University of Leeds Human Rights Journal - Volume 6, Issue 1 by Leeds Human Rights Journal

VOLUME VIHuman rights journal SUMMER 2018

LEEDS HUMAN RIGHTS JOURNAL

IN FOCUS: THE FORGOTTEN

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Cover Art by Md Akeef BSc International Business and Marketing - First Year Pictured here is a teenage boy helping a tourist carry their umbrella and showing him/her around a very popular tourist spot called Bicchanakandi in the Sylhet division of Bangladesh. Sadly, what he earns in a day will not help him provide for himself. The photo was meant to be a candid with him facing the other way. But he turned around and produced this peculiar expression which helped produce this powerful image .

LEEDS HUMAN RIGHTS JOURNAL A Multidisciplinary Undergraduate Journal

University of Leeds

Human Rights journal team Volume VI - Summer 2018

Managing Editor:

Anton Witchell-Chibber Final Year BA International History and Politics.

Editor-in-Chief:

Abhaya Ganashree Second Year LLB Law.

Online Co-Ordinator and Marketing Officer: Hannah Nagar

Final Year BA International History & Politics.

Managing Editor:

Rosa Morahan Final Year BA Philosophy and Politics.

Graphic Designer: Lily Scott

Second Year BA Film, Photography and Media.

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peer reviewers Geanie Cresswell Final Year BA English and Sociology Colum Dillon Second Year BA International History and Politics Rachael Dillon Final Year BA English Nina Harris Final Year BA International History and Politics Murray Hawthorne Final Year BA Arabic and Politics Winona Kang Final Year LLB Law Natasha Lyons Final Year BA English Literature Hannah Macauley Final Year BA Sociology Nathan Olsen Second Year BA Politics Elliot Ross Final Year LLB Law Iva Saramova Second Year LLB Law Matthew Walsh Second Year BA International Development and Spanish

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letter from the editor Dear Readers, Welcome to Volume VI of the Leeds Human Rights Journal! This academic year has been incredibly fruitful for the Journal. Having been a part of the Editorial Team for two years now, I have an immense belief in the Journal’s potential as the only one of its kind in the country. Needless to say, this Journal or any of the minor achievements along the way would not have been possible without the Editorial Team consisting of my Managing Editors, the Peer Reviewers, Online Coordinator and our Graphic Designer. The Editorial Board, consisting of Managing Editors Rosa Morahan and Anton Witchell-Chibber and myself, has been one of the best teams that I have been a part of. Both of them brought a great amount of dedication, enthusiasm and initiative to the job. At the start of the year, we agreed that we wished to increase the Journal’s reach both within the University and the wider community as well as promote its research culture centred around human rights issues. With this in mind, we set about launching a Human Rights Blog to complement the Journal as well as attempt to increase the circulation to the other White Rose Universities. Our online co-ordinator Hannah Nagar, another very important member of our team, has gone above and beyond what her role initially entailed. Her creative ability has indeed been an asset to our team in helping set up the blog as well as run our social media accounts. In order to connect with the wider university and promote research culture, we reached out to various groups such as the Undergraduate Research Experience and the European Centre for R2P. We also strived to strengthen our ties with clubs and societies that were concerned with similar ideas. This included strengthening our connection with the All Hallows Church in Hyde Park featured in the last volume, which will once again host the launch event and this time in collaboration with the Syrian Kitchen. I would like to thank both these communities for sharing in our vision and helping us host what promises to be a wonderful event on May 4th. The Church

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does some truly wonderful work to help the Leeds Community and I hope that future Editorial Teams strive to strengthen these ties. We were overwhelmed by the number of submissions we received this year – academic as well as creative. I would like to thank our Peer Reviewers for helping us promote the Journal as well as painstakingly reviewing each submission that came through. This edition also includes professional headshots of the team which were taken by Viktoriya Kerimidova. I would also like to thank Lily Scott, our graphic designer for designing this edition. Her dedication and hard work is what helped us get the Journal to print on time as well as keep up with the standard that previous teams had set. The funding for this edition was provided by the Department of ESSL and the School of History. I would like to thank Professor Jeremy Higham and Dr. Rafe Hallett for their support of the Journal. This letter would be incomplete without expressing our gratitude to Tess Hornsby Smith for being a fantastic mentor who gave our ambition a direction. Additionally, I would like to thank Mr. Martin Pelan for recognising the Journal’s potential. I am proud of how far the Journal has come in these two short years and am confident that it will only grow in the years to come. And lastly, I would like to thank Professor Amrita Mukherjee for her contribution based on the great work she has done over the years. It makes this edition all the more special. Applications for next year's editorial positions open on May 4th.

Editor-in-Chief, 2017-18.

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contributors Academic Charlotte Elizabeth Broadhurst Final Year Spanish, Portuguese and Latin American Studies Mailies Fleming Second Year BA English and Sociology Sandie Garland Final Year BA History Sara Green Second Year BA History Sam Jones* Second Year BA International History and Politics Mary Rogers* Final Year BA Philosophy and Politics Shaun Murray BA Law, Politics, and International Relations - Foreign Exchange Student Martha Scott-Cracknell Final Year BA Religion, Politics and Society Sugar Thomas Second Year BA English Literature Emma Walley Final Year BA Ancient History and History Jenni Whitaker Final Year BA History and French Chen Zhou Yen Final Year LLB Bachelor of Laws

Creative Parisa Patel Fourth Year MBChB Medicine Lucie Lequier Erasmus+ Year BA History Anees Malik First Year BA German and International Business * pseudonym

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contents Foreword Rosa Morahan, Anton Witchell-Chibber and Abhaya Ganashree The Definition of Torture: Lest We Forget Dr. Amrita Mukherjee

11 13

In Focus : The Forgotten ‘There are no human rights here!’: The experiences of exhaustion, violence, and existence of refugees in post-’Jungle’ Calais Jenni Whitaker Marginal Voices: Collectivising Sahrawi memory to uncover and overcome hidden human rights violations in the Western Sahara Sara Green What happens at sea, stays at sea: the unchecked human rights abuses of the shipping industry Shaun Murray Remembering the Massacres of Korea’s ‘Forgotten War’ Emma Walley

19 25 37 47

‘Disquieting’ Refugee: The radical influence of the figure of the Kosovan Refugee on human rights and nation-state sovereignty Sugar Thomas

Escaping Franco’s Shadow: An understanding of rebel and Francoist violence during the Spanish Civil War Sandie Garland

Considering the reasons behind crimes against women and the impunity of femicides in Ciudad Juárez, Mexico Charlotte Elizabeth Broadhurst

Modern Day India: Exploring the Caste System’s History and Continued Existence Parisa Patel

The Forgotten Palestinian Arabs of Israel Lucie Lequier

103

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A Closer Look An Uphill Battle: An assessment of the political power of the Arab minority in Israel Martha Scott-Cracknell

109

China’s human rights model as the ‘broken window’ effect Sam Jones

119

Agitating for Change: The Unlikely Case of China’s Human Rights Lawyers Mary Rogers

129

How sexual violence turned the dream of democracy into a ‘recurring nightmare’: An intersectional analysis of gender-based sexual violence in South Africa Mailies Fleming

143

The Ban on Headscarves: Justified by Stereotype? Chen Zhou Yen

153

There is still hope Anees Malik

163

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foreword This year, our team has endeavoured to take the Journal in a number of new directions, not least by introducing a theme. This was seen as a way of bringing some cohesion to an extensive field that can be difficult to define. The idea for 'The Forgotten' was conceived by one of our peer reviewers with the aim of bringing overlooked, undiscussed human rights matters to the fore. Having considered a variety of options for this year’s theme, we felt collectively that this was the most fitting, and the most timely. As Professor Amrita Mukherjee underscores in our lead article on torture, human rights abuses must not go forgotten and their importance should not be underplayed. Later articles illustrate how this risks keeping victims in a destructive loop, denying them justice and furthering impunity. The response to the theme was immense, and the initiative undertaken by students impressive. We were struck by the quality of work of all our contributors, not least the original research carried out by Jenni Whitaker (pp.19-24) and Sara Green (pp.25-36). In giving a voice to the refugees in post-‘Jungle’ Calais and the Sahrawi people respectively, both authors have made vital inroads in drawing attention to marginalised peoples in their struggle for rights and recognition. This is a truly international volume, with articles considering human rights questions from as far away as Mexico (Charlotte Broadhurst, pp.81-90), to as close to home as Leeds (Anees Malik, p.163), and as ubiquitous yet somehow inconspicuous as the international shipping industry (Shaun Murray, pp.37-46). One of the Journal’s strengths remains its multidisciplinary nature, and we are delighted to bring together a selection of students from across the sciences, to the humanities and the arts. Equally, the Journal prides itself in its ability to accommodate both creatives and academics. Medical student Parisa Patel’s research and accompanying photography explores the legacies of India’s caste system (pp.91-101), bringing a sharp, scientific perspective to a topic that is firmly within the public consciousness, but poorly understood. Meanwhile, historian Emma Walley’s angle on the Korean War of 1950-1953 (pp.47-57) invites us to reconsider an oft-overlooked area of the Peninsula’s past, bringing to light the abusive actions of American and South Korean governments, and enabling us to reflect on which narratives of history become dominant and why. The striking photography of BSc International Business student Md Akeef is woven throughout, which aims to underline the ‘forgotten’ effects of poverty in modern-day Bangladesh. In addition to our 'In Focus' theme, we felt that it was important to not exclude

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otherwise pressing human rights topics. With this, Sam Jones ponders the potential of Chinaâ&#x20AC;&#x2122;s party-state to steer international human rights norms (pp.119128) whilst Mary Rogers (p.129-141) draws attention to the small but formidable group of Chinese human rights lawyers going against this state-first grain. Whether this is your first foray into human rights, or youâ&#x20AC;&#x2122;re a seasoned activist, we hope you find the articles ahead enlightening, incensing, engaging, and above all thought-provoking. As you read, we encourage you to keep your judgements and dominant interpretations open to modification.Â Above all, we hope you enjoy reading the Journal as much as we enjoyed compiling it, and we look forward to welcoming another year of academic rigour by University of Leeds Undergraduate students. The Editorial Board, 2017-18.

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The definition of torture: LEST WE FORGET Dr. Amrita Mukherjee The article discusses the definition of torture as formulated in international human rights law, which is primarily concerned with violence perpetrated by state agents and is timely given the current deteriorating human rights environment. The significance of the prohibition runs throughout the use of executive power – the criminal process, from the investigative authorities’ extraction of confessions or other information, to various aspects of punishment that manifestly constitute or border on torture, such as solitary confinement, corporal punishment, physical mutilation, sexual abuse, sensory deprivation and emotional terror.

In my academic research and experiences in advising human rights organisations, the question of torture has re-emerged as a defining idea in the 21st century. I began studying the substance of the prohibition and human rights monitoring for my PhD thesis before 2001. The subsequent events and response of a great many liberal states to the 9/11 attacks in 2001 resulted in the opening up of what had been subterranean debates on whether torture may be legally justified. Even more recently, before becoming President, Donald Trump promised to undermine the restrictions on interrogating terrorism suspects and said he would bring back a “hell of a lot worse than waterboarding”. Earlier attempts to legalise the use of torture in the ‘war on terror’, reminded us all of the danger of taking for granted any area of human rights protection, even one that holds such ‘a special status’ in international law. This reminder has never been more relevant than at present. The rule of law and international human rights reassert the prohibition of torture as a rule of jus cogens and may never be justified, even in emergency situations. The past 15 years have reminded us of the hard reality: that even liberal democracies use methods and techniques - the so-called ‘enhanced interrogation techniques’ - which set out to inflict such pain and suffering that cause irreparable harm to people. The United Nations Declaration on Human Rights (UDHR), which is widely regarded as representing norms of customary international law, states under Article 5, that ‘no one shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment.’ This provision is intended to be broadly construed and does not provide a definition of these terms. The UDHR has had considerable impact on the shaping of later human rights treaties, municipal laws and constitutions. In Filártiga v. Peña-Irala, the US Circuit Court decided that the General Assembly had declared that the United Nations Charter precepts embodied in the Universal Declaration ‘constitute basic principles of international law’ and for the purposes of civil liability the torturer has become like the pirate and the slave trader before him, ‘hostis humani generis’ - an enemy of all mankind. The general prohibition in law – that against torture and other inhuman and degrading treatment or punishment is contained in the main human rights conventions (including the International Covenant in Civil and Political Rights, the European Convention on Human Rights and the International Convention on the Prohibition of Torture). However, states do not need to be bound by treaty obligations to be sub-

University of Leeds ject to it – the prohibition of torture is also protected in customary international law.

Amrita Mukherjee The Definition of Tortture: Lest We Forget

The different acts under the wider prohibition constitute different consequences – torture is a much more serious and aggravated form of ill treatment and violation of international law than degrading treatment. However, international human rights treaties (which are approved by states themselves) have chosen to encapsulate the varying degrees of torture and ill treatment of the general prohibition under the same provision. The idea being to ensure that the full spectrum of ill treatment is covered, and so that disagreements on levels of severity may not result in a state avoiding a decision on a violation. After all, what may be considered ill treatment in one era, may be torture, in the next. Evading the consequences of prohibited conduct should not be possible due to a lack of agreement of what kinds of activity constitute torture and other ill treatment. The law against torture and other ill treatment must be functional, especially as it must develop with the changing faces and uses of torture. So, there appears to be a strong argument against specific classification as the general prohibition covers a wide spectrum of prohibited actions, and human rights bodies have preferred not to differentiate between them. There are no clear lines demarcating where, for instance inhuman treatment turns into torture. This is one of the reasons that the prohibition of torture, cruel, inhuman and degrading treatment or punishment must remain elastic terms in application - it is important that they include the types of conduct that are clearly prohibited in international law, whilst at the same time encompass treatment and punishment that may, despite the lack of obvious indications, represent the type of conduct forbidden. Hence the use of subjective as well as objective elements in determining whether torture, inhuman and degrading treatment or punishment are required. This approach, which may compromise certainty in some respects, places emphasis on the organic use of the terms and the prohibition of any type of ill treatment along the spectrum. To impose limitations on application would frustrate their reach to the individuals they are designed to protect. The prohibition is said to encompass a scale of prohibited treatment or punishment. At the lower end of the scale, components must exist that constitute entry into the general prohibition. Inevitably, the terms are interrelated and interlocking, thus seeking to avoid fragmentation. Article 3 of the European Convention on Human Rights and Fundamental Freedoms states that: ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment’. The Committee on Legal and Administrative Questions of the Consultative Assembly of the Council of Europe decided against greater specificity, as it seemed to limit the substantive scope of the article. There was also the need, because of the ‘moral authority’ and ‘technical value’ of the UDHR, to coordinate the activities of the Council of Europe with the United Nations. The European Court has also made reference to the United Nations Convention against Torture definition of torture under Article 1, and has in many respects gone further than any other body in discussing what should constitute the prohibition on torture. The following section discusses the work of the Court in this respect. The Convention does not attempt to define what constitutes the actions under the prohibition, but it is broad so as to encompass all types of relevant abuse. It was the first treaty provision containing a general prohibition against torture and oth-

Human rights journal er ill treatment. It has also been one of the most important in developing the terms of the definition and discussing the inherent problems of the exercise of definition. The jurisprudence of the European Court of Human Rights presents rich material for the analysis when the decision is taken to consider the different terms of the general prohibition separately. In the Greek Case1 and Ireland v. United Kingdom2 the former European Commission and Court on Human Rights analysed the concepts of inhuman and degrading treatment and punishment separately from that of torture. They interpreted torture as being an aggravated form of inhuman treatment, with a difference in the intensity of the suffering inflicted, with a special stigma attached. They also discussed the pitfalls in taking such an approach. However, the European Commission and Court did not agree on whether torture had been practised in Ireland v. UK. The European Commission held unanimously that when applied together, the five interrogation techniques were ‘designed to put severe mental and physical stress, causing severe suffering on a person in order to obtain information from him’.3 It held that the combined use of the five techniques was a breach of Article 3 ‘in the form of not only of inhuman and degrading treatment but also of torture within the meaning of the provision’. Firstly, as premeditation existed, for the purpose of inducing information, and so the authorities had the intention and created the facilities to carry out the operation. Secondly, for hours at a stretch, exposure to the techniques meant that actual bodily harm or intense physical and mental suffering were endured by persons subjected to it. Also, the nature of the sensory deprivation and the ‘intensity of stress caused by the combined application of methods’ such that it directly affected personality physically and mentally and involved ‘a sophisticated method to break or even eliminate his will’. There was emphasis here on the combined effect of the techniques rather than examination of them separately. Despite the finding of the Commission, the European Court of Human Rights held by 13 votes to 4 that the combined use of the five techniques did not amount to torture, although they did agree that their use constituted inhuman and degrading treatment. For the Court, the distinction ‘derives principally from a difference in the intensity of the suffering inflicted and a special stigma was attached to torture ... the deliberate inhuman treatment causing very serious and cruel suffering.’ The five techniques ‘did not occasion suffering of the particular intensity and cruelty implied by the word “torture”’, as so understood. They did not elaborate what this special intensity constituted. Despite this finding, they did agree that the treatment did lead to intense ‘psychiatric disturbances during interrogation’4 but placed less emphasis on mental torture. Recently, the European Court decided not to revise its judgement on the case. An area of discussion that runs a thread throughout the definition debate is whether in certain circumstances, torture and other ill treatment may be justifiable. Selmouni v. France decided in 1997, displayed the Court’s approach to justifiability. It stated that the Convention provides no exceptions to the rule on prohibition. 1 2 3 4

(1969) 12 Yearbook of the European Convention on Human Rights 186 (1979) 19 Yearbook of the European Convention on Human Rights 176 Ibid Ibid para 167

Amrita Mukherjee The Definition of Tortture: Lest We Forget

University of Leeds Therefore, the Court has made it clear that for all types of treatment and punishment covered by Article 3, there may be no justification or defence, including for the purposes of extracting evidence for saving life or for the safety of the State. Justifiability was thus addressed, not for the first time. This was to place the prohibition above that of a potential state emergency on the basis that torture debases the torturer as well as the victim and is not a proper instrument of a civilised State. However, the making of Article 3 absolute has been criticised. In practice, the Court and Commission have recognised that in certain circumstances, there may be justifiable ill treatment. In Klass v. Germany5, both the Commission and Court stated that the injuries sustained by the applicant could only be shown to be justified in the circumstances if the force used was ‘necessary in order for the police to accomplish their lawful duties’6. Here, there was reasonable use of force on arrest. In Ribitsch v. Austria7, the Court held that in the case of persons deprived of their liberty, ‘any recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity, and is in principle an infringement of the right set forth in Article 3’.8 However, the absolute nature of the prohibition was reconfirmed in Tomasi v. France,9 where the minimum level of severity had been reached in the number and intensity of blows sustained by the victim. The different elements taken together were sufficient to render the treatment as inhuman and degrading. Here, certain inferences could be made from the fact that the victim sustained unexplained injuries whilst in police custody and where its was stated that ‘the requirements of the investigation and the undeniable differences inherent in the fight against crime, particularly with regard to terrorism, cannot result in limits being placed on the protection to be afforded in respect of the physical integrity of individuals.’ The approach of the Court seems then to indicate an absolute prohibition, but in relation inhuman or degrading treatment or punishment, violation may be necessary and so justified where the individual has acted in a certain manner, for instance resisting arrest, as was the case in Klass. It is dangerous for the Court to find certain situations justified under Article 3 and others not, especially in relation to abuse of police powers and the number of cases of deaths in custody. These older cases of the European Court discuss the existing definitions given of torture in human rights treaties, which constitute an important reference point to analyse the scope of the prohibition. There is no exhaustive list of activities that constitute torture, as the parameters require to be left flexible in order that the prohibition remains able to deal with new techniques. However, we are nowhere given a satisfactory definition of the words cruel, inhuman and degrading treatment and punishment. Whether they will be applicable in any given situation depends on there being severe treatment (in the case of inhuman and cruel) and for degrading treatment or punishment, a certain level of humiliation must have been achieved in the particular circumstances. They must have achieved a minimum level of severity in the words of the European Court of Human Rights. The discussion and analysis conducted in these cases remains as relevant to us today as when they were decided, even though we might disagree with the eventual judgements and the legal reasoning employed. 5 Klass v. Germany, Series A, No. 269, Application No. 15473/89, Judgement given 22 September 1993. 6 Ibid, para 24. 7 Ribitsch v. Austria, Series A, No. 336, Judgment of 4th December 1995. 8 Ibid, Para 38. 9 Tomasi v. France, Series A, No. 241, 27 August 1992.

THE FORGOTTEN

Human rights journal

Photo by Md Akeef

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Human rights journal "There are no human rights here!": The experiences of exhaustion, violence and existence of refugees in post-'Jungle' Calais Jenni Whitaker Since the demolition of the ‘Jungle’ in Calais in October 2016, the experiences of refugees and displaced people across northern France have largely become forgotten in the media and academia. This paper considers how, since 2016, state authorities have pursued migration management policies of structural and physical violence, causing exhaustion and injury, in order to force Calais’ refugee population into a state of informal existence. Through analysis of the Refugee Rights Data Project conducted in Calais one-year after the closure of the ‘Jungle’ and supplemented by the author’s personal insights from two periods of volunteer work in Calais, this paper argues that government inaction has also caused the dehumanisation and de-realisation of these peoples. The extent of this inaction becomes evident beyond the refugee and volunteer communities of Calais only when death occurs there, serving as a stark, yet ephemeral, reminder that there is an ongoing refugee crisis in northern France.

When the vast refugee camp known as the ‘Jungle’ in Calais was demolished in October 2016, long-term concerns about Europe’s attitudes to migration were central to political and economic discourse. But 16-months on, little has changed and the post-‘Jungle’ experiences of refugees in Calais are beyond bleak. These refugees are predominantly men under the age of 25, of whom 40 per cent are minors, forced to flee violence and persecution in their countries of origin - largely Afghanistan, Ethiopia, Eritrea and Sudan – and have undertaken perilous journeys in search of safety in the United Kingdom.1 With no routes for safe and legal passage, they are forced to make dangerous attempts to cross the English Channel, concealed on lorries and trains. Between these attempts, they live rough in Calais and across Northern France. There is a need for clarification on the terminology adopted and appropriated both in academia and in the media. Academics have acknowledged the problematic nature of the term the ‘Jungle’ which came into common parlance in 2015, and many 1 Refugee Rights Data Project (RRDP), ‘Twelve Months On: Filling information gaps relating to refugees and displaced people in Northern France a year on from the demolition of the Calais camp’, November 2017, <http:// refugeerights.org.uk/wp-content/uploads/2017/11/RRDP_TwelveMonthsOn.pdf> [accessed 8 February 2018], pp. 8-9.

Jenni Whitaker The experiences of exhaustion, violence an existence of refugees in post-’Jungle’ Calais

University of Leeds have since proceeded to use the term with caution.2 Indeed, the appropriation of its inhabitants as animals must be factored into the rhetoric of dehumanisation which has become central to the experiences of refugees in Calais. Yet, the contentious name was used by and derived from the refugee residents of the camp: from the Pashtun word dzhangal meaning ‘this is the forest’. Through a crude Anglicism, dzhangal became the Jungle. But the insistence that the Jungle no longer exists, that it was demolished and that its residents have been relocated is more unpalatable. The camp in Calais which, in 2016, peaked in notoriety and inhabitancy, was indeed demolished in October of that year. But today, the Jungle in Calais remains ‘the forest’ of dzhangal: a desolate woodland next to an industrial wasteland of “moderate” toxic risk.3 Today, any of the hundreds of refugees in Calais will still tell you that they sleep in Jungle, they walk back to Jungle after failed attempts to cross the border, and at times, Jungle is the only place where they are allowed to exist. Through discussion of the exhaustion and violence experienced by refugees in Calais, this paper will argue that suffering has come to be used as policy by authorities in order to force the refugee population in Calais into a state of informal existence, consequently used to justify the ambivalence of the French and British governments. Using evidence collected by researchers from the Refugee Rights Data Project report entitled ‘Twelve Months On’, conducted over a week in October 2017, I will highlight the extent of police and structural violence. I will also use personal insights gained from two periods of volunteer work in Calais, in August-September and December 2017, to inform and frame this argument. In this, I have attempted to tread carefully when using personal testimonies as I acknowledge their partisan nature. However, in the absence of significant academic research since the demolition of the Jungle, such evidence gives voice to an often voiceless community, and deserves to be heard. Lastly, I will consider the recent deaths at the Calais border, and in theorising government inaction as perpetuating refugee inexistence, I will conclude that Calais’ refugees have come to be ignored, and forgotten. In Calais, and indeed across Europe more generally, the experiences of refugees are reflected in a ‘politics of exhaustion’ produced by current migration management policies and practices. Within this, local authorities appear to use exhaustion as a tool of governance, in order to subdue the agency of the displaced. In 2016, Leonie de Vries and Marta Welander argued that this ‘politics of exhaustion’ in Europe reproduced refugees’ ‘crises’, perpetuating experiences of ‘uncertainty, illegality, lack of access to rights, information and protection, and physical, psychological

2 Thom Davies, Arshad Isakjee and Surindar Dhesi, ‘Violent Inaction: The Necropolitical Experience of Refugees in Europe’ Antipode, 49. 5 (2017), 1263-1284 (p. 1265). 3 Davies et al., p. 1275.

Human rights journal and structural violence.’4 De Vries and Welander’s refusal to accept the then current methods of migration management were centralised in Calais due to the threatened destruction of the camp and the extent of destitution seen in 2015 and 2016. Yet in late 2017, despite the demolition of the camp and the comparatively small refugee population in Calais, migration management tactics look to have extended their use of a ‘politics of exhaustion’. The Refugee Rights Data Project (RRDP) conducted one year after the demolition of the camp found that 84.3 per cent of respondents had been woken up by police whilst sleeping and forced to leave their sleeping spot.5 A 16-year-old Afghan boy told researchers: “While I was sleeping, they came over and sprayed me on my face [with tear gas], they hit me with their baton on my knees which left me numb. They took my shoes and told me to leave”. 6 Alongside police tactics of violence and humiliation, this amounts to intentional sleep deprivation, seemingly used as a method of tranquilisation to ensure that refugees can only exist below their standard human potential. This ‘politics of exhaustion’ has become a method of securitisation, most evident in Calais in the distinct presence of Compagnies Republicaines de Sécurité (CRS) officers, the security guards of ‘Fortress Europe’. In witnessing the confrontations between the CRS and the refugees, it becomes clear that the Calais narrative is inherently racialised. Not only do refugees report colonialist verbal abuse in the form of ‘monkey chants’ and ‘animal noises’ from police and passers-by, but as Davies et al. have argued, fundamentally, it is the racialised identities of the refugees in Calais which has caused them to be ‘neglected’ by state authorities in this way.7 In January 2018 in the back pages of a little known French journal, Ebdo, an ex-CRS officer anonymously admitted the extent of police brutality in Calais.8 “It’s not the CRS’s fault, it’s the system’s. We are asked to look busy, to evict people, to arrest them…” He recounts that he was forced to “detach” himself from the tear gassing, the destruction of tents and the confiscation of personal property that he was employed to do. His words qualify evidence found in the RRDP report of October 2017, that 91.8 per cent of Calais’ refugees had experienced police violence, a marked increase on the 75.9 per cent experienced during the time 4 Leonie Ansems de Vries and Marta Welander, ‘Refugees, displacement and the European ‘politics of exhaustion', openDemocracy, <https://www.opendemocracy.net/mediterranean-journeys-in-hope/leonie-ansems-de-vriesmarta-welander/refugees-displacement-and-europ> [accessed 8 February 2018]. 5 RRDP, p. 23. 6 RRDP, p. 25. 7 RRDP, pp. 15-16; Davies et al., p. 1268. 8 Haydée Sabéran, ‘CRS à Calais, je sais que ça ne sert à rien’, Ebdo, 22 January 2018, 94-96. Translated in full by Help Refugees, <https://helprefugees.org/crs-officer-admits-police-brutality/> [accessed 9 February 2018].

Jenni Whitaker The experiences of exhaustion, violence an existence of refugees in post-’Jungle’ Calais

University of Leeds of the camp.9 Back then, R. Hurley wrote that Calais had become ‘an emblem for the mass suffering of refugees’, but now, Calais’ displaced population have lost possession of even their own suffering, as it is used against them as a political technology.10 Davies et al. argue that it is ‘structural violence’ which is the root of this suffering in Calais, in that violence is perpetrated by social institutions who prevent their victims from accessing basic needs and rights.11 As one 19-year-old Eritrean sleeping rough in Calais told researchers: “There are no human rights here!” Indeed, constriction of basic human rights has become a form of violence so banal that it is hidden in plain sight. This structural violence is also present in the lack of medical provision offered to refugees in Calais. Although the care provided by NGOs and charities in the field, such as ‘Gynécologie sans Frontières’ and the ‘First Aid Support Team’ has been enthusiastically appreciated by the refugees, many report hostility and maltreatment from the local hospital.12 This is indicative of an agonotological approach from the Calais préfecture, in that they have deliberately ‘turned a blind eye’ on the physical health of the refugee population, imaginably claiming ignorance to suit their political ends.13 However, the evidence of CRS brutality indicates that violence witnessed in Calais is not dichotomous, as personal/physical violence is similarly used to maintain a level of somatic and cognitive suffering amongst refugees. Concurrent to the ‘politics of exhaustion’, through both structural and personal violence refugees are kept in an administered state of injury, limiting their agency without offering any relief. In this exhausted and injured state, the informality of a refugee’s existence becomes more evident. To build on this idea, I will borrow from Judith Butler’s Precarious Life: The Power of Mourning and Violence. Here, she argues that marginalized communities are de-realised, and thus, when violence is inflicted upon them, ‘it fails to negate those lives since those lives are already negated.’14 This could be used to understand the administration of violence upon refugees in Calais. In dehumanising or negating their existence, migration management policies have renewed their use of violence, in the face of the apparent inexhaustibility of these people. Whilst this inexhaustibility should simultaneously be defined as desperation, Butler continues that ‘the derealisation of the “Other” means that it is neither alive nor dead, but interminably spectral’.15 Indeed, sentiments negating quality of life or existence are often heard in refugee communities. This has been demonstrated in a recent play ‘The Jungle’ performed at the Young Vic Theatre in London in December 2017, written recounting real refugee experiences.

9 RRDP, p. 18. 10 R. Hurley, ‘Vandals force doctors to close clinic in Calais’s refugee camp’, The BMJ, 352 (2016), 1-3, (p. 1). 11 Davies et al., p. 1269. 12 RRDP, p. 29. 13 Davies et al., p. 1276. 14 Judith Butler, Precarious Life: The Power of Mourning and Violence (London: Verso, 2004), p. 33. 15 Ibid., p. 34.

Human rights journal The exchange between Okot, a young Sudanese refugee, and Beth, a young British volunteer is particularly fitting: Okot takes off his top, he has scars old and new, all over his body. Beth: Oh, fuck. Oh my God. (pause) Okot: I am dead. Beth: What? Okot: Dead. Beth: You’re not dead. You’re here with me. Okot: Dead. (pause) A refugee dies many times.16 He continues to retell his many deaths: in Darfur, the Sahara, Tripoli, the Mediterranean and in Calais. In my personal experience, an Eritrean refugee once told me that she too was dead, alive only for her 10-year-old son. Her sentiments of dehumanisation were so far reaching that further physical and structural violence had become normalised, and even expected. Thus, when death does occur in Calais, it strikingly de-realises a refugee into their now non-existence. When a refugee dies there, most frequently in traffic and rail accidents, their death does not qualify as “grievable” beyond the refugee and volunteer communities. In most cases, they have no family, friends or even representative state to accept responsibility for their corpse. In the week of Christmas 2017, there were two deaths and one nearly fatal incident in Calais, a marked increase on previous weeks and months. This recalls frequencies seen during times of the camp in 2015, when 16 lives were lost between June and October.17 At Christmas, the first life lost was that of a 15year old Afghan boy called Abdullah. The second, Farouk, was also from Afghanistan yet reported in the local news as “an Eritrean migrant”. The media could not even correctly define his nationality.18 Because of their derealisation and dehumanisation, the hierarchy of grief did not extend to these two young men. Butler argues that in this ‘hierarchy of grief’ a death is not only poorly marked, but it is ‘unmarkable’.19 ‘Such a death vanishes,’ she continues, ‘not into explicit discourse, but in the ellipses by which public discourse proceeds.’20 Their deaths are forgotten, just like the lives that preceded them. This paper has demonstrated how the use of a ‘politics of exhaustion’ and the infliction of ‘permanent injury’ are used as political practices in order to maintain suffering 16 Joe Robertson and Joe Murphy, The Jungle, (London: Faber & Faber Plays, 2017). 17 Davies et al, p. 1279. 18 These deaths were originally reported on http://www.lavoixdunord.fr/region/calais-et-ses-environs the website for regional Newspaper for Nord-pas-de-Calais, La Voix du Nord. However, all reports regarding deaths of refugees have since been removed from their website, further stripping them of their grievability. The deaths took place on 22 and 29 December 2017 respectively, and the near-fatal incident on 24 December 2017. More information can be found at <https://helprefugees.org/preventable-deaths-calais-border/> [accessed 12 February 2018]. 19 Butler, p. 35. 20 Ibid., p. 35.

Jenni Whitaker The experiences of exhaustion, violence an existence of refugees in post-’Jungle’ Calais

University of Leeds amongst the refugee population in Calais, forcing them into a state of informal existence. Through structural violence, in the form of the denial of basic human rights and the limited provision of healthcare, both French and British governments are pursuing policies of inaction, in order to further deteriorate their conditions and experiences. Where action is evident, it is seen through the physically violent methods of securitisation used against almost all refugees in Calais by the CRS, including the relentless use of tear gas, physical beating and intentional sleep deprivation. These current migration management policies seek to dehumanise and de-realise the lives of these refugees and displaced people, negating them to a point at which they themselves experience sentiments of in- or non-existence. Thus, when physical death occurs, the necropolitical actions and inactions of our governments manifest themselves into a brutal reality. Beyond the refugee and volunteers’ communities in Calais, a death serves as a brief reminder that the port-town’s refugee population is still there, and growing. But all too quickly, they are once again forgotten.

Bibliography Butler, Judith, Precarious Life: The Power of Mourning and Violence (London: Verso, 2004) Davies, Thom, Arshad Isakjee and Surindar Dhesi, ‘Violent Inaction: The Necropolitical Experience of Refugees in Europe’ Antipode, 49: 5 (2017), 1263-1284 Gavrilescu, Annie, ‘Deaths at the Calais border: Needless, Relentless and Entirely Preventable’ (31 December 2017), <https://helprefugees.org/preventable-deaths-calais-border/> [accessed 12 February 2018] Hurley, R., ‘Vandals force doctors to close clinic in Calais’s refugee camp’, The BMJ, 352 (2016), 1-3 Refugee Rights Data Project (RRDP), ‘Twelve Months On: Filling information gaps relating to refugees and displaced people in Northern France a year on from the demolition of the Calais camp’, November 2017, <http://refugeerights.org.uk/wp-content/uploads/2017/11/RRDP_ TwelveMonthsOn.pdf> [accessed 6 February 2018] Robertson, Joe and Joe Murphy, The Jungle (London: Faber & Faber Plays, 2017) Sabéran, Haydée, ‘CRS à Calais, je sais que ça ne sert à rien’, Ebdo, 22 January 2018, 94-96 Translated in full by Help Refugees, <https://helprefugees.org/crs-officer-admits-police-brutality/> [accessed 9 February 2018] De Vries, Leonie Ansems, and Marta Welander, ‘Refugees, displacement and the European ‘politics of exhaustion’’, openDemocracy (30 September 2016), <https://www.opendemocracy.net/ mediterranean-journeys-in-hope/leonie-ansems-de-vries-marta-welander/refugees-displacementand-europ> [accessed 8 February 2018]

Human rights journal Marginal Voices: Collectivising Sahrawi memory to uncover and overcome hidden human rights violations in the Western Sahara Sara Green The Sahrawi are a pastoralist nomadic group that historically inhabit the Western Sahara Desert, and since decolonisation from Francoist Spain have largely been forcibly displaced into the Eastern desert regions of Algeria. This essay seeks to highlight not only the prolific human rights abuses that Sahrawi exiles have been systematically subjected to as a result of Moroccan occupation, but how this trauma is conceptualised in popular cultural sources. As an occupation regarded as being in violation of International Humanitarian Law, the prolonged deadlock of Moroccan and Saharawi interests has produced increasing International apathy towards exiled communities. This essay finds that, somewhat in response to this apathy, a conscious construction of ‘collective memory’ has served to memorialise these ‘hidden’ abuses and reunify what is a spatially and culturally fragmented society. To approach this, a ‘Subaltern’ focus on subjugated knowledge and representing the marginalised voice will be deployed alongside ‘decolonial’ theory that proposes a proactive utlisisation of non-Eurocentric epistemologies. This essay proposes that the amplification of these marginal voices serve to contribute to the possibility of a more considered, ‘bottom upwards’ decolonial process for ‘Africa’s last colony’.

‘May you think your voice reaches me not […] Your words choke my throat I sometimes manage to spit, but almost always swallow rage, blood, land, peace. […] Thirty mouths chanted history, as nobody could, nothing can tame soul-touching voices’.1

1 Liman Boicha, ‘New Saharawi Poetry: A Brief Anthology’, Review of African Political Economy,

33:108 (2006), 333-335 (p. 334).

Sara Green Collectivising Sahrawi memory to uncover hidden human rights violations in the Western Sahara

University of Leeds Zahra el Hasnaoui Ahmed’s ode to ‘the Sahrawi voices abducted in jails and graves’ speaks to a concept that is central to the Sahrawi collective memory of the Western Saharan conflict; one of unity and connectivity in the face of real physical fragmentation, and individual trauma. It also amplifies, and challenges, the invisibility of human rights abuses suffered by Sahrawi people as a result of the Moroccan occupation and its campaign of ‘plunder, arrests and expulsion of Nomads’.2 This followed a rushed decolonisation process that— ‘precisely’ as Francisco Franco lay dying—transferred administrative authority of the former Spanish Sahara to Morocco and Mauritania (1975).3 The ensuing invasion has overseen the 43-year long displacement of over half of the Sahrawi population, concentrated within four desert camps in Eastern Algeria.4 Despite being spatially fragmented by a 1000-mile “berm” or wall—flanked by one of the world’s largest minefields—the collectivity of Sahrawi trauma in cultural production brings light to the immense physical and emotional pain inflicted on the Sahrawi people.5 This is especially resonant in an age of dwindling international, material and psychological support.6 The plight of the Sahrawi people has received a somewhat paradoxical treatment in the international community. With the exception of Morocco, no single UN member state to date has formally recognised the legitimacy of the Western Saharan territory as a part of the Moroccan Kingdom; yet since the UN-brokered ceasefire of 1991, the referendum has been extended 41 times by the UN’s Mission for the Referendum in Western Sahara (MINURSO).7 The deferring of a referendum vote is contextualised by fierce division over the voter eligibility of such. With over half of its population laying outside its borders, and over two-thirds of contemporary Western Saharan population consisting of Moroccan settlers—many profiting from the lucrative phosphate and fishing industries—the demography of ‘Africa’s last colony’ proves a complex concern in reaching a legitimate, mutually satisfactory referendum mandate.8 Examining the political dimensions of this conflict are vital in seeking an ‘endgame’ in the 2 Carlos Martín Beristain and Eloísa González Hidalgo, The oasis of memory : historical memory and human rights violations in the Western Sahara (Bilbao, Spain: Universidad del País Vasco: Instituto de Estudios sobre Desarrollo y Cooperación Internacional, 2012), p. 43. 3 Susan Martin-Márquez, ‘Brothers and Others: Fraternal Rhetoric and the Negotiation of Spanish and Saharawi Identity’, Journal of Spanish Cultural Studies, 7:3 (2006), 241-258 (p. 242). 4 Gabriel Alcalde, ‘A Museum in a Refugee Camp: The National Museum of the Saharawi People in Algeria, Its Use and Function’, Curator, 60:2 (2017), 191-203 (p. 191). 5 Richard Skretteberg, ‘Western Sahara: Occupied Country, Displaced People’ Norwegian Refugee Council, <https:// www.nrc.no/globalassets/pdf/reports/occupied-country---displaced-people.pdf> [accessed 9 February 2018]. 6 Martin-Marquez, Brothers and Others, p. 242. 7 United Nations, Security Council Extends Mandate of United Nations Mission for Referendum in Western Sahara, Unanimously Adopting Resolution 2351 (2017 Press Release) https://www.un.org/press/en/2017/sc12807.doc.htm [accessed 14th Mar 2018]. 8 Martin-Marquez, Brothers and Others, p. 242. See also, for an in depth exploration of the transfer of Moroccan citizens to the territory in violation of the UN settlement, and how this has compromised a viable referendum outcome: Fatemeh Ziai, ‘UN Impasse in the Western Sahara’, Middle East Report, 199 (1996), 38-41 (p. 39).

Human rights journal Western Sahara; whether it be Morocco’s primordial claim to the territory as a historical “Greater Morocco”, or the Frente Polosario’s (the Sahrawi ‘Popular Liberation Front’) ethnic nationalist ideology.9 However, the presumed centrality of this within the scholarly and political discourse perhaps neglects the lived marginality and poverty of the Sahrawi victims of the conflict. This can be gleaned from the fact that the UN’s MINUSRO is its only modern peacekeeping mission without a human rights mandate.10 As a response to this lack of consideration and representation of the ‘Subaltern’ Sahrawi voice, it is crucial to follow the precedent of seminal researchers such as Carlos Martin Beristain and Elosia Gonzalez Hidalgo in reviving this ‘Oasis of Memory’.11 By systematically considering the epistemologies of a rich oral tradition with a ‘prodigious memory for detail’ into their research methodology, Oasis of Memory not only seeks to amplify these ‘forgotten’ testimonials, but provides an element of practical psychosocial support in transforming this grief into ‘something useful’ to disseminate to the wider world.12 Building on these principles, this piece seeks to examine the cultural productions of Sahrawi exiles—primarily musical and poetic sources—and to amplify the representation they choose for themselves. In using this lens of ‘subjugated knowledge’, not only can the Sahrawi experience be understood on its own terms, but it enables decolonial ‘theory’ to become a ‘practice’; this, in turn, can foment change in real-world political process.13 Furthermore, by shifting the narrative of peace processes from ‘objective’ forms of knowledge often delineated by a Euro-centric or colonial subconscious, we can understand how ‘decolonial’ approaches may inform a decolonising process that is both more considered and less hegemonic in its consideration of the ‘third world’ ‘other’.14 Music and the Politics of Memory The collective memory of the Sahrawi experience since Spanish decolonisation, as outlined by D. Faszer-McMahon, naturally falls into two types of ‘nostalgia’; one ‘reflective’, focusing ‘on the pain of loss and the ruins of the past’, and the other ‘restorative’, attempting ‘to rebuild or recapture what has been lost’.15 In popular Sahrawi music, the prolonged separation of exiled family members from those still residing in the 9 Yahia H. Zoubir, Daniel Volman, International dimensions of the Western Sahara conflict (Westport, Conn: Praeger, 1993), p. 1. 10 Amnesty International, ‘UN must monitor human rights in Western Sahara and Saharawi refugee camps’, Amnesty International <https://www.amnesty.org/en/latest/news/2016/04/un-must-monitor-human-rights-inwestern-sahara-and-sahrawi-refugee-camps/> [accessed 8 February 2018]. 11 Beristain and Hidaldo, Oasis of Memory. See also: Gayatri Chakravorty Spivak, “Can the Subaltern Speak?” in Marxism and the Interpretation of Culture, ed. Cary Nelson and Lawrence Grossberg (Chicago: University of Illinois Press, 1988), 271–313. 12 Beristain and Hidaldo, Oasis of Memory, p. 25. 13 Kiran Asher, ‘Spivak and Rivera Cusicanqui on the Dilemmas of Representation in Postcolonial and Decolonial Feminisms’, Feminist Studies, 43:3 (2017), 512-524 (p. 513). 14 Asher, Spivak and Rivera Cusicanqui, p. 512. 15 Debra Faszer-McMahon , ‘Poetics and Politics: Digital Interventions in Sahrawi Cultural Production’, TRANSMODERNITY: Journal of Peripheral Cultural Production of the Luso-Hispanic World, 5:3 (2015), 20-39 (p.24).

