspd.org/IndigenousPeoples.aspx) and Survival International (http://www.survivalinternational.org/).

DEBATE :

SHOULD THE INTERNATIONAL COMMUNITY INTERVENE IN SYRIA?

With current developments in Syria, we are yet again faced with the unfortunate task of finding answers to these questions. What is the motivation that lies behind a war? Is it power, resources, religion or a desire for independence? Perhaps I am looking for a simple answer to a far more complex question. Is there even an answer that reflects the definitive truth? Or is that truth influenced by our own perception of the world? ANA ARNAOUTOGLOU-AMZA/ LLB 2

The history of mankind has, for the better part of our existence on Earth, been written in blood. Empires of old were shaped by the edges of swords, wars were won with raging fires and destruction and real power was formed by alliances, complots and violence. Though we always strived for peace, it was never around. There came a change in 1648 with the Peace of Westphalia, which is considered to be, from an international law perspective at least, a landmark event in history. Aside from marking the end of the 30 years’ war in the Holy Roman Empire and the 80 years’ war between Spain and the Dutch Republic, it also brought to light a concept that remains up till this day key in international law: state sovereignty. In our modern day world, however, it is a generally accepted fact that it is nearly impossible for states to survive on their own without interacting with the international community. It is my firm belief that one State cannot exist without the other, as the world is interconnected to such an extent that a disturbance in one country (or several for that matter) will inevitably affect the general balance and functioning of other States. States are thus required to walk the fine line that divides safeguarding their own interests/integrity and complying with the requirements of international law. Needless to say, the establishment of exact boundaries to define that line has given rise to a number of difficult questions.

On the one hand, there is no denying that turning a blind eye to the suffering of so many people is desirable, nor humanly possible. We are all human, regardless of which part of the world we come from. It might not be happening to us, but that doesn’t make it less real or important. Is it acceptable for us to stand as spectators, watching the anguish and sorrow of so many, or do we perhaps stand bound by a moral duty to intervene? On the other hand, who has the ultimate authority to decide upon the fate and internal developments of a sovereign state? Do we reserve the right to pass judgment simply because we do not approve of the respective events? It could be argued that intervening in the internal affairs of another causes even more unrest and only helps to aggravate the situation, just like pouring gasoline over a fire. It is also likely that by not allowing a state to deal with its own internal struggles, this state will become dependent on other states with regard to obtaining and maintaining peace. Ultimately, we are all affected by what happens around the world, regardless of where we are. I strongly believe that people are what matter and whatever our course of action may be, it should always be in the benefit of those suffering. TEXT: ANA ARNAOUTOGLOU-AMZA NEXUS FALL 2014 |

DEBATE

Whilst I agree with the point made regarding the fact that we are all affected by what happens in the world, we must remember that in any decisions made on this matter, the Syrian people are those most affected. The recent developments in the Middle East involving ISIS have altered my opinion on intervention in Syria. Whilst I continue to firmly believe that intervention with the aim of removing Assad would not have a positive outcome, I do recognise, now more than ever, the need for a certain amount of intervention to protect the people of Syria who are now at the mercy of not only Assad and the terrorist-affiliated factions of the opposition, but also ISIS. I hold firm in my opinion that any intervention in Syria must have the protection of people as its sole aim and should not be hijacked by the political motives of the Western powers. TEXT: CAMERON WHITE

ALEKSANDRA MARKOWSKA/ LLB 2

CAMERON WHITE / LLB 2

My mother always used to tell me that whenever I really want to help someone, first thing I need to figure out is whether there is even a small risk that my help will cause some harm and, more importantly, if it’s expected from me. It’s not certain whether Barack Obama, Vladimir Putin, Bashar al Asad, or any of the powerful leaders got this lesson, but if they did, would that change anything? Currently, the biggest problem with an outside intervention is how to call it so that no one would make too much fuss about it: peacekeeping mission? Occupation? Self-defense? Maintenance of friendly relations? It’s barely ever about people and self-determination, democracy or fighting for a new better world. Mostly, this concept boils down to ambitions of one, most powerful percent of population, money, or positive outcome of profit and loss account. State sovereignty has always been considered as a foundation of international law, however, does it still hold that much value if the list of exceptions develops as the minority wish it to? TEXT: ALEKSANDRA MARKOWSKA

