Australia: Whose interests? Why defining the ‘public interest’ is such a challenge – Jane Johnston

“ut (despite its lack of definition) the public interest should mean more than legal compliance – it is as much about process and procedure as it is outcome. It’s also about governance and ethics.

Wheeler lists seven elements that better round out the full process that should take place:

complying with applicable law (both its letter and spirit);
carrying out functions fairly and impartially;
complying with the principles of procedural fairness/natural justice;
acting reasonably;
ensuring accountability and transparency;
exposing corrupt conduct or serious maladministration;
avoiding or properly managing private interests conflicting with official duties; and
acting apolitically in the performance of official functions.
There’s no rule book for working in the public interest and, despite arguments that it is too loose, ambiguous and easy to hide behind, it is an integral part of the discourse, law, regulation and governance of modern democracies.

The ConversationSome professions, such as the Institute of Chartered Accountants in England and Wales, have tackled it head-on. This would seem a prudent measure for all professions in the future.”

Inforrm's Blog

File 20170920 910 y2p3r0

The “public interest” is a political concept that’s regularly trotted out along with other democratic principles such as transparency and accountability. And, like transparency and accountability, it’s difficult to pin down exactly what it means.

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Jonathan Collinson: Disqualifying Dual-National Parliamentarians in Australia: A Problem of Legal Status or of Their True ‘Belonging’ to Australia?

UK Constitutional Law Association

It has been reported that the Deputy Prime Minister of Australia, Barnaby Joyce, has referred himself to the Australian High Court over his eligibility to sit in Australia’s Parliament. It was discovered that Mr Joyce was a dual national of Australia and New Zealand, a fact of which Mr Joyce claims he was entirely ignorant. However, dual nationals are prima facie disqualified from sitting in Australia’s Parliament by section 44(i) of the Australian Constitution:

‘Any person who is under any acknowledgement of allegiance obedience or adherence to a foreign power, or is a subject or entitled to the rights or privileges of a subject or a citizen of a foreign power […] shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.’

The Australian High Court in Sykes v Cleary ((1992) 176 CLR 77) found that a dual national may…

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THE NEW INTERMEDIATE TRACK: SCOPE AND PROCEDURE

Kerry Underwood

This blog first appeared in Practical Law on 21 September.

I deal with this matter in detail in my Fixed Costs Autumn Tour starting on Monday 25 September– you can book here.

All of these matters are dealt with in my new book – Personal Injury Small Claims, Portals and Fixed Costs, running to three volumes and 1,300 pages and costing £80.00 and available from me here or Amazon here.

This piece does not deal with the costs figures; that is for another piece.

As part of his Supplemental Report on Fixed Recoverable Costs, which will be considered by the Lord Chief Justice, Master of the Rolls and the government, Jackson LJ has proposed a new intermediate track.

This new track is a streamlined system for cases of no more than “modest complexity” valued at between £25,000 and £100,000, and lasting no more than three days at trial.

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Integration is Multidimensional: ‘Generic Factors’ Count in Calculating Integrative Links in Deportation Cases

United Kingdom Immigration Law Blog

AS (Iran) v Secretary of State for the Home Department [2017] EWCA Civ 1284 (23 August 2017)

AS entered the UK aged nine with his mother under the family reunion rules because his father had been granted indefinite leave to remain as a refugee who had fled persecution in Iran. But he developed a serious criminal record. Unlike his mother, he did not acquire British citizenship and was thus a “foreign criminal” holding Iranian nationality. The authorities sought his deportation and the decision-maker assessed that the public interest in the deportation of foreign criminals was not outweighed by AS’s article 8 rights. However, the First-tier Tribunal allowed his appeal. However, the Upper Tribunal set aside the decision because of the judge’s failure to consider the effects of the provisions relating to article 8 and the public interest contained in sections 117A-D of the Nationality, Immigration and Asylum Act 2002 and…

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Early pioneers of Quantum physics (IX Century)

“Maybe another reason for my sorrow is that there are millions of non-discovered issues waiting for the genuine researchers. The question is do we have these ”genuine researchers”?”

Shaykh Atabek Shukurov an Nasafi

Early pioneers of Quantum physics (IX Century)
20/09/2017

© Atabek Shukurov

Islamic theology and philosophy have witnessed a lot of heated debates over issues some of which would look like very useless or some times maybe absurd topics. One of these debates was between the two groups on the topic of ”the smallest particle”. They normally call the issue as ”the particle which cannot be divided”. Obviously, there are masses of people (could be over ninety percent) who may get the essence of the point incorrectly thinking that the issue is about dividing the matter practically. That is, without doubt, incorrect understanding and I do not have time to explain it here. In my thesis I have included this question (among other 18 issues raised by Alberonius). By looking at my research I don’t really know, shall we be proud or shall we be upset. First, I want to quote…

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#Tory shambles #EU #Law #Article127: Obscure section could stop #Brexit?