Sara Green Collectivising Sahrawi memory to uncover hidden human rights violations in the Western Sahara

University of Leeds

Figure 1: SOURCE: Zohra Bensemra, Life in a Sahrawi Refugee Camp, for Reuters: The wider Image, 2016 [accessed 9th February 2018]

Western Sahara often calls for these ‘nostaligas’ to be used in syncretism, reconstructing both a memory of a landscape and articulating the pain of familial separation. This can be seen in Mariem Hassan’s ‘Wadna’ or ‘Our River Valley’, dedicated to the bed of Saguia Al-Hamra in her hometown of Al Aaiun.16 Lyrically emphasising the emblematic nature of the Valley within Sahrawi conceptions of their homeland, her family members also become emblematic of a pain suffered widely by exiled women. This is echoed within the testimonial sources; Beristain and Hidalgo’s interviews highlight the erratic nature of these separations during the bombing of Guelta by Moroccan forces. A woman credited as J.S. recalls how ‘the Moroccan aviation arrived and bombed us. After that, I never saw my husband again […] I fled with quite a lot of disabled people [and] women with small babies’.17 Additionally, this testimony gleans a significant aspect of the demography of Sahrawi exiles; during the initial exodus, the bulk of able-bodied men remained to support the Frente Polisario in the war against Morocco, creating a distorted ‘female representational base’ in the refugee population.18 This has seen the domination of women in the administrative, educational, agricultural and health initiatives in the camps (See Fig. 1), though as S. Rossetti delineates, the assumption

16 Violeta Ruano Posada and Vivian Solana Moreno, ‘The Strategy of Style: Music, Struggle, and the Aesthetics of Sahrawi Nationalism in Exile’, TRANSMODERNITY: Journal of Peripheral Cultural Production of the Luso-Hispanic World, 5:3 (2015), 40-61 (p. 53). 17 Beristain and Hidaldo, Oasis of Memory, p. 42. 18 Sonia Rossetti, ‘Saharawi women and their voices as political representatives abroad’, The Journal of North African Studies, 17:2 (2012), 337-353 (p. 338).

Human rights journal of female authority also had a precedent in traditional Saharawi nomadic life.19 This is a refreshing counterbalance to the trope of the female refugee as ‘anguished, helpless, needing to be saved’.20 However, this fragmentation of the Sahrawi family has contributed to a sense of ‘collective fatigue’ that places the burden of political marginality and familial responsibility disproportionately upon the shoulders of women.21 Mariem Hassan’s music highlights how the dissemination of historical memory and political discourse has become ever more matrilineal in the context of Sahrawi exile. Her work builds on the ‘tradition of the female Saharawi voices’ and the musical innovations within this, through the composition of new lyrics for traditional melodies.22 This allows for an element of fluidity and adaptation to the changing nature of Saharawi suffering, defying orientalist approaches to Arab modernity as needing to discard traditional modes of expression.23 This is exemplified in ‘Shouka’ or ‘the thorn’; whilst using a traditional azawaan musical cycle, she channels a feeling of betrayal by Spanish politician Felipe Gonzalez. Initially declaring support for the Sahrawi cause in 1976,Gonzalez reinforced ties with Morocco on his ascension to the presidency in 1982.24 Lamenting that ‘we listened to you with respect and opened our tents to you. . . . lawyer, big leader, great talker, sometimes your words harm’, Hassan takes an almost mocking tone in her rejection and mistrust of the key actors of the high political maneuvering that facilitate the conflict, and how they are out of touch with the on-the-ground realities.25 By alluding to the makeshift domestic spaces of the tents, Hassan highlights the trust misplaced in Gonzalez; as the domestic space represents, in an Arab context, what is most feminine, familial, intimate and private in society.26 Whilst many valid interpretations of the conflict often delineate along its international dimensions, Hassan poignantly highlights a collective frustration that whilst the intricacies of a resolution are being deliberated over by ‘big talker[s]’, the Sahrawi exiles are still confined to their tents.27 Hassan’s ‘Shouka’ further alludes to the reliance on powerful ‘talkers’ as being a systemic problem in the peace process; ultimately concluding that ‘there’s no

19 Rossetti, ‘Saharawi women’, ibid. See in particular: ‘women held positions in the ait arbeen meetings, the highest political and social institution of the old tribal society’. 20 Tina Wallace, ‘Saharawi women: ‘between ambition and suffering’’, Gender & Development, 2:1 (1994), 50-53 (p. 50). 21 Natali Dukic and Alain Thierry, ‘Saharawi refugees: life after the camps’, Forced Migration Review, 2 (1998), 1821(p. 20). 22 Posada and Moreno, The Strategy of Style, p. 53. 23 Edward Said, Orientalism (London: Penguin, 1995), See also: ‘They [subalternists and postmodern scholars] emphasize how the traditional practices of such communities and the experiences of those situated outside Europe contain possibilities of sustainable and just alternatives to development, in which nature and culture are tightly bound and not separate as they are in Western modernity.’, in Asher, Spivak and Rivera Cusicanqui on the Dilemmas of Representation in Postcolonial and Decolonial Feminisms, p. 513. 24 Posada and Moreno, The Strategy of Style, p. 54. 25 Posada and Moreno, The Strategy of Style, ibid. 26 See: Fatma Mernissi, Beyond the Veil: Male-Female Dynamics in Modern Muslim Society, (London: Saqi, 2003) 27 See: Yahia H. Zoubir and Daniel Volman, International dimensions of the Western Sahara conflict (Westport, Conn: Praeger, 1993).

Sara Green Collectivising Sahrawi memory to uncover hidden human rights violations in the Western Sahara

University of Leeds

Figure 2: Gabriele Volpato, ‘Camel riding during a political celebration in Rabouni refugee camp’ SOURCE: Volpato, Gabriele, and Patricia Howard, ‘The material and cultural recovery of camels and camel husbandry among Sahrawi refugees of Western Sahara’, Pastoralism: Research, Policy and Practice, 4:7 (2014) 1-23.

rose without a thorn’.28 This critique echoes something central to decoloniality; it requires the deconstruction of our Eurocentric colonial gaze that dictates our own way of ‘knowing’ as an objective or ‘default’ truth. In light of this, there is no reason that an orally articulated history or an azawaan musical cycle cannot contain the same ‘possibility of sustainable and just alternatives of development’ as a European-educated political elite such as Gonzalez.29 Hispanophone Sahrawi Poetry: Collectivizing traumas and temporalities The poetry of Sahrawi women, often written in Spanish to reach a wider Hispanophone audience, critically draws upon the trauma and loss of temporality caused by the forced disappearances of Sahrawi exiles. As alluded to in the opening of this piece, the work of Zahra el Hasnaoui Ahmed conceptualises a shared pain in the torture of Sahrawis, and her allusion to ‘choking’ creates both the visceral imagery of the torture inflicted, 28 Posada and Moreno, The Strategy of Style, p.54. 29 Asher, Spivak and Rivera Cusicanqui, p. 513. See Also: Breny Mendoza, 'Coloniality of Gender and Power: From Postcoloniality to Decoloniality,' in The Oxford Handbook of Feminist Theory, ed. Lisa Disch and Mary Hawkesworth (Oxford: Oxford University Press, 2015)

Human rights journal and the symbolic silencing of these victims through the act itself.30 As Salem Abdel hay Allal testifies, ‘speaking about it means nothing… they put a cloth over your nose and mouth to stop you breathing, and at that same time they would splash some water on you with some bleach and urine. It would make you choke’.31 In Beristain and Hidalgo’s findings, of the 261 testimonies collected, 54.2% reported having suffered forms of physical torture, with 45.8% reporting having suffered psychological torture.32 The communal impact of these arrests and disappearances often result in social isolation and stigmatisation of those returning to their families, an impact that seemingly affects female captives in ‘a more emphasized manner’.33 Hasnaoui Ahmed seems to reject this stigmatisation of torture victims; ‘I wish to chain your hands to mine, the gloomy ceiling open to the stars…I wish I could lave in the wrath of your guiltless eyes’.34 By interweaving the experiences of the individual with the collective, Ahmed emulates a notion scholars such as Farah characterise as ‘a reservoir of shared consciousness’, utilising what little agency exiles have to reconstruct memory as a ‘spur for change’.35 Liman Boicha’s work highlights the complex temporalities of the families enduring the forced disappearances of loved ones, often characterised by a perpetual feeling of mourning and anxiety.36 ‘What have we done with the years, so distant yet so close? Did they fade into the air like burning firewood? […] these are our years, abandoned tragic skeletons’.37 This interpretation is deeply referential to the sites of mass torture and execution, again collectivising (‘our years’) this experience in order to counteract its invisibility, both in spatially fractured Sahrawi memory and in the international community. El Batal Lahbib’s testimony of the Moroccan forces using pits in Lemsayed as a site of interrogation and torture recounts how ‘they took me to the other grave, which was surrounded by barbed wire and search lights. There were more people in there […] people were killed there. Even though you may have met some of those who were there before, in that situation [the corpses] were all unrecognizable’.38 Whilst not only implicit evidence of an element of psychological torture used by the Moroccan forces, this account embodies the real physical erasure of Sahrawi identities. When these works of cultural expression are viewed collectively alongside the testimonial evidence of the Sahrawi experience of Moroccan occupation and exile, a trend that can be observed is one of a homogenisation of localised or familial concern to create a more functional, collective and broad narrative of the Sahrawi

30 Boicha, ‘New Saharawi Poetry’, p. 334. 31 Beristain and Hidaldo, Oasis of Memory, p. 49. 32 Ibid, p. 49. 33 Ibid, p. 48. 34 Boicha, ‘New Saharawi Poetry’, p. 334. 35 Elena Fiddian-Qasmiyeh, ‘The Inter-generational Politics of ‘Travelling Memories’: Sahrawi Refugee Youth Remembering Home-land and Home-camp’, Journal of Intercultural Studies, 34:6 (2013), 631-649 (p. 635). 36 Beristain and Hidaldo, Oasis of Memory, p. 78. 37 Boicha, ‘New Saharawi Poetry’, p. 335. 38 Beristain and Hidaldo, Oasis of Memory, p. 45.

Sara Green Collectivising Sahrawi memory to uncover hidden human rights violations in the Western Sahara

University of Leeds identity. As psychologist Cecile Bizouerne has observed, ‘the basis of their identity, namely the clan and the tribe, has been eroded by the cause and the drive for national unity and self-determination’.39 Whilst this is no doubt conditioned by the mandates of static exiled life, with social differences ‘ironed out’ by equal access to material aid, the semantics of these cultural products also denote that this homogenisation is an effort to embolden the collective Sahrawi resolve, and immortalise ‘hidden’ suffering by encoding a sense of collective, transcendent experience.40 Subverting Marginality: the revival and adaption of indigenous knowledge Whilst highlighting the atrocities committed against the Sahrawi people is a crucial element of understanding their lived reality, it is equally vital, not least in avoiding a reductive ‘victimhood’ narrative, to explore the agencies which Sahrawi exiles find in the face of marginality. Certain ‘essential[ities] of life’ for nomadic pastoralists are being revived within exiled communities in ways that subvert their situational circumstances; Volpato and Howard outline how the revival of camel husbandry not only provides an element of control over their own subsidence, but reconnects a generation of displaced people with forms of indigenous knowledge.41 This, in turn, has taken on a deeply political, emblematic function in ‘rituals connected with social or political events’(See fig. 2).42 Volpato has also noted a similar effect in the commodification of desert truffles, again creating an element of economic autonomy, emulating the traditional trade conducted on the ‘peripheries’ of nomadic regions.43 The Festival of Sahrawi culture also exemplifies this yearning for a reconnection with the aesthetic motifs of pastoralist life; the setting up of goats hair tents as opposed to charity-distributed cloth tents, and the showcasing of tea-making implements and paraphernalia obtained from pastureland families.44 In Alice Wilson’s Refracting Custom, this prompts one man, who grew up in the pasturelands, to remark ‘that he had seen sights from his childhood and youth that he had not realized still existed’.45 These celebratory acts certainly attest to the resilience and adaptability of Sahrawi cultural practice; yet are still marked by undertones of a yearning for these practices within the setting of their own perceived homeland. Whilst being an overt example of earnest desires to reconnect with nomadic practice, this rearticulation of Sahrawi culture also serves a distinct and conscious political 39 Dukic and Thierry, ‘Saharawi refugees: life after the camps’, p. 20. 40 Ibid, p. 20. 41 Gabriele Volpato and Patricia Howard, ‘The material and cultural recovery of camels and camel husbandry among Sahrawi refugees of Western Sahara’, Pastoralism: Research, Policy and Practice, 4:7 (2014), 1-23 (p.5). 42 Volpato and Howards, Recovery of Camel husbandry, ibid. 43 Gabriele Volpato, David Rossi, Demnico Dentoni, ‘A Reward for Patience and Suffering: Ethnomycology and Commodification of Desert Truffles among Sahrawi Refugees and Nomads of Western Sahara’, Economic Botany, 67:2 (2013), 147-160 (p. 148). 44 Alice Wilson, ‘Refracting Custom in Western Sahara’s Quest for Statehood’, Political and Legal Anthropology Review, 38:1 (2015), 72-90 (p. 80). 45 Wilson, Refracting Custom, ibid.

Human rights journal function in an international context. The National Museum of the Sahrawi people established in Eastern Algeria in 1998 is a quintessential example of the Sahrawi using the rearticulation of Sahrawi ‘social cohesion’ as a means to disseminate a singular narrative of struggle to an international audience.46 Furthermore, the Museum exhibits both anthropological studies ‘parallel’ to material collected from and presented by people living in the camps.47 This exemplifies the ways in which we can ascribe value to, and accommodate, both ‘traditional’ or formal sourcework and indigenous epistemologies; further emphasizing the need for this inclusivity within the discourse and political process of the Western Saharan conflict. Digital Mediums: an alternative to hegemonic representations of marginal voices? This idea of the fluidity of traditional practice has particular significance in the aftermath of the Arab Spring, and how it has highlighted the pervasive role of digital media in ‘fomenting social change’.48 A recent movement of diasporic Sahrawi, particularly in Spain, known as the “Generación de la Amistad Saharaui”, have utilised the impact of digital literary platforms to advocate the plight of the Sahrawi. The prevalence of selfpublishing in the community removes some of the socio-economic barriers of traditional print mediums, and their Spanish-language education and expression pragmatically allows the reach of broader, European audiences, in European terms.49 Whilst this aspect does arguably compromise the prevalent view of post-modern scholars of amplifying indigenous and marginalised linguistic and epistemological elements, to allow the ‘Subaltern to speak’ in her own terms, other scholars argue cultural syncretism is crucial for the Sahrawi to reach more global audiences.50 Luis Gimenez Amoros argues that syncretising the intimate, religious function of medej musical form with its new, popular function allows a more cohesive, broad appeal in amplifying the ‘intertextual relationship’ between what is religious and political, traditional and ‘modern’.51 Posada and Moreno go further in charactering artists such as Aziza Brahim and Mariem Hassan as ‘cultural ambassadors’, fusing their styles with increasingly popular Malian “desert blues” to give their message a transnational appeal.52 As these examples reveal, digital mediums enable both a platform for otherwise marginal voices and enabling intercultural syncretism; both elements contribute to this idea of ‘a reservoir of shared consciousness’ in combatting the invisibility of Sahrawi suffering.

46 Gabriel Alcalde, ‘A Museum in a Refugee Camp’, p. 191. 47 Gabriel Alcade,' A Museum in a Refugee Camp', p. 193. 48 Faszer-McMahon, Poetics and Politics, p. 20. 49 Ibid, p.21. 50 See: Gayatri Chakravorty Spivak, 'Can the Subaltern Speak?' in Marxism and the Interpretation of Culture, ed. Cary Nelson and Lawrence Grossberg (Chicago: University of Illinois Press, 1988), pp. 271–313. 51 Luis Gimenez Amoros, ‘Music and Islam in the Saharawi refugee camps of the Hamada desert, Algeria: the practice of medej as a syncretic musical evolution’, Muziki, 13:1 (2016), 43-57 (p. 45). 52 Posada and Moreno, The Strategy of Style, p. 53.

Sara Green Collectivising Sahrawi memory to uncover hidden human rights violations in the Western Sahara

University of Leeds Conclusively, the historical memory of the Western Saharan conflict in the terms of those most marginalised by it is an essential consideration in the broader scholarship of the conflict. 93% of Sahrawi participants in the Oasis of Memory study reported having suffered ‘violations of the right to life’.53 The formalisation and dissemination of these memories, whether expressed orally as a historical testimony or as a cultural product, not only serves as a psychosocial relief for those who bear the burden of memory, but as a means to advocate for a long-needed decolonisation process that actively considers the socio-political dimensions of the plight of ordinary Saharawi people. Indeed, decolonial scholarship cannot function simply as a discourse or theoretical framework, ‘without a decolonizing practice’.54 It also prescribes that all ways of representing ‘subalternity and indigeneity’ are inherently hegemonic, and an awareness of how our own scholarship is deeply situated in our respective contextual influences is essential to approaching these issues.55 However, the advent of digital mediums allows for the more accessible means of self-representation of issues of shared cultural memory, and have proved crucial in amplifying the marginality of the Saharawi people in exile.

Bibliography Alcalde, Gabriel, ‘A Museum in a Refugee Camp: The National Museum of the Saharawi People in Algeria, Its Use and Function’, Curator, 60:2 (2017), 191-203 Amnesty International, ‘UN must monitor human rights in Western Sahara and Saharawi refugee camps’, Amnesty International <https://www.amnesty.org/en/latest/news/2016/04/un-mustmonitor-human-rights-in-western-sahara-and-sahrawi-refugee-camps/> [accessed 8 February 2018] Asher, Kiran, ‘Spivak and Rivera Cusicanqui on the Dilemmas of Representation in Postcolonial and Decolonial Feminisms’, Feminist Studies, 43:3 (2017), 512-524. Bensemra, Zohra, Life in a Saharawi Refugee Camp, for Reuters: The wider Image, 2016 <https:// widerimage.reuters.com/story/life-in-a-sahrawi-refugee-camp> [accessed 9 February 2018] Boicha, Liman, ‘New Saharawi Poetry: A Brief Anthology’, Review of African Political Economy, 33:108 (2006), 333-335 Chakravorty Spivak, Gayatri, 'Can the Subaltern Speak?' in Marxism and the Interpretation of Culture, ed. Cary Nelson and Lawrence Grossberg (Chicago: University of Illinois Press, 1988), pp. 271–313

53 Beristain and Hidaldo, Oasis of Memory, p. 20. 54 Silvia Rivera Cusicanqui in Asher, Spivak and Rivera Cusicanqui on the Dilemmas of Representation in Postcolonial and Decolonial Feminisms, p. 512. 55 Asher, Spivak and Rivera Cusicanqui on the Dilemmas of Representation in Postcolonial and Decolonial Feminisms, p. 515.

Human rights journal Dukic, Natali and Alain Thierry ‘Saharawi refugees: life after the camps’, Forced Migration Review, 2 (1998), 18-21 Faszer-McMahon, Debra, ‘Poetics and Politics: Digital Interventions in Sahrawi Cultural Production’, TRANSMODERNITY: Journal of Peripheral Cultural Production of the Luso-Hispanic World, 5:3 (2015), 20-39 Fiddian-Qasmiyeh, Elena, ‘The Inter-generational Politics of ‘Travelling Memories’: Sahrawi Refugee Youth Remembering Home-land and Home-camp’, Journal of Intercultural Studies, 34:6 (2013), 631-649 Gimenez Amoros, Luis, ‘Music and Islam in the Saharawi refugee camps of the Hamada desert, Algeria: the practice of medej as a syncretic musical evolution’ Muziki, 13:1 (2016), 43-57 Martín Beristain, Carlos, González Hidalgo, Eloísa, The oasis of memory : historical memory and human rights violations in the Western Sahara (Bilbao, Spain: Universidad del País Vasco: Instituto de Estudios sobre Desarrollo y Cooperación Internacional, 2012) Martin-Márquez, Susan, ‘Brothers and Others: Fraternal Rhetoric and the Negotiation of Spanish and Saharawi Identity’, Journal of Spanish Cultural Studies, 7:3 (2006), 241-258 Mernissi, F., Beyond the Veil: Male-Female Dynamics in Modern Muslim Society, (London: Saqi, 2003) Rivera Cusicanqui, Silvia, ‘Liberal Democracy and Ayllu Democracy in Bolivia: The Case of Northern Potosi’, Journal of Development Studies, 26 (1990), 97–121 Rossetti, Sonia, ‘Saharawi women and their voices as political representatives abroad’, The Journal of North African Studies, 17:2 (2012), 337-353 Ruano Posada, Violeta and Vivian Solana Moreno,‘The Strategy of Style: Music, Struggle, and the Aesthetics of Sahrawi Nationalism in Exile’, TRANSMODERNITY: Journal of Peripheral Cultural Production of the Luso-Hispanic World, 5:3 (2015), 40-61 Said, Edward, Orientalism (London: Penguin, 1995) Skretteberg, Richard, 'Western Sahara: Occupied Country, Displaced People’ Norwegian Refugee Council, <https://www.nrc.no/globalassets/pdf/reports/occupied-country---displaced-people.pdf> [accessed 9 February 2018] Volpato, Gabriele, and Patricia Howard, ‘The material and cultural recovery of camels and camel husbandry among Sahrawi refugees of Western Sahara’, Pastoralism: Research, Policy and Practice, 4:7 (2014), 1-23 Volpato, Garbiele, Rossi, David and Demnico Dentoni,‘A Reward for Patience and Suffering: Ethnomycology and Commodification of Desert Truffles among Sahrawi Refugees and Nomads of

University of Leeds Western Sahara’, Economic Botany, 67:2 (2013), 147-160 Wallace, Tina, ‘Saharawi women: ‘between ambition and suffering’, Gender & Development, 2:1 (1994), 50-53 Wilson, Alice, ‘Refracting Custom in Western Sahara’s Quest for Statehood’, Political and Legal Anthropology Review, 38:1 (2015), 72-90 Ziai, Fatemeh, ‘UN Impasse in the Western Sahara’, Middle East Report, 199 (1996), 38-41 Zoubir, Yahia H. and Daniel Volman, International dimensions of the Western Sahara conflict (Westport, Conn: Praeger, 1993)

Human rights journal What happens at sea, stays at sea: The unchecked human rights abuses of the shipping industry Shaun Murray Human rights abuses occurring in one of the global economy’s most vital industries, the shipping industry, have long gone unreported, unchecked and essentially forgotten. Examining sources from international organisations, charities and academics working in the maritime area, this essay seeks to answer how and why such an extensive and heavily regulated industry has fallen so far behind in the protection of human rights compared to other land-based industries. This essay ultimately intends to shed light on the ongoing abuses in the industry and the recent growth of initiatives aiming to improve the state of human rights at sea.

‘For thousands of today’s international seafarers life at sea is modern slavery and their work place is a slave ship’, held the International Commission of Shipping’s inquiry in 2000.1 Unfortunately, human rights abuses occurring at sea are still seen as an out of sight and out of mind issue and there has been little improvement in the years since. The shipping industry is an increasingly extensive and integral component of the world economy that impacts us all. Many people, however, are unaware of the extent of the abuses occurring within the industry as violations often go unreported and consequently fail to attract the attention of the media and the wider public. Although the industry is subject to heavy international regulation, it also contains a number of deficiencies that are facilitating these ongoing and unchecked abuses. This essay will detail the continuing violations occurring within the industry, why they are remaining unchecked, and the recent developing effort to shed light upon them. Shipping is a large-scale and continually expanding industry of vital importance to the global economy. It is the core of international trade, as around ninety per cent of the world’s trade of raw materials, food and manufactured goods are carried by ships.2 From 2009 to 2016, the maritime cargo trade saw a growth of thirty per cent,3 and from 2005 to 2017, the capacity of the world’s fleet of ships doubled. As a result, the shipping

1 International Commission on Shipping, Inquiry into Ship Safety: Ships, Slaves and Competition (2000) <http:// seafarersrights.org/wp/wp-content/uploads/2014/11/INTERNATIONAL_REPORT_SHIPS-SLAVES-ANDCOMPETITION_2000_ENG.pdf> [accessed 8 February 2018], p. 3. 2 International Chamber of Shipping, ‘Key Facts’, International Chamber of Shipping (London: 2017) <http://www. ics-shipping.org/shipping-facts/key-facts> [accessed 9 February 2018]. 3 UN Conference on Trade and Development, 2017 Handbook on Statistics, TD/STAT.42 ([Geneva] UN, 6 December 2017), <http://unctad.org/en/PublicationsLibrary/tdstat42_en.pdf> [accessed 9 February 2018], p. 72; Ibid., p. 76.

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Shaun Murray The unchecked human rights abuses of the shipping industry

industry employs an increasing number of people. From 2005 to 2015, there was a forty per cent increase in the number of seafarers in the industry, the main source countries of employees being China, the Philippines and Indonesia.4 In the UK alone, the maritime sector which includes the shipping industry, employs more people than the aerospace and defence industries, and more than double that of the motor vehicle industry.5 The increasing scale of the shipping industry in terms of capacity and employment is reflective of its continuing vital role within and great importance to the global economy. Due to its extensive size, scope and importance, the shipping industry is subject to heavy regulatory frameworks. These frameworks govern the operational aspects of shipping including safety and security, environmental issues, navigational rules, technical aspects and the overall efficiency of the industry, and the labour standards and conditions of those working on board ships around the world. The shipping industry is principally governed by two international organisations that are both specialised agencies of the United Nations: The International Maritime Organisation (IMO) and the International Labour Organisation (ILO). Both agencies have high membership rates ‘in comparison… with shore-based industries’ with 173 countries ratifying the Convention on the International Maritime Organisation, and 187 accepting all the obligations of the ILO Constitution.6 Membership of both agencies includes all major countries such as the UK, US, China, Russia and France, with the majority of the non-members to the IMO being landlocked countries. Additionally, all ships are required to be registered to any one particular country, known as the ‘flag State’, even if this country differs from that of the ship’s owners.7 Flag States have the responsibility of enforcing national, IMO and ILO legislation over the ships registered in their jurisdiction. These regulations range from the minimum age, fitness and training requirements of seafarers, to their work hours, wages, and recreational activities on ships, and to life-saving, fire safety and pollution reduction measures. These far-reaching regulatory frameworks have resulted in the shipping industry being regarded as ‘one of the most heavily regulated industries’ in the world.8 However, despite the major global scale and heavy regulation of the industry, there is a ‘strong consensus that the shipping industry is “behind the curve”’ in terms of

4 BIMCO and International Chamber of Shipping, Manpower Report: The global supply and demand for seafarers in 2015 (2015), 10-14 (p. 10) <http://www.ics-shipping.org/docs/default-source/resources/safety-security-andoperations/manpower-report-2015-executive-summary.pdf?sfvrsn=16> [accessed 9 February 2018]. 5 Centre for Economics and Business Research, The economic contribution of the UK Maritime sector: A report for Maritime UK (2017), 1-41 (p. 15) <https://www.maritimeuk.org/documents/183/Cebr_Maritime_Sector_ Report_2017.pdf> [accessed 9 February 2018]. 6 International Chamber of Shipping, ‘The Regulation of International Shipping’, International Chamber of Shipping (London: 2017) <http://www.ics-shipping.org/shipping-facts/safety-and-regulation/the-regulation-of-internationalshipping> [accessed 9 February 2018]. 7 Carlos Felipe Llinas Negret, ‘Pretending to be Liberian and Panamanian; Flags of Convenience and the Weakening of the Nation State on the High Seas’, Journal of Maritime Law & Commerce, 47 (2016), 1-28 (p. 3). 8 International Chamber of Shipping, ‘The Regulation of International Shipping’.

Human rights journal addressing human rights violations compared to other industries.9 These violations can be divided into three main areas: direct physical or mental abuse, violations of remuneration and labour rights, and abandonment of the ship and crew. An inquiry conducted in 2000 by the International Commission on Shipping detailed the abuse occurring across the industry.10 The Commission held that ‘life at sea for many seafarers involves much abuse’ including beatings, sexual assault, sub-par accommodation, inadequate food, medical treatment and rest time.11 The Commission also detailed mental abuse stemming from isolation, cultural insensitivity and inadequate amenities for social interaction. In regards to remuneration and labour, ‘extensive information was provided’ to the Commission regarding seafarers being cheated out of, dismissed or blacklisted for seeking help about unpaid contracted wages, substantial unpaid back pay, underpaid or delayed entitlements to seafarers’ families, unfair placement fees for jobs, and reduced compensation entitlements.12 Further is the issue of abandonment in which a ship and crew are abandoned in a foreign port ‘as a result of a deliberate and calculated decision by a ship owner’ following their bankruptcy or insolvency.13 The Commission held that ‘there are few major ports in the world that have not played host to one or more abandoned ships and their crews’14, and that the International Transport Workers’ Federation between 1996 and 2000 had dealt with more than 210 cases of abandoned ships with a total of 3500 seafarers.15 As stated by the Commission, ‘such practices are all in clear breach of ILO conventions’.16 In the years since the International Commission on Shipping’s 2000 Inquiry, these practices are still in widespread occurrence across the shipping industry. David Hammond, a former military seafarer and founder of the charity Human Rights at Sea, held in 2014 that ‘there are many human rights violations occurring at sea, most are unreported’. These include deaths at sea which are ‘virtually unreported’ and therefore ‘receive little media coverage, so most people are unaware of the suffering that occurs’.17 This has resulted in a distinct lack of discourse about the issue and has inhibited any outside or bottom-up pressure from being placed on the industry. In June 2017, however, an expert panel of representatives from the Rafto Human 9 David Hughes, ‘Is shipping ‘behind the curve’ on human rights?’, The Business Times; Singapore, 14 June 2017 <http://www.businesstimes.com.sg/transport/is-shipping-behind-the-curve-on-human-rights> [accessed 8 February 2018] (para 8 of 15). 10 International Commission on Shipping. 11 Ibid., p. 29. 12 Ibid., p. 2. 13 Kitack Lim, Opening speech: Consular Corps of London, Seminar on the Abandonment of Seafarers (London: International Maritime Organisation, 2017) in IMO Media Centre <http://www.imo.org/en/MediaCentre/ SecretaryGeneral/SpeechesByTheSecretaryGeneral/Pages/ConsularCorpsAbandonment.aspx> [accessed 10 February 2018]. 14 International Commission on Shipping, p. 30. 15 Ibid., p. 52. 16 Ibid, p. 56. 17 MAREX, ‘Human Rights Supporters Rally to Protect Seafarers’, The Maritime Executive, 29 October 2014 <https://www.maritime-executive.com/article/Human-Rights-Supporters-Rally-to-Protect-Seafarers-2014-1029#gs.=mMfcj4> [accessed 10 February 2018], (para 4 of 11).

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Shaun Murray The unchecked human rights abuses of the shipping industry

Rights Foundation, the Institute for Human Rights and Business, the Human Rights at Sea charity, and the Norwegian OECD National Contact Point were hosted at the Nor-Shipping maritime trade fair to discuss the state of human rights in the industry. The panel held that there is still ‘space for exploitative practices to be carried out by less scrupulous members of [the] industry’18 and that this exploitation ‘goes deeper than the conditions on board vessels…with harmful employment practices and bonded labour coming up on a regular basis’.19 As isolated seafarers rely on their employers for communication with friends, family and other support networks, they ‘may find themselves vulnerable to exploitation and abuse’.20 It is therefore clear that despite the size and heavy regulation of the shipping industry, there are widespread and ongoing human rights abuses occurring on ships across the world. The continuing human rights abuses in the shipping industry begs the question, as queried by Dr Thomas Mensah, former President and Judge of the International Tribunal for the Law of the Sea, as to ‘why a major global industry… should be so careless in the way it deals with one of its most important assets… the seafarers who work on their vessels’?21 In such a heavily regulated industry, it stands to reason that there are a number of deficiencies somewhere along the line. The International Commission on Shipping attributes these ongoing abuses to a ‘minority of beneficiaries along the chain who are not working to eliminate… inhuman practices’.22 Working up the chain, the first deficiency lies with the ship owners or operators who hold the most direct responsibility for complying with international regulations. It has been argued that there ‘can be a tendency’ by ship owners and operators ‘to see human rights as a “tick-box exercise”’ as opposed to a necessary element in creating a decent and adequate working environment.23 The Secretary-General of the International Maritime Organisation stated that, particularly in regards to abandonment, ship owners may ‘find it cheaper and easier to walk away’ rather than fixing the problem.24 Additional responsibility lies with manning agencies used by shipping companies to recruit seafarers. There are instances where seafarers ‘are literally taken off the street and sent to sea’ without any ‘knowledge of the English language and no safety or job related training’, leading to increased risk of harm and exploitation.25 It is therefore clear that a degree of deficiency lies in the actions of ship owners and operators who possess the most direct responsibility in regards to the conditions of their workers.

18 Hughes, (para 6 of 15). 19 Ibid., (para 10 of 15). 20 Ibid., (para 3 of 15). 21 Thomas Mensah, ‘Foreword’, in Seafarers’ Rights, ed. by Deirdre Fitzpatrick and Michael Anderson (New York: Oxford University Press, 2005), p. v. 22 International Commission on Shipping, p. 57. 23 Hughes, (para 8 of 15). 24 Lim. 25 International Commission on Shipping, p. 56.

Human rights journal A second deficiency lies with flag States. As previously mentioned, each ship is required to be registered to a ‘flag State’ and each flag State has ‘the principal responsibility of ensuring that owners [of ships under its jurisdiction] comply with international regulations’.26 Statistics show that at the beginning of 2017 Panama took the lion’s share of registrations at eighteen per cent of the world’s fleet, followed by Liberia at 11.5 per cent, the Marshall Islands at 11.4 per cent, Hong Kong at 9.1 per cent, and Singapore at 6.5 per cent.27 Statistics also show, however, that the world’s fleet of ships is mostly owned by Asia with forty-nine per cent, followed by Europe with forty-one per cent, and North America with seven per cent.28 The discord between where ships are owned and where they are registered is representative of the practice known as ‘flags of convenience’ (FOC). FOC countries operate open registries which allow a ship of any nationality to register under their flag, meaning it is not necessary for a ship to be registered in the same country as the ship’s owners or operators. Seventy-five per cent of the world’s fleet is registered under an FOC.29 This practice is so popular because most FOC countries ‘also tend to be those who possess the most lax labor, safety, and environmental codes’ so they provide a safe haven for owners ‘wishing to… evade scrutiny [by] register[ing] under foreign flags where… laws protecting seafarers are often minimal or non-existent’. Furthermore, most FOC countries are developing ‘as opposed to politically powerful and economically developed states’ and lack the requisite financial and technical resources to adequately monitor and regulate their ships.30 This has consequently left many seafarers open to exploitation and abuse and their protection ‘has been left almost exclusively to unions’.31 Additionally, many States with open registries ‘do not require ship owners to disclose their identity at all’ which provides the added veil of anonymity.32 Panama offers easy registration and affords the ability to employ cheap foreign labour. It is held that Panama ‘cuts corners… putting maritime workers at risk’ with ships registered under Panama’s flag having a high rate of accidents.33 In 2014 for example, a female seafarer was killed by faulty machinery on a Panamanian-registered ship and instead of heading for the nearest port, the ship continued to operate for another two weeks with her body stored in a freezer.34 The flag State system, particularly the system of open registries, is a clear deficiency in the enforcement and monitoring of human rights across the shipping industry. A third deficiency lies within the complex nature of the regulatory framework. 26 Ibid., p. 87. 27 UN Conference on Trade and Development, p. 77. 28 Ibid., p. 76. 29 Negret, p. 6. 30 Ibid. 31 International Commission on Shipping, p. 3. 32 Negret, p. 12. 33 Ibid., p. 20. 34 Ibid., p. 6.

Shaun Murray The unchecked human rights abuses of the shipping industry

University of Leeds The development of extensive regulations has seen ‘an overall improvement in the condition of ships but a worsening in the treatment of seafarers’.35 It is argued that the existence of an international framework ‘cannot, in and of itself, prevent serious maltreatment and abuse of seafarers’36 as ‘a right has little value if it cannot be effectively enforced’.37 Due to the transnational nature of the shipping industry, seafarers are subject to a ‘patchwork of overlapping and sometimes conflicting’ laws and there may be confusion as to what laws apply or are enforceable. Additionally, the ‘unfavourable bargaining position of the seafarer vis-à-vis the employer’, combined with the expense and time consuming nature of foreign legal processes has rendered practical avenues for legal recourse ‘not as effective as those normally available to employees in land-based industries’.38 Although the introduction of the Maritime Labour Convention effective in 2013 guarantees seafarers rights to adequate work conditions, accommodation, food and medical care, ‘the term human rights is notably absent from the instrument’.39 It clear that the current legal framework is deficient and is ‘not able to secure for the seafarer… fundamental human rights’.40 Although the shipping industry is subject to heavy regulation, there are a number of shortfalls namely being careless owners, inadequate flag State practices, and ineffective regulations which facilitate the ongoing human rights violations within the shipping industry. Initiatives for reform to address these shortfalls and the continuing and unchecked human rights abuses occurring across the industry have gained momentum over recent years. These initiatives can be categorised into three main areas, being: better transparency and awareness in regards to abuses in order to break through the ‘out of sight and out of mind’ mentality of the industry, greater flag State enforcement of international standards, and greater education and training of seafarers to control and monitor the implementation of these standards themselves. In terms of transparency and awareness, notable advancement lies with establishment of the Human Rights at Sea charity in 2014 with the mission to ‘explicitly raise awareness, implementation and accountability of human rights provisions in the maritime environment’.41 For example, in January 2018, the charity partnered with the Business and Human Rights Resource Centre to launch the first international maritime human rights reporting platform with the purpose of ‘tackl[ing] the current lack of transparency in the maritime supply

35 International Commission on Shipping, p. 3. 36 Mensah, p. vi. 37 Seafarers’ Rights, ed. by Deirdre Fitzpatrick and Michael Anderson (New York: Oxford University Press, 2005), p. 544;Ibid., p. 539. 38 Mensah, p. vi. 39 Hughes, (para 6 of 15). 40 Seafarers’ Rights, p. 540. 41 David Hammond, ‘Human Rights at Sea: An Annual Review’, The Maritime Executive, 27 December 2016 <https:// www.maritime-executive.com/blog/human-rights-at-sea-an-annual-review#gs.ouE8c2g> [accessed 11 February 2018], (para 7 of 16).

Human rights journal chain’.42 This platform records cases of human rights abuses in the industry. It also allows the showcasing of examples of best practice to ‘elevate standards’ of corporate social responsibility with the hopes of encouraging companies operating in the sector to uphold human rights.43 As ship owners and operators possess the most direct responsibility for the practices taking place on their ships, shedding light on inadequacies and violations taking place under their control is an important step in reforming poor practices at sea. As previously outlined, a significant deficiency lies with inadequate flag State responsibility and the practice of ‘flags of convenience’. A way of countering this and ensuring compliance with international standards is through port State control regimes. Since 1982, port State control regimes provide countries with the right to enforce national laws implementing international standards over ships in their ports even if those ships are flying different flags. There are currently nine regional port State control agreements covering all of Europe, Asia, the Pacific, and much of the rest of the world. These regimes are manifested in inspections of ships and their machinery, equipment and certificates and documents, and allows the detainment of ships that do not satisfy international standards. Along with the physical, mechanical and environmental state of ships, these inspections leave ‘considerable scope’ for ports to inspect and implement laws in respect to violations of employment and work standards which ‘could go a long way towards protecting the rights of seafarers’.44 A workshop held in late 2017 by the International Maritime Organisation offered a number of recommendations in this area including improving efficiency by targeted inspections of substandard ships, and fewer unnecessary inspections of regularly compliant ships.45 Additionally, there is scope for port States to establish simplified and more accessible legal procedures for seafarers in need, such as those who are ill or abandoned, which would be highly beneficial for ‘meeting some of the desperate needs of seafarers’.46 It is clear that there is further scope for development in regards to the deficiencies of flag States, namely through improved port State control measures. A third area of potential reform is in relation to the individual role of seafarers in the monitoring and implementation of international standards. It is accepted that ‘as keyparticipants in the shipping industry’ ‘seafarers have the same obligations as other

42 Human Rights at Sea, ‘Press release: New global Maritime Human Rights Reporting Platform launched’, Human Rights at Sea, 16 January 2018 <https://www.humanrightsatsea.org/new-global-maritime-human-rights-corporatereporting-platform-launched/> [accessed 11 February 2018]. 43 Ibid., ‘Press release’. 44 Seafarers’ Rights, p. 549. 45 International Maritime Organisation, ‘Briefing: Port State control regimes move to boost collaborations, harmonisation and information sharing’, International Maritime Organisation, 6 November 2017 <http://www.imo. org/en/MediaCentre/PressBriefings/Pages/30-PSC-workshop.aspx> [accessed 11 February 2018]. 46 Seafarers’ Rights, p. 550.

Shaun Murray The unchecked human rights abuses of the shipping industry

University of Leeds people’ in seeing to the proper enforcement of these standards.47 Through improved training in regards to awareness of the human rights standards that apply to the shipping industry, their observation and monitoring could be better implemented and brought up to speed with other standards such as safety or navigation with which they ‘are ultimately responsible for implementing’.48 Furthermore, in 2015 the Human Rights at Sea (HRAS) charity partnered with the International Bar Association to raise awareness about a smartphone application called eyeWitness to Atrocities. The app allows individuals to accurately record and report human rights violations. It is available in multiple languages, and collects information including photos and video, the time and date, and GPS coordinates of violations and stores them in a secure offline facility to be used in an investigation or trial at a later date. HRAS has adapted the concept to apply for violations at sea, with the goal of ‘empower[ing] seafarers to… help hold accountable the people responsible for these abuses’.49 Additionally, the app includes a number of safety features to help combat the risk and potential ramifications that may arise if a user is caught using the app by perpetrators who wish to evade being recorded. Although a potential limitation lies in maintaining reliable access for seafarers to smartphone devices, it is nonetheless an important starting point and has seen successes in land-based contexts. It is therefore evident that, with the help of charities such as Human Rights at Sea, reforms involving ship owners, flag and port States, and seafarer’s themselves are gaining momentum to begin addressing the inadequate application of human rights standards at sea. In conclusion, the shipping industry is one of grand scale and importance to the international economy. As a result, the industry faces heavy international regulation by a number of bodies and conventions. Despite this heavy regulation and the importance of the industry, it is not free of human rights abuses. The continuance of these abuses can be placed down to several deficiencies in the system, namely those involving unscrupulous ship owners and operators, inadequate enforcement of standards by flag States, and the complex nature of these standards rendering efficient legal recourse unattainable for seafarers. Furthermore, as most of these abuses go unreported and unknown to the wider public, there has long been insufficient discourse around the issue and a consequent lack of outside or bottom-up pressure placed on the industry. Recent years, however, have seen a gradual growth in the push for reforms, particularly by charities such as Human Rights at Sea. This essay explored these areas of reform, in particular the need for increased transparency and awareness of violations and poor business practices, greater and more efficient port State controls, and increasing the role of seafarers in the upkeep of human rights, with the end goal 47 Ibid., p. x. 48 Lim. 49 Human Rights at Sea, eyeWitness App at a Glance (2015) <https://www.humanrightsatsea.org/wp-content/ uploads/2015/12/20151207-HRAS-EyeWitness-English-Secured.pdf> [accessed 11 February 2018] (para 2).

Human rights journal of creating a fair and adequate working environment for everyone on the world’s seas.