LIFE AFTER

GRONINGEN

ALUMNI

Rutger is a former LLB student at the RUG; he was part of the first Nexus Board, and later on the Board of Mentors. Currently, he lives in Hong Kong where he is interning at the arbitration department of an international law firm. RUTGER METSCH / ALUMNI

Now this is a story about how my life got flippedturned upside down… I was asked to write about my experiences after the LLB and, even though I think there are much more interesting topics you could be reading about (how about that 50 billion USD Yukos award?!), my ego could not resist the opportunity to dedicate a 1000- word ‘article’ to myself. To give you an idea of my surroundings at the moment, I am sitting in my 6 square meter windowless room in Hong Kong and I just got home from a brunch I was invited to by my colleagues to celebrate my graduation from the LLM programme. Memory lane by Nas is playing on repeat to really get the nostalgia flowing and, honestly, I am slightly hungover due to a proper Saturday night preceded by an eventful HK arbitration week. This is the real Nexus state of mind. Some of you might know about my affinity for Spider-Man (which turns out not to be as big a girl-magnet as one might think). To give this piece a bit of a Marvel twist: if I ever were to become a superhero, Nexus would be my origin story. I was part of the first General Board and afterwards I remained active as a mentor for

several years. During that time I very modestly called myself the ‘President’ of the Board of Mentors, even though I was the only member for the first year. I completed the LLB programme in 2012 and did a bit of everything after graduation. Initially, I worked at the customer service department of the Dutch Railways for six months, while setting up a small company specialising in tax services with a friend. Afterwards I travelled a bit, secured scholarships to fund my LLM, and even had a job in a factory where I sat in a production line putting lids on jars all day. Finally, through LinkedIn I was randomly approached for an internship at a consulting/recruitment/ training company, where I worked for two months before starting an LLM in Comparative and International Dispute Resolution in September 2013. Even though those experiences all seemed futile at the time, I am surprised to notice that I still benefit from a lot I learned that year in my everyday activities. I am currently interning at the arbitration department of an international law firm although how I got here is quite paradoxical. My LLM dissertation was about the nature of human cognition and the impact of NEXUS FALL 2014 |

‘bounded rationality’ on decision-making. More specifically, I researched whether certain cognitive biases might subconsciously affect an arbitrator’s impartiality. The basic concept of my argument (and that of many authors before me) was that individuals are inclined to rely heavily on flawed intuitive responses in their decision-making process and inadvertently rationalise their findings after the act. Therefore, I examined techniques to eliminate this reliance on intuition in arbitral decision-making. Nonetheless, I have to admit (with the benefit of hindsight) that my choice to specialise in international arbitration was made intuitively as well. During my exchange semester at the University of Vienna I attended a guest lecture on international arbitration that changed my plans to pursue a career in public international law. Upon my return to Groningen, I wrote my bachelor thesis on the recognition and enforcement of arbitral awards that – now that I actually know something about arbitration - was not as accurate as I thought at the time. A year later I applied for the arbitration specialism at the School of International Arbitration at Queen Mary, University of London. Studying at Queen Mary was a great experience and I am glad that it led me to my new favourite city in the world: Hong Kong. The first two months of the internship in HK have confirmed what I already knew about arbitration from an academic perspective: it’s fascinating! I enjoy the variety of legal issues raised in the disputes, the interpersonal cultural challenges, arbitration’s truly international nature, the strategic elements of case management, and the more technical issues such as TEXT: RUTGER METSCH