Article 127: What is the obscure section of EU law – and how could it stop Brexit? | Ben Kentish  | Ben Kentish | INDEPENDENT | 20 September 2017

Some experts say the obscure regulation could keep Britain in the single market.

As Cabinet divisions over Brexit threaten to tear Theresa May’s Government apart, focus is turning to the obscure legislation that governs how the UK would leave the single market.

Now experts have claimed that Ms May’s plans for a hard Brexit could be scuppered by a little-known legal clause.

The small print at the heart of the debate, Article 127, is the lesser-known cousin of Article 50. Whereas Article 50 spells out how a country leaves the European Union (EU), Article 127 relates to departing the single market.

brexit-eu-demonstrator-protest-parliament.jpg

Pro-EU campaigners have already launched a legal bid over Article 127 Reuters

The former has already been triggered, but the latter has not – and that is where the Prime Minister’s problem could lie.

Former Bank of England governor: Brexit negotiations are “not going in the way that we might hope”

What is Article 127?

It is a clause of the European Economic Area (EEA) Agreement 1993 – the document that includes the rules governing the single market.

Article 127 explains the process for a country leaving the single market.

It says: “Each Contracting Party may withdraw from this Agreement provided it gives at least twelve months’ notice in writing to the other Contracting Parties.

“Immediately after the notification of the intended withdrawal, the other Contracting Parties shall convene a diplomatic conference in order to envisage the necessary modifications to bring to the Agreement.”

That’s it. But some experts say these 52 words could be enough to keep Britain in the single market – and even scupper Brexit entirely.

How could that happen?

Britain has already triggered the Article 50 clause that sets the ball rolling on withdrawing from the European Union.

In March, Ms May wrote to Donald Tusk, the European Council President, saying: “I hereby notify the European Council in accordance with Article 50(2) of the Treaty on European Union of the United Kingdom’s intention to withdraw from the European Union.”

In doing so she began a two-year process that will see Britain leave the EU in March 2019.

However, some legal experts say this is not the same as leaving the EEA (the single market), and that a separate process is needed for this to happen.

Under Article 127, members of the EEA must explicitly say they plan to leave the single market – which is legally separate, many lawyers believe, to leaving the EU.

Jo Maugham QC, director of the Good Law Project, told The Independent: “There is an argument that leaving the EU automatically triggers departure from the EAA. There’s another argument that actually it doesn’t, and you have to trigger your departure from the EEA separately.

“If the first of those is right, then the Government doesn’t need the permission of Parliament because we already announced we’re leaving the EEA when we triggered Article 50.

“But if the second argument is right, there would need to be parliamentary authorisation either through the Repeal Bill or otherwise.”

Could Article 127 stop a hard Brexit?

Potentially, yes. Late last year, pro-EU campaigners launched a legal bid to force the Government to consult Parliament before triggering Article 127.

High Court judges blocked that challenge because, they said, it was too early; the process of the UK leaving the single market had barely begun. However, the case is likely to be relaunched further down the line.

Depending on how the courts rule, the Government could be forced to give Parliament a vote on whether the UK should leave the single market. Under the “12 months’ notice” part of Article 127, that would mean a vote would need to be held by next March, if Britain is to leave the single market at the same time as it leaves the EU.

In that scenario, it is far from certain that Ms May would be able to get Parliament to back her plans.

Labour would take Britain out of the EU single market, Corbyn says

While Jeremy Corbyn’s Labour Party in theory supports leaving the EEA, its commitment to this is far from clear and several shadow ministers have already touted the possibility that the UK could remain in the EEA and customs union after Brexit.

For example, Keir Starmer, the Shadow Brexit Secretary, recently said his party was “flexible” about the option of “negotiating a new single market relationship”.

That raises the possibility that, if the EU is willing to make concessions on freedom of movement, Labour could shift its position and end up backing EEA membership.

In that case, only six pro-EU Tory MPs would need to rebel in order for the Government to be defeated.

Mr Maugham said he believed MPs would be likely to support a proposal to “keep all options open” and “keep single market membership on the table for a transitional period and then adopt a wait-and-see approach for after a transitional period” – in other words, keep Britain in the single market until further notice.