Bibliography BIMCO and International Chamber of Shipping, Manpower Report: The global supply and demand for seafarers in 2015 (2015) <http://www.ics-shipping.org/docs/default-source/resources/safetysecurity-and-operations/manpower-report-2015-executive-summary.pdf?sfvrsn=16> [accessed 9 February 2018] Centre for Economics and Business Research, The economic contribution of the UK Maritime sector: A report for Maritime UK (2017) <https://www.maritimeuk.org/documents/183/Cebr_ Maritime_Sector_Report_2017.pdf> [accessed 9 February 2018] Hammond, David, ‘Human Rights at Sea: An Annual Review’, The Maritime Executive, 27 December 2016 <https://www.maritime-executive.com/blog/human-rights-at-sea-an-annualreview#gs.ouE8c2g> [accessed 11 February 2018] Hughes, David, ‘Is shipping ‘behind the curve’ on human rights?’, The Business Times; Singapore, 14 June 2017 <http://www.businesstimes.com.sg/transport/is-shipping-behind-the-curve-onhuman-rights> [accessed 8 February 2018] Human Rights at Sea, ‘Press release: New global Maritime Human Rights Reporting Platform launched’, Human Rights at Sea (16 January 2018) <https://www.humanrightsatsea.org/newglobal-maritime-human-rights-corporate-reporting-platform-launched/> [accessed 11 February 2018] Human Rights at Sea, eyeWitness App at a Glance (2015) <https://www.humanrightsatsea.org/ wp-content/uploads/2015/12/20151207-HRAS-EyeWitness-English-Secured.pdf> [accessed 11 February 2018] International Chamber of Shipping, ‘Key Facts’, International Chamber of Shipping (London: 2017) <http://www.ics-shipping.org/shipping-facts/key-facts> [accessed 9 February 2018] International Chamber of Shipping, ‘The Regulation of International Shipping’, International Chamber of Shipping (London: 2017) <http://www.ics-shipping.org/shipping-facts/safety-andregulation/the-regulation-of-international-shipping> [accessed 9 February 2018] International Commission on Shipping, Inquiry into Ship Safety: Ships, Slaves and Competition (2000) <http://seafarersrights.org/wp/wp-content/uploads/2014/11/INTERNATIONAL_REPORT_ SHIPS-SLAVES-AND-COMPETITION_2000_ENG.pdf> [accessed 8 February 2018] Lim, Kitack, Opening speech: Consular Corps of London, Seminar on the Abandonment of Seafarers (London: International Maritime Organisation, 2017) in IMO Media Centre MAREX, ‘Human Rights Supporters Rally to Protect Seafarers’, The Maritime Executive, 29

University of Leeds October 2014 <https://www.maritime-executive.com/article/Human-Rights-Supporters-Rally-toProtect-Seafarers-2014-10-29#gs.=mMfcj4> [accessed 10 February 2018] Mensah, Thomas, ‘Foreword’, in Seafarers’ Rights, ed. by Deirdre Fitzpatrick and Michael Anderson (New York: Oxford University Press, 2005) Negret, Carlos Felipe Llinas, ‘Pretending to be Liberian and Panamanian; Flags of Convenience and the Weakening of the Nation State on the High Seas’, Journal of Maritime Law & Commerce, 47 (2016) 1-28

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Seafarers’ Rights, Deirdre Fitzpatrick and Michael Anderson (New York: Oxford University Press, 2005) UN Conference on Trade and Development, 2017 Handbook on Statistics, TD/STAT.42 ([Geneva] UN, 6 December 2017), <http://unctad.org/en/PublicationsLibrary/tdstat42_en.pdf> [accessed 9 February 2018]

Human rights journal Remembering the Massacres of Korea's 'forgotten war' Emma Walley The Korean War, 1950-1953, is often referred to as the ‘Forgotten War’. Although over two million people died, the conflict has seemingly been ‘forgotten’.1 During the conflict, a number of massacres were carried out by American and South Korean Forces, which have since been brushed under the carpet by the American military establishment, and unreported by survivors who have been silenced by the fear of being associated with Communism.2 Only minor scratches have been made on the surface to uncover the sheer volume of war crimes from 1948-1953, hence there is still a desperate need for thorough investigation. This paper will shed light on a number of these war crimes which serves to highlight the need to ensure that history is never forgotten, in order that it will cease to be repeated.

Commonly seen as an extension of the ‘East-West’ problem and a proxy war during the Cold War period, it has been too easy for people to neglect the local impact of the Korean War and thus fail to recognise that its devastation reached far beyond simply the American and Soviet peoples.3 Whilst North and South Korea were used as bartering chips in the manipulative game by the competing super powers, individual rights were abused at the hands of conflicting political ideologies. The Korean War was largely shaped by American ignorance to the functioning of a third world country. Following liberation from half a century of bondage under Japanese colonial rule in 1945, America inserted itself between the Japanese and Koreans and divided the country at the 38th Parallel, complicating the process of decolonisation further.4 Once again, Koreans found themselves to be ruled by yet another set of governors unable to speak their language, and utterly obtuse to Korean culture.5 The events which followed are unfortunately akin to those of previous American foreign policy initiatives, persistently characterised by a fear of Communism.6 Similar to that of Vietnam, its preoccupation with a policy 1 Charles J. Hanley and J. S. Chang, ‘Summer of Terror: At least 100,000 said executed by Korean ally of US in 1950’, Asia-Pacific Journal, 6. 7 (2008) <http://apjjf.org/-J-S--Chang--Charles-J--Hanley/2827/article.pdf> [accessed 7 February 2018], p.5. 2 Carla Sunwoo, ‘Geochange Massacre’ tackles deadly history’, Korea Joongang Daily (2013) <http:// koreajoongangdaily.joins.com/news/article/article.aspx?aid=2982321> [accessed 29 January 2018]. 3 Jon Halliday and Bruce Cumings, Korea: The Unknown War (New York: Pantheon Books, 1998), p.27. 4 Lori Watt, ‘Embracing Defeat in Seoul: Rethinking Decolonisation in Korea, 1945’, The Journal of Asian Studies, 74. 1 (Cambridge University Press, 2015), 153-174 (p.173). 5 Watt, The Journal of Asian Studies, p.173. 6 John Pratt, ‘Korea: The Life that Led to War’, London: Britain-China Friendship Association (1951) <https://www. marxists.org/history/international/comintern/1951/korea.htm> [accessed 2 December 2017].

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Emma Walley Remembering the Massacres of Korea’s ‘forgotten war’

of ‘containment’ blinded America to recognise the flaws within its own ideology, which further contributed to the harrowing number of innocent civilians killed under American governance. During a war in which over two million people reportedly died, it is estimated half or more were civilians.7 Hence this begs the question as to why the Korean War has become a forgotten war. This research seeks to shed light upon some of the worst massacres known of the period, and highlight how people in positions of authority have been able to restrict such knowledge from historical classification. It is important to note that the focus on the wrongdoings of American and South Korean forces is not an attempt to thereby imply North Koreans were innocent bystanders. There is no doubt that the abuse of human rights by the Democratic People’s Republic of Korea (DPRK) was devastating, but due to the skew of the Western media there is ample coverage of North Korea’s failure to protect its citizens. Instead, the need for this research stems from the lack of awareness to the flaws in Western rule. Due to the nature of war, death is a saddening reality of conflict. However, at least 100,000 deaths which occurred during the war were a result of the indiscriminate killing of civilians, not from the official military offensive, and therefore should be neither expected nor tolerated as a factor of war.8 The massacre of innocent civilians were the consequence of both United States air strikes and the brutal mass killings carried out by South Korean (Republic of Korea, or ‘ROK’) and United States forces. The targets of both types of atrocities were determined by political motive- at least this is the justification of the perpetrators- who argued on the premise that, ‘they went to Korea on a kind of anticommunist ‘crusade’.9 To address the impact of American air strikes, it is helpful to approach them from a legal angle in order to understand the sense in which they were disproportionate and inappropriate, as well as immoral. Air strikes intended to destroy ‘every means of communication’ to disrupt enemy activity, however this destruction often affected much more than communications.10 A cablegram from the DRPK’s Minister of Foreign Affairs addressed to the Security Council, notes concern that the American Airforce were ‘barbarously destroying or burning down schools, hospitals, theatres, clubs and other cultural establishments and non-military objectives’.11 These events incur many violations of humanitarian law: failure to minimise civilian casualties; inability 7 Hanley and Chang, Asia-Pacific Journal, p.5. 8 David Morgan, ‘AP: U.S. Allowed Korean Massacre in 1950’, CBS News, 5 July 2008 <https://www.cbsnews.com/ news/ap-us-allowed-korean-massacre-in-1950/> [accessed 7 March 2018]. 9 Dong Choon Kim, ‘Forgotten War, forgotten massacres — the Korean War (1950-1953) as licensed mass killings’, Journal of Genocide Research, 6.4 (2007), 523-544 (p.527). 10 Bruce Cumings, ‘Korea: Forgotten nuclear threats’, Le Monde Diplomatique (2004) <http://kit.mondediplo.com/ spip.php?article4077> [accessed 28 November 2017]. 11 Pak Heun Young, ‘Cablegram dated 22 August 1950 from the Minister of Foreign Affairs of the Korean People’s Democratic Republic addressed to the President of the Security Council and the Secretary-General transmitting Report No. 1 by the “Commission of the United Democratic Fatherland Front for the Investigation of Crimes of the American Interventionists and the Syngman Rhee Clique” <http://dag.un.org/handle/11176/86347> [accessed 22 November 2017].

Human rights journal to responsibly distinguish between enemy combatants and civilians; and continued destruction to civilian territory beyond military needs.12 Throughout the War the US dropped more than 32,000 tons of napalm on North Korea, which equated to more than it had dropped on the entire Pacific theatre during the Second World War.13 This is demonstrative of America’s ferocious air war policy which accounts for a large number of civilian deaths. Indeed, as Winston Churchill told Washington, when napalm was invented it had not been contemplated that it would be ‘splashed all over a civilian population’.14 However, nor did anyone know how vicious the Korean War would become. The persistent bombing campaigns against North Korea clearly breached the Draft Hague Draft Rules of Aerial Warfare. Whilst these were never formally adopted by the powers concerned, their existence acts as a measure of morality to highlight what should and should not have been carried out. For example, Article 22 declared that, “Aerial bombardment for the purpose of terrorising civilian population, of destroying or damaging private property not of military character, or of injuring non-combatants is prohibited”.15 In addition, Article 24 clarifies that bombardment of enemy areas which impact the civilian population must be abstained from.16 Above all, the US bombing is an example of its failure to consider the risk of civilian casualties. The obsessive focus on rooting out guerrilla bases and communist strongholds surpassed the moral consideration for human life. Some argue America ‘failed to provide any warning prior to its bombing campaigns when civilian residential areas were targeted’ - whilst this is not strictly true, their poor attempt was likely as informative as if they had done nothing at all.17 The extent of their efforts to warn civilians of approaching bombers was through the distribution of leaflets, which pilots knew to be ‘ineffective’.18 Much of the discussion concerning mass killings attempts to excuse them under the justification they were ‘suspected Communists’, or a ‘potential threat’.19 The fundamental problem with these excuses is that they are largely speculative – considering the scale and nature of the killings, it is difficult to accept the argument that the perpetrators of mass killings were certain that those whom they were attacking were the correct targets. This introduces the second infringement of humanitarian law of Aerial Warfare, which stipulates that it is necessary to distinguish clearly between an 12 Suh Hee-Kyung, ‘Massacres Before and During the Korean War, Mass Civilian Killings by South Korean and US Forces’, Critical Asian Studies, 42. 4 (2010), 553-588 (p.585). 13 Max Fisher, ‘Americans have forgotten what we did to North Korea’, Vox (2015) <https://www.vox. com/2015/8/3/9089913/north-korea-us-war-crime> [accessed 28 November 2017]. Cumings, ‘Korea: Forgotten nuclear threats’, Le Monde Diplomatique. 14 Halliday and Cumings, Korea: The Unknown War. 15 Hee-Kyung, Critical Asian Studies, p.585. 16 Ibid, p.585. 17 Ibid, p.580. 18 Cumings, Le Monde Diplomatique. 19 Howard W. French “South Koreans Seek Truth About ‘48 Massacre”, The New York Times, (2001) <https://www.nexis.com/results/enhdocview.do?docLinkInd=true&ersKey=23_ T27083939362&format=GNBFI&startDocNo=26&resultsUrlKey=0_T27084430153&backKey=20_ T27084430154&csi=6742&docNo=41> [accessed 24 January 2017].

Emma Walley Remembering the Massacres of Korea’s ‘forgotten war’

University of Leeds enemy and a civilian. Therefore, aerial bombing is only permitted ‘when directed at a military objective’, which America evidently failed to obey.20 A distressing report from a survivor implies some air strikes — due to the height at which they were travelling — were not entirely accidental in targeting civilians. Oh Gyuhwa survived the air strikes during the period of the Incheon landing which killed at least one hundred civilians, and suggests Americans were in fact aware of the existing civilian population.21 Due to the surprisingly low height that they were travelling, it is suspected that the pilots would have been able to identify those below them ‘with their bare eyes’.22 Moreover, if the North Korean Army were below, the planes would have flown high to avoid attacks from the enemy and instead carried out saturation bombings to ensure mass destruction, rather than dropping a fewer number of bombs at a low height. This is interpreted by some to suggest that bombers were aware that their targets were harmless civilians but used air warfare as an intimidation tactic regardless, and thus denotes a “major war crime”.23 In conjunction with this, US air strikes disregarded the responsibility to respect Article 23 of the Laws and Customs of War on Land to not cause ‘unnecessary suffering’.24 This was ignored by the incessant bombing of the American forces, who targeted suspected (however still not confirmed) bases of hidden enemy forces in civilian areas. Thereby, attacking the enemy entailed attacking innocent civilians who, by no fault of their own, suffered simply as a result of the location of their homes. Many of the same violations incurred by air strikes apply when also investigating the massacres which took place on the ground, however the sporadic circumstances upon which they occurred makes it more challenging to attach a legal perspective. Nevertheless, the evidence conveys the barbarism of the mass shootings, which discernibly infringed upon the laws of war. Historians have found multiple ways to categorise the victims of massacres, but for the purpose of this research — which seeks to widen the knowledge surrounding the massacres — three groups are outstanding: travelling refugees; citizens in affected areas due to suspected enemy activity; and massacred prisoners of war (POWs). The No Gun Ri incident is often identified as the first incident which damaged the perception of South Korean and American forces as ‘innocent’ participants of the Korean War.25 This concerns the first category of victims - refugees fleeing from their homes after being forced out by US raids attempting to eliminate left-wing sympathisers.26 Within the limited debate surrounding the war crimes, it is thought that the South 20 Hee-Kyung, Critical Asian Studies, p.585. 21 Ibid, p.575. 22 Ibid, p.585. 23 Fisher, ‘Americans have forgotten what we did to North Korea’, Vox. 24 Hee-Kyung, Critical Asian Studies, p.585. 25 Kim Dong Choon, ‘Beneath the Tip of the Iceberg: Problems in Historical Clarification of the Korean War’, Korea Journal, 42 (2002) <https://www.ekoreajournal.net/issue/view_pop.htm?Idx=3214> [accessed 24 January 2018]. 26 John Tirman, The Deaths of Others: The Fate of Civilians in America’s Wars (New York: Oxford University Press, 2011), p.46.

Human rights journal Korean and American military primarily targeted groups of suspected communists. At least this is the pretense used to justify such atrocities. However, this alibi does not withstand the case of No Gun Ri, an event in which at least three hundred refugees were slaughtered in a mass shooting underneath a bridge in 1950.27 No Gun Ri is unique from other violent incidents of the Korean War as it is one of the only known massacres carried out entirely by Americans on a civilian population. Several hundred refugees travelling from No Gun Ri, just south of Seoul, were attacked by US warplanes overhead who shot along the main railroad track upon which they were travelling.28 This forced the civilians to take refuge below a railroad bridge, only to then be met by gunfire from American troops , causing the largest known single massacre of the period.29 Americans have attempted to justify this egregious killing by arguing they were under orders to kill any approaching refugees. A ‘proposed policy’, according to a document of communication from American Ambassador, John Muccio to Dean Rusk, US Secretary of State, ‘included a policy to shoot approaching refugees’ due to the belief that North Koreans were using refugees as disguises for enemy troops infiltrating their lines.30 The aforementioned documents are yet to be declassified, therefore prolonging any official clarification of the incident. Instead the gaps in documentation can partially be filled by oral reports from witnesses. According to ex-military Mac W. Hilliard, commanders adopted the stance that all civilians are “to be considered as enemy”, and therefore ordered, “if you see ‘em, kill ‘em”.31 Indeed, this attitude is deeply inconsistent with a Western governing power proclaiming to promote its democratic values against the Communists. Instances such as this serve to suggest that America’s occupation bore more resemblance to a continuation of the Japanese imperial rule, rather than a peaceful policing occupation. The US were allegedly saving a nation from Communism, however, their destructive militarism ironically defeated their original objective. It is unknown how many others civilian casualties were caused by American shootings. However, the efforts of the Truth and Reconciliation Commission of Korea (TRCK) have contributed in uncovering more of the atrocities committed against non-combatants, many of which were carried out by South Koreans on their own people. This is exemplified by a survivor who explains “we survived the Japanese, but we didn’t think we’d be threatened by our own soldiers”.32 As noted by Kim 27 Dong-Choon Kim, ‘Critical Assessments of the South Korean Truth and Reconciliation Commission’, in Routledge Handbook of Memory and Reconciliation in East Asia, ed. Mikyoung Kim (New York: Routledge 2016), pp.144-159 (p.152). 28 Tirman, The Deaths of Others, p.46. 29 Kim Dong-choon, ‘The Truth and Reconciliation Commission of Korea: Uncovering the Hidden Korean War’, The Asia-Pacific Journal, 8. 9 (2010), 1-12 (p. 2) <http://apjjf.org/-Kim-Dong-choon/3314/article.pdf> [accessed 24 January 2018]. 30 Charles J. Hanley, M Mendoza , ‘The Massacre at No Gun Ri: Army Letter Reveal US Intent’, The Asia-Pacific Journal, 5. 4 (2007),1-5 <http://apjjf.org/-M-Mendoza--Charles-J--Hanley/2408/article.pdf> [accessed 8 February 2018]. 31 Hanley and Mendoza, The Asia-Pacific Journal, p.4. 32 Sunwoo, Korea Joongang Daily.

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Emma Walley Remembering the Massacres of Korea’s ‘forgotten war’

Dong Choon, civil war such as that in Korea, creates a situation where distinguishing between friend and enemy is not a simple task, hence many South Koreans would not discount anyone to be a threat.33 This is a problem that has been identified in the fate of the second category of victims: civilians wrongly assumed to have been involved with communist and guerrilla activities. This was often simply due to their home being in close proximity to hidden enemies. The intention of the rightists was the ‘cleansing of the “red-virus” plaguing South Korea, by treating all residents in the mountainous areas as “traitors” with no right to live under the South Korean regime.34 Filmmaker Kim Jae-soo has committed his efforts to exposing the ‘Bloody Winter’ of the Geochang massacre, regarded as ‘one of the worst civilian killings by Southern Forces from the Korean War’.35 Kim explains that he wanted to document the atrocity to ensure that people remember it, as “forgotten history tends to repeat itself”.36 According to the official reports of the Geochang Police Station, at least 517 civilians were killed with the aim to ‘cleanse’ areas where there were reported enemies and eradicate ‘procommunist partisans’.37 Once again, it is troublesome to believe any measures were taken to validate the suspected political views of their victims, especially considering 217 of them were under sixteen years old.38 Irrespective of their political stance, to kill non-combatants is undoubtedly a war crime which deserves much greater attention than it has previously received. Ahn Jeong-ae, an investigator for TRCK, was fired in 2010 for disclosing documents which confirmed army orders to massacre civilians and the government cover-up that consequently took place.39 Her thesis, entitled “Truth of the Sancheon-Hamyang-Geochang Massacres During the Korean War and the Cover-up Operation”, reportedly revealed details not only concerning the Geochang massacre, but also the additional massacres in neighbouring areas which have been entirely neglected overtime.40 Although the Geochang massacre has been recognized, the suppression of the other massacres which occurred at the same time has led to a distortion of the recorded number of victims, with Kim Dong-Choon estimating that as many as 10,000 deaths occurred.41 This confusion in numbers alone is arguably an indication of the disdain with which these atrocities have been treated. Since 2000, war crimes of the Sinchon Massacre have become increasingly prominent in South Korean dialogue, having been suppressed and denied for half a century. The greater attention given to this incident seems partially a result of its death 33 Dong Choon, ‘Beneath the Tip of the Iceberg’, p.66. 34 Dong Choon, ‘Forgotten war, forgotten massacres’, p.538. 35 Sunwoo, Korea Joongang Daily. 36 Ibid. 37 Dong Choon, ‘Forgotten war, forgotten massacres’, p.532. 38 Ibid. 39 Son Jun-hyun, ‘TRCK admits firing investigator for disclosing civilian massacre’, Hankyoreh, 11 October 2010 <http://english.hani.co.kr/arti/english_edition/e_national/443223.html?> [accessed 29 October 2018]. 40 Jun-hyun. 41 Dong Choon, ‘Forgotten war, forgotten massacres’, p.533.

Human rights journal count, which is significantly larger than other known massacres. It is estimated that over 35,000 people were killed over 52 days, roughly a quarter of the population of Sinchon at the time.42 It is astonishing to imagine that such a devastating event could take place without negative consequences for the guilty parties involved. Whilst it is unclear if American soldiers partook in this ‘orgy of killing’, or whether Americans pulled the trigger themselves, such questions are arguably misguided.43 It was America’s responsibility, as occupiers, to prevent human rights abuses occurring under their watch, especially considering the instrumental use of the United Nations to legitimise the intervention. Victims of this mass killing were targeted as a result of the discovery of 150 anti-communist burn victims in the backyard of a police station.44 A quest of revenge killings determined that [, removed] anyone who crossed the paths of ROK troops immediately became the enemy, meaning Location rather than valid reason led to the deaths of innocent people. Sinchon has additionally gained publicity due to the North Korean museum established to commemorate the atrocities of the massacre, which displays brutal images of the killings, including “horrifying portraits of American soldiers torturing women with pliers and murdering babies”.45 Despite this evidence and South Korean acceptance of the events, an attitude of denial persists in the West, as in an article discussing the Sinchon Massacre Museum, in which the author uses the word ‘alleged’ to describe the mass murder of civilians by American and South Korean forces.46 Words such as this only continue to justify the doubt of those unable to face the reality that a Western power failed in its duty to protect the civilians under its rule. The third and final category of victims under consideration are those imprisoned for their political views, and later systematically massacred by predominantly South Korean forces during the war. The Taejon massacre of July 1950[, removed] saw the deaths of between 4,000 and 7,000 political prisoners from local jails, whilst ‘American officers stood idly by’ throughout the slaughter.47 Efforts have been made to uncover this event, but unsurprisingly information has remained concealed until recently. Alan Winnington, a writer for the London Daily Worker, reported in 1950 that 7,000 non-combatants had 42 Sunghoon Han, ‘The Ongoing Korean War at the Sinch’on Museum in North Korea’, Cross-Currents, East Asian History and Culture Review (Seoul: Yonsei University 2015), p.156. 43 Adam Cathcart, ‘Neighbor, Perpetrator: Sinchon and Transborder Violence in South Hwanghae Province, 1945-1950’, paper presented at Centre of Korean Studies, British Association for Korean Studies (2015) [accessed 22 November 2017]. 44 Cathcart. 45 Charlie Moore, ‘Horrifying portraits of American soldiers torturing women with pliers and murdering babies are used for propaganda by North Korea as posters created by Kim Jong-il’s regime are displayed in public’, Mail Online, 28 September 2017 <https://www.nexis.com/results/enhdocview.do?docLinkInd=true&ersKey=23_ T27082977251&format=GNBFI&startDocNo=1&resultsUrlKey=0_T27082977289&backKey=20_ T27082977290&csi=397135&docNo=4> [accessed 24 January 2017]. 46 Moore. 47 Bruce Cumings, ‘The South Korean Massacre at Taejon: New Evidence on US Responsibility and Coverup’, The Asia-Pacific Journal, 6. 7 (2008) (p. 1) <http://apjjf.org/-Bruce-Cumings/2826/article.pdf? [accessed 5 February 2018].

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Emma Walley Remembering the Massacres of Korea’s ‘forgotten war’

been ‘slaughtered by southern authorities in Taejon’.48 However this was denounced as an ‘atrocity fabrication’ by the American Embassy in London.49 Once again, the corruption of power overshadowed the importance of knowledge and enabled America and South Korea to continue to avoid the consequences of their acts of aggression. Indeed, the Korean War was based on a conflict in ideologies, therefore killing on the basis of political views is regrettably predictable. However, the massacre of POWs denies individuals of their basic human right to a fair trial, notwithstanding the further consideration that both many of these prisoners were wrongfully imprisoned in the first place, as demonstrated by Bruce Cumings and Charles Hanley. Lee Joon-young, an executioner from Taejon told the Associated Press that he ‘knew that many of those shot and buried en masse were ordinary convicts or illiterate peasants’ who knew nothing about communism, and therefore certainly did not deserve to die.50 Cumings relays a story of a woman whose father was a victim of the Taejon massacre, after being wrongly imprisoned under the US Military Government. As a result of sharing some of the wealth he had acquired under Japanese colonial rule, he was suspected of communist activity and was “still rotting in prison” at the time of the Taejon Massacre. They never saw him again.51 This account is representative of the necessity to shed light on these incidents, even after so much time has passed. The families of victims have never been able to openly mourn the tragic deaths of their loved ones for fear of being labelled communist sympathisers, thus prohibiting [removed ‘their’] closure. Regardless of whether America acknowledges its role in the atrocities of the Korean War, it undeniably bears much responsibility. Their governing role makes them as culpable for the maintenance — or lack of — justice, even under the circumstances of war. Whilst there has previously been a shortage of evidence to prove America’s awareness of the atrocities, now-declassified records at the US National Archives demonstrate how they secured the cover-up of events. Photographs taken in September 1950 by those present at the Taejon Massacre were shared with the Joint Chiefs of Staff, who rather than reporting the atrocity, classified them and ensured they were obscured from public knowledge.52 Historian Jung Byungjoon notes that what is important to recognise from this is that Americans ‘were at the crime scene’ and took pictures but they ‘did not stop the executions’, and even failed in their duty to report them.53 This is demonstrative of the tendency to bury any information that assigns blame to 48 Charles Hanley, ‘Fear, Secrecy Kept 1950 Korea Mass Killings Hidden, Families’ fears, official secrecy and lies kept 1950 Korea mass killings hidden from history’, Asia-Pacific Journal, 6. 7 (2008) (p.7) <http://apjjf.org/-J-S-Chang--Charles-J--Hanley/2827/article.pdf> [accessed 7 February 2018]. 49 Hanley, ‘Fear, Secrecy Kept 1950 Korea Mass Killings Hidden’, p.7. 50 Hanley and Chang, Asia-Pacific Journal, p.1. 51 Cumings, ‘The South Korean Massacre at Taejon’, p.1. 52 Charles J. Hanley and Jae-Soon Chang, ‘US Okayed Korean War Massacres’, Asia-Pacific Journal, 6. 7 (2008) (p.8) <http://apjjf.org/-J-S--Chang--Charles-J--Hanley/2827/article.pdf> [accessed 7 February 2018]. 53 Ibid, p.8.

Human rights journal America, suggesting that they were uninvolved bystanders and therefore inculpable for this series of tragic events.54 This is certainly not the case, and the gradual revelation of hidden stories of mass killings during the Korean War paints a negative picture of America’s anticommunist military interventions in the Third World, and exposes what efforts were really made in attempting to ‘make the free world’.55 The growing distance between the events of the Korean War and today’s political climate enable an opportunity for remaining survivors and affected relatives to work with committees such as the TRCK, in order to fulfil their pursuit of justice. It is integral that people do not become desensitised to such atrocities simply because of the time that has passed since they occurred. The need to highlight both America and South Korea’s mistakes is evermore essential in ensuring that the abuse of human rights is reported, regardless of the power and status of those responsible.

Bibliography Cathcart, Adam, ‘Neighbor, Perpetrator: Sinchon and Transborder Violence in South Hwanghae Province, 1945-1950,’ paper presented at Centre of Korean Studies, British Association for Korean Studies (2015) [accessed 22 November 2017] Cumings, Bruce, ‘Korea: Forgotten nuclear threats’, Le Monde Diplomatique (2004) <http://kit. mondediplo.com/spip.php?article4077> [accessed 28 November 2017] Cumings, Bruce, ‘The South Korean Massacre at Taejon: New Evidence on US Responsibility and Coverup’, The Asia-Pacific Journal, 6. 7 (2008), 1-4 <http://apjjf.org/-Bruce-Cumings/2826/article. pdf> [accessed 5 February 2018] Dong Choon, Kim, ‘Beneath the Tip of the Iceberg: Problems in Historical Clarification of the Korean War’, Korea Journal, 42. 3 (2002), 60-86 <https://www.ekoreajournal.net/issue/view_pop. htm?Idx=3214> [accessed 24 January 2018] Dong Choon Kim, ‘Critical Assessments of the South Korean Truth and Reconciliation Commission’, in Routledge Handbook of Memory and Reconciliation in East Asia, ed. Mikyoung Kim (New York: Routledge 2016), pp. 144-159 Dong Choon, Kim, ‘Forgotten War, forgotten massacres — the Korean War (1950-1953) as licensed mass killings’, Journal of Genocide Research, 6.4 (2007), 523-544 <http://www.tandfonline.com/ doi/abs/10.1080/1462352042000320592> [accessed 21 November 2017] Dong Choon, Kim, ‘The Truth and Reconciliation Commission of Korea: Uncovering the Hidden Korean War’, The Asia-Pacific Journal, 8. 9. 5 (2010) <http://apjjf.org/-Kim-Dong-choon/3314/ article.pdf> [accessed 24 January 2018]

54 Cumings, ‘The South Korean Massacre at Taejon’, p.3. 55 Dong Choon, ‘Forgotten war, forgotten massacres’, p.524.

University of Leeds Fisher, Max, ’Americans have forgotten what we did to North Korea’, Vox (2015) <https://www.vox. com/2015/8/3/9089913/north-korea-us-war-crime> [accessed 28 November 2017] French, Howard W., ‘South Koreans Seek Truth About ‘48 Massacre’, The New York Times (2001) <https://www.nexis.com/results/enhdocview.do?docLinkInd=true&ersKey=23_ T27083939362&format=GNBFI&startDocNo=26&resultsUrlKey=0_T27084430153&backKey=20_ T27084430154&csi=6742&docNo=41> [accessed 24 January 2017] Halliday, Jon and Bruce Cumings, Korea: The Unknown War (New York: Pantheon Books, 1998)

Emma Walley Remembering the Massacres of Korea’s ‘forgotten war’

Han, Sunghoon, ‘The Ongoing Korean War at the Sinch’on Museum in North Korea’, CrossCurrents, East Asian History and Culture Review (Seoul: Yonsei University, 2015) Hanley, Charles, ‘Fear, Secrecy Kept 1950 Korea Mass Killings Hidden, Families’ fears, official secrecy and lies kept 1950 Korea mass killings hidden from history’, Asia-Pacific Journal, 6.7 (2008) <http://apjjf.org/-J-S--Chang--Charles-J--Hanley/2827/article.pdf> [accessed 7 February 2018] Hanley, Charles J., and J.S. Chang, ‘Summer of Terror: At least 100,000 said executed by Korean ally of US in 1950’, Asia-Pacific Journal, 6.7 (2008) <http://apjjf.org/-J-S--Chang--Charles-J-Hanley/2827/article.pdf> [accessed 7 February 2018] Hanley, Charles J., and Jae-Soon Chang, ‘US Okayed Korean War Massacres’, Asia-Pacific Journal, 6.7 (2008) <http://apjjf.org/-J-S--Chang--Charles-J--Hanley/2827/article.pdf> [accessed 7 February 2018] Hanley, Charles J., and M Mendoza, The Massacre at No Gun Ri: Army Letter Reveal US Intent, The Asia-Pacific Journal, 5.4 (2007) <http://apjjf.org/-M-Mendoza--Charles-J--Hanley/2408/article.pdf> [accessed 8 February 2018] Hee-Kyung, Suh, ‘Massacres Before and During the Korean War, Mass Civilian Killings by South Korean and US Forces’, Critical Asian Studies, 42.4 (2010), 553-588 Heun Young, Pak, ‘Cablegram dated 22 August 1950 from the Minister of Foreign Affairs of the Korean People’s Democratic Republic addressed to the President of the Security Council and the Secretary-General transmitting Report No. 1 by the “Commission of the United Democratic Fatherland Front for the Investigation of Crimes of the American Interventionists and the Syngman Rhee Clique”’ (1950) <http://dag.un.org/handle/11176/86347> [accessed 22 November 2017] Jun-hyun, Son, ‘TRCK admits firing investigator for disclosing civilian massacre’, Hankyoreh, 11 October 2010 <http://english.hani.co.kr/arti/english_edition/e_national/443223.html?> [accessed 29 October 2018] Moore, Charlie, ’Horrifying portraits of American soldiers torturing women with pliers and murdering babies are used for propaganda by North Korea as posters

Human rights journal created by Kim Jong-il’s regime are displayed in public’, Mail Online, 28 September 2017 <https://www.nexis.com/results/enhdocview.do?docLinkInd=true&ersKey=23_ T27082977251&format=GNBFI&startDocNo=1&resultsUrlKey=0_T27082977289&backKey=20_ T27082977290&csi=397135&docNo=4> [accessed 24 January 2017] Morgan, David, ‘AP: U.S. Allowed Korean Massacre in 1950’, CBS News, 5 July 2008 <https://www. cbsnews.com/news/ap-us-allowed-korean-massacre-in-1950/> [accessed 7 March 2018] Pratt, John, ‘Korea: The Life that Led to War’, London: Britain-China Friendship Association (1951) <https://www.marxists.org/history/international/comintern/1951/korea.htm> [accessed 2 December 2017] Sunwoo, Carla, ‘Geochange Massacre’ tackles deadly history’, Korea Joongang Daily, 20 December 2013 <http://koreajoongangdaily.joins.com/news/article/article.aspx?aid=2982321> [Accessed 29 January 2018] Tirman, John, The Deaths of Others: The Fate of Civilians in America’s Wars, (New York: Oxford University Press, 2011) Watt, Lori, ‘Embracing Defeat in Seoul: Rethinking Decolonisation in Korea, 1945’, The Journal of Asian Studies, 74.1 (Cambridge University Press, 2015), 153-174

University of Leeds

Human rights journal ‘Disquieting’ Refugee: The Radical Influence of The Figure of The Kosovan Refugee on Human Rights and Nation-State Sovereignty Sugar Thomas The figure of the refugee, perhaps the most symbolic and significant figure when considering human rights, has long been characterised largely by its status as human rights victim. While it is imperative to give due notice to the atrocities survived by refugees, such as those that fled Kosovo at the end of the 20th Century, attention is also indebted to their lasting radical influence on the socio-political formation of their host country. The disquieting impact of the refugee on accepted notions of human rights and supreme nation-state sovereignty is often forgotten in human rights discussions.This piece aims to redefine the Kosovan refugee as a potent figure through exploring the representations of sovereignty in Kate Clanchy’s novel Antigona and Me using contemporary human rights discussions by Giorgio Agamben, Jacques Derrida and Ekaterina Yahyaoui Krivenko. The positive influence of the refugee, henceforth somewhat forgotten, is rewritten into narratives surrounding human rights.

The Kosovo War (February 1998- June 1999) saw the displacement of approximately 1.1 million Kosovan refugees to surrounding countries, including the UK.1 According to the UN High Commissioner for Refugees, just five months after the end of the war, over 80% of these refugees had returned to their country of origin.2 In the two decades that have passed since the human rights atrocities that characterised the war were perpetrated, the refugee crisis it provoked has largely fallen out of both the gaze of the public and the agenda of human rights discourse. The Kosovans that were repatriated at the tail end of 1999 and the countless others that have since returned make up the majority of those originally displaced. In the subsequent years, Europe has experienced near-constant conflicts, human rights violations and resulting refugee crises within its borders that have usurped the place of the 1999 crisis in the capricious public consciousness. The combination of these two phenomena- repatriation of the majority of Kosovan refugees and subsequent human rights crises- means that as a collective, we rarely consider those refugees that kept their new socio-political status by remaining in their host countries. Equally, little thought is apparently given to the indelible impact these refugees have on the host country almost two decades later. Instead, political and public attention 1 Heike Krieger, The Kosovo Conflict and International Law: An Analytical Documentation 1974-1999, (Cambridge: Cambridge University Press, 2001), p. 90. 2 UNHCR, The Kosovo Refugee Crisis: An Independent Evaluation of UNHCR’s Emergency Preparedness and Response, (Geneva: UNHCR, 2000).

University of Leeds

Sugar Thomas The Kosovan Refugee on Human Rights and Nation-State Sovereignty

has turned to current influxes of refugees triggered by the crisis in Syria, which forms the largest migration crisis since World War Two.3 In light of these circumstances, Kosovan refugees that still remain in countries such as the UK and their influence have been significantly under-examined and can be considered in some ways as forgotten. Kate Clanchy’s part-novel part-memoir Antigona and Me provides an enlightening consideration of this situation, taking the story of Kosovan refugee Antigona, Clanchy’s real-life nanny and friend, as its central focus. The quasi-autobiographical work aims to give voice to the inhuman suffering and subsequent empowerment of the real-life Antigona and the countless others like her. Through considering this literary text through the prism of the work of Giorgio Agamben, Jacques Derrida and Ekaterina Yahyaoui Krivenko, we are able to re-situate this somewhat forgotten topic into contemporary thought, particularly examining the potential catalytic and productive influence such figures have on the socio-political configuration of our society. The impact of the refugee on the accepted constructs of nation-state sovereignty and universal human rights takes precedence in this consideration, inverting the view of the refugee as a human rights victim, instead considering the refugee a figure of power, able to assume sovereignty over themselves and their surroundings through their newly-restored human rights. Often, critical focus lies on currently-unravelling human rights atrocities due to their urgency and severity yet discussions need to be reoriented to also consider the radical and often positive impact and interactions of refugees that remain in host countries. This provides the ideal vantage point from which to view forgotten or undiscovered human rights successes on an individual and wider scale. In this way, the figure of the refugee can be viewed as something other than a victim of human rights violations and instead as a figure equipped with the agency, autonomy and perhaps sovereignty. In his seminal piece Beyond Human Rights, Giorgio Agamben uses Hannah Arendt’s We Refugees as a point of departure to consider the ‘countryless refugee’ and how this figure troubles both the sovereignty of the nation-state and its projection of human rights.4 Agamben suggests a drastic shift in the condition of the refugee who, after being left with nothing, can now be viewed as exerting an amount of power. Equipped with the ‘priceless advantage’ of political influence, the refugee is able to destabilise the foundations of an already-precarious nation-state.5 As the nation-state relies upon the ‘nativity’ of the people within it, the refugee, as a ‘pure human’ who will not be ‘naturalized or repatriated’, has no tenable place within this geopolitical system.6 Thus, the sovereignty of the nation-state and its nexus between ‘nativity’ and ‘nationality’ 3 United Nations, Syria conflict at 5 years: the biggest refugee and displacement crisis of our time demands a huge surge in solidarity (Geneva: UNHCR, 2016). 4 Giorgio Agamben, ‘Beyond Human Rights, Means without End. Notes on Politics’, in Theory Out of Bounds (Minneapolis/London: University of Minnesota Press, 2000), p.90. 5 Ibid, p.90. 6 Ibid, p.92.

Human rights journal and between ‘human’ and ‘citizen’, is ruptured by the presence of the refugee.7 Additionally, as the nation-state has proven itself ‘absolutely incapable’ of defending the rights of these ‘pure humans’, human rights are revealed to be ‘indissolubly linked’ to the nation-state.8 The refugee, the figure that should have ‘embodied human rights more than any other’, instead ‘marks the radical crisis of the concept’.9 Exposing both the sovereignty of the nation-state and the tenability of human rights as ‘fiction’ in this way, Agamben proposes the refugee as a ‘central figure of our political history’.10 As this situation is not isolated and is, in fact, a European ‘phenomenon’, this perceived ‘reversal’ of the condition of the refugee and the nation-state is, for Agamben, ‘fully justified’.11 Agamben critically questions the accepted sovereignty of the nationstate and the plausibility of universal human rights using the figure of the refugee as an impetus. While this ‘clears the way’ for a new political configuration and redistribution of sovereignty, it also, in fact, leaves us in a state of ‘potential indistinction’ of a social and political structure.12 Seen as a ‘vanguard’ rather than a human rights victim, the refugee becomes the ‘only thinkable figure’ in which we can both see the ‘forms and limits of a coming political community’ and from which we can ‘build our political philosophy anew’.13 Agamben establishes the power of the refugee and illustrates the potentiality for human rights progress to be formed from previous crises. His analyses is particularly fruitful when mapped onto the impact of Kosovan refugees in the UK, with the figure of the Kosovan refugee becoming paradigmatic of Agamben’s ideas. Jacques Derrida’s ‘deconstructive questioning and sharing’ of sovereignty through the figure of the refugee surpasses Agamben’s exposition of nation-state sovereignty and human rights.14 Like Agamben, Derrida acknowledges the ‘upheaval’ resulting from the ‘massive influx’ of refugees as that which incites the destabilising of nation-state sovereignty and also of the plausibility of universal human rights.15 The previously accepted ‘inviolable rule’ that was the supremacy of nation-state sovereignty is conceived by Derrida as ‘increasingly precarious and problematic’ at the hands of the refugee.16 In a way that inherently disproves the previously-accepted supremacy of nation-state sovereignty, Derrida argues that ‘unheard-of forms of shared and limited sovereignty’

7 Ibid, p.93. 8 Ibid, p.93. 9 Ibid, p.93. 10 Ibid, p.93. 11 Ibid, pp.90-94. 12 Ibid p.94. 13 Ibid, p.92-3. 14 Vincent Leitch, ‘Late Derrida: The Politics Of Sovereignty’, Critical Inquiry, 33.2 (2007), 229-247 (p. 235) <http:// www.jstor.org/stable/10.1086/511492> [accessed 25 January 2018]. 15 Giovanna Borradori, Philosophy In A Time Of Terror: Dialogues with Jürgen Habermas and Jacques Derrida (Chicago: University of Chicago Press, 2003), p.131. 16 Jacques Derrida, On Cosmopolitanism And Forgiveness (London: Routledge, 2010), p. 4.

University of Leeds

Sugar Thomas The Kosovan Refugee on Human Rights and Nation-State Sovereignty

come into existence.17 Out of the ‘potential indistinction’ that Agamben recognises, Derrida identifies new forms of sovereignty enabled by the influence of the refugee.18 One of these forms is the ‘city of refuge’ which enacts hospitality towards refugees through newly-found ‘greater sovereignty’ in the absence of the nation-state fulfilling this obligation.19 Being ‘autonomous’ and superseding sovereignty in this way, the ‘city of refuge’ is seen to ‘reorient’ the current political condition in a similar way to the refugee.20 Fundamentally, Derrida establishes the possibility of the deconstruction of nation-state sovereignty to be shared across other entities as a result of the impact of the refugee. Extrapolating from Derrida’s deconstruction, Ekaterina Yahyaoui Krivenko fosters the idea of individuals as the bearers of an ‘other’ type of sovereignty.21 Krivenko uses the example of Canada’s program of private refugee sponsorship to corroborate her theory of individual and hospitable sovereignty, a concept which gives space for both the refugee and the host to hold an amount of sovereignty. Krivenko notes Derrida’s invocation of the Universal Declaration of Human Rights to posit individuals as the ideal enactors of sovereignty, used to aid and empower the refugee.22 Using Derrida’s Rogues: Two Essays On Reason, Krivenko notes how human rights ‘establish and presuppose man (equal, free, self-determined) as sovereign’, to argue that ‘sovereignty can be displaced towards individuals’, both the refugee and the host citizen.23 As individuals are able to claim and ‘create new forms of sovereignty’, they are enabled to ‘oppose state sovereignty’.24 In this instance, to ‘do justice to the sufferings of the Other’ and, as Derrida outlines, and step in where governments fail by acting with hospitality and solidarity towards the refugee.25 Essentially, the host is enabled to use their sovereignty to protect the refugee’s human rights, of which they had previously been stripped. The potentiality for individual sovereignties of the refugee and host that counter that of the nation-state pertains to the extent of the impact of the refugee on the socio-political construction of the UK. Throughout its history, sovereignty has proven a contentious philosophical concept. While at its core it signifies the ‘supreme authority within a territory’, this conception has undergone a near-constant transformation according to political climates and individual interpretations.26 Libertarians such as Stuart Mill argue that every individual 17 Borradori, Derrida and Habermas, p.132. 18 Agamben, p.94. 19 Derrida, p.7. 20 Ibid, p.4. 21 Ekaterina Yahyaoui Krivenko, ‘Hospitality And Sovereignty: What Can We Learn From The Canadian Private Sponsorship Of Refugees Program?’, International Journal Of Refugee Law, 24.3 (2012), 579-602 <https://academic. oup.com/ijrl/article-abstract/24/3/579/1557621> [12 December 2017]. 22 Ibid, p.589. 23 Krivenko, p.589. 24 Ibid, p.589. 25 Ibid, p.588. 26 Daniel Philpott, ‘Sovereignty’, in The Stanford Encyclopedia of Philosophy (Stanford: Stanford University Press, 2016).