jurisdictional objections and questions of applicable law. I chose to apply for an internship rather than a full-time job because I wanted to find out whether the environment suited me before committing myself to a career path. Thus far, I must say that it is inspiring to work with people who genuinely care a lot about their job and therefore never complain about an additional hour in the office or explaining a complex situation to the intern. If you are thinking about applying for internships, I would advise you to look for a firms where they only employ one or two interns at a time. In my opinion, the goal of an internship is to learn as much as possible because I think we are at a stage in our careers where our sole aim should be to maximise our skills. No matter how good the name of the firm looks on your CV, achieving that goal will be more difficult if you have to fight seven other interns for the interesting tasks and responsibilities. After these three months in HK, I will move to Kuala Lumpur to intern at an arbitration centre. I am excited to see the same cases from another perspective, and of course to explore the amazing Malaysian beaches. I have no clue what I will do afterwards however. Hopefully, I will have the chance to attend a Nexus borrel in Groningen at some point. In any case, I can always go back putting lids on jars. I had a real talent for it. On a final note, since Nexus is all about networking: please feel free to find me on Facebook or LinkedIn if there is ever anything I can help you with.

TEXT: THERESA STIEGLER

LIFE AFTER

GRONINGEN ALUMNI

Theresa is a former LLB student at the RUG. After graduation, she did an LL.M in European Law at Leiden University, and today she works in the Secratariat General of the European Commission in Brussels.

After a great exchange semester, it was quickly back to reality and the moment had come to start planning the future. During the last few months of the LL.B, after doing some research, I decided to do an LL.M straight away and I thought that I had it all figured out. I had a few ideas on what courses I wanted to do and where, so I applied to different universities in the Netherlands and France, for different programs. After a few changes of plan, I ended up choosing to stay in the Netherlands to do an LL.M in European Law at Leiden University. When I arrived, it turned out I wasnâ&#x20AC;&#x2122;t the only one from my year to make that decision, it was nice to see so many familiar faces on the first day.

THERESA STIEGLER / ALUMNI

With regards to the LL.M, it basically focuses on the main parts of European Law (institutional and substantive law, human rights, external relations, etc.); it really complements what we learned in the LL.B courses. The University also has quite a few English masters so I was surprised to find that there was no student association like Nexus. To be honest, I have to admit that I did not like it at all most of the time, which is not the fault of the University or the rainy weather, and in the last few months I started to enjoy the town more and get more relaxed, which is probably also because the rain finally stopped in spring and sunshine makes NEXUS FALL 2014 |

everything better! It was rather the fact that I should probably have taken the year off to do internships after the LL.B to really think about where I want to go and what I want to do. I always thought I knew what I wanted to do, so I panicked a bit last year when I saw that I actually didn’t. I didn’t know if I wanted to continue moving country every three to five years like I had done most of my life, nor did I know what exactly I wanted to do with my life in general. I started focusing on a lot of other stuff and thought if I pursued my interests that I had in other subjects than law it would be better. I started playing with the idea of completely changing my studies to business management, at the same time as applying for different internships in law and in business fields. I am really happy I did not start studying something completely different and looking back at everything to where it got me now. A couple of months before graduation, I received a traineeship offer at the European Commission in Brussels and after thinking about it I took it. When I went through the application process, I really didn’t think I would get an offer, especially because I didn’t hear back from the selection office for a few months; the whole application process just takes a long time. I work in the Secretariat General and more specifically in transparency and access to documents. The files I deal with everyday vary so much in terms of what they are about that it never gets boring, everyone in the unit has been very friendly and there is a great atmosphere. So far, it is an amazing experience and the work is really interesting; it is very different from what I thought European Law was at university and it is really fascinating 45