Former Government insiders also believe Article 127 could prove critical and might even halt Brexit entirely if ministers are forced to give Parliament a vote on single market membership.

According to The Mirror, James Chapman, the former Chief of Staff to Brexit Secretary David Davis’, yesterday told an event at the Liberal Democrats’ annual conference: “Is there a majority in the House of Commons, let alone [the Lords] to leave the single market? No there’s not.

“So the Government won’t be able to get that through Parliament and at that point Brexit will collapse.

“Because the British people will say ‘we’ll have to pay more to stay in the single market and we won’t be able to control freedom of movement. So what is the effing point of doing this?’”

What does the Government say?

Ministers say Article 127 is irrelevant because when Britain stops being an EU member, it will automatically leave the single market.

In February, a Number 10 spokesperson said: “The UK is party to the EEA agreement only in its capacity as an EU member state. Once the UK leaves the EU, the EEA agreement will automatically cease to apply to the UK.”

However, the Government’s position appears to have shifted slightly. Earlier this month, David Davis hinted that ministers might try to trigger Article 127 to avoid any doubt about Britain’s legal position in relation to the EEA.

He told MPs: “We are considering what steps, if any, we might need to take to formally confirm our withdrawal from the EEA agreement, as a matter of international law.”

And, let’s not forget, Government lawyers don’t have the best track record on Brexit. They previously claimed that Parliament did not need to be given a say on triggering Article 50 – an argument that was dismissed by both the High Court and the Supreme Court.

Interestingly, Theresa May’s Article 50 letter included an explicit – and separate – reference to the UK’s intention to leave the European Atomic Energy Community (Euratom). That could be interpreted as an implicit recognition that leaving the EU’s institutions requires a separate notification – one that might also apply to the EEA.

What will happen now?

The Government may continue to argue that Article 127 is irrelevant, or it may try to trigger the clause without the approval of Parliament. Clauses in the EU Withdrawal Bill, which is currently before Parliament, would grant ministers that power.

However, MPs are prepared for this.

Labour backbencher Heidi Alexander has already tabled an amendment to the bill that says: “No Minister may, under this Act, notify the withdrawal of the United Kingdom from the EEA Agreement, whether under Article 127 of that Agreement or otherwise.”

If this or any similar amendment is passed, ministers would be forced to call a vote of Parliament on triggering Article 127 – like they were with Article 50.

As things stand, the battle seems set to end up in the courts. If ministers attempt to ignore Article 127 or to trigger it without a parliamentary vote, Remain campaigners are almost certain to re-launch their legal challenge.

Should this happen, Theresa May would face the prospect of her most significant parliamentary defeat yet and, when it comes to determining Britain’s future relationship with Europe, one that could have major ramifications for decades to come.


 

#Impunity #CollectivePunishment #Palestinians submit #Israel ‘#WarCrime’ evidence to #ICC

PALESTINE| Palestinians submit Israel ‘war crime’ evidence to ICC | Zena Tahhan | AlJazeera | 20 SEPTEMBER 2017

 

Four Palestinian groups allege high-level Israeli officials are responsible for war crimes and crimes against humanity.

 

The report offers evidence on the “willful killing and murder of 300 Palestinians” by Israeli occupation forces since 2014 [Reuters]

Four Palestinian human rights groups have submitted a 700-page communication to the International Criminal Court (ICC), alleging that high-level Israeli officials have been complicit in committing war crimes and crimes against humanity in the Israeli-occupied West Bankand East Jerusalem.

In a statement on Wednesday, the groups urged the ICC Prosecutor Fatou Bensouda to “urgently open a full investigation into the situation in the occupied Palestinian territory” as a “necessary step to ending the culture of impunity that has long prevailed in regard to Israeli crimes and to hold high-level political and military officials accountable”.

The groups that submitted the dossier are al-Haq, Al Mezan Center for Human Rights, the Palestinian Centre for Human Rights and Aldameer Association for Human Rights – all based in the occupied territories.


READ MORE: UN slams Israel for ‘de-development’ of Palestine


“This communication, which is based on factual information collected by the four organisations, covers the following crimes against humanity in accordance with the Rome Statute: murder, deportation or transfer of population, persecution, apartheid,” an al-Haq representative told Al Jazeera.

The representative also said the files included evidence of war crimes such as “willful killing, extensive destruction and appropriation of property, unlawful deportation or transfer, transfer by the occupying power of its civilian population into occupied territory, pillaging of a town/place, destroying or seizing the enemy’s property”.