Human rights journal has a sovereignty ‘over himself, over his own body and mind’.27 This conception is closely tied to the self-sovereignty determined in Human Rights. Conventionally, the ‘unity and universality and essential rightness of the sovereign territorial State’ was fundamental to the idea of sovereignty, the absoluteness and exclusivity of the sovereign power being its defining features.28 However, these reductive monolithic forms of sovereignty have been contested as a result of certain historical phenomenon, such as that of the refugee. Refugees trouble nation-state sovereignty in the ways explained by Agamben while also troubling self-sovereignty as they do not possess it. Agamben, Derrida and Krivenko contest the traditional conception of sovereignty in different ways. Agamben acknowledges its fracturing while Derrida and Krivenko build upon Agamben’s deconstruction to propose the potentiality of new individual and shared sovereignties exercised by other entities. As these proposals coexist and overlap, all will be used to examine the influence of the Kosovan refugee on the concept of sovereignty. Kate Clanchy’s Antigona and Me provides a literary exploration of the impact of the Kosovan refugee to parallel these theoretical explorations. Clanchy’s narrative is situated in the type of society that Agamben speaks of, in which the supremacy of nation-state sovereignty and universality of human rights has been somewhat ruptured. Clanchy’s story, whether intentionally or unintentionally, plays into contemporary discussions of the figure of the Kosovan refugee and their effect on human rights and sovereignty. If one is to assume the possibility of Derridean ‘shared and limited sovereignties’ and Krivenko’s sovereignty of the ‘individual’, these can be found within the text.29 The novel exhibits a multitude of individual and shared sovereignties, attesting to the profound change caused by the refugee to the socio-political configuration of the host country of the UK, which was previously founded upon the exclusivity and totality of nation-state sovereignty. At points, Antigona the refugee, Kate the protagonist and Clanchy the author supersede sovereignty and act on it beneficently, fostering the idea that what is often forgotten regarding human rights is the productive reactionary change that can take place despite its tragic origins. In actuality, the influx of Kosovan refugees influenced, and perhaps continues to influence, the socio-political structure of the UK and its sovereignty. The refusal to return to their country of origin of over 2000 Kosovan refugees after the predetermined year asylum was conceived as ‘yet another blow to the asylum system’ which is controlled by the sovereignty of the UK.30 As the pledge that they would ‘all return’ could not be ‘fulfilled’, this stands as evidence for the

27 John Stuart Mill, On Liberty (London: Penguin Classics, 2006), p. 11. 28 John Neville Figgis, From Gerson To Grotius 1414-1625, 2nd edn (Cambridge: Cambridge University Press, 1916), p.91. 29 Borradori, Derrida and Habermas, p132. Krivenko, p.589. 30 David Bamber, ‘2,000 refugees from Kosovo overstay their welcome in Britain’, The Telegraph, 29 October 2000 <https://www.telegraph.co.uk/news/worldnews/europe/1372368/2000-refugees-from-Kosovo-overstay-theirwelcome-in-Britain.html> [accessed 10 March 2018].

University of Leeds

Sugar Thomas The Kosovan Refugee on Human Rights and Nation-State Sovereignty

ways in which Kosovan refugees have troubled the absolute sovereignty of the UK.31 Agamben, by labelling the refugee as a ‘vanguard’ able to shatter existing sovereign power, deftly positions them as a new bearer of sovereignty.32 Nick Mansfield furthers this sentiment, suggesting that an entity that is able to successfully ‘critique’ or ‘disrupt’ power is able to claim power, as ‘power can only be critiqued from power, and this power is never not being exercised’.33 In other words, that which ‘counters sovereignty’ by ‘excess, subversion or disruption’, in the way that Agamben argues the refugee does, ‘must itself be sovereign’.34 This interrogation of the refugee as a sovereign figure is dealt with in Antigona and Me and attests to the changing distribution of sovereignty. In many ways, Clanchy is unwavering in her portrayal of Antigona as dominant, facilitating the perception of her as a sovereign figure. The view of the refugee as such a potent figure is important yet often omitted in contemporary literary considerations. The sustained characterisation of Antigona as ‘unbowed’ and ‘empowered’ demonstrates how she exists in defiance of authority and opposes nation-state sovereignty through the subversion Mansfield outlines.35 Similarly, a critic for The Scotsman reads Antigona as an ‘indomitable’ character.36 These descriptions suggest her sovereignty impacts the society of the nationstate as it ‘spread well beyond herself’.37 Clanchy also admits ‘she influences me’.38 In the novel, Clanchy illustrates the sovereignty exerted over Kosovans like Antigona by the nation-state power of Serbia, which claimed Kosovo as part of their territory until 2008.39 Clanchy emphasises, through Antigona’s dialogue, the extensive control of the nation-state in her country of origin that is ‘oppressive’ and ‘terrifying’ causing people to be ‘stuck’.40 The fact that Antigona has overcome this state sovereignty, for Krivenko, attests to her own authority and posits her as a figure of sovereignty, in turn suggesting the fictionality of original nation-state sovereignty. Antigona becomes emblematic of the radical disruption refugees provoke in sociopolitical spheres through claiming at least some of the sovereignty previously totally exercised by the nation-state, becoming a positive figure of radical change. From the outset, the reader is made aware of Kate as a sovereign figure. Clanchy presents 31 Ibid. 32 Agamben, p.90. 33 Nick Mansfield, ‘Sovereignty As Its Own Question: Derrida’s Rogues’, Contemporary Political Theory, 7.4 (2008), 361-375 (p. 367) <http://hdl.handle.net/1959.14/77380> [accessed 14 February 2018]. 34 Ibid, p.373. 35 Kate Clanchy, Antigona And Me, 1st edn (London: Picador, 2009) pp.108; 200. 36 The Scotsman, ‘Survivor In An Alien Land - Kate Clanchy Interview’, The Scotsman, 4 July 2008 <https://www. scotsman.com/lifestyle/survivor-in-an-alien-land-kate-clanchy-interview-1-1078872> [accessed 24 February 2018]. 37 Clanchy, p.108. 38 Ibid, p.88. 39 BBC News, ‘BBC News Kosovo MP’s Proclaim Independence’, BBC News, 17 February 2008 <http://news.bbc. co.uk/1/hi/world/europe/7249034.stm> [accessed 21 February 2018]. 40 Clanchy, p.191.

Human rights journal herself as an ‘oppressive overlord’ and Antigona as her ‘servant’ to demonstrate her awareness of (and guilt about) their asymmetrical relationship.41 Throughout the novel, Clanchy struggles against her sovereignty over Antigona through prisms of ‘capital’, ‘language’ and ‘employment’, which combine to make her authority over Antigona significant.42 For Clanchy, it is undeniable that she ‘had power over Antigona’.43 It is clear that she is a bearer of the individual sovereignties that Krivenko postulates. It is, for Clanchy, this ‘individual element’ that ‘makes explicit’ the nature of her and Antigona’s ‘relationship’- her ‘freedom’ and the sovereignty it entails is dependent on the ‘stunting’ of Antigona.44 This individual element clearly echoes Krivenko’s sovereignty of the individual. However, Krivenko perceives ‘individual’ sovereignties of citizens like Kate as positive and protective for the refugee as it counters the ‘violence’ of the sovereignty of ‘institutional structures’ of the nation-state.45 While Kate tries her hardest to diminish her sovereignty, constantly attempting to ‘shush’ her inner voice that claims it, her sovereignty is necessary for her to, in turn, empower and give sovereignty to Antigona.46 Krivenko identifies individuals like Kate as ‘less institutionalised and more sensitive’ and thus more ‘willing to use their resources to the benefit of the suffering Other’ than the nation-state.47 It is through Kate that Antigona is able to feel ‘free’, which is intricately tied to Antigona’s sovereignty.48 The individual sovereignty of Kate offers an alternative to nation-state sovereignty and interacts and propels the ‘individual’ sovereignties of Antigona the refugee. In manifestations of ‘individual’ sovereignties such as this, we witness human rights being partially restored to refugees whose rights were previously violated. This comes as a result of the refugee’s profound socio-political influence in destabilising the sovereignty of the nation-state and the subsequent appropriation of sovereignty by hosts such as Kate. Kosovan refugees, represented in the novel by Antigona, can assume sovereignty over themselves, namely through their restored human rights. These rights have been reclaimed as a result of their destabiisation of nation-state sovereignty and the subsequent ‘individual’ sovereignties of host citizens. Krivenko uses the example of the private sponsorship of refugees in Canada to evidence how host individuals can give sovereignty to refugees. A parallel can be drawn with this example to both the literary and real-life Kate and Antigona. Through employing Antigona as her nanny and giving her a voice through her novel, Kate similarly acts as a private sponsor of Antigona- able to lend her sovereignty in the way Krivenko describes.This chain of events demonstrates the positive socio-political change fostered by the refugee, a human rights victim 41 Ibid, p.3. 42 Ibid, p.132, p.164. 43 Ibid, p.3. 44 Ibid, p.149. 45 Krivenko, p.602. 46 Clanchy, p.164. 47 Krivenko, p.588. 48 Ibid, p.265.

Sugar Thomas The Kosovan Refugee on Human Rights and Nation-State Sovereignty

University of Leeds whose reoriented position has also reoriented the distribution of sovereignty. Vincent Leitch notes how sovereignty ‘functions through and with autonomy, freedom, force’ and this is the way in which Antigona’s sovereignty functions.49 Human Rights, which presuppose the individual as ‘free’ and therefore ‘sovereign’, declare ‘another sovereignty’ to that of the nation-state.50 Clanchy explores the potentiality of Kosovan refugees as self-sovereign in a subsection called ‘Freedom’ which stands as a testament to Antigona as sovereign of herself.51 Antigona states and restates the ways in which she is now ‘free’, an enumeration that culminates in ‘free to do my life how I want’ and ‘free to choose’.52 These various freedoms echo the sovereignty determined by Human Rights.53 Antigona’s freedom and sovereignty stem from her disruption of nation-state sovereignty and exemplifies how Kosovan refugees like her are emblematic of human rights successes that were rooted in human rights crises. Her ability to re-establish her own sovereignty and renegotiate her human rights attests to the occasional human rights successes that are forgotten in narratives surrounding human rights. However, the concepts of sovereignty and freedom are difficult to explicitly measure as they are inherently intangible, so we have to rely on their literary expression. To conclude, debates surrounding human rights and refugees need to be recentred to significantly feature the impact of refugees who refuse to be ‘repatriated’ or ‘naturalized’.54 This impact is often what is forgotten and, as illustrated, can be radical, catalytic and positive. The figure of the Kosovan refugee, represented in Antigona and Me as the eponymous Antigona, has destabilised both supreme nation-state sovereignty and universal human rights. While Clanchy’s text is literary rather than theoretical, her contribution is firmly rooted in actuality and so provides a fruitful dimension to these considerations as a reliable cultural artefact. The existence of individual and shared sovereignties, proposed by Derrida and Krivenko and reified in Clanchy’s novel, attests to the possibility of successful human rights progress through the new socio-political influence of the refugee. The individual sovereignties of the host and the refugee leads to the restoration of human rights to the refugee, to whom they were previously denied. The impact of the refugee forces us to reevaluate previously-accepted truths such as the supremacy and exclusivity of nation-state sovereignty and the plausibility and tenability of enforceable universal human rights and so can be viewed as abundantly positive. With such a plethora of tragedy and crisis surrounding human rights discussions, considerations such as those by Clanchy, Agamben, Derrida and Krivenko ensure that small victories and developments such as these do not remain forgotten.

49 Leitch, p.235. 50 Krivenko, p.589. 51 Clanchy, p.265. 52 Clanchy, p.265-6. 53 Ibid, p.265-6. 54 Agamben, p.92.

Human rights journal Bibliography Agamben, Giorgio, ‘Beyond Human Rights, Means without End. Notes on Politics’, in Theory Out of Bounds, Vol. 20 (Minneapolis/London: University of Minnesota Press, 2000) Bamber, David, ‘2,000 refugees from Kosovo overstay their welcome in Britain’, The Telegraph, 29 October 2000 <https://www.telegraph.co.uk/news/worldnews/europe/1372368/2000-refugeesfrom-Kosovo-overstay-their-welcome-in-Britain.html> [accessed 10 March 2018] BBC News, ‘Kosovo MPs Proclaim Independence’, BBC News, 17 February 2008 <http://news.bbc. co.uk/1/hi/world/europe/7249034.stm> [accessed 21 February 2018] Borradori, Giovanna, Philosophy In A Time Of Terror: Dialogues with Jürgen Habermas and Jacques Derrida (Chicago: University of Chicago Press, 2003) Clanchy, Kate, Antigona And Me, 1st edn (London: Picador, 2009) Derrida, Jacques, On Cosmopolitanism And Forgiveness (London: Routledge, 2010) Figgis, John Neville, From Gerson To Grotius 1414-1625, 2nd edn (Cambridge: Cambridge University Press, 1916) Krieger, Heike, The Kosovo Conflict and International Law: An Analytical Documentation 19741999 (Cambridge: Cambridge University Press, 2001) Krivenko, Ekaterina Yahyaoui, ‘Hospitality And Sovereignty: What Can We Learn From The Canadian Private Sponsorship Of Refugees Program?’, International Journal Of Refugee Law, 24.3 (2012), 579-602 <https://doi.org/10.1093/ijrl/ees039> [accessed 21 January 2018] Leitch, Vincent, ‘Late Derrida: The Politics Of Sovereignty’, Critical Inquiry, 33.2 (2007), 229-247 <http://www.jstor.org/stable/10.1086/511492> [accessed 25 January 2018] Mansfield, Nick, ‘Sovereignty As Its Own Question: Derrida’s Rogues’, Contemporary Political Theory, 7.4 (2008), 361-375 <http://hdl.handle.net/1959.14/77380> [accessed 14 February 2018] Mill, John Stuart, On Liberty (London: Penguin Classics, 2006) Philpott, Daniel, ‘Sovereignty’, in The Stanford Encyclopedia of Philosophy (Stanford: Stanford University Press, 2016) The Scotsman, ‘Survivor In An Alien Land - Kate Clanchy Interview’, The Scotsman, 4 July 2008 <https://www.scotsman.com/lifestyle/survivor-in-an-alien-land-kate-clanchy-interview-1-1078872> [accessed 24 February 2018] UNHCR Standing Committee, The Kosovo Refugee Crisis: An Independent Evaluation of UNHCR’s

University of Leeds Emergency Preparedness and Response (Geneva: UNHCR, 2000)

Sugar Thomas The Kosovan Refugee on Human Rights and Nation-State Sovereignty

United Nations, Syria conflict at 5 years: the biggest refugee and displacement crisis of our time demands a huge surge in solidarity (Geneva: UNHCR, 2016)

Human rights journal Escaping Franco's Shadow: An understanding of rebel and Francoist violence during the Spanish Civil War (1936-1939) Sandie Garland Of all the European dictators of the twentieth century, General Francisco Franco remains one of the most unknown. The post-Civil War regime under the leadership of the victorious General Franco created a narrative of heavily distorted myths about the Spanish Civil War in order to legitimise his regime. These myths still strongly permeate Spanish society today, amidst the historical amnesia that surrounds the war. This essay seeks to correct these myths and instead demonstrate the truth about both the motivations and forms of the rebel Civil War violence.

Unlike most European fascist leaders, Franco was not de-legitimised after World War II and continued to rule Spain until his death in 1975.1 This meant the truth of the violence that brought him to power was forgotten by many and his victims were excluded from historical memory.The historical amnesia created by Francoist myths permeates Spanish society to this day. Thus, it is essential to both understand and acknowledge the horrors of rebel and Francoist violence in the Spanish Civil War (1936-1939) in order for Spanish society to shift from conciliation to reconciliation and catalyse the push for transitional justice. It will be argued that from studying memoirs of prisoners and Nationalists alongside eye-witness press accounts, it is clear that rebel and Francoist violence was primarily a pre-emptive politicide fostered by the climate of paranoia created by the context of civil war. Furthermore, the forms of the violence pragmatically shifted from being relatively arbitrary and indiscriminate, a continuity of the brutalization of the Army of Africa, to selective in response to Franco’s fear of foreign intervention in the Civil War. The Spanish Civil War began after the failed Nationalist military coup of 17 July 1936 in Spanish Morocco led by General Emilio Mola in an attempt to overthrow the leftleaning Second Spanish Republic, which had been in power since its electoral victory in 1931.2 As the coup failed to gain complete control of Spain, a brutal civil war began between the Nationalists and Republicans in order to dominate Spain. Franco was one of the main protagonists of the rebel movement as chief of the rebel army of the South 1 Guy Hedgecoe, ‘The Legacy of Franco’, Politico, 20 November 2015 <https://www.politico.eu/article/the-legacyof-franco-spanish-dictator-40-years/> [accessed 5 April 2017]. 2 Paul Preston, The Spanish Holocaust: Inquisition and Extermination in Twentieth-Century Spain (London: Harper Press, 2013), p. xi.

Sandie Garland Escaping Franco's Shadow: An understanding of rebel and Francoist violence during the Spanish Civil War

University of Leeds and then leader of the rebel faction after Mola’s death in June 1937.3 Franco then took the Nationalists to victory in April 1939, initiating an era of Francoist rule lasting until his death on 20th November 1975. However, this Civil War victory came at an extremely heavy price: an estimated 200,000 men, women and children were murdered or executed behind the front lines in a harrowing Francoist repression and an estimated 55,000 killed in spontaneous violence by the Republicans, particularly against the religious community.4 Throughout the era of Francoist Spain, a heavily distorted master narrative of myths surrounding the Civil War was created in order to legitimise Franco’s leadership. Ángel Viňas highlights twelve key Francoist myths which can be categorised into three main themes: justification of the 1936 uprising, demonising the left-wing and romanticising Franco as a skilled diplomat to whom all Spaniards should be grateful.5 Even after the death of Franco in 1975, in a period known as ‘the transition to democracy’, the discriminatory discourse prevailed. Francoists remained in power, preventing any significant reform from above, and the traumatic memories of the war and the fear of it repeating encouraged ordinary Spaniards to not discuss the past. This culminated in the Spanish 1977 Amnesty Law which exonerated those guilty of civil war crimes.6 Thus, unlike the Nazi regime, which faced justice through the Nuremberg trials, the necessary transitional justice in Spain was legally prohibited, subsequently institutionalising the pre-existing ‘pact of silence’.7 Consequently, tens of thousands of civilians, unjustly killed, are left abandoned and anonymous in unmarked mass graves.8 Meanwhile, Franco is buried in a lavish Catholic basilica within the Valley of the Fallen, constructed by the slave labour of his enemies, and his memory protected by the National Francisco Franco Foundation (FNFF), which is still in existence today (See Figure 1.).9 It was only at the turn of the century, over sixty years after the end of the war, that this discourse began to be challenged, primarily through the growing exhumation movement. This was instigated by Emilio Silva and his Association for the Recovery of Historical Memory (ARHM) and resulted in the Spanish government finally condemning the 1936 military coup in September 2002.10 3 Sheelagh Ellwood, Profiles in Power: Franco (Harlow: Longman, 1994), p. 80; Ellwood, p. 102. 4 Preston, The Spanish Holocaust, p. xi; Francisco Ferrándiz, ‘Afterlives: A Social Autopsy of mass Grave Exhumations in Spain’, in Legacies of Violence in Contemporary Spain: Exhuming the Past, Understanding the Present, ed. by Ofelia Ferrán and Lisa Hilbink (London: Routledge, 2017), pp. 23-44 (p. 24). 5 Ibid. 6 Paloma Aguilar, Memory and Amnesia: The Role of the Spanish Civil War in the Transition to Democracy, trans. by Mark Oakley (Oxford: Berghahn Books, 2002). 7 Nobert Ehrenfreund, The Nuremberg Legacy: How Nazi War Crimes Trials Changes the Course of History (Basingstoke: Palgrave Macmillan, 2007). 8 Georgina Blakely, ‘Digging Up Spain’s Past: Consequences of Truth and Reconciliation’, Democratization, 12. 1 (2005), 44-59. 9 Ibid. 10 Georgina Blakeley, p. 44.

Human rights journal

Figure One: The Valley of the Fallen https://www.elespanol.com/cultura/20170228/197230674_0.html

Despite this seemingly monumental resolution, the Spanish government remained extremely reluctant to actively come to terms with the past. In 2003, the Popular Party rejected the motion to dedicate a part of the budget to exhumations but continued to provide funds for FNFF which clearly demonstrates the emptiness of their September 2002 statement.11 Most importantly, after attempting to launch a legal case against General Franco in 2008, Spanish judge Baltazar Garzón, whose indictment was instrumental in the arrest of Chile’s General Pinochet, was excluded from the National Tribunal in 2010.12 Furthermore, he was put on trial in 2012, demonstrating the detrimental consequences of the 1977 Amnesty Law for transitional justice.13 Similarly, the popularity of Franco apologist Pio Moa’s book, Franco: A Historical Review, which topped the bestsellers list in 2005, vastly out-selling revisionist historians, indicates the hesitance of the Spanish public to come to terms with the past.14 This demonstrates how strongly Francoist myths shaped the memory and attitudes of contemporary Spaniards. Nonetheless, 2017 was the most active year for Spaniards mobilising against the discourse that glorifies Franco and isolates his victims. For example, in November 2017, over 200,000 Spaniards signed a petition to ban the FNFF. Although ultimately the petition failed to reach the minimum of 500,000 signatures required for drafting 11 Ibid, p. 55. 12 Francisco Espinosa-Maestre, Shoot the Messenger?: Spanish Democracy and the Crimes of Francoism, From the Pact of Silence to the Trial of Baltasar Garzón, trans. By Richard Barker (Brighton: Sussex Academic Press, 2013), p. 135. 13 Ibid, p. 156. 14 Giles Tremlett, ‘Pro-Franco history tops bestseller list’, Guardian, 14 November 2005 <https://www.theguardian. com/world/2005/nov/14/books.spain> [accessed 12 February 2018].

Sandie Garland Escaping Franco's Shadow: An understanding of rebel and Francoist violence during the Spanish Civil War

University of Leeds a bill to be considered.15 Similarly, in May 2017 Spanish MPs passed a vote 198 to 1 to exhume Franco from his controversial resting place at the Valley of the Fallen, but this vote was only symbolic and 140 MPs, including the ruling People’s Party, abstained.16 Despite both instances failing to result in official political change, they are still monumental achievements as they demonstrate that attitudes within Spain towards Franco and the Civil War are finally changing as the pact of silence crumbles. Due to recent growing demand within Spain for both the truth and transitional justice, it is integral to understand and acknowledge the true horrors of civil war violence in order to capitalise on the recent boom of activism. As argued by Georgina Blakeley, understanding the truth of the violence is integral for the shift from conciliation (two opposing sides co-existing through public silence and forgetting) to reconciliation, as the former is impossible without the truth of the past coming to light.17 Also, recognition of the true injustice and the brutality of the killings will likely intensify the demand for transitional justice within Spain. Therefore, providing an analysis of rebel and Francoist violence is what this article intends to do in order to aid this shift. To provide a nuanced understanding of the violence, both its motivations and forms will be analysed. The violence was motivated by a myriad of long-term religious, social and political tensions as the Nationalist rebels were fighting in order to protect their traditional way of life, including their political domination and Catholic orthodoxy.18 However, arguably the key motivation for the rebel violence was to prevent future rebellions and to eliminate any potential political entrepreneurs. Thus, the violence was a politicide with a political and military logic which varied in its intensity both geographically and temporally in response to the Civil War’s climate of paranoia. The forms of the violence pragmatically evolved from being excessively ruthless and relatively arbitrary to selective via military tribunals. The two key factors for explaining these contrasting forms of violence are the brutalisation of army culture and international pressure. First, the key motivations for the violence will be examined. The hegemony of Catholicism was an aspect of the traditional way of life that the rebels and Francoists believed was under threat by the Republic. The Francoist interpretation is that their violence was in response to Republican anti-clerical violence, 15 Agence France-Press, ‘Hundreds of thousands of Spaniards call for ban on Franco foundation’, Guardian, 23 November 2017 <https://www.theguardian.com/world/2017/nov/23/spaniards-call-ban-franco-foundation> [accessed 12 February 2018]. 16 Sam Jones, ‘‘It’s shameful for Franco’s victims’: Spanish MPs vote to exhume dictator’, Guardian, 11 May 2017 <https://www.theguardian.com/world/2017/may/11/its-shameful-for-francos-victims-spanish-mps-agree-toexhume-dictator> [accessed 12 February 2018]. 17 Blakeley, p. 53. 18 Francisco Herreros, and Henar Criado, ‘Pre-emptive or Arbitrary: Two Forms of Lethal Violence in a Civil War’, Journal of Conflict Resolution, 53. 3 (2009), 419-445 (p. 431); Mary Vincent, ‘The Spanish Civil War as a War of Religion’, in “If You Tolerate This”… The Spanish Civil War in an Age of Total Warfare, ed. by Martin Baumeister and Stefane Schüler-Springorum (Frankfurt: Campus Verlag, 2008), pp. 74-89 (p. 79).

Human rights journal placing guilt with the Republicans for the entire war. This argument is demonstrated in Cardinal-Priest Isidro Gomá Tomás’ pastoral letter. This letter focuses on the anticlerical violence in Republican territories describing the massacre of thousands of priests and other religious peoples through ‘scenes of obscenity and with unheard of torments’.19 His emotive language demonises the Republic thus presenting rebel and Francoist violence as a necessary response to their treachery. Furthermore, the ‘red terror’ of Republican anti-clerical violence remained a key focus of the Francoist myths in the post-Civil War period as evidence of the evil of the left wing ‘Reds’.20 Mary Vincent challenges this interpretation, highlighting how violence on the left and right occurred ‘simultaneously’. 21 However, in many instances Francoist violence appeared before Republican violence, thus rebel violence could not have purely been a response to the anti-clerical violence of the left. The lack of immediate factors for the violence demonstrates how it was instead a consequence of long-term tensions rather than a short-term event such as the left-wing anti-clerical violence. Therefore, the left-wing anti-clerical violence did not cause rebel violence but instead provided the rebels with a post hoc justification for their violence which contemporary Francoists used as both a mobilisation and propaganda tool during the war. Instead, the rebel and Francoist violence was partly in response to long-term religious tensions between left-wing secularism and right-wing orthodox Christianity. Manuel Cortés recollected in his interview with Ronald Fraser the significance of Article 26 of the Republican Constitution of 1931 which prohibited the involvement of religious orders in both education and business.22 These secularising reforms imposed by the Republic were seen as a threat to the way of life of the rebels as they believed that Catholicism should be tightly interwoven into the state and public life. On the other hand, the Republic believed that the two should be separated, putting religion solely in people’s private lives.23 Enrique Plá y Deniel, the Bishop of Salamanca, conveyed this fear in his famous pastoral letter ‘Los dos ciudades’ in September 1936, stating ‘a lay Spain is no longer Spain’, suggesting that the separation of religion and state would result in the complete destruction of Spanish national identity.24 Therefore, religious elements need to be analysed to understand rebel violence during the Civil War. The religious motivations of Francoist violence are demonstrated by the popular conception of the Civil War as a ‘Crusade’. Georges Bernanos’ account of Falangist 19 Isidro Gomá Tomás, The Martyrdom of Spain: Being a Pastoral Letter of His Eminence Señor D. Isidro Gomà Tomàs, D.D (Dublin: James Duffy & Co, 1936), p. 12. 20 Viňas, p. 203. 21 Mary Vincent, p. 79. 22 Ronald Fraser, In Hiding: The Life of Manuel Cortés (London: Penguin, 1972), p. 102. 23 Ibid. 24 Sid Lowe, Catholicism, War and the Foundation of Francoism (Eastbourne: Sussex Academic Press, 2010), p. 190.

Sandie Garland Escaping Franco's Shadow: An understanding of rebel and Francoist violence during the Spanish Civil War

University of Leeds General Count Rossi announcing the ‘Crusade’ in Palma, Majorca exemplifies this.25 The right conceptualising their violence as a ‘Crusade’ suggests that they believed their violence had a just cause of purging society of heretics – in this case, the secular Republic and their supporters. For example, Herminia de San Lázaro, a 25-year-old woman, was imprisoned and later murdered after being accused of throwing the statues of Inquisitor Diego de Dez, one of the most notable of Spain’s Inquisitors, into the river Duero.26 This demonstrates how iconoclastic actions were understood by the rebels and Francoists as justifying their violence during the Civil War, for their violence had a sacred purpose. However, the mobilisation of the masses was an even greater threat to the way of life of the rebels and consequently an even more important motivation for their violence. Before the Republic, there was little sense of democracy in Spain. As such, the wealthy could dictate politics as a system of caciques (local political oligarchs) which ensured that masses voted in accordance with the elites through intimidation and blackmail.27 However, as a result of the establishment of the Second Republic in 1931, affiliations to trades unions had dramatically increased – by 1936 the two main trade unions, Confederación Nacional del Trabajo (CNT) and Unión General de Trabajadores (UGT), each had around half a million Spaniards associated with them.28 This frustrated the rebels, predominantly the propertied wealthy classes and the church, because working-class participation in a democratic system threatened to significantly weaken the rebels’ political power as they formed the minority of Spain’s population. Accordingly, the rebels used violence during the civil war to demobilise the masses through intimidation. Paul Preston supports this interpretation terming it the ‘theory of extermination’ and highlighting how Gonzalo de Aguilera, a retired army officer and an aristocratic landowner, shot 6 labourers on the day of the outbreak of war as an example to the others.29 Similarly, in 1936 ‘a ceremonial symbolic shooting’ was reported in Badajoz.30 Therefore, rebel and Francoist violence was in part exemplary, allowing Francoists to reassert their power and dominance over the lower classes, thereby encouraging their passivity in political affairs in an attempt to return to the power dynamics of the pre-Second Republic era.

25 Georges Bernanos, ‘Straight to the Cemetery’, A Diary of my Times, 1938’, in Spanish Front: Writers on the Civil War, ed. by Valentine Cunningham (Oxford: Oxford University Press, 1986), pp. 145-153 (p. 146). 26 Pilar Fidalgo, A Young Mother in Franco’s Prisons: Señora Pilar Fidalgo’s Story (London: United Editorial Ltd, 1939), p. 18. 27 Robert Kem, Liberals, Reformers, and caciques in restoration Spain, 1975-1909 (Albuquerque: University of New Mexico Press, 1974). 28 Francisco Herreros and Henar Criado, ‘Pre-emptive or Arbitrary: Two Forms of Lethal Violence in a Civil War’, Journal of Conflict Resolution, 53. 3 (2009), 419-445 (p. 431). 29 Paul Preston, ‘The Answer Lies in the Sewers: Captain Aguilera and the Mentality of the Francoist Officer Corps’, Science & Society 68. 3 (2004), 277-312 (p. 277). 30 Jay Allen, ‘Blood Flows in Badajoz’, Chicago Tribune, 30 August 1936, in Spanish Front: Writers on the Civil War, ed. by Valentine Cunningham (Oxford: Oxford University Press, 1986), p. 105.

Human rights journal The prominence of sadism and rape in female prisons was a disturbing extension of the need to re-assert power. For example, Pilar Fidalgo recalled how her cellmate Eugenia was raped and abused multiple times, returning to the cell with her body ‘black and her underwear stuck to her wounds’, by the man who arrested and later murdered her, a lawyer for the Conservative party in Zamora.31 As argued by Helen Graham, a woman’s body was seen as representing the community from which she came, meaning that rape symbolised domination and the reassertion of power over the Republic.32 Therefore, the rebels used violence to re-assert their power and to intimidate the lower classes into submission. Whilst the previously discussed motivations were plainly integral to Francoist violence, ultimately the key motivation for rebel and Francoist violence during the Civil War was to eliminate potential political activists who could de-stabilise their power in the captured provinces. General Mola stated before the revolt that ‘action has to be extremely violent to reduce as quickly as possible the well-organised opposition’, demonstrating how the politicide was both pre-meditated and seen as having a political rationale.33 Francisco Herreros and Henar Criado conducted a study demonstrating how the pre-emptive nature of the violence explains both its temporal and geographical variations. Violence was considerably high in Southern provinces such as Seville, where more than 11,000 civilians were killed, compared to Northern provinces such as Salamanca where fewer than 300 were killed.34 This is primarily because Southern provinces predominantly voted more favourably to the Republic and had more influential trade unions.35 Therefore, violence was concentrated in areas where potential opposition was perceived as greater. Similarly, the excessive and indiscriminate killings of the rebels in the early part of the Civil War can be explained by their pre-emptive function.36 In the early stages of the war, there was strong uncertainty within the rebel faction about winning the war. For example, a Francoist commander stated to American journalist John T. Whitaker after the rebel defeat at Madrid in November 1936 that ‘the war was lost’.37 Consequently, indiscriminate killings were a reflection of this pessimism and vulnerability. For example, when the rebels captured Badajoz in August 1936 they had a black book filled with the names of people to arrest, including known sympathisers of the Republic, trade union

31 Fidalgo, p. 22. 32 Helen Graham, The War and It’s Shadow: Spain’s Civil War in Europe’s Long Twentieth Century (Brighton: Sussex Academic Press, 2012), p. 115. 33 Peter Anderson, Friend or Foe?: Occupation, Collaboration and Selective Violence in the Spanish Civil War (Brighton: Sussex Academic Press, 2016), p. 7. 34 Herreros and Criado, p. 420. 35 Ibid. 36 Peter Anderson, ‘Scandal and Diplomacy: The Use of Military Tribunals to Keep the Francoist Repression Afloat During the Civil War’, in Mass Killings and Violence in Spain, 1936-1952, ed by. Peter Anderson and Miguel Ángel Del Arco Blanco (London: Routledge, 2015), pp. 72-90 (p. 72). 37 Herreros and Criado, p. 433.

Sandie Garland Escaping Franco's Shadow: An understanding of rebel and Francoist violence during the Spanish Civil War

University of Leeds leaders, democratic politicians and civil servants who had failed to join the rebellion.38 Usually, they were arrested at night, loaded onto a van and driven down an abandoned side road where they were shot and later buried in mass graves.39This broad pool of victims demonstrates how victims of the repression were targeted because of their diluted ideological associations with the Republic. This meant that there was the potential, no matter how small, for them to become fifth columnists (clandestine groups within a territory working for the enemy). Thus, the relatively arbitrary killings in the early period were, to the rebels, pre-emptive in the context of paranoia and vulnerability in a civil war. The murder of distinguished poet Federico García Lorca in August 1936 further supports the argument of pre-emptive violence. Lorca was based in Granada, which was under rebel control but vulnerable as it was surrounded by loyal Republican territory.40 Additionally, the results of the 1931 municipal elections showed that Granada was overwhelmingly pro-Republican. 41 Therefore, rebel violence in Granada was severe to eliminate any potential political leaders. Lorca had shown his political leanings by his signing of a manifesto condemning the Nazi persecution of German writers in 1933, and his reading of a manifesto drawn up by a group of intellectuals in support of the Popular Front.42 Therefore, Lorca, a popular poet with explicit political views, became an obvious target for the rebels. Thus, his murder demonstrates how rebel violence was pre-emptive to eliminate any potential leaders, such as himself, and to atomise any left-wing political movements. While the pre-emptive nature of the violence explains its varying intensity, its initial brutal forms still need to be explained. The key factor is the brutalisation of army culture as a result of the Army of Africa’s time in Spanish Morocco, especially as the majority of leaders of the July 1936 revolt had spent time in this army.43 During their time there, previous military and moral taboos were broken as soldiers paraded the decapitated heads of their victims.44 Paul Preston argues that the Right coped with the loss of their real overseas empire by internalising metropolitan Spain as its empire and the proletariat as the subject colonial race, transferring the inhumane methods and morals of colonial war to the Civil War. 45 Fidalgo narrates a particularly disturbing episode of a woman and a 17-year-old girl being taken to a cemetery and hunted after being told that if they could escape they would be

38 Sebastian Balfour, Deadly Embrace: Morocco and the Road to the Spanish Civil War (Oxford: Oxford Univeristy Press, 2002), p. 296. 39 Bernanos, p. 146. 40 Ian Gibson, The Assassination of Federico García Lorca (London: Penguin, 1983), p. 90. 41 Ibid, p. 26. 42 Ibid, p. 52. 43 Paul Preston, Franco: A Biography (London: Fontana, 1995), p. 5. 44 Ibid. 45 Preston, ‘The Answer Lies in the Sewers’, p. 281.

Human rights journal freed; later their rebel Falangist hunters laughed and boasted about their killings.46 This demonstrates the continuity of tortuous and callous methods of violence. Most importantly, their experiences of brutal colonial warfare affected the soldiers psychologically. Sebastian Balfour highlights how colonial war encouraged ‘the creation of simple dichotomies of identity,’ meaning that rebels were able to overcome the complexities of the Republican enemy as they were so accustomed to the ‘us versus them’ climate of colonial war.47 The classification of enemies of the rebels and Francoists as ‘reds’ demonstrates this.48 Antonia Bahamonde, General Quiepo de Llano’s chief propaganda officer, described how in Seville in September 1936 ‘thousands of persons have died who have no idea of Marxism, who had never heard of a Syndicate, and who had never had any political activities whatsoever.’49 This demonstrates how the rebels targeted anyone who was not actively on their side of the war because they had developed such a simple understanding of identity. Therefore, anyone with any allegiances to the Left or anyone not in support of the rebel cause were subsumed under the derogatory term ‘red’; there was no understanding of a moderate or neutral stance. The evolution of the forms of violence also warrants explanation as the violence became more selective, through the use of military tribunals and purging commissions.50 As corroborated by Peter Anderson, this change was pragmatic so that Franco could protect his international image while simultaneously maintaining the repression.51 News of Francoist massacres, such as Badajoz quickly spread; for example, Portuguese journalist Mario Neves’ article described rebels throwing hand grenades in the hospital of San Juan Bautista, killing up to 200 people, was published in British newspaper The Times on 17 August 1936, only three days after the incident had occurred.52 Therefore, realising the difficulty of covering up mass violence, Franco had to change rebel forms of violence to limit calls for intervention from the French and the British.53 Thus, Franco needed to make the violence appear justified instead of arbitrary and indiscriminate. Military tribunals performed this role as they disguised the repression, presenting it as controlled and justified by putting it through the framework of the judicial system.54 However, the trials were heavily corrupted and better described as ‘grim comedies’: each trial was exactly the same, only lasting two or three minutes and always

46 Fidalgo, p. 24. 47 Balfour, p. 290. 48 Preston, ‘The Answer Lies in the Sewers’, p. 286. 49 Antonio Bahamonde, Memoirs of a Spanish Nationalist (London: United Editorial Limited, 1939), p. 105. 50 Anderson, ‘Scandal and Diplomacy’, p.70. 51 Anderson, ‘Scandal and Diplomacy’, p. 75. 52 Anderson, ‘Scandal and Diplomacy’, p. 75. 53 Ibid, p. 85; Ibid, p. 75 54 Anderson.

Sandie Garland Escaping Franco's Shadow: An understanding of rebel and Francoist violence during the Spanish Civil War

University of Leeds resulting in the death sentence.55 Anderson highlights how this form of violence relied on the collaboration of the regime with its populace to a greater extent, as they classified the population into either ‘friend or foe’ by providing biographical information about their acquaintances and colleagues.56 Therefore, violence became more selective as the state could determine who was the greatest threat via information provided by the populace. To conclude, Francoist and rebel violence was a primarily pre-mediated and pre-emptive politicide in order to prevent any potential future rebellions and to protect the stability of the Nationalist provinces during the Civil War. This pre-emptive nature explains both the temporal and geographical variations in the concentrations of the violence. However, other motivations for the violence such as re-establishing the hegemony of Catholicism or the submission of the masses should not be overlooked. The relatively arbitrary nature of the initial violence can be explained through the brutalisation of the army culture. It resulted in the oversimplification of an enemy identity, which denied a neutral or a moderate stance, reducing political camps to the polar extremes of ‘Red’ and ‘Nationalist’. Moreover, the shift to the use of military courts can be explained by Franco’s pragmatic desire to protect his image and prevent international outrage. The success of this tactic is evident in the relatively benign reputation Franco enjoyed, perpetuated by Francoist myths, until after his death, when historiography increasingly criticised this view. Therefore, acknowledging and reaching a more nuanced understanding of the repressed horrors of Francoist violence will aid Spain’s ongoing transition from conciliation to reconciliation, as well as intensifying the growing demand for transitional justice and exhumations exemplified by the numerous protests of 2017.

Bibliography Primary Sources Allen, Jay, ‘Blood Flows in Badajoz’, Chicago Tribune, 30 August 1936, in Spanish Front: Writers on the Civil War, ed. by Valentine Cunningham (Oxford: Oxford University Press, 1986), pp. 103-107 Bahamonde, Antonio, Memoirs of a Spanish Nationalist (London: United Editorial Limited, 1939) Bernanos, Georges, ‘Straight to the Cemetery’, A Diary of my Times, 1938 in Spanish Front: Writers on the Civil War, ed. by Valentine Cunningham (Oxford: Oxford University Press, 1986), pp. 145-153 Fidalgo, Pilar, A Young Mother in Franco’s Prisons: Señora Pilar Fidalgo’s Story (London: United Editorial Ltd, 1939) Fraser, Ronald, In Hiding: The Life of Manuel Cortés (London: Penguin, 1972) 55 Arthur Koestler, ‘Dialogue with Death’, Spanish Testament in Spanish Front: Writers on the Civil War, ed. By Valentine Cunningham (Oxford: Oxford University Press, 1986), pp. 139-144 (p. 141). 56 Anderson, Peter, Friend of Foe?: Occupation, Collaboration and Selective Violence in the Spanish Civil War (Brighton: Sussex Academic Press, 2016).

Human rights journal Gomà Tomàs, Isidro, The Martyrdom of Spain: Being a Pastoral Letter of His Eminence Señor D. Isidro Gomà Tomàs, D.D (Dublin: James Duffy & Co, 1936) Koestler, Arthur ‘Dialogue with Death’, Spanish Testament in Spanish Front: Writers on the Civil War, ed. By Valentine Cunningham (Oxford: Oxford University Press, 1986), pp. 139-144 Secondary Sources Aguilar, Paloma, Memory and Amnesia: The Role of the Spanish Civil War in the Transition to Democracy, trans. by Mark Oakley (Oxford: Berghagn Books, 2002) Anderson, Peter, ‘Scandal and Diplomacy: The Use of Military Tribunals to Keep the Francoist Repression Afloat during the Civil War’, in Mass Killings and Violence in Spain, 1936-1952, ed by. Peter Anderson and Miguel Ángel Del Arco Blanco (London: Routledge, 2015), pp. 72-90 Anderson, Peter, Friend of Foe?: Occupation, Collaboration and Selective Violence in the Spanish Civil War (Brighton: Sussex Academic Press, 2016) Balfour, Sebastian, Deadly Embrace: Morocco and the Road to the Spanish Civil War (Oxford: Oxford University Press, 2002) Blakeley, Georgina, ‘Digging Up Spain’s Past: Consequences of Truth and Reconciliation’, Democratization, 12. 1 (2005), 44-59 Ehrenfreund, Robert, The Nuremberg Legacy: How Nazi War Crimes Trials Changes the Course of History (Basingstoke: Palgrave Macmillan, 2007) Ellwood, Sheelagh, Profiles in Power: Franco (Harlow: Longman, 1994) Espinosa-Maestre, Francisco, Shoot the Messenger?: Spanish Democracy and the Crimes of Francoism, From the Pact of Silence to the Trial of Baltasar Garzón, trans. By Richard Barker (Brighton: Sussex Academic Press, 2013) Ferrándiz, Francisco, Afterlives: A Social Autopsy of mass Grave Exhumations in Spain’, in Legacies of Violence in Contemporary Spain: Exhuming the Past, Understanding the Present, ed. By Ofelia Ferrán and Lisa Hilbink (London: Routledge, 2017), pp. 23-44 (p. 24) France-Press, Agence, ‘Hundreds of thousands of Spaniards call for ban on Franco foundation’, Guardian, 23 November 2017 <https://www.theguardian.com/world/2017/nov/23/spaniards-call ban-franco-foundation> [accessed 12 February 2018] Gibson, Ian, The Assassination of Federico García Lorca (London: Penguin, 1983) Graham, Helen, The War and It’s Shadow: Spain’s Civil War in Europe’s Long Twentieth Century

Sandie Garland Escaping Franco's Shadow: An understanding of rebel and Francoist violence during the Spanish Civil War

University of Leeds (Brighton: Sussex Academic Press, 2012) Hedgecoe, Guy, ‘The Legacy of Franco’, Politico (in itallics), 20 November 2015 <https://www politico.eu/article/the-legacy-of-franco-spanish-dictator-40-years/> [accessed 5 April 2017] Herreros, Francisco and Henar Criado, ‘Pre-emptive or Arbitrary: Two Forms of Lethal Violence in a Civil War’, Journal of Conflict Resolution, 53.3 (2009), 419-445 Jones, Sam ‘‘It’s shameful for Franco’s victims’: Spanish MPs vote to exhume dictator’, Guardian, 11 May 2017 <https://www.theguardian.com/world/2017/may/11/its-shameful-for-francos-victims spanish-mps-agree-to-exhume-dictator> [accessed 12 February 2018] Kem, Robert, Liberals, Reformers, and caciques in restoration Spain, 1975-1909 (Albuquerque: University of New Mexico Press, 1974) Lowe, Sid, Catholicism, War and the Foundation of Francoism (Eastbourne: Sussex Academic Press, 2010) Payne, Stanley G. Franco and Hitler: Spain, Germany, and World War II. (New Heaven: Yale University Press, 2008) Preston, Paul, ‘The Answer Lies in the Sewers: Captain Aguilera and the Mentality of the Francoist Officer Corps’, Science & Society, 68.3 (2004), 277-312 Preston, Paul, Franco: A Biography (London: Fontana, 1995) Preston, Paul, The Spanish Holocaust: Inquisition and Extermination in Twentieth-Century Spain (London: Harper Press, 2013) Tremlett, Giles, ‘Pro-Franco history tops bestseller list’, Guardian, 14 November 2005 <https:/ www.theguardian.com/world/2005/nov/14/books.spain> [accessed 12 February 2018] Viňas, Ángel, ’The Endurance of Francoist myths in democratic Spain’, Journal of Iberian Studies, 25. 3 (2012), 201-214 Vincent, Mary, ‘The Spanish Civil War as a War of Religion’, in “If You Tolerate This”… The Spanish Civil War in an Age of Total Warfare, ed. by Martin Baumeister and Stefane Schüler-Springorum (Frankfurt: Campus Verlag, 2008), pp. 74-89

Human rights journal Considering the reasons behind crimes against women and the impunity of femicides in Ciudad Juarez, Mexico Charlotte Broadhurst This essay explores the reasons behind the disproportionate rates of crimes against women in the border-town of Ciudad Juárez, Mexico. It considers their representations in two pieces of literature: Desert Blood by Alicia Gaspar de Alba and Bajo la sombra del guamúchil, which is a compilation of accounts of imprisoned women. Ciudad Juárez which lies on the border between the United States of America and Mexico, has seen the violent murders of over five-hundred women and the sexual exploitation of a further two-hundred thousand women since 1992, crimes which remain unsolved. This essay argues that the historical patriarchy of Mexico combined with the increase of American influence has created a grey area along the border between the first-world and the developing-world. Women have been brought out of their traditional domestic setting and into a working environment, allowing companies to take advantage of traditional gender roles to maximise productivity and compromise Mexican tradition in the name of industrialisation. This grey area has resulted in the exemption of these crimes, rendering women the forgotten victims.