for me to see it in practice. For some reason, the EU institutions were always so far away in my mind that I never pictured to be working there, but I am really happy to be here now, especially with the new Commission starting soon everything is always very exciting. It also shows me that I did study the right thing and that, in the future, I would like to keep working in one of the institutions or in other international organisations. But who knows where I will end up or where I will stay. I am really glad that I made such good friends in Groningen, mostly through Nexus, with whom I am still in contact now and occasionally meet up with, even if we are scattered all around Europe. In the end I saw that the best thing to do was just to chill out and stop stressing so much about things that haven’t happened yet. Apart from that, during the year I also realised that there is probably no straightforward way into the future. Looking at the other Nexus Alumni, everyone goes in different directions, and I guess that is possible because the LL.B gave us a broad education where we have so many options on what to do afterwards. That would also be my advice to you, it is not the end of the world if you are not sure where you are headed or what you want to do; just enjoy your time in the LL.B.

If you have any questions, if you are freaking out or happen to pass by Brussels feel free to contact me: theresa.stiegler@me.com

TED

TEDTALKS

TEXT: NATHALIE BIENFAIT

Ngozi Okonjo-Iweala on ‘Aid vs. Trade’

NATHALIE BIENFAIT / LLB 1

For many, helping what we call the ‘developing world’ is something we only think about when the news or our studies require it, while for others it is a full-time job. In this TED Talk, politician, economist and formerly one of the managing directors of the World Bank, Ngozi Okonjo-Iweala, a native Nigerian, is addressing a conference on the future of Africa. In the course of her speech she considers different sides of the debate about whether to give the developing world help through aid programmes, or through trying to engage them in international markets, producing their own capital. There are many different aspects to this debate. For example, one must consider the classic argument that we, as the more privileged in the world, should ensure that our wealth is distributed in a fair way, through simply giving money to

LEDCs. On the other hand, we could give developing countries the resources to engage in international markets, meaning they could make their own capital and contribute to their own economic standing within the world, however, as pointed out by Okonjo-Iweala, if Africa (in particular) does not know how to use its aid to its advantage, it will take a lot longer for it to learn how to do the same with trade. Okonjo-Iweala’s main point is that aid is not always the answer for the populations of developing countries - although she acknowledges the vital role played by relief organisations, she cautions against the imposition of western values through well-meaning, but misplaced aid. She tells a very moving story about her sister whose life was saved during the Nigeria-Biafra war by a NEXUS FALL 2014 |

doctor giving aid; her sister is now a physician saving other lives, acting as evidence to her argument that, employed wisely, Africa’s aid can be used towards the benefit of the continent. On the other hand, it is clear that aid can be a patronising and unpleasant fact for those on the receiving end; Okonjo-Iweala ends the story about her sister by pointing out that “if it is a loved one [whose life is in danger] you don’t care whether it’s aid… you don’t care!”, demonstrating that, no matter how badly placed some aid can be, its humanitarian effects cannot be underestimated. It is hard to disagree with the argument for aid because of the moral standing and generosity it entails. However, as demonstrated by Okonjo-Iweala, aid programs can create ill-feeling among the recipients. She reprimands these people by saying “when [countries like the US and UK] try to give back, we shouldn’t be on the defensive”, because Africa especially has been giving aid to western nations for centuries. “The US and the UK could not have been built today without Africa’s aid”, although we may think that we are the ones who give aid, Africa’s resources, people and capital has been sucked out of the continent since the beginning of colonisation. For example, slavery and the production and trade of sugar, cotton, tobacco and coffee have all meant that Africa has never been able to establish itself and create global industries such as those which have been carved by China and India. Okonjo-Iweala also reminds us that Africa and other Less Economically Developed Countries (LEDCs) do not always use the aid which is given to them in the most effective way. She cites the example of Spain, a developed country, which has recently received $12 billion in aid and has spent it on road networks and infrastructure in the south, resulting in the transformation of this area into a “services economy”. Her message is both hopeful and profound - that if Africa, like Spain, takes the aid it receives with both hands and uses it wisely, it would be able to transform itself and its people into an economic superpower. On the other side, the debate rages just a strongly as to whether trying to engage Africa and other LEDCs in trade relationships would be a better solution to help the continent. Many theorists argue that, if developing countries are active in their own development it leads to a stronger economy and sense of 47