The ICC, an independent international court based in The Hague, Netherlands, confirmed to Al Jazeera that they had received the dossier.

“As we do with all such communications, we will analyse the materials submitted, as appropriate, in accordance with the Rome Statute and with full independence and impartiality. As soon as we reach a decision on the appropriate next step, we will inform the sender and provide reasons for our decision,” the Office of the Prosecutor told Al Jazeera via email.

While Israel is not a party to the Rome Statute – the treaty of the ICC to which all members are bound to – its nationals could be tried by The Hague-based court for crimes committed on Palestinian territory.

The Israeli Prime Minister’s Office did not respond to Al Jazeera’s request for comment.


READ MORE: Will Israel be put on trial for war crimes?


The four Palestinian groups have jointly submitted three other communications – mainly related to war crimes in the Gaza Strip – to the ICC since the State of Palestine formally joined the court in April 2015, giving the court jurisdiction over crimes committed in the territory since June 13, 2014.

The 2014 Israeli war on Gaza is the first major offensive against Palestinians over which the ICC has potential jurisdiction. During the 51-day war, more than 2,200 Palestinians were killed, including 1,462 civilians, 500 of whom were children.

The ICC’s Office of the Prosecutor began its preliminary examination of the “situation in Palestine” in January 2015. In this phase, the prosecutor is meant to determine whether the criteria have been met to warrant pursuing a formal investigation based on the information available publicly or submitted to the office, and whether local courts are carrying out credible investigations.

But rights groups have urged the ICC to launch a full investigation due to the “strong evidence” of war crimes being committed.

“The transfer of Israeli settlers into the occupied Palestinian territory constitutes a unique war crime in that it is coupled with the confiscation of massive tracts of Palestinian land,” Raji Sourani, director of the Palestinian Centre for Human Rights, said in the statement, referring to Israel’s settlement project in East Jerusalem and the West Bank.


READ MORE: ‘Strong evidence’ of Israeli war crimes in Gaza


Since 1967, Israel’s government has transferred between 600,000 and 750,000 Israeli citizens into the occupied Palestinian territories. They live in illegal, fortified settlements – the largest of which houses some 64,000 Israelis – which are often built on Palestinian land seized by Israel.

An occupying power is forbidden from transferring parts of its civilian population into the territory which it occupies, according to the fourth agreement of the Geneva Conventions, which defines humanitarian protections for civilians in a war zone.

There are several reasons behind this: to ensure that the occupation is temporary and to prevent the occupying state from establishing a long-term presence through military rule; to protect the occupied civilians from theft of resources; and to prevent apartheid and changes in the demographic makeup of the territory.

“Israel’s actions in the occupied West Bank is evidently one of colonisation,” said Sourani. “The international community long ago decided that colonisation is reprehensible and with the Rome Statute it is punishable through the crime of settler transfer.”

In a 2016 report, US-based rights group Human Rights Watch (HRW) requested the ICC to open a formal probe as the occupation entered its 50th year, drawing on the “unlawful attacks” carried out by both sides during the Israeli war on Gaza in 2014, and on the continuous expansion of illegal settlements.

“Settlements are a war crime and clearly there have been efforts undertaken in Israel to look into responsibility and hold people accountable,” Omar Shakir, Israel/Palestine director for HRW, told Al Jazeera.

“In Gaza, the military has opened some investigations, but of course, until today, there has only been three soldiers held to account, and they are all very minor offenses unrelated to the underlying attacks,” he added.

The Palestinian Authority (PA) has also submitted evidence of alleged Israeli war crimes to the prosecutor’s office. When the PA applied to join the ICC, the Israeli government responded by stopping the transferof millions of dollars in tax revenues collected on behalf of the Palestinian Authority.

“Given that the authorities on the ground have been unwilling to credibly investigate … makes it urgent that the prosecutor’s office moves this to a formal investigation and takes steps to ensure that those that commit serious abuses in Palestine are held to account for their actions,” said Shakir.

Source: Al Jazeera News

#Immigration #Asylum: If Amber #Rudd can’t explain why she defied the courts, she should go!

The Home Office ignored judges on three occasions to deport asylum seeker Samim Bigzad. It’s hard to overstate the significance of this!