Latin American society traditionally operates through a system of hierarchies, determining social status by both race and gender. Since the age of colonialism, these hierarchies have granted white people a higher social status compared to black and indigenous individuals.1 They also grant men a higher status to women, evidenced in the ingrained belief that women ‘belong’ in a domestic setting, whilst men work to provide for the family. Within this Latin American context, this essay will use Mexico as a case study, where the signing of the North American Free Trade Agreement (NAFTA) with the United States of America and Canada in 1992 has increased the country’s industrialisation. It has brought Mexican women out of their traditional roles and into American-run factories along the U.S. border. Using two pieces of literature, Desert Blood2 (2007) and Bajo la sombra del guamúchil (Bajo la sombra)3 (2010), this essay will demonstrate how gender stereotypes and the increased movement of women from their traditional domestic setting, have led to their human rights being violated. Moreover, it will consider how the traditional patriarchy has influenced the punishment, or lack of punishment of these crimes, which has rendered women the forgotten victims. Finally, 1 Tanya Golash-Bolaz and Eduardo Bonilla-Silva, ‘Rethinking race, racism, identity and ideology in Latin America’, Ethnic and Racial Studies, 36.10 (2013), pp. 1485-1489, < https://0-www-tandfonline-com.wam.leeds.ac.uk/doi/ pdf/10.1080/01419870.2013.808357?needAccess=true>, [Accessed 17/03/18]. 2 Alicia Gaspar de Alba, Desert Blood: The Juárez Murders (Houston, Texas: Arte Público Press, 2007). 3 Rosalva Aída Hernández Castillo et al. Bajo la sombra del guamúchil (Mexico: CIESAS, 2010).

University of Leeds

Charlotte Broadhurst Crimes against women and the impunity of femicides in Ciudad Juarez, Mexico

this essay will contemplate solutions which could put an end to the disproportionate rate of crimes against women, and how increasing U.S. influence has forced Mexican society to modernise and conform to first-world standards and compromise tradition.4

Gaspar de Alba’s novel Desert Blood is a representation of the femicides which have taken place in Ciudad Juárez over the last twenty-five years. Despite being a fictional account, the novel is based on research and fact, meaning that it can be used to spread awareness of crimes against women in the border-towns.5 In the novel, although the murders remain unsolved, it is clear that they are motivated by gender. The mutilation of sexual organs suggests that the killer(s) are using their crimes to attack the changing role of women in society. As Fragoso suggests, ‘the body is represented and produced as a signifier of the gender system and of the economic social class system’.6 The author’s intention is not to create a typical detective novel, offering a solution to the crimes, but rather to ‘challenge the silence around the violence against women’ and to consider how and why these crimes have been allowed to continue.7 The author writes from the perspective of a lesbian chicana border-crosser, who contradicts Mexican gender roles and highlights the contrast between Mexico and the U.S. Her dual identity as Mexican and American- and as a woman with masculine characteristics- allows her (and her self-representation in the protagonist Ivon) to become a personification of the border and its identity as a ‘grey area’.8 Her Mexican, yet Americanised identity, coupled with her unconformity to the feminine Mexican stereotype, means that she embodies the blurred identity of the border-town. Her masculinity is shown, amongst other examples, by changing her name from the feminine spelling ‘Yvonne’ to ‘Ivon’, and through considering herself ‘Mapi’, meaning a mixture between mother and father.9 De Alba tries to highlight how traditional gender roles in Mexico have created an environment that has normalised violence against women. One example of this is the way she depicts the employment and treatment of women in the workplace. In the novel, the women continue to be employed in maquiladoras (manufacturing operations) for their submissiveness and are unlikely to protest the poor working conditions of the factories. As Mexican women are societally inferior to male 4 Mercedes Olivera, ‘Violencia Feminicida: Violence against Women and Mexico’s Structural Crisis. In: Terrorizing Women: Feminicide in the Américas Fregoso, eds. R.L. and Bejarano, C., (Durham: Duke University Press, 2010) pp. 49-58, (pp.51-52). 5 Alicia Gaspar de Alba, pp.v-vi. 6 Julia Estela Monárrez Fragoso, ‘The Victims of Ciudad Juárez Feminicide: Sexually Fetishized Commodities. In: Terrorizing Women: Feminicide in the Américas, eds. Fregoso, R.L. and Bejarano, C., (Durham: Duke University Press, 2010), pp.59-69, (p.61). 7 Gaspar de Alba, p.333. 8 Irene Mata, ‘Writing on the Walls: Deciphering Violence and Industrialization in Alicia Gaspar de Alba’s Desert Blood’, MELUS, 35.3 (2010), 15-40, <https://www.jstor.org/stable/25750713?seq=1#page_scan_tab_contents>, [Accessed 21/12/17], (p.23). 9 Gaspar de Alba, pp.15-20.

Human rights journal authority, this means that they are easily manipulated and at the disposal of the patriarchy.10 Gaspar de Alba represents this sexist employment of women through the character Rubí, who states, ‘[women] are the easiest workers to exploit. They don’t unionise, they don’t complain, they’ll accept whatever wage they get’.11 Here, de Alba is vocalising that this practice not only violates the employees’ right to unionise and to speak out against inadequate working conditions, but that it also uses discriminatory practices by employing women for their perceived passivity. As Arriola argues, the employment of women in lowly positions because of their gender has created a male patriarchal authority that takes advantage of female workers which has ‘negligently and recklessly set in motion systematic policies and practices that deny [female] workers their right to human dignity’.12 Furthermore, the crimes committed against female maquiladora workers ‘[reveals] a masculine attitude of power, subordination and fatal indifference’ of the employers towards their employees.13 This is alluded to in Desert Blood, as Mata observes that, by incorporating women into a new system outside of the family home, ‘the industry replicates the cultural hierarchy’, and they remain the subject of the abuse that they experience from their male relatives at home’. 14 By accepting the subordination of women in both the domestic environment and the workplace, the rest of society follows suit and assumes that women are under the control of men. As a result, ‘sexual exploitation does not remain within the confines of the workplace’, regardless of the ‘workplace’ being the traditional domestic environment or the maquiladoras.15 Furthermore, the lack of regard for the welfare of female maquiladora workers by their wealthy, often American, male superiors facilitates the violence committed against them. According to Arriola, ‘production is more important than people’ in the maquiladoras and ‘caring for people does not factor well into a business’. 16 Consequently, the health and safety of the workers is seen to be of minimal importance, because it costs more to protect their rights than to exploit them. In addition, the maquiladora workers are denied the right to safe and affordable housing near to their workplace. This, coupled with the demand for them to work through the night to maximise production means that they have to commute alone from remote areas in darkness. Accordingly, this makes them more vulnerable targets to these violent attacks.17 This

10 Elvia R. Arriola, ‘Accountability for Murder in the Maquiladoras: Linking Corporate Indifference to Gender Violence at the U.S.-Mexico Border.’ In: Making a Killing: Femicide, Free Trade and La Frontera, eds. Gaspar de Alba, A. and Guzmán, G., (Austin, Texas: University of Texas Press. 2010), pp. 25-61, (p.31). 11 Gaspar de Alba, p. 254. 12 Arriola, p. 44. 13 Ibid, p. 39. 14 Mata, p. 20. 15 Mata, p.21. 16 Arriola, p. 37. 17 Ibid, p. 26.

Charlotte Broadhurst Crimes against women and the impunity of femicides in Ciudad Juarez, Mexico

University of Leeds is echoed in Desert Blood, where Gaspar de Alba writes that Cecilia- the maquiladora worker whose child the protagonist was to adopt- was allowed to leave the factory unaccompanied in the middle of the night, ultimately leading to her murder.18 If there was more respect for female workers, violent crimes committed against women would be less common, not only because they wouldn’t be put in such dangerous situations, but also because respect for women would translate to wider society. It is, in part, due to the patriarchal perception of the worthlessness of women that the safety of female workers is not considered. The lack of value attributed to women results in their objectification and the perception that they are disposable commodities.19 This is shown from the outset of the novel, when the first victim refers to herself as ‘a bag of water and bones’, as this is how the factory imagines her.20 To develop this idea, the killer in Gaspar de Alba’s novel places coins on the victims’ bodies, suggesting that they are ‘as expendable as pennies in the border economy’.21 Furthermore, she reiterates the idea that they are ‘discardable’, with the lineman reminding the workers that ‘[there are] twenty more girls outside waiting to take [their] place’.22 By considering women as ‘insignificant cogs in the wheel of production’, and ‘by allowing the exploitation of women to go unpunished [inside the workplace], the state accepts and reinforces the violation of women’s rights’.23 This means that violence against women is not considered criminal behaviour, and subsequently, those who commit the crimes are not held accountable.24 By leaving their domestic roles, women develop ‘dubious reputations’ because they have been ‘allowed to transgress the patriarchal system’ with their new-found income.25 The governor of Chihuahua, amongst other Mexican traditionalists, have suggested that blame for female murders lies with the victims themselves for dressing suggestively, attending nightclubs, and enjoying the independence that earning their own money provides.26 This is explored in Desert Blood, as de Alba criticises that ‘victims…are blamed for their own murders’, who ‘are considered nothing more than ignorant or loose-moraled females, putting themselves at risk’.27 Furthermore, a child refers to the women working in the maquiladoras as ‘maqui-locas’, comparing them to provocatively-dressed dolls.28 This suggests that this culture of victim blaming has ‘permeated’ through to the rest of society.29 By equating working women to prostitutes, 18 Gaspar de Alba, pp.41-42. 19 Mata, p. 21. 20 Gaspar de Alba, p.2. 21 Ibid, p.v. 22 Gaspar de Alba, p. 149; Arriola, p. 32. 23 Arriola, p. 39; 24 Mata, p. 21. 25 Julia Estela Monárrez Fragoso, p. 63. 26 Arriola, p. 27. 27 Gaspar de Alba, p.319. 28 Ibid, p.43. 29 Mata, p.30.

Human rights journal and by suggesting that they are selling themselves by earning an independent income, this reinforces the objectification of women, and that the only thing they have to offer is their bodies. Moreover, this idea of prostitution implies that women are acting ‘immorally’ and gives the patriarchy a justification to control them.30 To summarise, if women were to conform to traditional gender roles and behave the way the patriarchy expected, they would not become victims of violence outside of the home. The blurred line along the border where the murders have been committed embodies this idea about the ‘dubious reputation’ and lack of responsibility for women, as it is a grey area between the first-world and the developing-world, for which neither the U.S. nor Mexico want to take responsibility.31 Gaspar de Alba shows this confusion over territorial ownership in Desert Blood. When Irene is kidnapped, it is ‘not the EPPD’s jurisdiction…because [she] was last seen sitting on the El Paso river bank. This is probably a case for the American authorities, not the Juárez police’.32 This highlights a further reason why crimes against women in the border-towns often go unpunished: neither government wants to take responsibility or accept that the crimes are theirs to solve. The second piece of literature this essay will consider is Bajo la sombra del guamúchil (Bajo la sombra) (2010), which is a compilation of accounts by women in Centro de Readaptación Social de Atlacholoaya (CERESO) Morelos prison in Mexico.33 Inmates are separated by gender and their rehabilitation is promoted for reintroduction to society.34 This piece of testimonio literature gives a voice to the subaltern of society, who have no place to express themselves. In this instance, Mexico’s hierarchical systems establishes indigenous women as this subaltern population, not only due to their race, but also due to their gender. The barrier between the state’s lack of knowledge of indigenous languages and their minimal understanding of Spanish, coupled with the lack of consideration for women in Mexico’s patriarchal society, leaves indigenous women without a language to articulate their opinions, or the social standing to transmit them. This hierarchy of race and gender, which has been exacerbated by globalisation and the signing of NAFTA, leaves indigenous women in poverty, making them more likely to be ‘co-opted by the drug-trafficking networks’ as a means to provide for their families.35 30 Erica Haggerty, ‘Desert Blood: A Powerful Synthesis of Narrative Strategies’, UCB Comparative Literature Undergraduate Journal, 2.2 (2012), <https://ucbcluj.org/current-issue/vol-22-spring-2012-special-issue/2621-2/>, [Accessed 21/12/17]. 31 Marietta Messmer, ‘Transfrontera Crimes: Representations of the Juárez Femicides in Recent Fictional and Non-Fictional Accounts’, American Studies Journal. 57 (2012), [no pagination] <http://www.asjournal.org/57-2012/ transfrontera-crimes/>, [Accessed 10/02/18]. 32 Gaspar de Alba, p.166. 33 Rosalva Aída Hernández Castillo et al. Bajo la sombra del guamúchil. (Mexico: CIESAS, 2010). 34 Rosalva Aída Hernández, ¿Del Estado multicultural al Estado penal? Mujeres indígenas presas y criminalización de la pobreza en México. 2013. https://antropologiafractal.files.wordpress.com/2016/01/del-estado-multicultural-alestado-penal-mujeres-indgenas-presas-y-criminalizacin-de-la-pobreza-en-mxico.pdf, [Accessed 21/12/17], p.9. 35 Hernández, ¿Del Estado multicultural al Estado penal?, p. 9.

Charlotte Broadhurst Crimes against women and the impunity of femicides in Ciudad Juarez, Mexico

University of Leeds This situation is reflected by a number of accounts in Bajo la sombra. In Altagracia’s story, she is approached and offered the opportunity to sell drugs to earn more money for her family, as she struggled to survive on the profits of her simple business.36 Despite her minor role in the drugs’ trade, she is arrested and charged for distributing narcotics. Gender and racial prejudice has affected society’s idea of what constitutes a crime by avoiding consideration of the offence- such as selling drugs- in the context by which they happened. In Altagracia’s case, her crime took place as a means to survive in a patriarchal, classist society that gives little alternative to earn honest money.37 Furthermore, the comparative impunity for those who are more profoundly involved in the drugs’ trade- often wealthy men- also demonstrates how gender roles affect the punishment of crime: those with power are less likely to be held accountable. It can also be argued that indigenous women, who have neither the language nor the social standing to defend themselves, are made scapegoats for drug crimes. This is done to satisfy U.S. imposed certification, which demands the Mexican government to fulfil a quota for drug-related arrests to prove that they are actively fighting the ‘war on drugs’. However, such methods only result in the Mexican government imprisoning the most vulnerable sectors in society which tends to be lower class, poor, and often indigenous, women.38 The multiple accounts of women in Bajo la sombra who were arrested for minor involvement in the drugs’ trade reinforces Hernández’s idea that gender and racial hierarchies affect the punishment of crime. The authorities are not trying to arrest those who are most culpable, but rather those who are more submissive and cannot speak out. Moreover, the low-status given to indigenous women means that they do not have access to education and are often illiterate. This fact, alongside their indigenous identity and their femininity- which gives them no social standing to protest- enables the judicial system to take advantage of them due to their lack of understanding. In various accounts in Bajo la sombra, such as that of Flor de Nochebuena, the women are forced into confessions which they cannot understand. Furthermore, they are denied their right to a lawyer and a fair trial because of their unawareness of their rights, which is a clear manipulation of those who are excluded from education by classist society.39 In contrast, the protagonist of Desert Blood is a wealthy Mexican-American, who has the benefit of a first-world education which has taught her the rights she has, despite attempts to unjustly arrest her without following official procedure.40

36 Carlota Cadena, ‘Altagracia: acepté hacerlo, a pesar de mi miedo’. In: Bajo la sombra del guamúchil. eds. Hernández Castillo R.A. y colaboradores (Mexico: CIESAS, 2010), pp. 31-35. 37 Hernández, ¿Del Estado multicultural al Estado penal?, p. 25. 38 Ibid, p.7. 39 Susuki Lee Camacho, ‘Flor de Nochebuena: nacieron mujeres, ahora se aguantan’. In: Bajo la sombra del guamúchil, eds. Hernández Castillo R.A. y colaboradores (Mexico: CIESAS, 2010), pp. 19-28. 40 Gaspar de Alba, pp.282-288.

Human rights journal Patriarchy is such a ‘naturalised part of [Mexican] culture’ that ‘violence against women, [as] an expression of men’s power, is present in various forms and degrees throughout women’s lives’.41 Due to the widespread acceptance of mistreatment at home and the belief that it is a husband’s right to hit their wives, such crimes are not taken seriously when women attempt to report them.42 Sol’s story describes how her attempt to denounce her partner’s abuse was met with the response that ‘[she was] not the first, nor the last wife to be deceived and beaten’, indicating that despite public awareness of domestic abuse against women, the men responsible are not punished.43 In this same account, Sol is told that ‘they could not do anything [about the beating and infidelity of her husband], because he worked for the government’.44 This demonstrates that the power given to men in the patriarchal system means that they are often well-connected and are unlikely to be held accountable for their mistreatment of women.45 Gaspar de Alba also represents this through the character of J.W., who, due to his job within the police force, is publicly exonerated and hailed as a hero, despite being a ring-leader of the criminal organisation.46 Hernández also considers the hegemonic masculinity of the police force in being able to use sexual violence as a latent threat during interrogations, meaning that police officers take advantage of women’s vulnerability and inferiority to sexually exploit them. 47 It is evident that traditional gender roles have been influential in the punishment of crime in Mexico, as men’s testimonies are believed over women’s, as their ‘lack of entitlement’ and inferiority has silenced them and given little value to their opinions.48 In Luz’s account, she is imprisoned because her husband accused her of killing their baby. Despite her denial of the charges, her word is not taken seriously against his.49 Similarly, in Desert Blood, the police officers tell Ivon that there is a ‘discrepancy… between what [she is] saying happened and what the [male] witnesses we talked to at the scene said’.50 This shows the subalternity of women in the patriarchal system: even when they attempt to express themselves, they are disregarded. This is reinforced by Domínguez-Ruvalcaba and Blancas, who state that any discussion or representation of crimes against women is seen to be ‘antisocial’ and

41 Olivera, p. 50. 42 Guadalupe Salgado, ‘Luz: Viendo transcurrir la vida desde una silla de ruedas’. In: Bajo la sombra del guamúchil. eds. Hernández Castillo R.A. y colaboradores, (Mexico: CIESAS, 2010), pp.69-73. 43 Águila del Mar, ‘Sol: Acabas de perder todo, ¡que Dios te bendiga!’. In: Bajo la sombra del guamúchil. eds. Hernández Castillo R.A. y colaboradores, (Mexico: CIESAS, 2010), pp. 115-134, (p.122), (translation by author). 44 Águila del Mar, p. 122. 45 Hernández, ¿Del Estado multicultural al Estado penal?, p.7. 46 Gaspar de Alba, p. 326. 47 Hernández, ¿Del Estado multicultural al Estado penal? p.17. 48 Haggerty. 49 Salgado, pp.69-73. 50 Gaspar de Alba, p.305.

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Charlotte Broadhurst Crimes against women and the impunity of femicides in Ciudad Juarez, Mexico

‘sensationalising’, which promotes the silence surrounding crimes against women.51 To conclude, the patriarchal system has historically facilitated the mistreatment of women in the home, however the rise of industrialisation and the signing of NAFTA has brought women, and their perceived inferiority, out of the home and into maquiladoras. The cultural assumption that women have less value than men still has great significance in society and has led to their objectification both inside and outside the domestic sphere. However, by earning their own income and controlling their own lives, this has provoked a further violent reaction as such actions have been perceived as ‘emasculating’ the patriarchy. Regarding the punishment of crimes, the superiority granted to men means that they are rarely held accountable for crimes, particularly against women who are seen to have little value. By comparison, the inferiority of indigenous women has given them no access to education, allowing the state to take advantage of their lack of Spanish language, their lack of awareness of their rights, and their inability to speak out by unjustly prosecuting them for crimes they did not necessarily commit. Although traditional gender roles have contributed to the construction and punishment of crime, the influence of the U.S. has also been a significant factor, causing a ‘massive integration of women into the labour force [which] has destroyed the traditional model’ of society. 52 This has forced Mexico to compromise its traditions in favour of industrialisation. Whilst globalisation encourages rapid industrialisation and modernisation, native traditions have not adapted to first-world standards at the same rate. According to Gaspar de Alba, Mexico is ‘not ready for the liberated woman’, despite its industrial development.53 Volk and Schlotterbeck suggest that in order to prevent the mistreatment of women in Latin America it could be necessary to ‘[reaffirm] patriarchal values’ and ‘[re-establish] female passivity’.54 Whilst this would restore Mexican culture and allow the country to modernise gradually at its own pace, the traditional patriarchy is the root of mistreatment of Latin American women and will continue to contribute to their domestic abuse if it is not reconsidered. Harrington offers an alternative solution: erase the grey area and ‘eradicate jurisdictional confusion’ of the border by enforcing international human rights laws to improve working conditions and share responsibility for the welfare of citizens in the border-towns.55 51 Héctor Domínguez-Ruvalcaba and Patricia Ravelo Blancas, ‘Obedience without compliance’. In: Terrorizing Women: Feminicide in the Américas. eds. Fregoso, R.L. and Bejarano, C., (Durham: Duke University Press, 2010), pp. 182-196, (p.185). 52 Olivera, p. 53. 53 Alicia Gaspar de Alba, p.252. 54 Stephen Volk and Marian Schlotterbeck, ‘Gender, Order and Femicide: Reading the Popular Culture of Murder in Ciudad Juárez’. In: Making a Killing: Femicide, Free Trade and La Frontera, eds. Gaspar de Alba, A. and Guzmán, G. (Austin, Texas: University of Texas Press. 2010), pp. 121-153, (p.122). 55 James C. Harrington, ‘¡Alto a la Impunidad! Is There Legal Relief for the Murders of Women in Ciudad Juárez?’ In: Gender Violence at the U.S.-Mexico Border: Media Representation and Public Response, eds. Domínguez-Ruvalcaba, H. and Corona, I., (University of Arizona Press, 2010), pp. 154–76, (p.154).

Human rights journal Bibliography Arriola, Elvia R., ‘Accountability for Murder in the Maquiladoras: Linking Corporate Indifference to Gender Violence at the U.S.-Mexico Border’, in Making a Killing: Femicide, Free Trade and La Frontera, ed. A. Gaspar de Alba and G. Guzmán (Austin, Texas: University of Texas Press. 2010), pp. 25-61 Cadena, Carlota, ‘Altagracia: acepté hacerlo, a pesar de mi miedo’, in Bajo la sombra del guamúchil, ed. R.A. Hernández Castillo y colaboradores (Mexico: CIESAS, 2010) Camacho, Susuki Lee, ‘Flor de Nochebuena: nacieron mujeres, ahora se aguantan’. In: Bajo la sombra del guamúchil, eds. Hernández Castillo R.A. y colaboradores (Mexico: CIESAS, 2010), pp. 19-28 Del Mar, Águila, ‘Sol: Acabas de perder todo, ¡que Dios te bendiga!’, in Bajo la sombra del guamúchil, ed. R.A. Hernández Castillo y colaboradores (Mexico: CIESAS, 2010), pp. 115-134 Domínguez-Ruvalcaba, Héctor and Patricia Ravelo Blancas, ‘Obedience without compliance’, in Terrorizing Women: Feminicide in the Américas, ed. R.L. Fregoso and C. Bejaran, (Durham: Duke University Press, 2010), pp. 182-196 Haggerty, Erica, ‘Desert Blood: A Powerful Synthesis of Narrative Strategies’, UCB Comparative Literature Undergraduate Journal, 2, 2 (2012) <https://ucbcluj.org/current-issue/vol-22-spring-2012special-issue/2621-2/> [accessed 21 December 17] Harrington, James C., ‘¡Alto a la Impunidad! Is There Legal Relief for the Murders of Women in Ciudad Juárez?’, in Gender Violence at the U.S.-Mexico Border: Media Representation and Public Response, ed. H. Domínguez-Ruvalcaba, and I. Corona (University of Arizona Press, 2010), pp. 154–76 Hernández, Rosalva Aída, ¿Del Estado multicultural al Estado penal? Mujeres indígenas presas y criminalización de la pobreza en México (2013) <https://antropologiafractal.files.wordpress. com/2016/01/del-estado-multicultural-al-estado-penal-mujeres-indgenas-presas-y-criminalizacinde-la-pobreza-en-mxico.pdf> [accessed 21 December 17] Hernández Castillo, Rosalva Aída et al., Bajo la sombra del guamúchil, (Mexico: CIESAS, 2010) Gaspar de Alba, Alicia, Desert Blood: The Juárez Murders (Houston, Texas: Arte Público Press, 2007) Golash-Bolaz, Tanya and Bonilla-Silva, Eduardo, ‘Rethinking race, racism, identity and ideology in Latin America’, Ethnic and Racial Studies, 36, 10 (2013), pp.1485-1489, < https://0-wwwtandfonline-com.wam.leeds.ac.uk/doi/pdf/10.1080/01419870.2013.808357?needAccess=true> [accessed 17 March 18] Mata, Irene, ‘Writing on the Walls: Deciphering Violence and Industrialization in Alicia

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Gaspar de Alba’s Desert Blood’, MELUS, 35, 3 (2010), pp.15-40, <https://www.jstor.org/ stable/25750713?seq=1#page_scan_tab_contents> [accessed 21 December 17] Messmer, Marietta, ‘Transfrontera Crimes: Representations of the Juárez Femicides in Recent Fictional and Non-Fictional Accounts’, American Studies Journal, 57 (2012) <http://www.asjournal. org/57-2012/transfrontera-crimes/> [accessed 10 February 18] Monárrez Fragoso, Julia Estela, ‘The Victims of Ciudad Juárez Feminicide: Sexually Fetishized Commodities’, in Terrorizing Women: Feminicide in the Américas, ed. R.L. Fregoso, and C. Bejarano (Durham: Duke University Press, 2010), pp.59-69 Olivera, Mercedes, ‘Violencia Feminicida: Violence against Women and Mexico’s Structural Crisis’, in Terrorizing Women: Feminicide in the Américas Fregoso, ed. R.L. Fregoso, and C. Bejarano (Durham: Duke University Press, 2010), pp. 49-58 Salgado, Guadalupe, ‘Luz: Viendo transcurrir la vida desde una silla de ruedas’, in: Bajo la sombra del guamúchil, ed. R.A. Hernández Castillo y colaboradores (Mexico: CIESAS, 2010), pp.69-73 Volk, Stephen, and Schlotterbeck, Marian, ‘Gender, Order and Femicide: Reading the Popular Culture of Murder in Ciudad Juárez’, in Making a Killing: Femicide, Free Trade and La Frontera, ed. A. Gaspar de Alba, and G. Guzmán (Austin, Texas: University of Texas Press. 2010), pp. 121-153

Human rights journal Modern day india: exploring the caste system's history and continued existence Parisa Patel

Last summer Parisa Patel visited the state of Bihar, India where she was conducting research with of one of Indiaâ&#x20AC;&#x2122;s most marginalized groups; the Dalits (Scheduled Castes). These photos are a selection from in and around the rural and slum homes of the women she interviewed.

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Parisa Patel Modern day india: exploring the caste system’s history and continued existence

What is the Indian Caste system? The Indian Caste System, legally abolished by the Constitution in 1949, is one of the most archaic forms of social stratification. It divides Hindus into a complex social hierarchy; at the top are the ‘Brahmins’, usually the wealthy, well-educated intellectuals. Next are the ‘Kshatriyas’ (warriors), Vaishtriyas (farmers and merchants) and Shudras (labourers). Outside this system a fifth group was created for the Dalits, previously named the ‘Untouchables’, for those carrying out menial and polluting work such as dealing with bodily decay (e.g dealing with dead carcasses/roadkill), dirt or sewage1,2,3. Dalits were considered unclean, and ostracized by society in many regions; it was deemed that if their shadow even fell on a higher Caste member they would be polluted and have to perform a cleansing ritual3. For many centuries this system dictated Indian life; communities were segregated by Caste, with inter-caste marriage rare. Water wells were not shared, Dalit children could sit only at the back of class, Dalits were not allowed to enter temples or public parks and they suffered widespread physical, mental and sexual abuse.3

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Parisa Patel Modern day india: exploring the caste system’s history and continued existence

Does the Caste system still exist? Following a wave of protests in India, and growing International condemnation of the discrimination, deprivation and human rights abuses facing Dalits, the Government outlawed discrimination against Dalits in 1949 and has since introduced a range of policy reforms to create special reservations in Government jobs and Educational Institutes for those of low Caste1. Whilst these reforms no doubt have helped to improve living standards for many Dalits (or, as they were re-classed, the ‘Scheduled Castes (SCs)’), it has been very difficult to liberate the country from a system ingrained into its society for over 3000 years4. In urban, modern India the influence of Caste has declined significantly, with inter-caste marriage becoming less rare, and much improved rates of SC representation in politics1. However, approximately 70% of the population lives rurally, and here improvements have been very slow and there is still widespread oppression and violence towards Dalits5. A survey in 2012 found that over 1/3 of the Hindu population still practiced ‘Untouchability’ – the practice that touching a Dalit or an object they have touched is polluting6. This discrimination is especially significant considering the huge number of people affected; there are an estimated 200 million Dalits in India (17% of of the population) 7.

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Parisa Patel Modern day india: exploring the caste system’s history and continued existence

What types of abuse/deprivation does the Dalit Population still suffer? Jobs and employment The majority of Dalits still work in intensive manual labour (78%) and many work in unpleasant jobs such as ‘Manual Scavenging’ – the practice of clearing excrement from public toilets/drains8. It is often difficult for Dalits to find jobs due to their social status and Dalits who want to work in trade/food industries struggle to sell items as villagers refuse to purchase things they have touched. Because of this they often have no option but to accept jobs in dangerous conditions where they are often exploited by local landlords who pay them less than other men/women doing the same work3. Wealth Approximately 31.5% of rural Scheduled Castes live below the poverty line (the minimum income required to cover basic food requirements = £10 a month) and the majority live in sprawling urban slums, or rural segregated villages9. Women In India, where prevalence of patriarchal attitudes to women is deeply pervasive, it is no surprise that Dalit women fare particularly poorly. Dalit women often face triple discrimination based on their Caste, gender, and socio-economic status and this is reflected in the sky-high levels of rapes, harassment, injury and other abuses they face4. Additionally, many Dalit women are forced into prostitution or become victims of the ‘Devadani/Jogini’ system (Temple Prostitution) where young girls are forced to ‘marry’ a village god and then sexually exploited by upper caste men10,11. Children Children often begin working at very young ages to support their family. If a family is struggling to repay a landlord’s loan, the vile practice of ‘bonded’ labour still occurs - a form of modern day slavery where children as young as six must work for nothing to pay back their parents debts. Sometimes a bonded girl must spend the first night after marriage with her landlord as a matter of his ‘right’3. Education In school Dalit children are often bullied and humiliated (both by their higher Caste teachers and schoolmates). A 2014 research report found 88% of state schools discriminated against Dalit children, 79% required them to sit at the back of the class, 35% were required to sit separately at lunch, and 28% required them to eat with specially marked plates12,13. It was also commonplace for them to suffer indignities such as being made to serve food to the other children and clean the latrines. It is no surprise then that in the same report, Dalits constituted nearly half of primary school dropouts12.

Human rights journal Health Dalit health indicators continue to lag behind those of higher Caste - reflecting the poor living standards and abuse they endure. Dalit children show markedly higher neonatal, infant and child mortality rates and many are severely malnourished (a study in 2015 in Haryana showed 49% of Dalit children less than 5 were underweight, and 80% of those 6-59 months old to be anaemic)12, 14, 15. Additionally, a study in 2007 found that Dalits were denied entry into 21% of private health centres/ clinics - highlighting the barriers to accessing healthcare Dalits still face16,17.

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Why are things improving so slowly? Whilst Caste might often be considered a proxy for socio-economic status by members of the international community, it differs in that it is much more rigid; Caste is mainly decided by family name (and skin tone18) and so there is less flexibility for social mobility up the ladder. Furthermore, the general intolerance for inter-caste marriage and the still limited access to education Dalit children have hiders them from two of the most important tools for social mobility4. Additionally, whilst discrimination and oppression of Dalits is outlawed in Indian law, abuse of the law is hardly ever prosecuted as caste hierarchy also is still prevalent in the beureaucratic, court and police system19. Physical violence or abuse is commonplace, but guilty persons are rarely arrested and even when they are the slow legal proceedings make it easy for culprits to abuse/threaten Dalit families further in the meantime19. This has led to a major underreporting of discrimination and crime which conceals the extent of the atrocities Dalits face, and thus make it harder to implement targeted intervention to improve Dalit welfare4,19. Conclusion Whilst things have improved for Dalits, things are not moving fast enough. The Caste system was abolished 69 years ago and yet the gaps in health, social and economic indicators are vast. There are major disparities between India`s human rights commitments and the daily realities faced by most Dalits, who remain forgotten.

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University of Leeds Bibliography BBC News, What is India’s Caste System? (2017) <http://www.bbc.co.uk/news/world-asia-

Parisa Patel Modern day india: exploring the caste system’s history and continued existence

india-35650616> [accessed 12 February 2018] Deutsche Welle, India’s Caste System: Weakened, but still influential (2017) <http://www.dw.com/ en/indias-caste-system-weakened-but-still-influential/a-39718124> [accessed 12 February 2018] Supporting Dalit Children, Who Are the Dalits? (2018) <http://www.supportingdalitchildren.com/ who-are-the-dalits> [accessed 12 February 2018] Navsarjan Trust, Atrocities and Interventions (2016) <http://navsarjan.org/navsarjan/dalits/ whoaredalits> [accessed 12 February 2018] The World Bank, Rural Population (% of total Population) (2018) <https://data.worldbank.org/ indicator/SP.RUR.TOTL.ZS?locations=IN > [accessed 12 February 2018] The Indian Express, Biggest Caste Survey: One in Four Indians admit to practicing Untouchability (2014) <http://indianexpress.com/article/india/india-others/one-in-four-indians-admit-topractising-untouchability-biggest-caste-survey/> [accessed 12 February 2018] International Dalit Solidarity Network, India: Official Dalit population Exceeds 200 Million (2013) <http://idsn.org/india-official-dalit-population-exceeds-200-million/> [accessed 12 February 2018] Eldis, Cleaning human waste: Manual Scavenging, Caste, and Discrimination in India (2014) <http:// www.eldis.org/document/A73412> [accessed 12 February 2018] Business Standard, Fewer Poor Among SC, ST, OBC (2014) <http://www.business-standard.com/ article/economy-policy/fewer-poor-among-sc-st-obc-114031301232_1.html> [accessed 12 February 2018] National Museums Liverpool, Jogini (2016) <http://www.liverpoolmuseums.org.uk/ism/exhibitions/ broken-lives/jogini.aspx> [accessed 12 February 2018] Sabharwal, N., and W. Sonalkar, ‘Dalit women in India: At the Crossroads of Gender, Class and Caste’, Global Justice (2015) <http://www.theglobaljusticenetwork.org/index.php/gjn/article/ view/54> [accessed 12 February 2018] IPFS, Dalit (2016) <https://ipfs.io/ipfs/QmXoypizjW3WknFiJnKLwHCnL72vedxjQkDDP1mXWo6uco/ wiki/Dalit.html> [accessed 12 February 2018]

Human rights journal Hindustan Times, Children bear the brunt of Caste Abuses in Rural MP (2014) <https://www. hindustantimes.com/bhopal/children-bear-the-brunt-of-caste-abuses-in-rural-mp/storykx7ViJFX8jjxuybmBBNLAO.html> [accessed 12 February 2018] International Institute for Population Sciences (IIPS) and ICF, National Family Health Survey (NFHS-4), 2015-16: India. Mumbai: IIPS (2017) <http://rchiips.org/NFHS/NFHS-4Reports/India.pdf> [accessed 12 February 2018] The Hans India, Health Indicators of SC/STs cause Concern (2015) <http://www.thehansindia.com/ posts/index/2015-10-26/Health-indicators-of-SCSTs-cause-concern-182475> [accessed 12 February 2018] Humanitarian Aid Relief Trust, India’s Inequality in Healthcare: the Caste Divide (2016) <https:// www.hart-uk.org/blog/indias-inequality-in-healthcare-the-caste-divide/> [accessed 12 February 2018] Centre for Human Rights and Global Justice, Hidden Apartheid (2007) <https://www.hrw.org/sites/ default/files/reports/india0207webwcover_0.pdf> [accessed 12 February 2018] Sankaran, S., Sekerdej, M. and U. Von Hecker, ‘The Role of Indian Caste Identity and Caste Inconsistent Norms on Status Representation’, Frontiers in Psychology 8. 487 (2007) , 1-14 Human Rights Watch, India: ‘Hidden Apartheid’ of Discrimination Against Dalits (2007) <http:// pantheon.hrw.org/legacy/english/docs/2007/02/13/india15303.htm> [accessed 12 February 2018]

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Human rights journal The Forgotten Palestinian Arabs of Israel Lucie Lequier

The largely Palestinian neighborhood of Silwan, and the Wall in the background

When the sky is clear like today, it seems as if the Old City of Jerusalem and the Wall are only a short walk away. Still, these 708 kilometres of concrete mark the boundary between the Israeli territory and the West Bank, which remains mostly under full Israeli control, when not under a joint Israeli-Palestinian Authority. Israel calls it a ‘security barrier’ against terrorism. But in order to prevent these borders from becoming permanent, the Israeli state was careful to not build the Wall along the Green Line – or pre-1967 border- which

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Lucie Lequier The Forgotten Palestinian Arabs of Israel

But there is another side to this well-known story: the presence of Palestinian Arabs inside Israel, and in the Holy City itself.

The West-Jerusalem neighbourhood of Silwan

On the hillside, opposite where I am standing, the east-Jerusalem neighbourhood of Silwan faces the Old City. From afar, all we can see is a messy cluster of concrete blocks with crooked windows, resting on hundred-years-old brick and rock foundations. This strange looking town stands in sharp contrast with the beautiful ancient buildings of the Old City or the ultra-modern city centre. The predominantly Palestinian village of Silwan was incorporated to Israel in 1967 along with the rest of East Jerusalem. It became a focus of Jewish settlement ever since. Why? By sheer accident, it was there that laid the necropolis of the Judean Biblical kingdom, whose tombs were long since plundered. But more than that, the Kidron valley below happened to be the site of the Pool of Siloam,

Human rights journal used to water King Solomon's Royal Garden, and later by Jewish pilgrims to ritually cleanse themselves during the festivals of Passover, Sukkot and Shavuot. Zionists are now destroying houses in Silwan, legally or not, in order to conduct archaeological searches that will prove the prestigious Jewish history of the site. It is in these kinds of Arab neighbourhoods that we are forbidden from exploring on our own. Crossing the border to the West Bank is also out of the question, if not for security reasons, simply because going back to the UK after receiving the wrong stamp on our passport would constitute a real nightmare. But still, we could cross if we really wanted to. Like an Israeli cab driver said, we are ‘lucky’. He can’t himself go to Bethlehem, which is under Palestinian Authority. Indeed, after several deaths, his government has decided that it was definitely too dangerous for its citizen to be allowed to travel there. The opposite is not true. Not only is there an Arab population living in the Arab quarter of the Old City, in the Golan Heights and in East Jerusalem – the part of the city that was until recently supposed to become the capital of the future Palestinian independent state – but there are Arabs living everywhere else in Jerusalem. According to the Israel Central Bureau of Statistics, they currently represent more than 20% of the population of the Israeli state, next to 1.7 million, and growing fast. This is a complex and vast subject, with many social, economic, cultural and political implications. One of them is that many Zionists fear the ‘inside threat’ of the increasing Arab demographic. However, in Jerusalem, the Israeli birth rate has recently overtaken that of Arabs. Some of the Arabs living inside Israeli territory choose not to be citizens. They are granted the status of ‘permanent residents’ instead, which still allows them to travel more or less freely, to vote in the municipal elections, to health care entitlements and to social security benefits. However, the Arab population is more heavily impacted by poverty, unemployment, a lack of land and infrastructure, and diverse social issues. A poster in Hebrew on a shop window showed us this hidden disparity. A fashion boutique was looking for a female employee who ‘had done her military service’, meaning a full-Israeli citizen. It obviously meant that she had to be Jewish, and not Arab. But quite unexpectedly, Prof. Alex Yakobson, who we briefly met, assures that there is hope for a more harmonious cohabitation, quoting a recent poll in the country. Indeed, when asked, most Israeli Arabs consider themselves ‘proud to be Israeli’ and better off in Israel, while at the same time rejecting Zionism as a racist, colonialist ideology. It is often impossible to distinguish ‘Palestinian Arabs’ from the people who self-identify as ‘Israeli Jews’, apart from the kippah the latter often wear. But the clearly recognizable uniform of the Palestinian National Security Forces sets them apart. It is them who control the entrance of the Haram esh-Sharif, also known as the Temple Mount, one of

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the most disputed holy sites in the world. Its most prominent feature is the famous Dome of the Rock. The day we went to visit it, the sun was high and its golden globe shining.

A Muslim woman walks through the Christian part of the Church of the Holy Sepulchre

In another holy building, the Church of the Holy Sepulchre, I caught the ghostly image of a Muslim woman, all in black in her hijab and long dress, swiping the floor in the Christian part of the Church. These photos and information were obtained as part of an academic trip with Professor Nir Arielli and the University of Leeds from the 8th to the 12th of February 2018. 15 students including myself had the chance to explore Jerusalem and its region, notably the Dead Sea and the Masada Desert. The overall theme of the trip and of the conferences proposed to us during it was the Arab-Israeli conflict – which is the name the module taught by Nir Arielli. It was a once-in-a-lifetime experience, and the opportunity to see the ‘beyond the scene’ of this worldwide ideological war, and discover several points of view.

A CLOSER LOOK

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Human rights journal An Uphill Battle: An assessment of the political power of the Arab minority in Israel Martha Scott-Cracknell The Arab population in Israel, this being the Arab citizens of the State of Israel living within the internationally recognised borders, have faced a history of restrictions and struggle. The 1948 Palestinian War prompted the birth of the State of Israel and resulted in the displacement of around 700,000 Arab Palestinian citizens.1 From this event onwards, the Arab population of Israel became a minority and have faced an uphill battle to obtain full political representation and power in the Knesset. This essay discusses the complex combination of issues restricting the Arab minority from achieving effective political power in Israel. External and internal factors such as the Israeli Right’s disinterest in the Arab community and the actual potential of the Arab Joint List to fully represent Arab citizens and gain political power will be discussed. This essay concludes that without significant influence at the heart of the Israeli government, the political power of the Arab minority cannot be fully achieved. The history of the Arab minority in the State of Israel is one marred by restrictions and injustice. Comprising almost 21% of Israel’s total population, this heterogeneous group made up of diverse values and political beliefs, has faced, and continues to face, an uphill battle to gain equal civil rights with their Israeli Jewish counterparts, receive a fairer distribution of state resources and opportunities, and to consolidate political representation for the Arab minority.2 Whilst Israeli Arabs have political representation through the 13 members of the Knesset (MKs) of the Arab Joint List and are the third largest faction in the current 20th Knesset, in reality, the Arab minority remain relatively politically powerless in the face of the Israeli Right’s stronghold over the Knesset and influence over Israeli Jewish perspectives of the Arab community. Yet, there is not one simple explanation for the lack of political influence of the Arab minority in Israel, rather a complex combination of issues. This essay will address some of the external and internal factors restricting the Arab minority and the ways in which political power is manifested. The Israeli Right’s disinterest in the Arab community, the shift to alternative means of achieving social change and an assessment of the actual potential of the Joint List to gain significant political

1 Ghazi Falah, ‘The 1948 Israeli-Palestinian War and its Aftermath: The Transformation and De-Signification of Palestine’s Cultural Landscape’, Annals of the Association of American Geographers, 86:2 (1996), pp. 256-285 (p.256). 2 Itamar Radai, Meir Elran, Yousef Makladeh and Maya Kornberg, ‘The Arab Citizens in Israel: Current Trends According to Recent Opinion Polls’, Strategic Assessment, 18. 2 (2015), 101-116 (p. 101).