national identity. They use evidence like the ‘Asian Tigers’ (Hong Kong, South Korea, Singapore and Taiwan), countries which have used trading markets to dramatically increase their GDP. Okonjo-Iweala points out that Africa “needs to create its own programmes to fight corruption”, because often countries do not have the structural capabilities yet to support economic development of this kind. Furthermore, she draws attention to rich individuals within the continent of Africa, pointing out the problems that their well-meaning philanthropic ventures can have on the continent: “I’m not really sure that their assistance is being channelled in the right way.” She reprimands the governments of Africa for not sitting down with these individuals and directing their money towards worthwhile and intelligent causes. Her main point, however, is one of combination. She argues that we need to “bring it back and say what the combination is of all of these factors which are going to yield what we want.” Thus, she suggests that although the debate is an important one, theorists who lean too heavily to either side cannot be right even though aid is important and trade is important, she argues that this debate is too “simplistic”, in other words we need to be more imaginative in our help for the developing world and be careful about imposing our own values onto their development. To conclude, Ngozi Okonjo-Iweala paints a powerful picture of Africa’s situation in regards to the effectiveness of aid and how it can be used to further Africa’s economic situation. Although she acknowledges its role, she strongly supports the argument that aid is not always the answer: “we need to bring it back and say what is the combination of these factors which is going to yield what we want.”. The message we, as the western world, need to take away from this speech, therefore, is one of humility - simply because we may be richer than LEDCs, does not automatically give us the right or the expertise to ‘generously’ shed money and hope it goes to a worthwhile cause; instead we need to intelligently engage this debate in order to have a real effect on improving equality in the world, otherwise this situation will only become worse. PHOTO 1: TED PHOTO 2: UN PHOTO / TIM MCKULKA

OPINION

HONG KONG PROTEST

PLAYING THE WAITING GAME WILL NOT BEND

CHINA

TEXT: BART VAN DER GEEST / PAINTING BY QUEENIE CHAN

The pro-democracy protests - also known as the Umbrella Movement - that have roiled Hong Kong’s streets for the past few weeks have proven to be unlike any challenges the Chinese authorities have faced since Tiananmen Square in 1989. Since September, thousands of students have been camping outside on the streets to protest against China’s unwillingness to give Hong Kong genuine democracy - something it has vowed to do since Hong Kong’s handover from Britain in 1997. Beijing promised to give the citizens of Hong Kong universal suffrage by 2017 for the election of Chief Executive of Hong Kong, but has recently pulled back its decision. Now, voters must choose from a list of pre-approved candidates which will be selected by the Standing Committee of the National People’s Congress (NPCSC). Since its handover, Hong Kong has been governed under a “one country, two systems” agreement that guarantees the territory special privileges such as universal suffrage and the liberties of freedom of speech and freedom to protest. Article 45 of The Basic Law, the city’s Constitution, holds that the Chief Executive shall be elected by “universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic values”. It is Beijing’s conservative interpretation of this line that has brought many angry Hong Kong citizens

onto the streets. There are currently fierce debates over whether or not China has violated the letter of the law. Chinese officials claim this is not the case, pointing out that they are simply implementing that what has already been agreed upon when the Constitution was drafted. Mr. Hoo, chairman of the Basic Law institute, told BBC News that China has not broken any promises. “The people on the streets are asking for the right to nominate,” says Mr Hoo. “Universal suffrage, under the international covenant, means that there are express rights to elect or be elected. There is no express right to nominate.” It should be remembered that, for the 155 years that Hong Kong was a British colony, the city was ruled from 6,000 miles away in London. All of its 28 governors were appointed by the British government. Therefore, although the British gradually introduced Hong Kong to the rule of law and the right to protest, the latter never enjoyed even a semblance of democracy. The idea of democracy only surfaced afterwards, when China adopted the Basic Law in 1990. Despite current conflicts, China has, in the 17 years since the handover, shown incredible commitment to the principle of one country, two systems. All of the rights which Hong Kong citizens enjoyed under NEXUS FALL 2014 |