Amber Rudd confused herself with a 16th-century monarch last week, seemingly believing she has a divine right to rule, irrespective of the law. Three times the courts told her to return Samim Bigzad, a 23-year-old asylum seeker who was cowering in a hotel room in Kabul, threatened with beheading by the Taliban. Three times she refused, thinking she knew best and the courts had got it wrong. It displayed a disdainful arrogance for the courts and the law. Unless she has an explanation, she has to go as home secretary. And the person who has a duty to see that the home secretary operates within the rule of law is the lord chancellor, David Lidington. This is as much a test of him as it is of her.

The story of Samim Bigzad is chilling. He came to the UK from Afghanistan in 2015. His father was already here, and suffers from severe post-traumatic stress disorder. Samim initially entered illegally, but then claimed asylum. He had worked on US construction projects in Kabul, hence the Taliban threat.

The Home Office refused Samim’s application for asylum. It indicated it would remove him on a date to be fixed. Just after 8am last Tuesday Samim was told he would be deported to Kabul via Istanbul by a flight leaving later that morning. His lawyers made further representations to prevent removal. The Home Office rejected them. Samim then started judicial review proceedings including seeking an application to stop his removal pending the hearing for the full judicial review. Although the approach of the Home Office was typically harsh, up to this point it had not acted unlawfully.

Samim Bigzad back ome in Ramsgate, Kent.
Samim Bigzad back home in Ramsgate, Kent.
Photograph: Graeme Robertson for the Guardian

It was last Tuesday evening that it crossed the line into unlawfulness. At 9.53pm that night, the lawyers were notified that Mr Justice Morris had granted an injunction ordering the Home Office to take Samim off the flight to Kabul and to return him to London. The Home Office was told of the injunction immediately and had a copy of the order at 10pm that evening. At that point Samim was in transit. The plane had landed at Istanbul, and was due to take off on a connecting flight at 10.30pm for Kabul. The Home Office decided not to remove him from the plane, and Samim was flown on to Kabul.

On the face of it, the Home Office broke the order by not taking him off the plane at Istanbul. Whatever the reason was for not doing so, it should have immediately made arrangements for his return to the UK when he arrived in Kabul later that night, in accordance with the judge’s order. But it did nothing. Any doubts it might have had about what its legal duty was were laid to rest later on Wednesday afternoon when Mr Justice Jay ordered that Samim be returned to the UK as quickly as possible. For good measure, he said that the Home Office was already “prima facie” in contempt, and that any thoughts it had of seeking to vary or discharge the earlier order were not a reason for disobeying it.

Despite the absolute clarity of both orders, the Home Office again refused to obey. A third judge, Mrs Justice Lang, last Thursday, dismissed any attempt to vary the order and ordered the immediate return of Samim. She also made clear that immediate obedience was required.

Still the Home Office thought it knew best. It did nothing, and on Saturday it went to the court of appeal. It said all the orders were wrong. The appeal court gave it short shrift, and finally, the Home Office made arrangements for Samim to be flown back to the UK where he eventually arrived on Sunday night.

Who did Amber Rudd think she was? No special rules about court orders apply to her. She cannot ignore them and shop around the judges until she gets what she wants. She is like everybody else in this country. She has to obey the courts. And of all the people who have a critical duty to obey court orders, it is the executive. Without the means of holding the executive to account there is no means of ensuring that it is the rule of law that prevails, rather than rule by the decree of ministers or civil servants.

The secretary of state for justice, David Lidington.
The secretary of state for justice, David Lidington.
Photograph: Hannah Mckay/Reuters

We have been here before. In 1991 the Home Office gave an undertaking not to deport an asylum seeker to Zaire because he was in fear for his life. As in this case, he was in transit and the Home Office refused to remove him from the plane he was on, which had stopped in Paris. He flew on to Zaire and was never seen again, almost certainly meeting the fate he had feared. When proceedings were brought against the then home secretary, Kenneth Baker, he argued that ministers of the crown could not be the subject of contempt of contempt proceedings. The House of Lords shot that argument down. They said that if that was right it would mean the executive obeyed the law “as a matter of grace, not as a matter of necessity, a proposition which would reverse the result of the civil war”.

Home secretaries all too often regard the courts as the enemy, standing in the way of what the minister knows to be best for the country. Maybe they do in some cases, but if home secretaries can override the courts, we are lost as a nation. Rudd’s attitude last week was exactly the same as that displayed by the Daily Mail to the Brexit judges – get out of our way, we know best. The horrific difference is that the home secretary actually has the power to send people to their death, whereas the Daily Mail simply shouts from the sidelines.

Rudd has showed a stunning disregard for the law. When asked about the case on The Andrew Marr Show, there was not a hint of explanation or apology.