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University of Leeds power, will be discussed. Whilst these factors shed light on ways in which the Arab minority better organise themselves and refine their objectives, the reality remains that they are unlikely to achieve full political rights in Israel in the near future. Firstly, it is important to consider the current Arab representation in the Knesset, and the Arab minority’s feelings towards it. The Index of Arab-Jewish Relations in Israel 2012 show genuine feelings of discrimination among the Arab community with Israel, with 70% of Arabs believing that the government treats the Arab minority as second class citizens, alongside a 2011 Brookings poll finding that only 3% said there was full equality3. Furthermore, 36% of Israeli Arabs said that they lived in an apartheid state, suggesting that whilst Israel is recognised as democratic, over a third of the Arab minority feel the government completely neglects and undermines their rights and needs.4 The study also suggested that Arab citizens do wish to have greater impact on, and involvement in, the countries decision making through elections5. However, the Arab minority perceive obstacles such as the Jewish character of the state and the inappropriate casting of all Arabs as security threats, which serves to undermine the Arab vote and deters them from voting in elections.6 Moreover, the Arab minority’s disassociation with participating in Israeli national elections stems from the alienating rhetoric of many Israeli Jewish MKs. For example, in 2010, the Israeli cabinet approved the Pledge of Allegiance Bill that would require new non-Jewish citizens to swear an oath of allegiance to Israel as a “Jewish and democratic” state.7 The bill, promoted by MK Avigdor Lieberman, brought accusations of discrimination against Israel’s Arab minority. As Ahmad Tibi, leader of Israeli Arab party Ta’al famously recalled, the State of Israel is ‘Jewish and democratic in terms of being democratic for the Jews, and Jewish for the Arabs’.8 This quotation reinforces not only the challenge that Arabs face in participating in Israeli politics whilst remaining loyal to the needs and interests of their community, but also the obstacles that the Arab minority currently face to obtaining political power. Secondly, whilst the Arab minority have experienced consistently low voter turnout in national elections, interestingly voter turnout in local elections is far higher. In the October 2013 municipal elections, Arab cities saw a very high turnout

3 Ibid, p.104. 4 Ibid, p.104. 5 The Abraham Fund Initiatives, ‘Voting in Arab Society: A Call for Action Encouraging Arab Citizens to Participate in Israel’s Public Life: Executive Summary’, The Abraham Fund Initiatives (2012), 1-12 (p.5). 6 Ibid, p.7. 7 Harriet Sherwood, ‘Israel proposes Jewish state loyalty oath for new citizens’, The Guardian, 10 October 2010 <https://www.theguardian.com/world/2010/oct/10/israel-jewish-oath-new-citizens> [accessed 4 March 2018]. 8 Arik Rudnitzky, Arab Citizens of Israel Early in the Twenty-First Century (Tel Aviv, Institute for National Security Studies, 2015), p.77

Human rights journal in the mid-to-low 70% range, with some cities even surpassing 90% turnout.9 Research has suggested that local election turnout is considerably higher than national because Arab citizens regard local politics as one of the most important organisational frameworks for advancing Arab citizens’ social, economic and political development.10 Thus, pursuing local government institutions is understood as being more likely to create social and political change than on a national scale. Moreover, there is evidence to suggest that local governments have made positive steps towards forming working relationships between the Arab minority and Jewish communities in Israel. For example, in the Galilee and Wadi Ara, regional groups of Jewish and Arab mayors issued joint statements reaffirming their commitment to continue working together for a shared and peaceful society.11 An Inter-Agency Task Force report suggest that this group of forty mayors offered to ‘serve as an example for how such cooperation can help resolve the crisis at large.’12 However, as Ghanem and Mustafa suggest, whilst the support for local governments highlights their important role as representative of Arab constituents’ needs and interests, it also reflects the significance that clan influences have over the Arab community at a local level.13 When local governments were established in Israel from the 1950s onwards, the Arab municipal sector was extremely small and based on traditional clan leadership. With the municipalisation of Arab localities, clans have remained the site for loyalty and generally determined the results of local elections.14 Yet, the prioritising of private over public interests leads Arab local authorities to have severe functional, administrative and financial problems, such as mismanagement of local affairs and a poor organizational culture.15 In terms of obtaining political power, local governments have the potential to elect Arab leaders and prime them on a local level to enter national politics and defend the rights of the Arab minority. However, unless clan loyalties are removed and local governments do not become fully democratic organisations, the opportunity for the Arab minority to gain political power is significantly reduced. Thirdly, for many in the Arab minority, it appears faith in gaining substantive political power is lacking, prompting the need to look for different means in which to implement effective social change for the Arab community. One effective and increasingly popular alternative to the Knesset is the development of Arab civil society and non9 UK Inter Agency Task Force, ‘Escalations of October 2015: Impact on Jewish-Arab Relations in Israel’, Inter Agency Task Force, p. 11 10 Ibid. 11 Ibid. 12 Ibid. 13 As’ad Ghanem and Mohanad Mustafa, ‘Arab Local Government in Israel: Partial Modernisation as an Explanatory Variable for Shortages in Management’. Local Government Studies. 35. 4 (2009), 457-473. 14 Ibid, p.462. 15 Ibid, p.466.

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University of Leeds governmental organisations (NGOs). According to the Israeli Center for Third Sector Research, the proportion of Arab NGOs registered in Israel increased from 3.5% in 1998 to 5.5% in 2004 (the most recent statistics conducted) and these numbers are only increasing.16 As Payes suggests, NGOs are seeking to empower Arab society by defending their basic rights, hence their increasing popularity within the Arab minority.17 Crucially, the numerical growth in NGOs represents a new model of political activism that is absent in the Knesset, and ‘is not contingent on recognition of the Zionist nature of the State’ – which is seen as the basis for the inferior status of the Arab society.18 By nature, these civil society organizations are designed to defend the needs and rights of the Arab minority in a separate sphere[, removed] not committed to the rules of the parliamentary system established by the Jewish majority.19 Moreover, there are several cases in which Arab NGOs in Israel have been successful in achieving the aforementioned aims, and perhaps can be seen as establishing an alternative form of political power for the Arab minority in Israel. For example, Jamal discusses how the role of Arab NGOs in the Future Vision documents marks their wider involvement in various aspects of Arab collective life in Israel.20 The Future Vision Documents, published in 2007, were a series of documents that for the first time defined the collective needs and aspirations of Israel’s Arab citizens, demanding that they be recognized as a national minority entitled to collective rights.21 The documents, which involved the support and expertise of Arab NGOs and academics, ‘constituted a milestone in the national history of the Arab minority’ by marking a change in the national consciousness that reflected the growing self-confidence and want of the Arab minority for proactive political action.22 Yet arguably, the work carried out by Arab NGOs is not enough to fully replace the authority of the Knesset in determining a national agenda for the Arab minority. Jamal suggests that the Israeli State has never viewed Arab citizens in equal terms, and in reaction to the increasing prominence of NGOs, the government enacts further policies ‘that translate its dominant ethnic character into the social reality’, thus side-lining the rights of the Arab minority.23 Therefore, in many ways, the Arab minority’s efforts to gain political power are undermined by the negative

16 Shany Payes, ‘Palestinian NGOs in Israel: a campaign for civic equality in a non-civic state’, Israel Studies, 8.1 (2003), 60-90. 17 Ibid, p.61. 18 Rudnitzky, Arab Citizens of Israel, p.52. 19 Amal Jamal, ‘The counter-hegemonic role of civil society: Palestinian-Arab NGOs in Israel’, Citizenship Studies, 12.3 (2008), 283-306. 20 Ibid, p.284. 21 Rudnitzky, Arab Citizens of Israel, p.48. 22 Ibid, p.49. 23 Jamal, p.285

Human rights journal perspective of the Israeli government towards the Arab cause. However, the rise in Arab NGOs and the way in which the Future Vision Documents galvanized the Arab minority highlights a spirit of social and political change. This change could have the potential to influence international opinion and pressure on the Israeli government, as well as strengthen the Arab minority’s mission to gain substantial political power. Fourthly, developing on the new-found momentum sparked by the Future Vision Documents, it is important to turn to an internal factor that is highly significant in assessing the political power of the Arab minority in Israel: the Arab minority as a political body and the creation of the Arab Joint List. Over the past fifteen years, studies have highlighted a steady decline in voter turnout of the Arab minority in national elections in Israel. Electoral participation reached a historical low of 18% in the 2001 elections, which was greatly impacted by the October 2000 protests and rioting between Israeli Arabs and Israeli Jews.24 Between 2001-2013, the Arab public’s frustration and sense of alienation towards the majority Jewish Knesset seemingly increased and resulted in despondence towards elections. These feelings often manifested in the public realm, as can be seen through the popularity of Abnaa el-Balad, a secular nationalist movement that called to boycott Knesset elections on the grounds that political participation of Arabs in the Knesset is pointless.25 However, Rudnitzky suggests that the Arab minority not only abstained from voting due to the disinterest of the Knesset, but also because of criticism of the Arab parties’ ineffectiveness.26 There was significant squabbling between party leaders over personal rivalries, ‘undermining the Arab minority’s ability to develop national and civic agendas’.27 Accordingly, the Arab minority greatly needed to reassess their political agenda to have any meaningful opportunity to consolidate political power. Initially, the Arab Joint List seemed to be the answer to the Arab minority’s troubles. In the build up to the 2015 Israeli elections, the Joint List was formed as a political alliance of the four Arab-dominated parties in Israel: Hadash, the United Arab List, Balad and Ta’al, headed by Ayman Odeh.28 The Joint List was formed in reaction to the 2014 Governance Law that raises the electoral threshold from 2% to 3.25% of total valid votes.29 However, the level of success that the Joint List experienced was unexpectedly high, winning 13 seats in the Knesset with 10.6% of the total vote.30 24 The Abraham Fund Initiatives, p.2. 25 Abnaa-al-Balad, ‘Why Abnaa al-Balad’ (2007) <https://web.archive.org/web/20071221102240/http://www.abnaaelbalad.org/harakeh.htm> [accessed 2 January 2018]. 26 Arik Rudnitzky, ‘Back to the Knesset? Israeli Arab vote in the 20th Knesset elections’, Israel Affairs, 22. 3 (2016), 683-696 (p.684). 27 Ibid, p.684. 28 Ibid, p.670. 29 Ibid, p.689. 30 Ibid, p.689.

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University of Leeds Immediately after the election results, ‘an extraordinary sense of unity had swept the Arab streets’ because, [moved , from before because] as Ayman Odeh stated, the Joint List had managed to achieve something remarkable: ‘We [the Joint List] represent those who are invisible in this country, and we give them a voice. We also bring a message of hope to all people.’31 [N.B. footnote collapsed into one] Israeli Arab voter turnout of 63.5% was the highest in sixteen years, which can reasonably be attributed to the List leaders’ message that a common national denominator is stronger than any other dividing lines. The amalgamation of the four main Arab parties [‘into one’ removed] allowed the Joint List to bridge the diverse ideological gap between different groups of the Arab minority, and to become ‘a tangible expression of the Arab minority’s self-definition as a consolidated national collective.’32 Moreover, much of the success of the Joint List in unifying the Arab minority is arguably due to the inspiring leadership of Ayman Odeh. Key to Odeh’s leadership qualities is his commitment to hope. Whilst others spoke of the impossibility of making important policy changes, Odeh refused to give in to ‘the region’s default position of despair and suspicion’, therefore setting him apart not only as someone who could lead the Arab minority to political power but also has the potential to unnerve many Israeli Jewish Knesset members.33 Yet, despite the achievements of the Joint List in the 2015 election results and the new hopeful spirit that spread throughout the Arab minority, the party alliance has faced, and continues to face, a very onerous battle. As Eglash suggests, whilst Odeh’s dreaming and visions for the future are positively idealistic in a somewhat bleak reality, Arab party candidates first and foremost must confront ‘multiple social and economic challenges inside their community, and also address threats from the outside’.34 From within the Arab minority, Arab political leaders face further challenges. Research found that in terms of confidence in institutions, 48% of Arab respondents believed that Arab MKs worked very little or little to promote the interests of the Arab community, indicating great dissatisfaction with Arab political representatives.35 This marked a difficult start for the Joint List. In order for Arab politicians to successfully defend the rights of their people in the Knesset, significant support and trust from the Arab minority is crucial and, without it, the Joint List’s political potential is significantly weakened. 31 Ruth Eglash, ‘Israel’s Arab political parties have united for the first time’, The Washington Post, 9 March 2015 <https://www.washingtonpost.com/world/middle_east/israels-sparring-arab-political-parties-have-united-forthefirst-time/2015/03/09/6f6c021a-c660-11e4-bea5 b893e7ac3fb3_story.html?utm_term=.8cc7bc224e64> [accessed 2 January 2018]. 32 Rudnitzky, Back to the Knesset?, p.689. 33 David Remnick, ‘Seeds of peace’, The New Yorker, 25 January 2016 <https://www.newyorker.com/ magazine/2016/01/25/seeds-of-peace> [accessed 2 January 2018]. 34 Eglash, ‘Israel’s Arab political parties have united for the first time’. 35 Radai et al, p. 111

Human rights journal Furthermore, difficulties regarding diverse political ideologies within the Joint List must also be overcome. In March 2015, a Statnet poll was conducted and highlighted that if the Joint List was to be successful, it must take a more nuanced approach to the highly heterogeneous nature of the Arab community.36 Whilst joining the four main Arab dominated parties was a crucial step to winning more votes and passing the new electoral threshold, it also saw the convergence of a diverse set of political ideologies and approaches. Thus, much negotiation and compromise has been required to try and reach a consensus on the Joint List’s position in representing the Arab minority. Remnick suggests [‘how’ removed] Odeh faces pressures from the Arab political left who find ‘his rhetoric of hope and coexistence insufficiently confrontational’, resulting in criticism [‘of’ removed] from prominent political commentators who feel that the alliance’s policies are too vague, inhibiting them from implementing any effective political change.37 As Professor Asad Ghanem observed during the election campaign, ‘it is not enough to say ‘We are Arabs, so vote for us’. The public wants to hear a lot more than that… people need to know what the plan is.’38 Additionally, the rhetoric of Arab MK Haneen Zoabi suitably demonstrates the impact that different ideologies has on the credibility of the Joint List. Representing the Balad Party and serving as part of the Joint List, Zoabi has been incredibly outspoken against Israel as a Jewish State and the State’s inadequate and ‘racist’ response to the Arab minority. This has included statements such as that the Jews have no entitlement to self-determination, brandishing Israeli Defense Force soldiers as murderers, and her belief that the Temple Mount is a place for Muslims only and should therefore be ‘Jew-free’.39 For the Joint List and Odeh in particular, Zoabi’s general reluctance to toe the party line arguably has made it difficult for the Joint List to come across as dependable, stable political representatives of the Arab minority. Moreover, these comments have provoked two Israeli-Jewish-led bills to ban Zoabi from running for Knesset in future elections, gaining a great deal of support

36 Ibid, p. 108. 37 David Remnick, ‘Seeds of peace’, The New Yorker, 25 January 2016 https://www.newyorker.com/ magazine/2016/01/25/seeds-of-peace [accessed 2 January 2018]. 38 Mazal Mualem, ‘Joint List leaders must seize momentum’, Al-Monitor, 2016 https://www.al-monitor.com/ pulse/ru/contents/articles/originals/2015/02/israel-election-2015-arab-united-list-momentum-social-issues.html [accessed 4 January 2018]. 39 Hana Levi Julian, ‘Israeli Arab MK Zoabi Says “No Place for Jews at Temple Mount”’, Jewish Press.com, 4 October 2015 http://www.jewishpress.com/news/breaking-news/israeli-arab-mk-zoabi-says-no-place-for-jews-at-templemount/2015/10/04/> [accessed 4 January 2018].

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before ultimately being overturned.40 Thus, it is clear that individual politicians such as Zoabi provide an opportunity for the Israeli Right to label Arab leadership as incoherent, and extremist, further undermining their access to political power. Finally, aside from the internal challenges to the Joint List, they [‘also’ removed] face many serious external challenges, such as several actions of the Israeli Right that have incited anti-Arab sentiment in Israel. Since the electoral success of the Joint List in 2015, several Israeli Right Jewish MK’s went on the offensive, making statements that undermined the potential of a successful, legitimate Arab political campaign. Current Minister of Defence, Avigdor Lieberman has been outspoken in his disregard for the Arab minority, when in December 2017, he called members of the Joint List war criminals who refuse to recognise the Jewish character of Israel, ‘a phenomenon that must be resisted.’41 Significantly, this anti-Arab sentiment is not restricted to low-level politicians. For instance, in 2015 Prime Minister Netanyahu excluded Odeh from security briefings with opposition leaders after a shooting attack by an Arab citizen of Israel, a decision which sent a clear message of Netanyahu’s condemnation of the Arab leadership for its contribution to the unrest among Arab society.42 This anti-Arab sentiment has transcended Knesset fallouts, and has at times manifested itself in civil society both offline and online. In extreme cases, Israeli right-wing movements have taken to the streets to intimidate and attack Arabs, which can be seen in 2015 when protesters marched in Jerusalem chanting ‘Death to Arabs’.43 Events such as this exemplify Sammy Smooha’s Radicalization Thesis, this being the understanding that Arab and Jewish citizens of Israel are involved in an historic process of mutual alienation, estrangement and potential confrontation.44 Smooha suggest that a violent dispute between parties is sure to occur, and the only question is when.45 Thus, the serious implications facing the Arab leadership’s campaign to gain political influence are highlighted, and if not quashed, have the potential to not only provoke ongoing violence between Israeli Arabs and Jews, but also undermine future campaigns for Arab minority political power.

40 Lahav Harkow, ‘Justice Ministry working on new version of ‘Zoabi Bill’’, The Jerusalem Post, 2015 http://www. jpost.com/Israel-News/Politics-And-Diplomacy/Justice-Ministry-working-on-new-version-of-Zoabi-Bill-407386 [accessed 5 January 2018]. 41 Jonathan Lis, ‘Israeli Defence Minister to Arab Political Party: “You Are All War Criminals”’, Haaretz, 2017 https:// www.haaretz.com/israel-news/1.828440> [accessed 4 January 2018]. 42 UK Inter Agency Task Force. 43 Nir Hasson, ‘Right-wing protesters March in Jerusalem, Chant ‘Death to Arabs’’, Haaretz, 8 October 2015 <https://www.haaretz.com/israel-news/.premium-1.679520> [accessed 4 January 2018]. 44 Sammy Smooha, ‘Arab-Jewish Relations in Israel: alienation and rapprochement’, in Peaceworks No.67: ArabJewish Relations in Israel: alienation and rapprochement, (Washington D.C: United States Institute of Peace, 2010), p. 67. 45 Smooha, ‘Arab-Jewish Relations in Israel’.

Human rights journal Nevertheless, the question remains as to the best future course of action for the Arab leadership. It appears that in order to achieve political influence from within the Knesset, a new and different perspective must be taken that recognizes the rights and grievances of the Arab minority, and implements concrete basic steps to correct failures of the past. This must be achieved, not only because of the heightened anti-Arab sentiment of some Israeli Jewish segments, but as Rudnitzky suggests, it is necessary for ‘the stability and wellbeing of Jews and Arabs, who are destined to live together in Israel.’46 In conclusion, the political power of the Arab minority in Israel is relatively weak, and is continually undermined and blocked by a Jewish-dominated Knesset. Whilst the Joint List has been successful in gaining political representation in the Knesset and mobilising Arabs to vote, the alliance faces a continuous struggle to overcome ideological differences and constant external attacks from the Israeli right. Thus, the future of the Arab minority in Israel remains uncertain. This raises the question of whether Arab society will decide to dissociate from Israel’s governmental system and pursue different avenues to gain political power, or continue to hope that the full potential of the Arab vote will be realised. Whilst Israeli-Arab Professor Ghanem claimed ‘we [(Arab) removed] can’t keep blaming all our problems on the state. There are some things that we can tackle ourselves’47, it is ultimately the case that without significant influence at the heart of the Israeli government, the political power of the Arab minority cannot be fully achieved.

Bibliography Abnaa al-Balad, Why Abnaa al-Balad (2007) <https://web.archive.org/web/20071221102240/http:// www.abnaa-elbalad.org/harakeh.htm> [accessed 2 January 2018] Abraham Fund Initiatives, ‘Voting in Arab Society: A Call for Action Encouraging Arab Citizens to Participate in Israel’s Public Life Executive Summary’, The Abraham Fund Initiatives (2012), 1-12 <http://www.abrahamfund.org/webfiles/fck/Research%20-%20Election%20Survey%20Executive%20Summary%202012.pdfnline> [accessed 2 January 2018] Eglash, Ruth, ‘Israel’s Arab political parties have united for the first time’, The Washington Post, 9 March 2015 <https://www.washingtonpost.com/world/middle_east/israels-sparring-arab-politicalparties-have-united-forthe-first-time/2015/03/09/6f6c021a-c660-11e4-bea5 b893e7ac3fb3_story. html?utm_term=.8cc7bc224e64> [accessed 2 January 2018] Falah, Ghazi, ‘The 1948 Israeli-Palestinian War and its Aftermath: The Transformation and De-Signification of Palestine’s Cultural Landscape’, Annals of the Association of American Geographers, 86:2 (1996), pp. 256-285. Ghanem, As’ad, Mustafa, Mohanad, ‘Arab Local Government in Israel: Partial Modernisation as an Explanatory Variable for Shortages in Management’, Local Government Studies, 35. 4 (2009),

46 Rudnitzky, ‘Back to the Knesset?, p.694. 47 Mualem, ‘Joint List leaders must seize momentum’.

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457-473 Harkow, Lahav, ‘Justice Ministry working on new version of ‘Zoabi Bill’’, The Jerusalem Post, 2015 http://www.jpost.com/Israel-News/Politics-And-Diplomacy/Justice-Ministry-working-on-new-version-of-Zoabi-Bill-407386 [accessed 5 January 2018]. Hasson, Nir, ‘Right-wing protesters March in Jerusalem, Chant “Death to Arabs”’, Haaretz, 2016 <https://www.haaretz.com/israel-news/.premium-1.679520> [accessed 4 January 2018] Inter-Agency Task Force, ‘Escalations of October 2015: Impact on Jewish-Arab Relations in Israel’, Inter-Agency Task Force (2015) http://iataskforce.org/edu_au/October-2015-Escalations.pdf [accessed 4 January 2018] Jamal, Amal, ‘The counter-hegemonic role of civil society: Palestinian–Arab NGOs in Israel’, Citizenship Studies, 12. 3 (2008), 283-306 Julian, ‘Hana Levi, Israeli Arab MK Zoabi Says ‘No Place for Jews at Temple Mount’, Jewish Press. com, 4 October 2015 <http://www.jewishpress.com/news/breaking-news/israeli-arab-mk-zoabisays-no-place-for-jews-at-temple-mount/2015/10/04/.> [accessed 4 January 2018] Lis, Jonathan, ‘Israeli Defence Minister to Arab Political Party: “You Are All War Criminals”’, Haaretz, 2017 <https://www.haaretz.com/israel-news/1.828440> [accessed 4 January 2018] Mualem, Mazal, Joint List leaders must seize momentum, Al-Monitor, 2016 <https://www.al-monitor.com/pulse/ru/contents/articles/originals/2015/02/israel-election-2015-arab-united-list-momentum-social-issues.html> [accessed 4 January 2018] Payes, Shany, ‘Palestinian NGOs in Israel: a campaign for civic equality in a non-civic state’, Israel Studies, 8.1 (2003), 60–90 Radai, Itamar, Elran, Meir, Makladeh, Yousef, and Kornberg, Maya, ‘The Arab Citizens in Israel: Current Trends According to Recent Opinion Polls’, Strategic Assessment, 18.2 (2015), 101-116 Remnick, David, Seeds of peace, The New Yorker, 25 January 2016 <https://www.newyorker.com/ magazine/2016/01/25/seeds-of-peace> [accessed 2 January 2018] Rudnitzky, Arik, Arab Citizens of Israel Early in the Twenty-First Century (Tel Aviv: Institute for National Security Studies, 2015) Rudnitzky, Arik, ‘Back to the Knesset? Israeli Arab vote in the 20th Knesset elections’, Israel Affairs, 22.3 (2016), 683-696 Sherwood, Harriet, ‘Israel proposes Jewish state loyalty oath for new citizens’, The Guardian, 10 October 2010 <https://www.theguardian.com/world/2010/oct/10/israel-jewish-oath-new-citizens> [accessed 4 January 2018] Smooha, Sammy, Peaceworks No.67: Arab-Jewish Relations in Israel: alienation and rapprochement (Washington D.C: United States Institute of Peace: Washington 2010)

Human rights journal China's human rights model as the 'broken window' effect Sam Jones Despite regularly committing some of the worst human rights abuses, China avoids severe criticism due to its uniquely successful economic development. As global power distribution shifts increasingly in favour of China, there is a threat that China’s human rights/development model will be exported to other developing nations, undermining established human rights norms. While China’s development highlights discrimination in the conventional international human rights discourse, this essay outlines the reasons why a degree of Universalism should be upheld and that China’s human rights model should not be encouraged to go global.

China’s staggering and accelerated development over the past four decades overshadows its disregard for human rights norms, and this has become an international norm itself when applied to China. As abuses in Xinjiang, Tibet and Hong Kong are brushed under the carpet, the People's Republic of China (PRC) increasingly finds itself in a pivotal position in world politics, with the ability to influence other developing countries. Commentaries that suggest a new Cold War between China and the USA, or East Asia against the West, are exaggerated. China has one overseas military base in Djibouti, compared to America’s estimated eight hundred in over seventy countries.1 It is unlikely that China will pursue an agenda of international hegemony comparable to those of Western powers; the world is not currently threatened in a traditional sense by a ‘pax sinica’.2 However, the twenty first century is likely to see China affirm itself as a global power that is consequential in international politics, if not hegemonic. In October 2017, the Economist’s cover piece playfully gave Chinese Premier Xi Jinping the title ‘The world’s most powerful man’.3 Part of China’s growing effect on international politics will be on human rights discourses. With recent statements, it seems that instead of building a constructive cross-cultural dialogue, China is content with spreading a developmental model that flouts individual human rights. This proliferation of rejecting human rights norms draws notable comparisons to the ‘broken window’ theory in criminology. Just as the broken window theory postulates that an exemplary act of vandalism can encourage norm subversion in a society, China’s human rights model 1 David Vine, ‘Where in the World is the US Military?’, POLITICO Magazine, 2015 < https://www.politico.com/ magazine/story/2015/06/us-military-bases-around-the-world-119321> [accessed 07/03/18]. 2 Ivan Tselichtchev, China Versus the West: the Global Power Shift of the 21st Century (Singapore: John Wiley and Sons, 2010), p. 206. 3 The Economist, October 14th-20th 2012, cover

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endangers norms on an international scale that are intended to protect individuals. In December, China hosted a human rights forum for developing countries, to which Xi Jinping sent a letter congratulating the forum and promoting ‘human rights… in light of specific national conditions and people’s needs.’ He went on to reaffirm China’s commitment to universality, but qualified this with an insistence that ‘China’s experience shows that human rights can be protected in more than one way.’4 The previous year, on International Human Rights Day, China’s foreign ministry published a statement outlining its own successes in domestic human rights protection and international human rights promotion, but making the similar argument that while ‘human rights are the lofty ideals of mankind… there is no universally agreed path to human rights’.5 The PRC clearly supports some degree of relativity concerning human rights, particularly cultural and situational relativity. China’s attitude to human rights has civilisational differences to that of the West; rooted in Confucianism, China emphasises collective rights rather than individual ones.6 With a population of 1.3 billion, China sees the protection of the nation as the priority, even if some individuals must be marginalised to ensure this. As Timothy Webster writes: ‘This runs counter to core Western assumptions about human rights, and the liberal democratic framework of international human rights law (IHRL) more generally’.7 Indeed, the Universal Declaration of Human Rights (UDHR) was written largely without the input of East Asian countries, a significant marginalisation in itself, and the PRC holds a valid claim that it does not fully represent its citizens.8 On the other hand, China maintains that international law should be respected regarding sovereignty, and therefore no nation has the right to interfere in issues of China’s human rights. Perhaps China’s largest qualm with the current universal human rights doctrine is that it leaves no room for developing nations. China stresses the ‘right to development’, pleading that the international community ‘should strive to realise common development and find a path to fair, comprehensive and innovation-driven development.’9 The PRC seeks to prove that it has not only attempted but also succeeded in an alternative route to modernity, a principle that neoliberal notions of modernity are out of touch with. 4 Charlotte Gao, ‘China Promotes Human Rights “With Chinese Characteristics”’, The Diplomat’, 12 December 2017 <https://thediplomat.com/2017/12/china-promotes-human-rights-with-chinese-characteristics> [accessed 2 February 2017]. 5 Li Baodang, ‘China is Committed to a Human Rights Development Path with Chinese Characteristics’, Ministry of Foreign Affairs of the People’s Republic of China, 10 December 2016 <http://www.fmprc.gov.cn/mfa_eng/wjbxw/ t1423058.shtml> [accessed 1 February 2017] 6 Timothy Webster, ‘China’s Human Rights Footprint in Africa’, Colombia Journal of International Law, 53.1 (2013), 627-662 (p. 633). 7 Ibid., p. 633. 8 Daniel Bell, Beyond Liberal Democracy: Political Thinking in an East Asian Context (Princeton: Princeton University Press, 2006), p.68 9 Li Baodang.

Human rights journal The right to development as a human right seems obvious, and China has shown the merits of prioritising it over traditional human rights. Between 1990 and 2005, China lifted 470 million people out of extreme poverty, and its accelerated development contributed by far the largest successes of the UN millennium development goals.10 Furthermore, China identifies an acute sense of hypocrisy in the global North enforcing human rights, as many of these nations persecuted and abused their populations during their developmental stages up until the 20th Century. For China, the UDHR is a reflection of countries that have climbed the ladder and kicked it away behind them. A disconcerting step can be seen in the China’s foreign ministry’s latest proclamations contain the phrase ‘human rights development with Chinese characteristics’, a significant change in the direction of its human rights discourse.11 China has effectively formalised its model towards human rights. While the title might imply it is unique to the country of origin, this formalisation encourages attempts to export China’s human rights model. This is an extension of ‘Socialism with Chinese Characteristics’, which is itself a broader model for developing nations. As China seeks to further its position in the international realm, it also seeks to make allowances for developing nations, which directly challenges established human rights norms. This is occurring alongside the decline of the USA’s will to intervene to preserve human rights, as well as waning US moral authority. Daniel Bell writes: ‘Widely publicised social problems in the United States no longer make it the attractive political model that it may once have been’.12 Arguably, the potential for developing nations to follow China’s path is not an upheaval of human rights norms, but beckons for them to be undermined. Examining China’s development model offers no watertight evidence to justify its export. Economic development has been given preference over individual human freedoms, yielding particularly successful results in economic growth since the reforms advanced by Deng Xiaoping. China’s per capita GDP has increased at nearly 9 per cent each year since 1978, something that would have seemed impossible forty years ago considering its size and underdevelopment.13 China now has a booming middle class, growing wages across most sectors and a literacy rate that matches some European countries.14 However, those marginalised by a focus on economic growth are not few in China. Millions of migrant workers in China are dismissively regarded by the

10 United Nations Development Programme, ‘China’s success on Millenium Goals provides an example for others to follow for the post-2015 development agenda, says new UNDP report’, UNDP, 17 February 2015 <http://www. undp.org/content/undp/en/home/presscenter/articles/2015/02/17/china-s-success-on-millennium-developmentgoals-provides-an-example-for-others-to-follow-for-the-post-2015-development-agenda-says-new-undp-report0.html> [accessed 3 February 2017] 11 Li Baodang. 12 Daniel Bell, Beyond Liberal Democracy, p. 66 13 Hongbin Li, Prashant Loyalka, Scott Rozelle and Binzhen Wu, ‘Human capital and China’s Future Growth’, Journal of Economic Perspectives, 31.1 (2017), 25-48 (p. 25). 14 UNESCO Institute for Statistics, ‘China’ (2010) <https://en.unesco.org/countries/china> [accessed 7 March 2018].

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government, mistreated by the harsh Hukou regulations and on occasions such as last winter, forced out of their homes.15 Indeed, all of China’s rural regions suffer from chronic underdevelopment and a huge wealth gap compared to coastal China due to the implications of decades of ‘Socialism with Chinese characteristics.’16 Investment is concentrated in expanding coastal infrastructure, with the vague aim of increasing the size of the ‘wealth cake’ before dividing it.17 During China’s perpetual development, individuals are forgotten as economic growth of the nation takes precedence. China has to some extent already exported its human rights model in the African continent. The PRC has propped up some of Africa’s most ruthless dictators, such as Robert Mugabe and Omar al-Bashid.18 However, Timothy Webster argues that focusing on China’s buttressing of oligarchies, military dictatorships or warlords in Africa overlooks some of the developmental benefits brought to the continent.19 The list of achievements is hefty: China’s has constructed a satellite for Nigeria, built 30 malaria-prevention centres across the continent, and has undoubtedly progressed Africa’s education infrastructure.20 Moreover, African nations have good reason to turn to Eastern developmental models. The reigning post-WWII developmental model espoused by the West has yielded mixed results. Critics of the West’s neoliberal project in Africa, which encourages and finances a modernity marked by democratisation and human rights, are vocal. Nations that are hailed for holding free and fair elections soon afterwards plunge into civil war, in the case of Ivory Coast in 1995 or the Democratic Republic of the Congo in 2005.21 When the West directly intervened to topple a dictatorship in Libya in 2011, the country was thrown into unending civil war and suffering. Furthermore, humanitarian aid in civil war designed as kindness and protection from merciless government oppressors often strengthens rebels and prolongs conflict.22 Propping up dictators to ensure stability and eliciting an essential stage of economic growth is perhaps a better alternative on the African continent. Yet the effect of standardising a developmental model that removes the issue of human rights from the forefront is incredibly damaging. Economic development on China’s scale comes at a cost. In China, restricting the rights of smaller groups to promote stability and growth has not been obviously destructive. In a nation, which is almost entirely racially homogenous, with over 90% Han ethnicity,

15 Ibid., p.29 16 Ibid., p.30 17 Wen Jiabao, ‘It’s the government’s conscience to divide the social wealth “cake”’, China.com, 27 February 2010 <http://www.china.com.cn/policy/txt/2010-02/27/content_19485552.htm> [accessed 7 March 2018] 18 Webster, ‘China’s Human Rights Footprint in Africa’, p. 642 19 Ibid., p. 629 20 Ibid., p. 656 21 Humphrey Hawksley, Democracy Kills: What’s So Good about Having the Vote? (London: Macmillan, 2009), p. 52 22 Andrew Anthony, ‘Does Humanitarian Aid Prolong Wars?’, The Observer, 25 April 2010 <https://www. theguardian.com/society/2010/apr/25/humanitarian-aid-war-linda-polman> [accessed 7 March 2018]

Human rights journal repression of certain groups, regions or faiths is less pertinent.23 Sub-Saharan Africa bears scores of developing nations have some of the most complex and tentative ethnic divisions in the world. A developmental model, which discourages the protection of individual human rights, is an experiment that should not be exported. Instead, it highlights the need for the international protection of human rights. China’s footprint on the sub-Saharan African continent is not deep, but disregard for human rights norms is something that Africa’s developing nations can increasingly borrow from. Perhaps we are seeing a return of a trend last seen in Bandung in 1955, as China rises to represent those nations ‘non-aligned’ with imposed worldviews. Rejecting neoliberal interference is increasingly popular, plausibly at least partly attributable to the mixed success of neoliberal policy in the global South throughout the latter half of the 20th century. However, concerning human rights, what is ostentatiously an attempt to deconstruct and revaluate rights and issues of moral relativism, instead dismantles protective frameworks. China defaming human rights organisations at a local level is less damaging as it is contained; but if other nations feel they can flout human rights norms similarly, by aping ‘Human Rights Development with Chinese Characteristics’, the notion of universal human rights is critically damaged. To some extent, this is comparable to the notorious ‘broken window’ theory on an international scale. Brian Greenhill’s research into the diffusion of human rights addresses this concept, concurring that ‘once states observe … that human rights standards are no longer being upheld by their IGO ‘neighbourhoods’, they feel at greater liberty to let their own standards decline’.24 The benefit to the PRC of deconstructing human rights norms is in retroactively justifying its own developmental path. The one-party state, as it develops its presence in the international arena, must eventually come to terms with a dark history concerning human rights. The Tiananmen Square massacre becomes a more palatable event in history if comparable to other developing nations on the path to modernity. This is not to suggest the PRC is intentionally creating sinister human rights diplomacy, but simply that it does not wish to remain alone in its internalised position on human rights. A rogue state is no longer rogue if more ambiguity is allowed into the human rights discourse. Perhaps China envisages a world in which ‘developing nation’ can supersede the title of ‘rogue state’. Take for example Israel’s common retort to the Boycott, Divest and Sanction (BDS) movement and disproportionate attention from international organisations. When

23 The Economist, ‘The Upper Han: Who is Chinese?’, The Economist, 19 November 2016 < https://www.economist. com/news/briefing/21710264-worlds-rising-superpower-has-particular-vision-ethnicity-and-nationhood-has> [Accessed 7 March 2018]. 24 Brian Greenhill, Transmitting Rights: International Organizations and the Diffusion of Human Rights Practices (Oxford: Oxford University Press, 2015), p. 57.

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University of Leeds facing criticism for its treatment of civilians in the West Bank and Gaza, the Israeli government and its advocates ask ‘Why Israel?’. Pointing out systematic repression in many Arab states, and of course in China on a relatively larger scale, can leave those nations and organisations challenging Israel’s specific human rights abuses weakened. Indeed, the parallels between China’s repression of Uyghur Muslims in the province of Xinjiang and Israel’s containment and maltreatment of Palestinians in the West Bank has not gone unnoticed.25 Contrarily, China’s rhetoric concerning Xinjiang in the past has strived to fit into global norms, placing its campaign against Uyghur into the narrative of the War on Terror.26 China’s diplomacy is guided by pragmatism; neglecting human rights is useful in cases in which it promotes stability and economic gain, not if it upsets interests in the Middle East region. However, the case of Israel remains a useful example in ‘broken window’ human rights discourse. Effective international human rights campaigning loses traction as soon as several nations can ask ‘Why me?’ As an increasing number of ‘broken windows’ appear, it becomes difficult for any authority to prosecute an individual perpetrator for their misdeed. Bell considers the merits of a temporary curtailment of specific human rights in an East Asian context. In China’s case, an example of this was the one-child policy, which was framed as a necessary step to tackle overpopulation.27 In 2015, the government returned the right to have more than one child to its citizens. Faced with the prospect of a state of emergency by a growing population in 1979, China was not hampered by excessive commitments to its citizens of gratuitous human rights. However, the entire concept of a human right is that it is not afforded to citizens by a government to be retracted at will, but that it is indispensable and irreversible. It is gifted by a wider notion that can only be described as humanity. This is often referred to as dogmatic, coming under heavy criticism from many sides, least of all Chinese scholars and academics. Nonetheless, aside from idealistic notions of human rights, in practice obvious problems arise. The idea of a temporary curtailment of human rights allows for leeway in governmental practice that can lead to chronic abuse of human rights, proven by countless occasions of ‘temporary curtailments’, for example when martial law has been enacted. The ambiguity surrounding a temporary curtailment of human rights gives a government infinite room to flout supposedly inviolable principles such as the rule of law. There are, of course, circumstantial and civilisational considerations. However, there is a limit to cultural and moral relativism. This notion is rooted in Grotian thought, and the search for ‘ethical minimalism’ as an inter-civilisation shared basis of human rights.28 It is a duty of humanity to engage in difficult discussions to find common standards that are irrevocable. China intends on allowing more windows to be broken, on the basis that human rights can be relative in a developing state, however this paradigm does not 25 Dru C. Gladney, ‘Xinjiang: China’s future West Bank?’, Current History 656.1 (2002). 26 Michael Clarke, ‘China’s West Bank: The Alienation of the Uyghur’, Asian Currents, 31 August 2014 <http://asaa. asn.au/chinas-west-bank-the-alienation-of-the-uyghur/> [accessed 02 February 2017] 27 Bell, Beyond Liberal Democracy, p. 61. 28 Duncan Ivision, ‘Chapter 13’, in Ethics and World Politics, ed. Duncan Bell (Oxford: Oxford University Press, 2010) pp. 239-255 (p. 246).

Human rights journal stand up under the spotlight. Current human rights norms can be defended and upheld, as a development by the human race and not one solely by a Western neoliberal crusade. Jack Donnelly puts it best in his attempt to reconcile relativism and universalism: When one’s own human rights are abused ... or when one observes a loved one mistreated, one is certain that the infringement is undesirable. Those who order or commit acts of torture would... presumably, feel every bit as abused as those they victimise if they themselves were the victims. Suffering and pain are certainly universally human, as is the indignation one feels when one is treated unjustly by people in power. Surely those who argue against the universality of human rights are not suggesting that the lash or electric prod feel different in some cultural settings than in others or that degrading prison conditions and psychological abuse are culturally determined. Rather, adherents of cultural relativism seem to suggest that, while the lash, electric prod or undesirable conditions may not be accepted in some cultural settings, in other settings they may be justifiably used against certain individuals or classes of people.29 However, a ‘blind faith in the universal potential of liberal democracy’ is also unjustified and unsuccessful in promoting human rights.30 The figurative ‘windows’ have largely been built by and exist in Western worldviews. That human rights norms are being challenged is not something that should necessarily be feared. It is indeed wrong to presume that philosophical questions of governance, rights and an absolute good have already been concluded and answered. The UDHR is not perfect, and considerations about incorporating Eastern values into human rights norms would be valuable, such as a ‘right to grow up in an intimate community’.31 This is the benefit of the Asian outlook that prefers collectivism to individualism. One should not shun such Asian values from a wider discussion on human rights. There are many lessons to be learnt from Asian values; filial piety embedded in China ensures that little public money is spent on pensions, as 55% of the elderly live with their offspring in Shanghai and Beijing.32 The West should not make the arrogant assumption that is has found the correct path to modernity. Furthermore, Alan Wachman’s analysis on China’s response to shaming from the international community is instructive. Attempts to coerce China into a regime that respects human rights through unwavering vocal criticism have backfired. Instead, international shaming has induced increased nationalism and a strengthened notion that China should defy the liberal democratic imperialists. As Wachman writes, ‘The history of the PRC is one of ideological combat with imperialism and resistance to impositions on China’s sovereignty’.33 If ‘Human Rights development with Chinese 29 Jack Donnelly, ‘The Relative Universality of Human Rights’, Human Rights Quarterly, 29.2 (2007), 281-306 (p. 269). 30 Bell, Beyond Liberal Democracy, p. 4 31 Ibid., p. 76 32 Ibid., p. 275 33 Alan Wachman, ‘Does the diplomacy of Shaming work on China?’, Third World Quarterly, 22.2 (2001), 257-281 (p. 265).

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Characteristics’ threatens to popularize the notion of current human rights being a form of modern imperialism, human rights diplomacy needs to evolve to prevent this. A Chinese-style human rights development model exported to other countries has the potential to seriously damage human rights norms. The comparison with the ‘broken window’ theory is allegorical and for effect, but is useful in expressing concerns for the proliferation of human rights abuses with China’s invitation for other nations to take-up its model. This issue is overshadowed by questions of universality, relativity and alternative paths to modernity.34 However this should not involve imperiling human life. It is estimated that up to 3,000 people are executed yearly in China, and convictions are often without trial.35 Domestically, China’s human rights abuses are neglected; if its model goes global, the crisis becomes more severe. Greater international, inter-civilisational discussions over entrenched human rights without shaming are the way forward. Finally, criticism concerning China’s human rights must avoid hypocrisy, as Western countries frequently show a blind eye to human rights abuses abroad for their own ‘development’. The virtues of universality, or relative universality, need to disconnect from a notion of Western origin.