BART VD GEEST / LLB 2

the British remain very much intact. It would be reasonable to argue that, for a long time, the Chinese have persisted using what can be best described as a hands-off approach. According to the Guardian journalist, Martin Jacques, economic issues are a major unspoken motivator of the protests. Hong Kong has lost its status of being the financial gateway to China. Until recently, it was China’s largest port; now it has been surpassed by Shanghai and Shenzhen, and Guangzhou will soon follow. Protestors are also concerned about the soaring costs of living, income inequalities and a growing wealth gap due to an intense migration of wealthy mainlanders. It is understandable that many Hong Kong Chinese are struggling to come to terms with these new realities. “They are experiencing a crisis of identity and a sense of displacement. They know their future is inextricably bound up with China but that is very different from embracing the fact. Yet there is no alternative: China is the future of Hong Kong” he writes. Though the protestors’ demands are not unreasonable or irresponsive, they must be immediately discounted. Beijing will not and cannot give Hong Kong’s citizens what it denies the rest of its citizens. It might sacrifice the territory’s current chief executive, 49

Leung Chun-ying, to ease the current tensions or it might make minor concessions, such as broadening the nomination process, but it will insist that Chinese officials retain ultimate control. The demonstrations in Hong Kong are of great concern to the Communist Party of China, simply due to the fact that every pro-democracy activist in China is closely following the developments. Giving Hong Kong democracy would encourage activists in other major Chinese cities to start protesting too. The only difference is that, outside of Hong Kong, the authorities are not construed by a democratic Constitution bequeathed by the British, which makes it easier for them to break up protests and arrest activists. Difficult questions arise regarding Hong Kong’s future, as neither protesters nor the central government are willing to lay down their demands. The protesters must accept, however, that there can only be one way forward, and that is that Hong Kong accepts the Chinese idea of “one country, two systems”, perhaps though with minor concessions. If China hopes to prevent any future protests, it will need to find more effective ways of arguing its case in front the Hong Kong public, because the democracy debate is not likely to go away any time soon.

Bibliography: INGO’s in infra-state conflicts Barber M, Bowie C, ‘How International NGOs Could Do Less Harm and More Good’ (DIP 2008) 18 Heyse L, ‘From Agenda Setting to Decision Making: Opening the Black Box of Non-Governmental Organizations’ (Ashgate 2011) Kopinak J, ‘Humanitarian Aid: Are Effectiveness and Sustainability Impossible Dreams?’ (2013) <http://sites.tufts.edu/jha/archives/1935> Lewis D, ‘Nongovernmental Organizations, Definitions and History’ (2009) <http://personal.lse.ac.uk/lewisd/images/encylciv%20societyngos2009-dl.pdf> Nunn N, Quian N, ‘US Food Aid and Civil Conflict’ (2014) <http://www.econ.yale.edu/~nq3/NANCYS_Yale_Website/resources/papers/FAidConf_20130806_FINAL.pdf> Steinsson S, ‘Terrorist and INGOs in Intra-State Conflicts’ <http://www.e-ir.info/2014/01/21/terrorists-and-ingos-in-intrastate-conflicts/> Tirone D, ‘Politics and the Effectiveness of Humanitarian NGO’s in Civil Conflicts’ (2012) <papers.ssrn.com/sol3/Delivery.../ SSRN_ID1916960_code1320229.pdf?> The World Bank, ‘Glossary of key terms’ <http://web.worldbank.org/WBSITE/EXTERNAL/TOPICS/EXTSOCIALDEV/0,,contentMDK:21154393~menuPK:3291389~pagePK:64168445~piPK:64168309~theSitePK:3177395,00.html> Werker E, Faisal A, “What Do Nongovernmental Organizations Do?” (JEP 2008) 22 UN, ‘Reconciliation After Violent Conflict: A Handbook’ < http://www.un.org/en/peacebuilding/pbso/pdf/Reconciliation-After-Violent-Conflict-A-Handbook-Full-English-PDF.pdf