Bibliography Anthony, Andrew, ‘Does Humanitarian Aid Prolong Wars?’, The Observer, 25th April 2010 <https:// www.theguardian.com/society/2010/apr/25/humanitarian-aid-war-linda-polman> [Accessed 07/03/18] Baodang, Li, ‘China is Committed to a Human Rights Development Path with Chinese Characteristics’, Ministry of Foreign Affairs of the People’s Republic of China, 10th December 2016 <http://www.fmprc.gov.cn/mfa_eng/wjbxw/t1423058.shtml> [Accessed on 01/02/17]. Bell, Daniel, Beyond Liberal Democracy: Political Thinking in an East Asian Context (Princeton: Princeton University Press, 2006). Clarke, Michael, ‘China’s West Bank: The Alienation of the Uyghur’, Asian Currents, 31 August 2014 <http://asaa.asn.au/chinas-west-bank-the-alienation-of-the-uyghur/> [accessed 2 February 2017] Donnelly, Jack, ‘The Relative Universality of Human Rights’, Human Rights Quarterly, 29.2 (2007), 281-206 The Economist, October 14th-20th 2012, cover. The Economist, ‘The Upper Han: Who is Chinese?’, The Economist, 19 November 2016 < https:// www.economist.com/news/briefing/21710264-worlds-rising-superpower-has-particular-visionethnicity-and-nationhood-has> [accessed 7 February 2018] 34 Eisenstaedt’s Multiple Modernities, S.N. Eisenstadt, ‘The Civilizational Dimension of Modernity: Modernity as a Distinctive Civilization’, International Sociology, 16.3 (2001), pp.340-360. 35 Zi Heng Lim, ‘Why China Executes So Many People’, The Atlantic, 9 May 2013 <https://www.theatlantic.com/ china/archive/2013/05/why-china-executes-so-many-people/275695/> [accessed 03 February 2017].

Human rights journal Eisenstadt, S.N., ‘The Civilizational Dimension of Modernity: Modernity as a Distinctive Civilization’, International Sociology, 16.3 (2001), 340-360 Gao, Charlotte, ‘China Promotes Human Rights “With Chinese Characteristics”, The Diplomat’, 12 December 2017 <https://thediplomat.com/2017/12/china-promotes-human-rights-with-chinesecharacteristics> [accessed 2 February 2017] Gladney, Dru C., ‘Xinjiang: China’s future West Bank?’, Current History 656.1 (2002) Greenhill, Brian, Transmitting Rights: International Organizations and the Diffusion of Human Rights Practices (Oxford: Oxford University Press, 2015) Hawksley, Humphrey, Democracy Kills: What’s So Good about Having the Vote? (London: Macmillan, 2009) Ivision, Duncan, ‘Chapter 13’, in Ethics and World Politics, ed. Duncan Bell (Oxford: Oxford University Press, 2010), pp. 239-255. Li, Hongbin, Prashant Loyalka, Scott Rozelle and Binzhen Wu, ‘Human capital and China’s Future Growth’, Journal of Economic Perspectives, 31.1 (2017), 25-47 Peel, Michael, ‘Aung San Suu Kyi, the Lady who was never for turning’, The Financial Times, 13 November 2015 <https://www.ft.com/content/ec8b9dac-895e-11e5-9f8c-a8d619fa707c> [accessed 2 February 2017]. Rajiv, S. Samuel C. ‘Israel-China Ties at 25: The Limited Partnership’, Strategic Analysis, 41.4 (2017), 413-431 Tselichtchev, Ivan, China Versus the West: the Global Power Shift of the 21st Century (Singapore: John Wiley and Sons, 2010) UNESCO Institute for Statistics, ‘China’ (2010) <https://en.unesco.org/countries/china> [accessed 7 March 2018] Vine, David, ‘Where in the World is the US Military?’, POLITICO Magazine, 2015 < https://www. politico.com/magazine/story/2015/06/us-military-bases-around-the-world-119321> [accessed 7 March 18] Wachman, Alan, ‘Does the diplomacy of Shaming work on China?’, Third World Quarterly, 22.2 (2001), 257-281 Webster, Timothy, ‘China’s Human Rights Footprint in Africa’, Colombia Journal of International Law, 53.1 (2013), 626-663 Wen, Jiabao, ‘It’s the government’s conscience to divide the social wealth “cake”’, China.com,

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University of Leeds 27 February 2010 <http://www.china.com.cn/policy/txt/2010-02/27/content_19485552.htm> [accessed 7 March 2018] Zi, Heng Lim, ‘Why China Executes So Many People’, The Atlantic, 9 May 2013 <https://www. theatlantic.com/china/archive/2013/05/why-china-executes-so-many-people/275695/> [accessed 3 March 2017]

Human rights journal Agitating for Change: The Unlikely Case of China's Human Rights Lawyers Mary Rogers In March 2018, The National People’s Congress unanimously voted to re-elect President Xi Jinping with no fixed term limit1, signalling the continuation of a presidency which has overseen an increasingly hard-line approach to dissent alongside ample disregard for legal-political norms despite the professed rhetoric. Whilst much has indeed been made of the party-state’s arbitrary approach to law - particularly in terms of widespread human rights violations - little attention has been afforded to the local ‘weiquan’ (rightsdefence) lawyers attempting to upset the legal-political status quo. Accordingly, this essay aims to bring from the shadows the small but formidable group of lawyers in China who aim to ‘defend’ – or, more accurately, advance – universal human rights Through a consideration of their operations to date, it will be demonstrated how these lawyers resist and agitate an authoritarian party-state determined to maintain its collectivist human rights stance and rule-by-law approach. This essay will conclude with a discussion of what lies ahead for the weiquan movement in light of heightened oppression.

In the authoritarian state of China, law and human rights maintain a complicated relationship. Beginning by outlining the conceptual differences between the universal, individualist human rights championed by weiquan lawyers and cultural, collectivist human rights narrative perpetuated by the powerful party-state, this essay will explore how ‘subversive’ weiquan lawyers have attempted to exploit existing laws and rule-oflaw commitments by the party-state to advance human rights in China. It will be seen that in an increasingly oppressive legal-political environment, weiquan lawyers’ successes have been modest to date, but examining their ‘political opportunity structure’2 reveals this repression in fact enables advancement of their cause as lawyers, and most of all activists. Ultimately, it will be argued that weiquan lawyers play a small, but significant role in advancing human rights in China that hinges on both the future conduct of the party-state and the weiquan movement’s ability to seed its vision within civil society. A variety of cultural, historical and, arguably, political factors shape the conventional Chinese conception of human rights.3 Contrasted with the universal view which 1 The Guardian, China reappoints Xi Jinping as president with no term limit (2018) <https://www.theguardian.com/ world/2018/mar/17/china-reappoints-xi-jinping-as-president-with-no-term-limit> [accessed 21 March 2018]. 2 Nesossi, Elisa, ‘Political opportunities in non-democracies: the case of Chinese weiquan lawyers’, The International Journal of Human Rights 19.7 (2015), 961-978 [accessed 14 August 2017] 3 Perry, Elizabeth J., ‘Chinese Conceptions of “Rights”: From Mencius to Mao – and Now’, Perspectives on Politics 6.1 (2008), 37-50, (pp.4-5).

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underpins liberal democracy, human rights principals in China draw from longstanding Confucian tradition which elevates the rights of the collective over the rights of individuals.4 Further, socioeconomic rights take priority over political and civil rights, for which a strong state is proclaimed to be a prerequisite, rendering state sovereignty a key human right in China.5 By subscribing to notions such as state sovereignty over selfdetermination,6 the party-state is therefore able to justify violation of individual rights such as of Tibetan and Uyghur separatists in order to secure a ‘stable’, cohesive state.7 In recent years, the party-state has made reforms and pledges in the domains of both human rights and rule of law. For example, ‘human rights’ was introduced into Chinese law through amendments to the constitution in 20048, and in 2014 the annual party plenum focused on legal reform for the first time9. However, as this essay will demonstrate, the party-state’s human rights narrative remains resolutely statist and collective (in part strengthened by China’s heightened economic and geopolitical clout internationally10), and commitment to ‘rule of law’ is not an attempt to define and limit state power, rather a means of asserting it. As Lynch highlights, “by pointing to a violated regulation as a cause for punishment, the Chinese government is able to claim – both to its own people and abroad – that it is merely following the law, speciously maintaining that China is a rule of law country.”11 Contrary to the collectivist, statist approach advanced by the party-state, weiquan lawyers strive to secure rights of individuals, such as the aggrieved separatists, through pressuring government to act in accordance to the ‘rule of law’.12 Just as state supremacy is reinforced by both socialist, statist human rights and rule by law, it is undermined by universal human rights and rule of law as championed by rights-defence lawyers.

4 Zhang, Chi, Conceptual Gaps in China-EU Relations: Global Governance, Human Rights and Strategic Partnerships (London: Palgrave Macmillan UK, 2012), p.85. 5 ibid., pp.89-90. 6 ibid., pp.90. 7 Human Rights Watch, Relentless: Detention and Prosecution of Tibetans Under China’s “Stability Maintenance” Campaign (2016) <https://www.hrw.org/report/2016/05/22/relentless/detention-and-prosecution-tibetans-underchinas-stability-maintenance> [accessed 2 August 2017]. 8 Zhang, pp.91 9 Minzner, Carl, ‘Legal Reform in the Xi Jinping Era’, Asia Policy, 20.4, (2015), 4-9 (p.4), in <https://ssrn.com/ abstract=1825431 > [accessed 14 August 2017]. 10 Inboden, Rana Siu, Chen, Titus C., ‘China’s Response to International Normative Pressure: The Case of Human Rights’, The International Spectator, 47.2, (2012), 45-57 (p. 55), in <http://www.iai.it/en/pubblicazioni/chinasresponse-international-normative-pressure> [accessed 26 July 2017]. 11 Lynch, Elizabeth M., ‘China’s Rule of Law Mirage: The Regression of the Legal Profession Since the Adoption of the 2007 Lawyers Law’, George Washington International Law Review, 42, (2011), 535-585 (p. 539), in <https://ssrn. com/abstract=1825431 > [accessed 14 August 2017] 12 Lynch, 535-585. Nesossi, 961-971. Pils, Eva. ‘The practice of law as conscientious resistance: Chinese weiquan lawyers’ experience’, in The Impact of China’s 1989 Tiananmen Massacre, ed. by Béja, Jean-Philippe (New York: Routledge, 2011), pp.109-123. Stern, Rachel E., ‘Activist Lawyers in Post-Tiananmen China’, Law and Social Inquiry, 42.1, (2017), 234-251 (p. 236), in <http://onlinelibrary.wiley.com/doi/10.1111/lsi.12225/pdf > [accessed 14 August 2017].

Human rights journal Given how entwined the human rights directive is with the Chinese Communist Party’s policy both home and away, in advocating an overhaul of human rights in definition and practice, weiquan lawyers question the authority of the partystate and in effect press for an overhaul of regime. Consequently, these lawyers are considered ‘subversives’ by the state as they threaten longevity of the authoritarian political order. It will now be considered how rights-defence lawyers seek to advance their cause despite an oppressive legal-political environment, where the state uses law to control as well as to legitimise. Given the relative lack of coverage given to these lawyers, an outline of their role will first be explicated. Unlike conventional lawyers, who mostly serve to legitimise authoritarian rule by operating within government-set boundaries and offering governmentendorsed legal aid,13 weiquan lawyers pose a direct challenge to the party-state. Their aim is to advance universal human rights in China by exposing the schism between the laws in the constitution and the laws the party-state enforces,14 putting them in contention with the state both operationally and ideologically. By mostly engaging with the vulnerable in society,15 weiquan lawyers provide a way of allowing marginalised citizens to have their voice heard. Some limit themselves to representing cases of aggrieved ‘ordinary’ citizens in cases such as the 2008 milk powder scandal,16 in which several babies died and 296,000 fell ill due to a toxic chemical added to milk powder in an under-regulated market.17 Others dare to assist political enemies of the state,18 such as followers of the banned spiritual practice Falun Gong19 - deemed an ‘evil cult’ out of the apparent fear its popularity would threaten stability, and ultimately party-state dominance20 - making their relationship with the state especially strained. Advancing these individual cases of human rights abuses allows weiquan lawyers to work towards bigger, broader goals of unsettling the legal-political status quo.21 Weiquan lawyers think long term when selecting a case,22 in what is assuredly an ambitious project. In addition to their legal role, rights-defence lawyers engage in a variety of other 13 Stern, p.236. 14 Pils. pp.109-123 15 Fu, Hualing and Cullen, Richard, ‘Weiquan (Rights Protection) Lawyering in an Authoritarian State: Toward Critical Lawyering’, The China Journal, 59, (2008), 111-127 (p. 114). 16 ibid., 121. 17 Wang, Zhengxu, Lye, Liang Fook, and Chen, Gang, CHINA’S POLITICS IN 2008: CRISES, CELEBRATIONS, PREDICAMENTS (2009) <https://www.nottingham.ac.uk/iaps/documents/cpi/briefings/briefing-46-politicalreview-2008.pdf> [accessed 21 March 2018]. 18 ibid,. 121. 19 Nesossi, pp.961-962. 20 Human Rights Watch. DANGEROUS MEDITATION: China’s Campaign Against Falungong (2002) <http://www. icnl.org/research/library/files/China/falun.pdf > [accessed 12 March 2018]. 1-120 (pp.88-94). 21 Stern, Rachel E, ‘Activist Lawyers in Post-Tiananmen China.’, Law and Social Inquiry, 42.1, (2017), 234-251 (p. 234), <http://onlinelibrary.wiley.com/doi/10.1111/lsi.12225/pdf > [accessed 14 August 2017]. 22 Fu and Cullen, p.116.

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methods to promote universal human rights in China – which similarly vary in boldness. Some encourage clients to engage in confrontational behaviour,23 and many weiquan lawyers themselves exercise ‘expressions of resistance’.24 This includes antagonistic acts such as hunger-striking, and the outwardly political such as commemorating the Tiananmen Square protests by visiting the site each anniversary25 as well as less ‘sensitive’ acts like blogging about local environmental issues.26 Although as Pils describes, however pragmatic, all weiquan lawyer exercise a staunch resistance to “lawlessness.”27 Consequently, the party-state instates a web of oppressive manoeuvres, both legal and extra-legal, against the rights-defence lawyers in a bid to curb their practice and contain wider dissent.28 Some acts are subtle, and formalised through law such as annual review (licence non-renewal means the weiquan ‘lawyer’ cannot represent a client in court) and ‘three-partner requirement’ for legal firm operation (though often not enforced, like all the party-state’s laws, this can be arbitrarily exercised).29 Other forms are considerably more severe and reach far beyond their working life.30 Many rights-defence lawyers are subject to warnings regarding ‘sensitive’ cases – to drop or not take them up in the first place, including intimidation by internal police. They and their families are typically strictly monitored, beaten up, detained, and in some cases ‘made to disappear’.31 Whilst these ‘enforced disappearances’ preceded the Xi administration,32 the scale and ruthlessness is unprecedented. The widespread disappearances in July 2015 known as the ‘709’ crackdown exemplifies this. An estimated 250-300 weiquan lawyers and activists (note there are approximately only 200 weiquan lawyers in China)33 were systematically captured and detained by the state.34 While detained, they were denied contact with the outside world, including from their family members and non-weiquan legal representatives, and allegedly subject to repeated

23 ibid., p.121. 24 Pils, p.117. 25 ibid,. p.118. 26 Teng, Biao, ‘Rights Defence (weiquan), Microblogs (weibo), and Popular Surveillance (weiguan)’, China Perspectives, 3, (2012), 29-41 (p. 40). 27 Pils, p.116. 28 Nesossi, p.965 29 Stern, 2017, p.239 30 ibid., p.240 31 Nesossi, p.965 32 Human Rights Watch, China: Enforced Disappearances a Growing Threat (2011) <https://www.hrw.org/ news/2011/11/09/china-enforced-disappearances-growing-threat > [accessed 6 August 2017]. 33 Stern, 2017,p.234 34 The Economist, ‘China is torturing civil-rights lawyers’, The Economist, 15 June 2017 <https://www.economist. com/news/china/21723460-so-much-strengthening-rule-law-china-torturing-civil-rights-lawyers> [accessed 5August 2017].

Human rights journal torture and abuse.35 Some were eventually brought to trial and convicted of crimes including ‘picking quarrels and provoking trouble’ and ‘subversion of state power’36– trials alleged to be unfair and where confession involved, suspected to be forced.37 That this was employed just days after the party-state’s enactment of National Security Law38 is significant. Defining national security and outlining the provisions to secure it in broad and non-specific terms39 allowed this mass kidnapping and detention to be spun in the name of promoting national security, and enacted legally. Cases such as this show how the party-state is using law to assert its vision of human rights, and justify and legitimise attacks on the rights-defence movement to effect. That rights-defence lawyers persist despite these threats is testament to their commitment to advancing human rights through rule-of-law in China. Indeed, it is arguably an achievement in itself that this small group of lawyers continues to survive against a state which dwarfs them in force and capacity. However, the question remains of whether weiquan lawyers see much success in a role that is relentlessly compromised by the party-state. It is admittedly tempting to dismiss rights-defence lawyers as noble, but ultimately ineffectual, mavericks of China’s legal system. That over 80% of criminal defendants are estimated to stand trial without legal representation,40 is testament alone to the inequitable nature of law under the CCP regime. Therefore, perhaps unsurprisingly, successes of the weiquans as lawyers are undoubtedly meagre. Many cases don’t make it as far as court, and rarer still are they won.41 Whilst each win is a victory for the aggrieved citizen, this arguably translates into little overall advancement in universal human rights. Indeed, further to the state-sponsored coercive measures and arbitrary law enforcement already brought to light, rights-defence lawyers face significant obstacles within the courts themselves. In China, the judicial system is little more than another face of the

35 Amnesty International, China: Authorities must end ruthless crackdown on human rights lawyers and activists (2017) <https://www.amnesty.org/en/latest/news/2017/07/china-end-ruthless-crackdown-human-rights-lawyersactivists/> [accessed 8 August 2017]. 36 Amnesty International, China: Lawyers and Activists detained or questioned by police since 9 July 2015 (2017) <https://www.amnesty.org/en/latest/news/2017/07/china-end-ruthless-crackdown-human-rights-lawyersactivists/> [accessed 8 August 2017]. 37 Hong Kong Free Press, Video: Chinese human rights lawyer Xie Yang ‘confesses’ in exclusive ‘interview’ [English subtitles] (2017) <https://www.hongkongfp.com/2017/05/10/video-chinese-human-rights-lawyer-xie-yangconfesses-exclusive-interview-english-subtitles/> [accessed 20 August 2017]. 38 Wall Street Journal, China Adopts Sweeping National-Security Law (2015) <https://www.wsj.com/articles/chinaadopts-sweeping-national-security-law-1435757589> [accessed 17 August 2018]. 39 China Law Translate, National Security Law (2015) <http://www.chinalawtranslate.com/2015nsl/?lang=en> [accessed 12 August 2017]. 40 Amnesty International, China: Torture and forced confessions rampant amid systematic trampling of lawyers’ rights. (2015) <https://www.amnesty.org/en/latest/news/2015/11/china-torture-forced-confession> [accessed 8 August 2017]. 41 Nesossi, p.962

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authoritarian regime. State-judicial interdependence is a noted phenomenon,42 and with politically ‘sensitive’ cases, judges typically rule in favour of the party-state whether by pressure43 or by choice (Minzner notes a rise in appointment of judges following the party-state-line)44. This is unlikely to change soon, with China’s highest-ranking judge, Chief Justice Zhou, recently declaring judicial independence a “false western” notion.45 Further still, Zhou likewise denounced constitutional democracy and separation of powers as “erroneous influence from the West” which legal officials must categorically oppose.46 Sentiments such as this demonstrate China’s lip-service approach to the rule-of-law and moreover, highlight a towering, more palpable challenge for weiquan lawyers: the absence of a constitutional court. Many of the rights they seek to defend, such as freedom of expression (article 35) and freedom of religion (article 36), remain ‘locked up’ in a dormant constitution. Particularly as the introduction of a constitutional court in Taiwan helped lay the foundations for democracy,47 the party-state is likely to avoid a constitutional court on the mainland at all costs. Considering these are but some of the challenges faced by weiquan lawyers on a regular (or indeed irregular) basis, it is perhaps no surprise their success in advancing human rights through law is modest. They are, undoubtedly, waging a David vs Goliath battle against the party-state. However, at this point it is important to recognise that weiquan lawyering is an extremely young movement (generally agreed to have emerged in 2003)48 and that there are signs of lawyers becoming more pragmatic, and potentially effective, in their approach. Initially distanced by mainstream lawyers who viewed weiquan lawyers as “nonstrategic” and “ineffective”, 49 2011 emerged as a defining point in the rightsdefence movement.50 Beginning to recognise the party-state’s arbitrary approach to law, some mainstream lawyers realised they shared a common goal in ensuring the accountability of government to rule of law.51 This materialised in support, at times legal success, for cases such as the ‘Behai’ case and the ‘Xiaohe’ case.52 42 Lam, Willy, ‘The politisation of China’s law enforcement and judicial apparatus.’, in The Impact of China’s 1989 Tiananmen Massacre. , ed. by Béja, Jean-Philippe(New York: Routledge, 2011), 125-141 43 Stern, p.236 44 Minzner, p.6 45 The Economist, China is torturing civil-rights lawyers. 46 The New York Times, China’s Chief Justice Rejects an Independent Judiciary, and Reformers Wince (2017) <https://www.nytimes.com/2017/01/18/world/asia/china-chief-justice-courts-zhou-qiang.html> [accessed 6 August 2018]. 47 Cohen, Jerome A and Lewis, Margaret K., The Enduring Importance of Police Repression: Laojiao, the Rule of Law and Taiwan’s Alternative Evolution.’, in The Impact of China’s 1989 Tiananmen Massacre., ed. by Béja, JeanPhilippe(New York: Routledge, 2011), 125-141 (p.131) 48 Nesossi, 961-978. Stern, 234-251. Teng, 29-41. 49 Fu & Cullen, p.113 50 Nesossi, p.966 51 Ibid. 52 Ibid, p.966-967.

Human rights journal Increased appeal to allies, particularly those conventionally more favoured by the party-state, shows an increased ability to manoeuvre what Osa and Schock term ‘political opportunity structure’.53 As this essay will later explore, these strategic alliances – particularly with civil society – could prove invaluable in realising weiquan lawyers’ human rights advancements in the long run. Similar shifts have occurred with weiquan lawyers’ activist role. As Stern notes, simply taking up controversial cases can draw attention to problems within the partystate.54 However, this has come to be particularly effective when weiquan lawyers publicise their cases through newspapers (although the more politically ‘sensitive’ cases seldom reach publication)55, and further still through social media. In the Xiaohe case, for example, weiquan lawyers published an open letter online to amass support from some 30 lawyers, and real-time updates to Twitter to amass public support.56 Social media, particularly weibo (microblogs), has come to further facilitate the leverage of the weiquan movement. By providing a space for them to discuss experiences, exchange useful information, and arrange meet-ups,57 through the internet they have been able to band together and make a discernible difference in the ‘real world’.58 Whilst the precise extent of this success is unclear, this shows weiquan lawyers are adapting to the tools available, and turning to pragmatic means to advance their human rights goals. Key to weiquan lawyers’ political and legal activism is this ability to seize opportunities and develop pragmatic strategies despite the party-state’s attempts to silence, immobilise, and disarm them. Whilst weiquan lawyers have made few direct gains in advancing universal human rights in China, we will now explore how, perhaps unexpectedly, their role stands to gain currency in an increasingly repressive state. Amid a merciless ‘tightening’ phase,59 repressive developments have taken place across levels of Chinese society. As we have already seen, sympathetic pockets of society have so far served as sources of leverage for weiquan lawyers60 – most prominently social media, allies across the legal sector, and indeed foreign organisations (whose efficacy can be partially attributed to being generally free from oppressive domestic procedures).61 However, these have likewise been the target of increasing suppression under the Xi

53 Nesossi, 961-978. 54 Stern, p.236. 55 Nesossi, p.970. 56 Ibid., p.967. 57 Teng, p.32. 58 ibid,. p.41. 59 He, Henry Yuhuai, Dictionary of the Political Thought of the People’s Republic of China, 2 edn (New York, USA: Routledge, 2015), p.127. 60 Nesossi, 961-978. 61 ibid,. pp.969-970.

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administration, rendering their role increasingly uncertain. As Minzner observes, an assault on liberal ideas has taken place, with ‘academic discourse’ on constitutional law severely limited and the introduction of a monitoring law on foreign NGOs which, crucially, served the additional purpose of curbing funding for rights-defence lawyers.62 Whilst this heavy-handed approach has been most acutely manifested in crackdown and censorship on the weiquan movement and its allies, this attempt to stymie the spread of liberal ideals has extended into the lives of everyday citizens. It will now be outlined how the sheer ubiquity of repression could play into hands of rights-defence lawyers by the party-state’s alienation of civil society. Crucially, in conjunction with internet censorship measures63 under the guise of state-proclaimed human right ‘cyber sovereignty’,64 the party-state has introduced further measures to control citizens. In China, there is a longstanding tradition of ‘rightful resistance’, whereby citizens vocalise their discontent with government practices, in a way that recognises its right to rule.65 In recent years, these expressions of resistance have likewise been targeted by the regime. One key practice has historically been petitioning, but recently the government has been keen to syphon disputes into the stability-preserving, non-threatening aspect of the legal system (state-run legal aid catered to five times as many citizens in 2014 than in 2000)66. Importantly, success amongst citizens has proved largely mixed.67 Alongside this, the party-state has been operating the more sinister practice of throwing troublesome petitioners in illegal ‘black jails’68 – demonstrating how the party-state extends its arbitrary approach to law to everyday citizens. For similar motivations, the party-state has attempted to quell and micromanage protest. O’Brien notes use of ‘thought work’ at the command of the party-state, which involves suppressing confrontational activities by pressuring government employees to dissuade indignant family members.69 Whilst unclear how widespread, it reportedly causes resentment amongst those affected, who find themselves torn between loyalty to state and family.70 Top-down decisions are creating fissures across society which could in the long run be steered toward the party-state and its nation-first human rights narrative.

62 Minzner, p.7. 63 Puddington, Arch, Breaking Down Democracy: Goals, Strategies, and Methods of Modern Authoritarians (Washington, USA: Freedom House, 2017), 1-64. 64 The Diplomat, China Vows No Compromise on ‘Cyber Sovereignty’ (2015) <https://thediplomat.com/2015/12/ china-vows-no-compromise-on-cyber-sovereignty/> [accessed 21 March 2018]. 65 Perry, 37-50. 66 Stern, p.241 67 Gallagher, Mary and Wang, Yuhua, Civil Dispute Resolution in Contemporary China, ed. by Woo, Margaret Y. K. and Gallagher, Mary (Cambridge, UK: Cambridge University Press, 2011), pp.204-233. 68 Human Rights Watch, Beijing’s Black Jails (2012) <https://www.hrw.org/news/2012/03/15/beijings-black-jails > [accessed 6 August 2017]. 69 O’Brien, Kevin J, ‘China’s Disaffected Insiders’, Journal of Democracy, 28.3, (2017), 5-13 (p. 9-10). 70 ibid., p.12

Human rights journal Historically, this repression has been followed by a ‘loosening up’ phase,71 whereby openly exchanging ideas and debate is encouraged as an antidote to sustained suppression. However, given the Xi administration’s apparently relentless commitment to power consolidation and state restructuring72- which civil freedoms stand in the way of - it is unclear when this stands to be implemented and how much damage will have afflicted state-society relations by then. Consequently, this loss of ‘safety valves’ provides a valuable opportunity for weiquan lawyers to tap into growing resentment, and channel citizens’ heightened rights demands to effect. Indeed, predating this tightening phase is a rise in civil disobedience73 which Perry maintains is linked to the phenomenon of ‘rules consciousness’.74 However, it has convincingly been contended this can pave the way for ‘rights consciousness’, which evidence of rights consciousness forming concurrently, if not alternatively, amongst Chinese farmers and labourers.75 This distinction matters because rules consciousness pertains to the traditional patterns of rightful resistance and signals belief that the state can fix the given problem. Rights consciousness, meanwhile, symbolises a break from tradition and signifies a demand for the defiant citizens’ rights to be honoured, in contravention of the state narrative.76 Arguably, by familiarising their clients with the legal system and vocabulary to right government wrongs, weiquan lawyers play a role in facilitating rights consciousness among the citizenry. Without being too speculative, it is important to recognise that the state is faced with additional, intensifying challenges such as a slowing economy and growing inequality.77 The middle classes are recognised to be close with the party-state, and unlikely to revolt provided their material needs are cared for.78 Whilst this relationship could be jeopardised by eventual economic stagnation, it seems the most likely future ally of weiquan lawyers is the working classes who as we have seen are most likely to petition, protest, and exhibit rules consciousness. To date, this has put particular pressure on the working classes as structural economic changes have meant sudden, often poorly managed factory closures.79 That

71 He, p.127 72 Minzner, pp.7-8. 73 Hess, Steve, ‘The Flight of the Affluent in Contemporary China: Exit, Voice, Loyalty, and the Problem of Wealth Drain’, Asian Survey, 56.4, (2016), 629-650. 74 Perry, ‘A New Rights Consciousness?’ 17-20 75 Li, Lianjiang, ‘RIGHTS CONSCIOUSNESS AND RULES CONSCIOUSNESS IN CONTEMPORARY CHINA.’, The China Journal, 64, (2010), 47-68 (p. 25-26). 76 ibid,. 47-68 77 Liu, Yu and Chen, Dingding. ‘Why China Will Democratize’, The Washington Quarterly, 35:1, (2012), 41-63. 78 Chen, Jie and Lu, Chunlong. ‘Democratization and the Middle Class in China: The Middle Class’s Attitudes toward Democracy.’ Political Research Quarterly, 64:3, (2011), 705-720 (p.716). 79 CNN, China on strike (2016) <https://edition.cnn.com/2016/03/28/asia/china-strike-worker-protest-trade-union/ index.html> [accessed 17 August 2017].

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University of Leeds considerable numbers have been engaging in ‘confrontational strikes’80, signals a move towards rights consciousness and ultimately, alignment with weiquan goals. Although rights-defence lawyers have made only modest inroads to date, the partystate fears them not only for what they represent, but the potential they bear to amass civil society. Whilst, on the one hand, their attachment to the law could leave some civilians sceptical, they arguably stand a firm chance of presenting themselves as an alternative to the party-state, particularly as they have stood for rights of labourers and other aggrieved citizens since first emerging in China’s legal-political scene. To date, their role has largely been one of effectively applying pressure on the partystate, evidenced by the party-state’s attempts to “atomize” these lawyers and likeminded elements of civil society.81 Indeed, as the weiquan lawyers’ effectiveness to organise themselves increased, so has the abuse they suffer from the state.82 Local officials are mindful to contain any disorder arising from controversial cases –‘stability preservation’ emphasised by national government83– and propaganda chastises them as one of ‘five vermin’ of society,84 accused of “seeking profit by illegally organizing paid protests” and “insulting judges”.85 Nesossi recognises these are symptoms of a party-state fearful of the potential of the growing role of the weiquan movement – which is, in itself, a reason to credit the movement.86 As we have seen, weiquan lawyers seek to weaponise the law in an effort to advance individual human rights within the grander, long term project of embedding individualist human rights within Chinese legal-political culture. By contravening the party-state’s human rights vision, attempting to hold the party-state to account to its dubious rule-of-law promises, and challenging its authority through politically ‘sensitive’ cases, weiquan lawyers have carved out a role for themselves as resilient resisters. As demonstrated by the ‘709’ crackdown, weiquan lawyers have themselves been at the receiving end of some of the gravest human rights abuses and simply to practice, they must confront significant obstacles. Initially, the party-state unintentionally created openings for the weiquan movement through reform, but today, it is through repression. 15 years of weiquan lawyering has brought few concrete developments in universal human rights to date, but the regime’s tightening controls on weiquan lawyers, their allies, and civil society alike could serve to galvanise wider society and force reform from the bottom up. With continued resilience and a willingness to stragetise, weiquan lawyers could yet see their role elevated to one of change-makers. 80 Elfstrom, Manfred and Kuruvilla, Sarosh, ‘The Changing Nature of Labor Unrest in China’, Industrial and Labor Relations Review. , 76.2, (2014), 453-480. 81 Stern, p.246. 82 Lynch, p.543-544. 83 Teng, p.31. 84 Nesossi, p.962. 85 Stern, p.243. 86 Nesossi, 961-978.

Human rights journal Bibliography Bibliography Amnesty International, China: Torture and forced confessions rampant amid systematic trampling of lawyers’ rights (2015) <https://www.amnesty.org/en/latest/news/2015/11/china-torture-forced-confession/> [accessed 8 August 2017] Amnesty International, China: Authorities must end ruthless crackdown on human rights lawyers and activists (2017) <https://www.amnesty.org/en/latest/news/2017/07/china-end-ruthless-crackdown-human-rights-lawyers-activists/> [accessed 8 August 2017] Amnesty International, China: Lawyers and Activists detained or questioned by police since 9 July 2015 (2017) <https://www.amnesty.org/en/documents/asa17/5428/2017/en/> [accessed 2 August 2017] Chen, J and Lu, C., ‘Democratization and the Middle Class in China : The Middle Class's Attitudes toward Democracy’, Political Research Quarterly, 64.3 (2011), 705-720 China Law Translate, National Security Law (2015) <http://www.chinalawtranslate. com/2015nsl/?lang=en> [accessed 12 August 2017] Cohen, J. A. and Lewis, M. K., ‘The enduring importance of police repression: Laojiao, the rule of law and Taiwan’s alternative evolution’, in The Impact of China's 1989 Tiananmen Massacre, ed. by J. Béja (New York: Routledge, 2011), pp. 142-153 Elfstrom, M. and Kuruvilla, S., ‘The Changing Nature of Labor Unrest in China’, Industrial and Labor Relations Review, 76.2 (2014), 453-480 Fu, H and Cullen, R., ‘WEIQUAN (RIGHTS PROTECTION) LAWYERING IN AN AUTHORITARIAN STATE: BUILDING A CULTURE OF PUBLIC-INTEREST LAWYERING’, The China Journal. 59 (2008), 111-127 Gallagher, M. and Wang, Y., ‘Users and Non-Users: Legal Experience and Its Effect on Legal Consciousness’, in Civil Dispute Resolution in Contemporary China, ed. by M. Y. K. Woo and M. Gallagher (Cambridge, UK: Cambridge University Press, 2011), pp.204-233 Global Web Index, 90 million VPN users in China have accessed restricted social networks (2016) <http://insight.globalwebindex.net/chart-of-the-day-90-million-vpn-users-in-china-have-accessed-restricted-social-networks?ecid> [accessed 14 August 2017] Griffiths, J., China on Strike (2016) <http://edition.cnn.com/2016/03/28/asia/china-strike-workerprotest-trade-union/index.html> [accessed 14 August 2017]. He, Henry Yuhuai, Dictionary of the Political Thought of the People's Republic of China, 2 edn (New

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Wang, Zhengxu, Lye, Liang Fook, and Chen, Gang, CHINA’S POLITICS IN 2008: CRISES, CELEBRATIONS, PREDICAMENTS (2009) <https://www.nottingham.ac.uk/iaps/documents/cpi/briefings/ briefing-46-political-review-2008.pdf> [accessed 21 March 2018] Zhang, C., ‘The Conceptual Gap on Human Rights in China-Europe Relations’, in Conceptual Gaps in China-EU Relations: Global Governance, Human Rights and Strategic Partnerships, ed. by Z. Pan (London: Palgrave Macmillan UK, 2012), pp.83-97 html> [accessed 6 August 2018]. Wall Street Journal, China Adopts Sweeping National-Security Law (2015) <https://www.wsj.com/ articles/china-adopts-sweeping-national-security-law-1435757589> [accessed 17 August 2018]. Wang, Zhengxu, Lye, Liang Fook, and Chen, Gang, CHINA’S POLITICS IN 2008: CRISES, CELEBRATIONS, PREDICAMENTS (2009) <https://www.nottingham.ac.uk/iaps/documents/cpi/briefings/ briefing-46-political-review-2008.pdf> [accessed 21 March 2018]. Zhang, C. 2012. The Conceptual Gap on Human Rights in China-Europe Relations. In: ed. Pan, Z. Conceptual Gaps in China-EU Relations: Global Governance, Human Rights and Strategic Partnerships. London: Palgrave Macmillan UK. pp.83-97.

Human rights journal How sexual violence turned the dream of democracy into a 'recurring nightmare': An intersectional analysis of genderbased sexual violence in South Africa Mailies Fleming In 2017 Human Rights Watch reported that, in South Africa, ‘the government’s record on human rights and respect for the rule of law was poor’, with the ‘absence of a national strategy to combat the high rate of violence against women, and the continued under-reporting of rape, [remaining] a concern’. The ‘culture of violence’ in South Africa has led to the normalisation of rape, leading to a discrepancy between legal approaches and cultural attitudes towards sexual violence. The rift between these views is a product of history and is underpinned by social discourses which do not represent the voices of victims of sexual violence. An analysis which probes these converging points to identify how social discourses have helped to normalise sexual violence in South Africa is a crucial step towards ending this culture of violence.

Between 2016-2017, the South African Police Services (SAPS) recorded 49,660 sexual offences, of which 39,828 were rape cases.1 The intimate nature of rape as an offence, and the social pressures which accompany it, mean that rapes tend to go grossly underreported.2 Research into these missing figures is inconsistent, resulting in data often becoming outdated. However, the most frequently quoted figure- provided by the South African Medical Research Council (MRC)estimates the numbers of rapes in South Africa to be around 500,000 annually.3 If these figures are accurate, then at least one in three South African women can expect to be raped in her lifetime.4 Yet despite ‘sexual violence in South Africa [having] reached epidemic proportions’, the nation lacks both the material resources and political will to tackle the problem.5 Both of these factors are linked to the broader social structure of- and power balance betweengenders in South African society. Therefore, this essay intends to ‘contextualise and historicise [these] structures of power’ in order to understand how the perpetration 1 South African Police Service, Woman and Children (2017), <https://www.saps.gov.za/services/crimestats.php> [accessed 10 February 2018]. 2 M. Machisa et al., The war at home- GBV indicators project (Gauteng: Gender Links, 2010), <http://genderlinks. org.za/programme-web-menu/publications/the-war-at-home-gbv-indicators-project-2011-08-16/> [accessed 10 February 2018]. 3 IRIN, ‘One in four men rape’, IRIN, 18 June 2009, <http://www.irinnews.org/report/84909/south-africa-one-fourmen-rape [09 Februry 2018]. 4 Anita Padmanabhanunni and David Edwards, p.819. 5 Kate Joyner, ‘The epidemic of sexual violence in South Africa’, South African Medical Journal, 106, (2016), 1067 (p.1067); Medical Research Council, RAPSSA Report on gender (2018), <http://www.mrc.ac.za/gender/ RAPSSAreport.pdf> [accessed 09 February 2018].

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University of Leeds of sexual violence towards women- who are by far the most common victims of sexual abuse- has proliferated.6 A contextual analysis of social power structures will reveal how competing social discourses trap individuals in a web of ‘interlocking […] oppressions’ by forcing them to ‘replace individual and cultural ways of knowing with the dominant group’s perspective.7 For victims of Gender Based Violence (GBV), the acceptance of dominant perspectives is demonstrated by research from the Institute for Security Studies, which details that ‘fear of not being believed or being accused of lying’; ‘wanting to avoid the stigma attached to being raped’; and ‘fear of retaliation or intimidation by the offender, especially when combined with a lack of confidence that the legal process will result in a conviction’, are just a few of the reasons for victim underreporting. Understanding both behaviour and identity as being shaped by social forces external to the individual opens up the discourses underpinning these forces to scrutiny. It then becomes possible to identify how these discourses work to dismiss the experiences of individuals living in the silences between reported and unreported rapes. By virtue of the sensitivity and complexity of the issue at hand, it will not be possible to represent all perspectives, nor address the nuances in cases of GBV. Issues such as the brutal ‘corrective’ rape of Black lesbians in South Africa are multifaceted and deserve an in-depth analysis of their own.8 Attempting to address them here would lead to an oversimplification of the issue. Rather, this essay aims to draw attention to the broader patterns of GBV in South Africa by dealing with the intersections of identifying categories, particularly race and gender. It is heavily indebted to Black, intersectional, feminist thinkers, whose rejection of essentialist identity categorization- on grounds of its epistemological foundation in colonialism - offers a liberating shift away from ‘identity politics’ in favour of foregrounding the ‘lived experiences of people’.9 The scope of the problem Early in 2018, the discovery of the charred body of a 17 year old girl at a lime works factory in Bredasdorp, Western Cape, struck an especially painful chord for the local community.10 Bredasdorp was preparing to commemorate the death of another teenage girl, who died five years previously after being raped, having had her abdomen 6 Amanda Gouws, ‘Feminist intersectionality and the matrix of domination in South Africa’, Agenda, 31, 1 (2017), 19-27 (p.23); Elisabeth Dartnell and Rachel Jewkes, ‘Sexual violence against women: The scope of the problem’, Best Practice and Research Clinical Obstetrics and Gynaecology, 27, 1 (2013), 3-13 (p.3). 7 Patricia Hill Collins, ‘Black Feminist Thought in the Matrix of Domination’ in Black Feminist Thought: Knowledge, Consciousness, and the Politics of Empowerment (Boston: Unwin Hyman, 1990), p.226. 8 Amanda Lock Swarr, ‘Paradoxes of Butchness: Lesbian Masculinities and Sexual Violence in Contemporary South Africa’, Signs, 37 (2012) <https://www.journals.uchicago.edu/doi/full/10.1086/664476> [accessed 09 February 2018]; Pumla Dineo Gqola, ‘How the ‘cult of femininity’ and violent masculinities support endemic gender based violence in contemporary South Africa’, African Identities, 5 (2007). <https://www.tandfonline.com/doi/ abs/10.1080/14725840701253894> [accessed 09 February 2018]. 9 Bob Connell, Gender (Cambridge: Polity Press, 2002), p.60; Amanda Gouws, ‘Feminist intersectionality’, p.23. 10 C. Booysen, ‘Burnt body of a 17 year old found in Bredasdorp’, IOL News, 24 January 2018, <https://www.iol. co.za/news/south-africa/western-cape/burnt-body-of-17-year-old-found-in-bredasdorp-12903090>[accessed 22 March 2018].

Human rights journal slit open and left for dead in a construction site. Within this five year interval, a 22 year old woman, a five year old girl and a 15 year old girl joined the gruesome canon of sexual homicides in the small town.11 Whilst Bredasdorp provides only a snapshot of the extremes to which GBV can escalate, and is not proportional to the whole of South Africa, it is far from a blip in national trends of sexual violence.12 Research conducted by Naeemah Abrahams et al. found that one fifth of all female homicides and one tenth of all child homicides in South Africa are sexual homicides. 13 Yet only 28% of adult female sexual homicides and 46.5% of child sexual homicides lead to a conviction.14 Whilst the pragmatic challenges of investigating sexual homicide cases must be acknowledged, these low conviction rates communicate to the South African public that nothing guarantees the punishment of perpetrators, many of whom are guilty of brutal acts of GBV.15 For rape cases that do not end in death, the conviction rate is even lower, with only 5% of the rape cases which make it to a South African court ending in a conviction.16 Abrahams et al argue that these low conviction figures reveal structural problems such as a lack of communication between health, police and social services.17 Yet Pumla Gqola’s identification of the simultaneous ‘silence around the connections between accepting the ever-presence of violence as a given […] and the absence of discussions around how it affects [South African] society’ challenges the notion that it is simply a lack of material resources which lie at the heart of ineffective responses towards GBV.18 By shifting the focus towards discourse analysis, Gqola suggests that this ineffectiveness is related to an attitude of dangerous complicity towards GBV in South African society. This is not to say that most people in South Africa, regardless of race, gender or sexuality would not find rape a reprehensible act. Rather, it is complicity with the social conditions that enable the justification of rape and the silencing of rape victims. This allows rape to continue to plague South African society as a recurring nightmare. The chasm between private and public realms South Africa prides itself on having one of the world’s most progressive constitutions, including with regards to gender equality. Yet twenty-two years on from its conception, innumerable citizens continue to have their human right to live free from sexual violence 11 Etheridge, J., ‘Slain woman went to same Bredasdorp pub as Anene- councilor’, News24, 7 April 2016 <https:// www.news24.com/SouthAfrica/News/slain-woman-had-just-left-same-bredasdorp-pub-as-anene-booysencouncillor-20160407> [accessed 22 March 2018]. 12 Rape Crisis Cape Town Trust, Rape in South Africa (2018) <https://rapecrisis.org.za/about-rape/> [accessed 10 February 2018]. 13 Naeemah Abrahams et al., ‘Sexual homicides in South Africa: a national cross-sectional epidemiological study of adult women and children’, PLOS One (2017) <http://journals.plos.org/plosone/article?id=10.1371/journal. pone.0186432> [accessed 9 February 2018]. 14 Ibid. 15 Medical Research Council, RAPSSA Report on gender (2018), <http://www.mrc.ac.za/gender/RAPSSAreport.pdf> [accessed 09 February 2018]. 16 One in Nine, About us (2018) <https://oneinnine.org.za/about-us/> [10 February 2018]. 17 Naeemah Abrahams et al. 18 Pumla Dineo Gqola, Rape: A South African Nightmare (Cape Town: MF Books Joburg, 2015), p.60.

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University of Leeds denied.19 This signals that the legal protection for every person in South Africa ‘to be free from all forms of violence from either public or private sources’, whilst crucial, is an insufficient remedy to the problem of GBV if unaccompanied by social and cultural shifts. 20 The clearest demonstration of the disjuncture between legally enshrined gender equality and the lived realities of victims of GBV is the insincerity of those occupying positions of legal power in South Africa. In 2006, the then-to-be President of South Africa, Jacob Zuma, was put on trial for being accused of rape. During the trial, his victim ‘Khwezi’ was publicly ridiculed and threatened, including by female supporters of Zuma.21 As unexpected as it may seem for women to rally against a female victim, who as a group belong to the largest demographic of sexual violence victims, Gqola’s assessment of the trial highlights how behaviour in response to Zuma was a product of the aforementioned process of replacing ‘individual […] ways of knowing with the dominant group’s specialized thought’.22 In this case, that was the support of the kind of ‘heterosexist, patriarchal, implicitly violent’ masculinity Zuma represented under the guise of being ‘a man of the people’.23 Camilata Naicker points out that: ‘It has often been the case, in South Africa and the rest of the continent, that women were asked to subordinate themselves to the national liberation struggle and save questions of gender for another day. It was assumed that once the nation state was captured, then all other things would work themselves out.’24 The legacy of apartheid used race as the primary classifier of identity in order to cement the prioritization of race over gender in the contemporary South African political arena. Despite women’s equal political status, statistics in the abovementioned Human Rights Watch report, which states that three women die at the hands of their partner every day, show a clear disjuncture between the treatment of women in private and public realms. Individuals must try to reconcile between the different norms which these competing discourses produce, so it is inevitable that the norms from one discourse will override the norms from another depending on the context. Helen Moffett even suggests that women’s equal treatment in political

19 South African Constitution in Andrews, P. ‘Democracy stops at my front door’, Loyola University Chicago International Law Review, 5 (2007), 15-28 (p. 21). 20 South African Constitution, Bill of Rights Chapter 2, Subsection 12.1c <http://www.justice.gov.za/legislation/ constitution/SAConstitution-web-eng-02.pdf> [accessed 09 February 2018]. 21 J. Evans and R. Wolmarens, ‘Timeline of the Jacob Zuma’, Mail & Guardian, 21 March 2006, <https://mg.co.za/ article/2006-03-21-timeline-of-the-jacob-zuma-rape-trial> [accessed 22 March 2018]. 22 Collins, p.226. 23 Morrell, R. Jewkes, R. Lindegger, G., ‘Hegemonic Masculinity/Masculinities in South Africa’, Men and Masculinities, 15 (2012), 11-30 (p. 17). 24 Naicker, C., ‘All struggles are connected: The intersections of the political’, Rhodes University: International and Political Studies, (2013) <https://www.ru.ac.za/politicalinternationalstudies/latestnews/ allstrugglesareconnectedtheintersectionsofthepolitical-1.html> [accessed 10 February 2018].

Human rights journal realms hinges on their remaining ‘subordinate in the private and domestic realms.’25 If women’s equal legal status is only secondary to their identity as subordinate domestic figures, GBV towards them becomes easier to dismiss as a norm of everyday life. Historical construction of problematic masculinity The disjuncture between different facets of identity, such as race and gender, highlights a need to address the ‘entanglement of identities with power in racial hierarchies in postcolonial societies.’26 The power invested in gender identities is derived from the position they are appointed within a given social discourse. Whilst dominant or hegemonic identities are not fixed, identities which occupy the hegemonic position have the power to set a standard against which all other identities are measured.27 In the case of the power balance between genders in a situation of GBV, Jewkes explains that ‘rape perpetration is rooted in prevailing constructions of masculinitySouth Africa’s hegemonic masculinity – which emphasise dominance and control over women, expressed within a context of legitimised gendered violence.’28 Gender identities, as well as the social discourses which give them legitimacy, are historically constructed.29 Thus, understanding the genealogy of gender identities and norms in South Africa is a crucial step to identifying how they contribute to a culture of GBV. In her 2015 publication Rape: A South African Nightmare, Pumla Gqola traces the genealogy of colonial violence from its roots in the 17th Century conquest of the Cape. She argues that the systematic displacement, disenfranchisement and military occupation brutalized people of colour, which as a result left the nation’s men emasculated. Gqola emphasises that rape was central to this process, as it was to ‘spread {…] White supremacy’, and provide a violent tool for the ideologies of ‘race and racism [to…] organise the world over the last four hundred years.’30 Patricia Hill Collins explains that the urge to categorize and rank identities is ‘firmly rooted’ in the ‘dichotomous thinking of Eurocentric, masculinist thought.’31 The consequence of using sexual violence as a tool of racial oppression, within the broader ‘dichotomous’ colonial perspective was to intrinsically link race and gender. Thus, the rape of slave women under colonial rule can be understood as an expression of White, masculine power over Black, feminine bodies. This was justified by a discourse that viewed

25 Moffett, H., ‘”These women, they force us to rape them”: Rape as a narrative of social control in post-apartheid South Africa’, Journal of Southern African Studies, 32 (2006), 129-144 (p. 142). 26 Amanda Gouws, ‘Feminist intersectionality’, p.26. 27 Morrell, Jewkes and Lindegger, p.24. 28 Jewkes, R. Sikweyiya, Y. Dunkle, K. and Morrell, R., ‘Relationship between single and multiple perpetrator rape perpetration in South Africa: A comparison of risk factors in a population-based sample’, BMC Public Health, 15, 1 (2015), 1-616 (p. 9). 29 Morrell, Jewkes and Lindegger, p.19. 30 Pumla Dineo Gqola, Rape: A South African Nightmare, p.31. 31 Collins, p. 223.

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University of Leeds African women as ‘hypersexual’, thus trivializing their sexual violation.32 Gqola gives examples of people who, at different points in history, have been categorized as ‘impossible to rape’ due to their status as ‘sex workers, wives, slave women and men’.33 Such categories are ascribed little or no value, as they occupy the opposite position to the trope of sexually powerful, White men which dominate discourses around sex and gender. This relegates individuals who are categorized as being of an inferior sex, gender or race to the position of object, rather than a human subject, meaning that sexual violence against them is not recognized as a violation of human rights. Consequently, the historical constitution of the identities of Black women has left them with, what Kimberle Crenshaw terms, a ‘unique vulnerability’ to rape.34 Simultaneously, these social discourses created a hegemonic form of masculinity, which given the ‘patriarchal structure of both Black and White society’ manifested itself through violence.29 According to Jewkes et al, ‘South Africa’s hegemonic masculinity – […emphasised] dominance and control over women, expressed within a context of legitimised gendered violence’. This context is defined by Gqola as ‘a public consciousness in which violence is not just acceptable and justified, but also natural and desirable.’35 It is this violent masculinity which is hegemonic in South Africa and, once again, its deconstruction requires historical positioning. The phenomena of jackrolling, a term used to describe ‘the forceful abduction of women in Black townships by a specific gang called the “Jackrollers”’ during 19871988 in Soweto, provides a case of one form of violent masculinity which has been hegemonic in recent South African history.36 The fact that this term spread from being particular to a group, to denoting forms of copycat behaviour during apartheid, indicates how violent masculinity infiltrates segments of society to become normalized. The focus which this example puts on violent masculine behaviour in the context of Black townships should not be taken to mean that perpetration of rape is not a phenomenon amongst White men. Gqola explains that the apartheid regime established an ‘ideology of militarism’ as the organizing force of a type of masculinity which was the dominant form across races.37 Thus, it is ‘not the specific essences of Black men’ but the ‘combined histories of who matters least’ which constitutes men and women as social subjects placed in antagonistic positions.38 It thus becomes clearer that masculinity refers not to a particular type of man but, rather, ‘a way

32 Amanda Gouws, ‘#EndRapeCulture Campaign in South Africa: Resisting Sexual Violence Through Protest and the Politics of Experience’, Politikon: South African Journal of Political Studies, (2018) (p.3). 33 Pumla Dineo Gqola, Rape: A South African Nightmare. 34 Crenshaw, K., ‘Mapping the Margins: Intersectionality, Identity Politics and Violence against Women of Colour, Stanford Law Review, 43, 6 (1991), 1241-1299 35 Pumla Dineo Gqola, Rape: A South African Nightmare, p.152. 36 L. Vogelmann and S. Lewis, ‘Gang rape and the culture of violence in South Africa’, Der Überblick, 2 (1993) <http://www.csvr.org.za/publications/1631-gang-rape-and-the-culture-of-violence-in-south-africa.html> [accessed 10 February 2018] 37 Pumla Dineo Gqola, Rape: A South African Nightmare, p.61. 38 Ibid, p.53; Amanda Gouws, ‘Feminist intersectionality’, p.25.

Human rights journal that men position themselves through discursive practices’.39 For South African men navigating an unforgiving social climate, adopting hegemonic forms of masculinity- in spite of, or even because of their violent forms- may be a means of survival. However, there is an undeniable level of agency in the fact that men can position themselves in relation to the discourse of masculinity. As discussed above, this agency owes its existence to the historical construction of a hegemonic masculinity. For those men who benefit from this hierarchy, their agency comes with a responsibility to challenge violent forms of masculinities and the conditions which enable their proliferation. This historical analysis supports Gqola’s claim that ‘the same White supremacy that constructed the stereotype of Black man as rapist, created the stereotype of Black woman as hypersexual and therefore impossible to rape.40 Specifically, it is the method of identity construction through categorization, whether according to race, gender or sexuality, and the attachment of arbitrary values to these categories which allows perpetrators of GBV to deny the humanity of their victims and subject them to brutal violation. Constructing alternative narratives Considering how social discourse has been shown to influence behaviours around GBV, it seems that the first step to combatting GBV is to reconstitute the narrative it is framed- and justified by- in South Africa. Rather than dealing in categorized identities, this reconstitution must begin at the intersection of oppressed identities, from where marginalized individuals can have their voices re-legitimized and re-centred, and their humanity recognised and respected. Amanda Gouws’ argument which states that the use of the ‘experiences of Black men’ to determine ‘anti-racist strategies’, and the foregrounding of White women in women’s movements makes Black women ‘invisible’ and silent, suggests that it is the experiences of Black women which should be used to construct narratives about GBV. 41 She gives examples of how personal experiences have already been successfully integrated into political movements such as the #EndRapeCulture campaign in South African universities. 42 Such movements are needed to provide a space in which victims of GBV can have their pain validated, as well as making a public statement that disrupts the notion that rape is not an endemic issue in South African society. 43 Gouws terms this the establishment of a ‘discourse of pain’, whose purpose is to challenge those who live in compliancy with GBV to engage their empathy and recognize it for what it is: a violation of human rights.44

39 Bob Connell, Messerschmidt, ‘Hegemonic Masculinity: rethinking the concept’, Gender & Society, 19 (2005) p.841. 40 Pumla Dineo Gqola, Rape: A South African Nightmare, p.4. 41 Amanda Gouws, ‘Feminist intersectionality’, p.20. 42 Ibid, p.3. 43 Ibid, p.3. 44 Ibid, p.25.

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University of Leeds The analysis of social discourse has shown that the prevention of rape in South Africa necessitates a shift in normative cultural perspectives to a position in which genuine gender equality is the new norm. If ‘dominant constructions of masculinity and associated cultural practices’ are addressed, then what follows will involve ‘strengthening the criminal justice system so that more acts of rape are formally punished.’45 Foregrounding the experiences of victims of GBV provides an inroad, but Gqola warns that responding to ‘individual acts of brutality’ can cloud the broader patterns of GBV and move ‘further away from curbing the alarming statistics.’46 Instead, the focus must be on uniting the voices of the marginalized to construct alternative narratives which challenge the prevailing order.

Bibliography Abrahams, N. et al., ‘Sexual homicides in South Africa: a national cross-sectional epidemiological study of adult women and children’, PLOS One (2017) <http://journals.plos.org/plosone/ article?id=10.1371/journal.pone.0186432> [accessed 9 February 2018] Andrews, P. ‘Democracy stops at my front door’, Loyola University Chicago International Law Review, 5 (2007), 15-28 Booysen, C. ‘Burnt body of a 17 year old found in Bredasdorp’, IOL News, 24 January 2018, <https:// www.iol.co.za/news/south-africa/western-cape/burnt-body-of-17-year-old-found-in-bredasdorp12903090>[accessed 22 March 2018] Connell, B., Gender, (Cambridge: Polity Press, 2002) Crenshaw, K., ‘Mapping the Margins: Intersectionality, Identity Politics and Violence against Women of Colour, Stanford Law Review, 43, 6 (1991), 1241-1299 Dartnell, E. and Jewkes, R., ‘Sexual violence against women: The scope of the problem’, Best Practice and Research Clinical Obstetrics and Gynaecology, 27 (2013), 3-13 Etheridge, J., ‘Slain woman went to same Bredasdorp pub as Anene- councilor’, News24, 7 April 2016 <https://www.news24.com/SouthAfrica/News/slain-woman-had-just-left-same-bredasdorppub-as-anene-booysen-councillor-20160407> [accessed 22 March 2018] Evans, J. and Wolmarens, R., ‘Timeline of the Jacob Zuma’, Mail & Guardian, 21 March 2006, <https://mg.co.za/article/2006-03-21-timeline-of-the-jacob-zuma-rape-trial> [accessed 22 March 2018] 45 R Jewkes, Y Sikweyiya, K Dunkle and R Morrell, ‘Relationship between single and multiple perpetrator rape perpetration in South Africa: A comparison of risk factors in a population-based sample’, BMC Public Health, Vol.15 (2015) p.10. 46 Pumla Dineo Gqola, Rape: A South African Nightmare, p.22.

Human rights journal Gouws, A., ‘Feminist intersectionality and the matrix of domination in South Africa’, Agenda, 31 (2017), 19-27 Gouws, A., ‘#EndRapeCulture Campaign in South Africa: Resisting Sexual Violence Through Protest and the Politics of Experience’, Politikon: South African Journal of Political Studies (2018), 1-13 Gqola, P.D., ‘How the ‘cult of femininity’ and violent masculinities support endemic gender based violence in contemporary South Africa’, African Identities, 5 (2007), 111-124 Gqola, P.D., Rape: A South African Nightmare (Cape Town: MF Books Johannesburg, 2015) Hill Collins, P., ‘Black Feminist Thought in the Matrix of Domination’, in Black Feminist Thought: Knowledge, Consciousness, and the Politics of Empowerment (Boston: Unwin Hyman, 1990) Human Rights Watch, South Africa (2018) <https://www.hrw.org/world-report/2018/countrychapters/south-africa> [accessed 10 February 2018] IRIN, One in four men rape (2009) <http://www.irinnews.org/report/84909/south-africa-one-fourmen-rape> [accessed 09 February 2018] Jewkes, R. Sikweyiya, Y. Dunkle, K. and Morrell, R., ‘Relationship between single and multiple perpetrator rape perpetration in South Africa: A comparison of risk factors in a population-based sample’, BMC Public Health, 15, 1 (2015), 1-616 Joyner, K., ‘The epidemic of sexual violence in South Africa’, SAMJ, South African Medical Journal, 106 (2016), 1067 Lock Swarr, A., ‘Paradoxes of Butchness: Lesbian Masculinities and Sexual Violence in Contemporary South Africa, Signs, 37 (2012) <https://www.journals.uchicago.edu/doi/ full/10.1086/664476> [accessed 10 February 2018] Machisa et al., ‘The war at home’, GBV indicators project (Gauteng: Gender Links, 2010) <http:// genderlinks.org.za/programme-web-menu/publications/the-war-at-home-gbv-indicatorsproject-2011-08-16/> [accessed 10 February 2018] Medical Research Council, RAPSSA Report on gender (2018) <http://www.mrc.ac.za/gender/ RAPSSAreport.pdf> [accessed 09 February 2018] Moffett, H., ‘”These women, they force us to rape them”: Rape as a narrative of social control in post-apartheid South Africa’, Journal of Southern African Studies, 32 (2006), 129-144 Morrell, R. Jewkes, R. Lindegger, G., ‘Hegemonic Masculinity/Masculinities in South Africa’, Men and Masculinities, 15 (2012), 11-30

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One in Nine, About us (2018) <https://oneinnine.org.za/about-us/> [10 February 2018] Padmanabhanunni, A. and Edwards, A. ‘Rape Survivors’ Experiences of the Silent Protest: Implications for Promoting Healing and Resilience’, Qualitative Health Research, Vol. 26 (2016) Rape Crisis Cape Town Trust, Rape in South Africa (2018) <https://rapecrisis.org.za/about-rape/> [accessed 10 February 2018] South African Police Service, Sexual Offences (2017) <https://www.saps.gov.za/resource_centre/ women_children/sexual_offences.php> [accessed 10 February 2018] South African Police Service, Woman and Children (2017) <https://www.saps.gov.za/services/ crimestats.php> [accessed 10 February 2018] Vetter, L., ‘Rape and Other Forms of Sexual Violence in South Africa’, Institute for Security Studies Policy Brief, 72 (2014) <https://issafrica.s3.amazonaws.com/site/uploads/PolBrief72.pdf> [accessed 10 February 2018] Vogelmann, L. and Lewis, S., ‘Gang rape and the culture of violence in South Africa’, Der Überblick, 2 (1993) <http://www.csvr.org.za/publications/1631-gang-rape-and-the-culture-of-violence-insouth-africa.html> [accessed 10 February 2018]

Human rights journal The Ban on Headscarves: justified by stereotype? Chen Zhou Yen In recent years, social attitudes towards immigration in the West have drastically transformed, with major players in the global political and economic landscape taking greater measures to curb its impact. While recruiting a diverse workforce continues to be high on the agendas of most global corporations, it seems questionable whether skilled Muslim workers are as welcome as their non-Muslim counterparts. Legal discourses in relation to the accommodation of Muslim communities in professional and educational settings in Europe, most prominently the criminalisation of wearing the headscarf in public, reveal the ways in which Muslim communities are disproportionately affected by increasing hostility against immigration. This essay will argue that the main propositions put forward by European states cannot justify bans on wearing the headscarf in public, and will reveal that the European courts have regarded the fundamental liberties of Muslim communities as inferior to their non-Muslim counterparts.

The European Union has lately been faced with an unprecedented influx of migrants and refugees, with the integration of Muslim communities becoming a contentious issue across many European societies.1 The phenomenon has been portrayed as a ‘clash of civilisations’ between the secular West and ‘repressive Islam’, whose adherentsby virtue of being in the secular West- derive rights such as the right to freedom of religion.2 Fear of terrorism may have translated into Islamophobia following the events of 9/11, with attacks in Europe by groups such as Daesh further adding to the sensitivity of the issue.3 The criminalisation of wearing headscarves in public has been perceived as an attempt to suppress Islamic practices, which have been regarded as a threat to Western values.4 An examination of the prominent headscarf bans in Europe reveal that the main justifications typically put forward by states to validate the bans are: protecting secularism; guarding against religious extremism; guarding against coercing others to adopt a particular religion or belief, often referred to as proselytism; and most 1 Asylum Statistics, Eurostat Statistics Explained (2017) <http://ec.europa.eu/eurostat/statistics-explained/index. php/Asylum_statistics#Further_Eurostat_information> [accessed 4 February 2017]; A. France-Presse, ‘Integrating Muslims into Europe is “impossible”, says Czech president’, Guardian, 18 January 2016, <https://www.theguardian. com/world/2016/jan/18/integrating-muslims-into-europe-is-impossible-says-czech-president> [accessed 7 May 2017]. 2 S. Huntingdon, ‘The Clash of Civilisations’, Foreign Affairs, 72. 22 (1993), 22-49; T.Lewis, ‘What Not to Wear: Religious Rights, the European Court, and the Margin of Appreciation’, International and Comparative Law Quarterly, 56. 2 (2007), 395-414 (p.395). 3 F. Osman, ‘Legislative Prohibitions on Wearing a Headscarf: Are They Justified?’ Potchefstroom Elec. L.J., 17. 4 (2014), 1318-1342; Lewis, p.395. 4 Ibid.

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Chen Zhou Yen The Ban on Headscarves: justified by stereotype?

The right to freedom of religion is enshrined in article 18 ICCPR and art 9 ECHR. The freedom of religion encompasses two dimensions – the forum internum comprising ‘the sphere of personal beliefs and religious creeds’ and the forum externum comprising the freedom to manifest religion.6 The forum internum is an absolute right, whereas the forum externum may be subject to limitations in accordance with the requirements laid down in art 9(2) ECHR and art 18(3) ICCPR.7 Accordingly, state bans on wearing of religious symbols in public must be ‘necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others’.8 Often, states advocate banning the headscarf to maintain secularism- a constitutional principle in many states such as France and Turkey that entails neutrality in the public sphere and for all forms of religion to be confined to the private sphere.9 A secular state is said to be crucial to guarantee freedom of religion for adherents of dominant and minority religions in a non-discriminatory manner.10 Accordingly, the ECtHR in Refah Partisi v Turkey held that acts based on religion must be in compliance with the principle of secularism to fall to within the ambit of protection under Art 9. The gravity of such a requirement was illustrated in Dahlab v Switzerland, concerning a teacher who was prohibited from wearing a headscarf while teaching, one of the grounds being that Dahlab was a civil servant, so that her conduct should not suggest that the state endorses any form of religion. 11 The ECtHR’s approach has been deemed problematic in two aspects. Firstly, to depict that states can be totally secular would be to present ‘a distortion of historical reality’.12 For example, despite the constitutional footing of the principle of secularism, one may argue that the 5 Osman, p. 1326; H. Yusuf, ‘S.A.S v France Supporting ‘Living Together’ or Forced Assimilation?’ Int’l Hum. Rts. L. Rev. 3. 277 (2014), (p. 281). 6 C v United Kingdom App no 10358/83 (ECHR, 15 December 1983); E. D. Gursel, ‘The Distinction Between the Freedom of Religion and the Right to Manifest Religion: A Legal Medium to Regulate Subjectivities’, Socio & Legal Studies, 22, 3 (2013), (pp. 377-379). 7 European Union, ‘Convention for the Protection of Human Rights and Fundamental Freedoms, art. 9’, European Union < https://rm.coe.int/1680063765> [accessed 4 February 2017]; International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 18. 8 Ibid. 9 H. Elver, The Headscarf Controversy: Secularism and Freedom of Religion, (Oxford: Oxford University Press 2012), p. 85. 10 H. Bielefeldt, ‘Misperceptions of Freedom of Religion or Belief’, Human Rights Quarterly, 35, 1, (2013) 33-68 (pp. 33-52). 11 Application no 41340/98 (European Court of Human Rights, 13 February 2003); Dahlab v Switzerland (2001) ECHR 899. 12 E. D. Scott, ‘Gender equality and Islamic headscarves. The immanent frame’, The Immanent Frame, 2008, <http://blogs.ssrc.org/tif/2008/02/10/gender-equality-and-islamic-headscarves/> [accessed 8 May 2017].

Human rights journal Turkish and French states are far from secular, given that religious culture and ethics classes focusing on Sunni Islam are compulsory subjects in the Turkish school curricula, whereas the school calendar in France follows Catholic religious holidays.13 Accordingly, differential treatment of adherents and non-adherents of the dominant religion is inevitable as states are bound to be predominantly governed by some sort of belief system.14 Indeed, the possibility of achieving total state secularism is doubtful as even the seven-day-week reflects particular religious traditions.15 While states have advocated for banning the headscarf to maintain secularism, such bans often reflect the entanglement of the state with the dominant religion rather than a separation thereof.16 For example, while German laws have prohibited Muslim school teachers from wearing headscarves, their Christian counterparts continue to be permitted to wear habits which may include a veil that is comparable to the Muslim headscarf, thereby reinforcing Christianity as the dominant religion.17 Similarly, while the French headscarf ban was couched in neutral terms, the state’s assessment as to the legitimacy of wearing a headscarf was based on French Judaeo-Christian values, thereby putting its neutrality into question. 18 Accordingly, bans on wearing religious symbols do not promote neutrality but instead reflect state preferences of one religion over another. The ECtHR’s approach in Dahlab has also been deemed problematic as states ought not to be automatically assumed to be endorsing a religion simply by permitting its employees to wear religious symbols.19 Conversely, as illustrated above, state policies that prohibit wearing headscarves in the name of secularism may well be clearer indicators of the non-neutrality of a state than allowing individuals to act in accordance with their religious convictions. The Human Rights Committee (HRC) in Riley v Canada- the facts of which are similar to that of Dahlab but concerning a police officer who wore a Sikh symbol as part of his uniform- similarly rejected the idea that secularism entailed the prohibition of members of a state-controlled institution from manifesting their religion.20 Accordingly, instead of undertaking to achieve what only appears to be state neutrality, the rights of adherents of minority religions may be more substantively secured if states reasonably accommodate them by creating conditions for minorities to live in accordance with their religious convictions. For example, the ECtHR in Jakóbski v Poland held in favour of a Polish

13 Gursel, p. 382. 14 Bielefeldt, p. 55 15 Ibid, p. 57. 16 Osman, p. 1328. 17 Ibid. 18 Ibid. 19 M. Zhurnalova-Juppunov, ‘Religious Displays at Public Schools – Courts, Crucifixes and Masters of Identities’, Maastricht Journal of European and Comparative Law, 18, 4 (2011), 479-510 (p. 479). 20 UN Human Rights Committee (HRC), ‘Riley v Canada, Communication No. 1048/2002’ (21 March 2002) U.N. Doc. CCPR/C/74/D/1048/2002.

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prisoner who insisted on receiving a vegetarian diet based on his conscientious conviction.21 It remains questionable why the ECtHR have refused to require states to accommodate the public manifestation of religious symbols in a similar way. In any case, measures to accommodate minority religions are often viewed with scepticism or resistance as it is perceived that they may ultimately lead to a breakdown of public order.22 In Turkey, political and legal debates continue to be shaped by Kemalist secularism which seeks to ban religion from the public sphere. Without this, many believe that Turkey could slide into theocratic rule.23 Accordingly, it is proposed that Turkish democracy is largely dependent on state secularism.24 In Sahin v Turkey, the court held that a ban of headscarves from universities was necessary to meet a pressing social need for there existed a threat of extremism seeking ‘to impose on society… their religious symbols and conception of society founded on religious precepts’.25 However, by holding that the headscarf ban is necessary to curb extremism, the majority judgment simply equated wearing headscarves with holding fundamentalist views, despite the lack of any evidence that women wear headscarves to subvert state secularism.26 As noted by dissenting Judge Tulkens, the majority had effectively placed its own interpretation upon the headscarf and had overlooked the fact that women with no connection to terrorism may wear headscarves for reasons including as an expression of freedom or a fashion statement.27 Furthermore, as Judge Tulkens highlights, the majority in Sahin failed to elaborate how the ban would curb extremism, as such a ban would not steer those who actually hold extremist views to cease holding such beliefs.28 As a result, by denying Muslims the right to manifest their religion, the Turkish republic has become little different from the extremist theocratic republic it seeks to prevent from securing power.29 Accordingly, the ban on headscarves in the name of guarding against religious extremism cannot be justified, as wearing headscarves and religious extremism do not necessarily correlate. Religious extremism may well continue to prevail following the ban, leaving Muslims only to be needlessly deprived of their freedom to manifest religion. The HRC in Singh v France, involving similar facts but in relation to the Sikh turban, held that the ban was neither justified on the basis that

21 Application no. 18429/06 (European Court of Human Rights, 7 March 2011). 22 Bielefeldt, p. 58 23 K. S. Akoglu, ‘Piecemeal Freedom: Why the Headscarf Ban Remains in Place in Turkey’ B.C. Int’l & Comp. L. Rev., 38, 2 (2015), 277-304 (pp. 277-280); Ibid, p. 298. 24 Ibid., p.296. 25 Application no. 44774/98 (European Court of Human Rights, 10 November 2005); Ibid, p. 115. 26 A. Vakulenko, ‘Islamic Dress in Human Rights Jurisprudence: A Critique of the Current Trends’ Human Rights Law Review, 7, 4 (2007), 717-739 (p. 717); Akoglu, p. 298. 27 Sahin v Turkey Application no. 44774/98 (European Court of Human Rights, 10 November 2005), pp. 7-12; J. Marshall, ‘S.A.S. v France: Burqa Bans and the Control or Empowerment of Identities’ Human Rights Law Review, 15, (2015), 377-389 (pp. 377-384). 28 Osman, p. 1324; Ibid, p. 1335. 29 Akoglu, p. 298.

Human rights journal it was necessary nor proportionate to any perceived threat.30 Accordingly, the ECtHR’s decision in Sahin is also difficult to reconcile with the HRC’s approach. Nonetheless, it has been contended that the particular political sensitivity of Turkey’s situation, being on the ‘borders of Syria, Iraq and Iran’, and facing the threat from within of ‘extreme Islamist political parties gaining power’, may help shed some light on the approach taken in Sahin.31 Nonetheless, it remains indisputable that state action ought to be directed against the real threat of religious fundamentalism, as opposed to the wearing of headscarves which does not appear to address the real threat to the state’s democracy.32 Protection against proselytism entails the protection against any pressure to profess a religion against one’s will.33 Accordingly, substantial consideration was given to the fact that Dahlab taught children, thereby warranting the prohibition of headscarves more plausible to prevent the proselytising of children.34 However, for the ECtHR to simply equate the mere wearing of a headscarf with proselytising, without any regard to whether Dahlab actually acted in a coercive manner to promote her religion would be to adopt an overly simplistic approach.35 Although the applicants in Dahlab and Sahin argued that they wore a headscarf because it was a ‘precept of Islam’ and not as a ‘sign of religious affiliation’, wearing headscarves has automatically been assumed by the ECtHR to come within the forum externum of the freedom of religion – that is the right to manifest religion as opposed to the forum internum, which is the right to hold a personal religion or belief. 36 The ECtHR has been criticised for bringing within the forum externum matters which have inevitable implications on the forum internum of the freedom of religion, particularly in cases of state compulsion to act in opposition to one’s beliefs.37 For example, the refusal of Jehovah’s Witness children to participate in military parades which was contrary to their commitment to pacifism.38 Thus, the ECtHR by presuming the headscarf as merely a ‘sign’ intended to communicate a religious belief does not actually capture the wearing of headscarves as an act of piety that ought to be protected as an absolute right. For example, although the applicant in Karaduman v Turkey had made it explicit that wearing a headscarf was a precept of her religion, the Commission nonetheless found her application inadmissible on the ground that the photograph affixed to a degree certificate is for the identification of the person concerned, not to be used by that person to manifest his or her religious

30 UN Human Rights Committee (HRC), ‘Bikramjit Singh v France, Communication No. 1852/2008’ (16 December 2008) U.N. Doc. CCPR/C/106/D/1852/2008. 31 Lewis, p. 412. 32 Osman, p. 1335. 33 ICCPR, article 18. 34 Osman, p. 1. 35 Ibid p. 1332. 36 Dahlab, p. 9; Sahin, p.68; Gursel; p. 380. 37 Ibid, p. 379. 38 Valsamis v Greece [1996] ECHR 72.

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beliefs. 39 Accordingly, the university’s refusal to issue the applicant her degree certificate was upheld as the applicant was unwilling to be photographed without a headscarf. As Taylor suggests, the forum internum of the freedom of religion comprises the absolute freedom from coercion to act contrary to one’s religion.40 In this regard, states cannot interfere with the freedom of individuals to wear headscarves as this would necessarily entail violating the forum internum of the freedom of religion. Even if a headscarf is worn as a means of manifesting one’s religious affiliation, there is no evidence to suggest that being able to identify the religious faith of a teacher would induce students to adopt the same religious belief.41 Although it is crucial for states to guard against the coercion by people in positions of authority of others into adopting a religion against their will, it is also important for states to look beyond religious stereotypes and recognise that such a possibility exists whether or not the person of authority wears a headscarf.42 This is clearly illustrated in Larissis v Greece, whereby the first applicant was found to have violated Article 9 for approaching his subordinates to introduce them to the teachings of the Pentecostal Church, noting that hierarchical structures may leave little room for subordinates to decline their superiors’ pressures. 43 Accordingly, states ought to direct their attention to prohibiting the coercion itself rather than enacting a headscarf ban.44 It is arguable a headscarf ban would do little to prevent the coercion of Muslim girls by their families and communities into wearing headscarves. In addition, it would mean that wearing a headscarf would come at the cost of forgoing the education and social life of girls.45 In Kokkinakis v Greece, the ECtHR held that it was permissible to criminalise proselytism to protect vulnerable individuals from undue pressure to adopt a religion against their choice.46 Accordingly, the act of proselytism itself ought to be banned instead of religious symbols in public. This would protect vulnerable individuals against coercion to adopt a particular religion or belief. In S.A.S. v France, the ECHR recognised the notion of ‘living together’ as a legitimate dimension of ‘the rights of others to live in a space of socialisation’ that could justify a ban on headscarves in public.47 The applicant, a Muslim French national, sought to challenge the French universal ban on wearing headscarves in public. However, the reliance on ‘living together’ to justify the ban raises several issues. Firstly, ‘living

39 Karaduman v Turkey, Application no. 16278/90 (European Commission of Human Rights, 3 May 1993). 40 P. M. Taylor, Freedom of Religion: UN and European Human Rights Law Practice (Cambridge: Cambridge University Press, 2005), p. 119. 41 Osman, p. 1332. 42 Ibid. 43 Larissis v Greece, Application no. 23372/94 (European Court of Human Rights, 24 February 1998). 44 Ibid. 45 Ibid, p. 1331. 46 Kokkinakis v Greece, Application no. 14307/88 (European Court of Human Rights, 25 May 1993). 47 (2014) ECHR 695, p. 122; I. Trispiotis, ‘Two Interpretations of “Living Together” in European Human Rights Law’, Cambridge Law Journal, 75, 3 (2016), 580-607 (pp. 580-581).

Human rights journal together’ places an obligation to make oneself available for contact in public.48 Accordingly, wearing headscarves is perceived as constituting the negation of contact with others and in turn, an infringement of ‘living together’.49 However, empirical findings have revealed that women who wear headscarves do interact regularly with society at large.50 In fact, it has been argued that the ban has deteriorated the social life of women who wear headscarves as these women now avoid going out into the public as a result of their strong attachment to wearing headscarves.51 The ECtHR ruling in S.A.S. has further been contested as it is difficult to be reconciled with earlier case laws. For example, in Arslan v Turkey, the ECtHR ruled that the convictions of a group for wearing religious clothing in public had violated their freedom of religion. Likewise, in Eweida & Ors v UK, the ECtHR held that the prohibition of British Airways employees from wearing religious symbols also constituted a violation of Article 9. 52 The ECtHR had distinguished S.A.S. from these cases on the basis that the French ban was not based on the ‘religious connotation’ of the clothing, but on the fact that the Islamic headscarf conceals the face.53 However, commentators have argued that it is clear that the French ban was aimed at targeting Muslim women, and that this may be attributed to the fact that there are a multitude of other social activities, such as sports, that involve covering the face which are permitted, such as wearing ski masks or motorcycle helmets54. In addition, section 2 of the burqa ban law provides that the prohibition against full-face covers does not apply in the context of festivities or traditional events.55 As a result, the Christian majority are allowed to wear clothes that conceal the face during festivities such as dressing up as Santa Clause, but Muslim women continue to be prohibited from wearing the headscarf even during the month of Ramadan.56 Furthermore, as highlighted by the dissenting judges, socialisation can take place without necessarily looking into each other’s eyes.57 Considering the fact that the ban disproportionately affects Muslim women, it also violates the right to equality and non-discrimination as protected under Article 2 ICCPR, as Muslim women are particularly denied the right to choose how they dress.58 Accordingly, the notion of ‘living together’ compels minorities to succumb to the 48 Yusuf, p. 282. 49 Ibid, p. 283. 50 E. Brems, ‘Face Veil Bans in the European Court of Human Rights: The Importance of Empirical Findings’, Journal of Law and Policy, 22 (2014), 517-551 (pp. 517-540). 51 Ibid. 52 Arslan v Turkey, Application no. 23462/94 (European Court of Human Rights, 8 July 1999); Eweida & Ors v UK, Application no. 48420/10 (European Court of Human Rights, 15 January 2013). 53 J. Maher, ‘SAS v France in Context: the margin of appreciation doctrine and protection of minorities’, Oxford Human Rights Hub (2014), <http://ohrh.law.ox.ac.uk/sas-v-france-in-context-the-margin-of-appreciation-doctrineand-protection-of-minorities/> [accessed 9 May 2017]. 54 Ibid; Yusuf, p. 286. 55 Ibid. 56 Ibid, p. 297. 57 S.A.S., p. 122. 58 F. Z. Ashni, and P. Gerber, ‘Burqa: Human Right or Human Wrong?’, Alternative Law Journal, 39, 4 (2014), 231-235 (pp. 231-233).

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University of Leeds preferences of the majority, sometimes at the cost of their fundamental rights.59 For example, the right to private life entails the right to not communicate with others in public, or what the dissenting judges call ‘the right to be an outsider’.60 Accordingly, concerns have been expressed about the violations of fundamental rights guaranteed by the ECHR justified by the notion of ‘living together’, a principle not at all based on any concrete provisions in the Convention.61 As highlighted by the dissenting judges, the decision in S.A.S. ‘sacrifices concrete individual rights guaranteed by the Convention to abstract principles’.62 Although the court in S.A.S. acknowledged the risk of abuse that may result from the ambiguity of ‘living together’, the court deferred to the democratic legitimacy of states and ruled that a wide margin of appreciation should be accorded to states as national authorities are ‘better placed’ to evaluate local conditions especially since there is a lack of consensus among European states on the matter.63 However, the deference by the ECtHR to democratic legitimacy as a basis for according a wide margin of appreciation to states may provide leeway to legally embark on a ‘cultural genocide’ based on the will of the majority.64 Accordingly, the possible violations of multiple fundamental rights resulting from the burqa ban cannot be justified by a principle as ambiguous as ‘living together’. To conclude, it has been argued that state decisions to ban wearing headscarves in public and the ECtHR decisions to uphold these bans are coloured by stereotypical perceptions of the women who choose to wear headscarves. This is illustrated by the assumptions made by these authorities of the correlation between wearing headscarves and religious extremism, proselytism and the negation of public interaction, despite findings that clearly reveal otherwise. Although coined in neutral terms, and it is possible the bias against Muslim women is implicit, it has nevertheless been revealed than these bans disproportionately impact Muslim communities, depriving them of their fundamental liberties while prioritising the interests of majority groups on the basis of largely unsubstantiated presumptions. As such, it is evident that states have done little to support the accommodation of Muslim communities, and have instead contributed to the hostility against their immigration to, and integration within, European communities.

Bibliography Akoglu, K. S., ‘Piecemeal Freedom: Why the Headscarf Ban Remains in Place in Turkey’, International and Comprehensive Law Review, 38. 2 (2015), 277-304 Asylum Statistics, Eurostat Statistics Explained (2017) <http://ec.europa.eu/eurostat/statisticsexplained/index.php/Asylum_statistics#Further_Eurostat_information> [accessed 4 February 59 Yusuf, p. 285. 60 Ibid, p. 282; S.A.S., p. 8. 61 Trispiotis, p. 581. 62 S.A.S., p. 8. 63 Yusuf, p. 281. 64 Ibid, p. 299.

Human rights journal 2017] Bantekas I., and L. Oette, International Human Rights Law and Practice, 2nd edn (Cambridge: Cambridge University Press, 2016) Bielefeldt, H., ‘Misperceptions of Freedom of Religion or Belief’, Human Rights Quarterly, 35. 1 (2013), 33-68 Brems, E., ‘Face Veil Bans in the European Court Of Human Rights: The Importance of Empirical Findings’, Journal of Law and Policy, 22 (2013), 517-551 Elver, H., The Headscarf Controversy: Secularism and Freedom of Religion, (Oxford: Oxford University Press 2012) France-Presse, A., ‘Integrating Muslims into Europe is “impossible”, says Czech president’, Guardian, 18 January 2016, <https://www.theguardian.com/world/2016/jan/18/integratingmuslims-into-europe-is-impossible-says-czech-president> [accessed 7 May 2017] Gursel, E. D., ‘The Distinction Between the Freedom of Religion and the Right to Manifest Religion: A Legal Medium to Regulate Subjectivities’, Socio & Legal Studies, 22. 3 (2013), 377-379 Huntingdon, S., ‘The Clash of Civilisations’, Foreign Affairs, 72. 22 (1993), 22-49 Lewis, T., ‘What Not to Wear: Religious Rights, the European Court, and the Margin of Appreciation’, International and Comparative Law Quarterly, 56. 2 (2007), 395-414 Maher, J., ‘SAS v France in Context: the margin of appreciation doctrine and protection of minorities’, Oxford Human Rights Hub (2014), <http://ohrh.law.ox.ac.uk/sas-v-france-in-contextthe-margin-of-appreciation-doctrine-and-protection-of-minorities/> [accessed 9 May 2017] Marshall, J., ‘S.A.S. v France: Burqa Bans and the Control or Empowerment of Identities’ Human Rights Law Review, 15 (2015), 377-389 Osman, F., ‘Legislative Prohibitions on Wearing a Headscarf: Are They Justified?’, Potchefstroom Elec. L.J., 17. 4 (2014), 1318-1342 Parker, M. T., ‘The freedom to manifest religious belief: an analysis of the necessity clauses of the ICCPR and the ECHR’, Duke Journal of Comparative & International Law, 17 (2007), 91-129 Scott, J.W., ‘Gender equality and Islamic headscarves. The immanent frame’, The Immanent Frame, 2008, <http://blogs.ssrc.org/tif/2008/02/10/gender-equality-and-islamic-headscarves/> [accessed 8 May 2017] Taylor, P. M., Freedom of Religion: UN and European Human Rights Law Practice (Cambridge: Cambridge University Press, 2005) Trispiotis, I., ‘Two Interpretations of “Living Together” in European Human Rights Law’, Cambridge Law Journal, 75. 3 (2016), 580-607 Vakulenko, A., ‘Islamic Dress in Human Rights Jurisprudence: A Critique of the Current Trends’ Human Rights Law Review, 7. 4 (2007), 717-739 Yusuf, H., ‘S.A.S v France Supporting ‘Living Together’ or Forced Assimilation?’ Internationall Human Rights Law Review, 3 (2014), 1-32 Zhurnalova-Juppunov, M., ‘Religious Displays at Public Schools – Courts, Crucifixes and Masters of Identities’, Maastricht Journal of European and Comparative Law, 18. 4 (2011), 479-510

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Larissis v Greece Application no. 23372/94 (European Court of Human Rights, 24 February 1998) Refah Partisi v Turkey Application no 41340/98 (European Court of Human Rights, 13 February 2003) Sahin v Turkey Application no. 44774/98 (European Court of Human Rights, 10 November 2005) UN Human Rights Committee (HRC), ‘Bikramjit Singh v France, Communication No. 1852/2008’ (16 December 2008) U.N. Doc. CCPR/C/106/D/1852/2008 UN Human Rights Committee (HRC), ‘Riley v Canada, Communication No. 1048/2002’ (21 March 2002) U.N. Doc. CCPR/C/74/D/1048/2002 Valsamis v Greece [1996] ECHR 72 International Treaties Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR)

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THERE IS STILL HOPE PHOTO BY ANEES MALIK

This photo was taken here in Leeds. The woman  photographed was discriminated against  because of her faith. Despite these trials her eyes still hold hope.  I asked her to keep a straight face and yet her eyes could not stop smiling.     Every person is entitled to equal rights regardless of the religion they belong to or if one wears  a scarf. Her eyes show strength not oppression. I believe she represents a lot of women in England when it comes to experiencing   Islamophobia.

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All work in this journal is licensed under the Creative Commons Attribution-NonCommercial-NoDerivs 4.0 Unported License. No part of this work can be reproduced without prior permission. To view a copy of this license, visit: https://creativecommons.org/licenses/by-nc-nd/4.0/ All photographs within this journal were taken by the respective author unless stated otherwise.

The Leeds Human Rights Journal (HRJ) is a student-lead undergraduate publication, published annually in the summer term. This is its sixth year running, and it remains the only journal of its kind in the country. Each cycle, articles are submitted by undergraduate students across a broad range of disciplines. The HRJ is undoubtedly a vital tool for encouraging research, especially at undergraduate level where opportunities are less generous. This year, the In Focus theme is The Forgotten. The thrust of this theme is to shed light on underreported human rights atrocities through the interrogative work of University of Leeds undergraduate students. From the forgotten war crimes of the Korean War, to the hidden human rights violations of the shipping industry, Volume VI of the Leeds Human Rights Journal aims to provide a global commentary of the human rights debates both past and ongoing. Outside the 'In Focus' theme, the Journal takes a closer look at some of the most pressing human rights issues of today, and provides a platform for creatives to display their work.