Israel/ Palestine crisis and ICC’s reaction Charter of the United Nations, Art 4 Montevideo Convention 1933, Art 1 Rome Statute, Article 8(2)(b)(viii) http://www.dailymail.co.uk/wires/ap/article-2667889/Growing-criticism-Israels-West-Bank-operation.html http://www.bbc.co.uk/news/world-middle-east-13331522 http://www.jai-pal.org/en/campaigns/olive-tree-campaign http://archive.org/stream/ottomanlandcode00turkuoft/ottomanlandcode00turkuoft_djvu.txt http://www.btselem.org/gaza_strip/israels_obligations http://www.economist.com/blogs/pomegranate/2014/09/palestine-israel-and-court http://www.jpost.com/Arab-Israeli-Conflict/Hague-Day-brings-into-focus-decisions-by-ICC-that-could-have-major-ramifications-for-Israel-376007 http://www.nytimes.com/2013/01/30/opinion/why-palestine-should-take-israel-to-court-in-the-hague.html?_r=0

NEXUS FALL 2014 |

Rights of Indigenous People http://www.globalissues.org/article/693/rights-of-indigenous-people http://www.un.org/esa/socdev/unpfii/documents/5session_factsheet1.pdf http://www.culturalsurvival.org/ourpublications/csq/article/west-papua-forgotten-war-unwanted-people http://www.theguardian.com/global-development/video/2012/may/17/west-papua-indigenous-people-indonesia-video http://en.wikipedia.org/wiki/Palm_oil_production_in_Indonesia https://www.humanrights.gov.au/publications/un-declaration-rights-indigenous-peoples-1 http://undesadspd.org/IndigenousPeoples.aspx http://www.ipsnews.net/news/human-rights/indigenous-rights/ http://www.survivalinternational.org/ http://www.who.int/mediacentre/factsheets/fs326/en/ http://www.survivalinternational.org/law http://en.wikipedia.org/wiki/Declaration_on_the_Rights_of_Indigenous_Peoples

The Right to Adequate Food Knuth, L. and Vidar, M. (2011) Constitutional and Legal Protection of the Right to Food around the World. Rome: FAO. FAO (2014 ) The Right to Food: Past commitment, current obligation, further action for the future. Rome: FAO FAO (2004) Voluntary Guidelines to support the progressive realization of the right to adequate food in the context of national food security. Rome: FAO Ziegler, J., Golay, C., Mahon, C. and Way, S. (2011) The fight for food: lessons learned. Geneva: Palgrave Macmillan. Rukmani, T.S. (2000) â&#x20AC;&#x153;Literary Foundations for an Ecological Aesthetic: Dharmaâ&#x20AC;? in Key Chapple C and Tucker M. E (eds.) (2000): Hinduism and Ecology. Cambridge: Harvard University Press. UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 12: The Right to Adequate Food (Art. 11 of the Covenant), 12 May 1999 UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III) UN General Assembly, International Covenant on Economic, Social and Cultural Rights, 16 December 1966, United Nations, Treaty Series, vol. 993, p. 3

FINALLY WE WOULD LIKE TO THANK ALL CONTRIBUTORS, HELPERS AND READERS FOR MAKING THE COMPLETION OF THIS MAGAZINE POSSIBLE. WE ARE MAKING THIS MAGAZINE FOR YOU - YES, FOR YOU! THEREFORE, WE RELY ON YOUR FEEDBACK, COLLABORATION, INPUT, AND COMMENTS IN ORDER TO KEEP PRODUCING MAGAZINES THAT YOU WANT TO READ. SO, PLEASE BE IN TOUCH! NEXUS MAGAZINE COMMITTEE

NEXUS FALL 2014 |