In addition to her own duty, there is another figure in government charged with ensuring compliance with the rule of law – the lord chancellor. The test for former lord chancellor Liz Truss came when the Brexit judges were undermined by government ministers as seeking to thwart the will of the people. Instead of coming to the judges’ defence, which was her duty, irrespective of collective responsibility, she desperately sought instructions from the PM’s special advisers about what to do. They told her to keep quiet, and she lost her job as a result.

The test for her successor, David Lidington, has come now. He is the defender of the rule of law in the executive. He must make it clear that this arrogant disdain for the law will not occur in the future, or ensure that Rudd does so. If he does not act, I cannot see him lasting much longer than Truss did.

 Charles Falconer is a former lord chancellor

Home secretary Amber Rudd.

‘Who did Amber Rudd think she was?

No special rules about court orders apply to her.’

Photograph: Dan Kitwood/Getty Images

Some thoughts on Charlie Alliston and death on the roads

The Secret Barrister

I have been asked by several people what my views are on the tragic case of Charlie Alliston, the 20-year old cyclist who was this week sentenced to 18 months’ detention in a Young Offender Institution for causing the death of a pedestrian, Kim Briggs.

And to be honest, I’m not sure what I think. Or at least, I think a number of things, not all necessarily consistent and not all easily reducible to a pithy, logically argued conclusion. I recognise that this is far from ideal for a blog which pretends to self-righteous polemic and strident self-assurance as its hallmarks. But difficult criminal cases often fall between the cracks in our neatly-defined worldview, pinching our assumptions and stretching out our contemplations on our understanding of criminal justice.

And plainly this is a difficult case. A brief flick through the media coverage of this case, or, if you can bear…

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The World Knew Ahead of Time the #Rohingya Were Facing #Genocide!

We’ve never known more about oncoming atrocities, but are still mostly helpless to stop them.

A humanitarian crisis is unfolding on the border between Burma (also known as Myanmar) and Bangladesh. Over the last three weeks, nearly 400,000 Burmese Rohingya have fled the country, driven out by the devastating violence unleashed upon them by the military. Their stories are horrific: parents slaughtered in front of their children, systematic rape and sexual torture, wholesale destruction of villages. Aid and advocacy groups describe the rate of population displacement as unprecedented and the human misery among the refugees as unparalleled.

The violence is shocking, but at the same time it is entirely unsurprising. For the past three years, the United States Holocaust Memorial Museum’s Early Warning Project has identified Burma as one of the top three countries most at risk for a mass atrocity. Other researchers argued as early as 2015 that a genocidal campaign was already underway. With such clear indications that a crisis was coming, why did the world fail to protect the Rohingya?

The question is all the more pressing because in 2005, the member states of the United Nations endorsed the Responsibility to Protect (R2P) framework, which obligates the international community to protect civilians from mass atrocities when their governments are “unwilling or unable” to keep them safe. R2P was borne out of collective guilt over the mass slaughter of civilians in Rwanda and Bosnia and promised a new era of “timely and decisive” atrocity response. In pursuit of this goal, early warning efforts to identify the precursors of mass atrocities became a focus for both international and state actors.

But if the Rohingya crisis has revealed anything, it’s that early warnings were never going to be enough to prevent genocide.

There are still observers who question whether what is happening is genocide at all, arguing that Burma is expelling the Rohingya rather than exterminating them. But the question hinges on intent, not scale. The mass slaughter of civilian members of a minority group by state forces is a crime against humanity. It may also be genocide if committed with the goal of destroying that group “in whole or in part.” And, practically speaking, the distinction doesn’t matter — neither for the Rohingya, who are being subjected to a brutal and systematic attack whatever the motive, nor for the international community, whose options and obligations in the face of mass atrocity do not depend on the name of the crime.

Called “the world’s most persecuted minority,” the Muslim Rohingya have suffered decades of discrimination and abuse at the hands of their Buddhist neighbors and the Burmese security forces. Although the Rohingya have lived in Burma’s western Rakhine state since the era of British colonial rule, Burma does not recognize their citizenship and insists that they are illegal migrants from Bangladesh. As a result of this deprivation of nationality, they have been systematically discriminated against and denied access to state services.

The Rohingya’s precarious legal status has made them particularly vulnerable to violence from other groups. In 2012, when ethnic riots erupted between Muslims and Buddhists in Rakhine state, 100,000 Rohingya fled their homes. Human rights groups documented the collusion of state forces in the violence, suggesting that the Rohingya’s subsequent forced relocation to squalid displacement camps and urban ghettos in the name of security was part of a deliberate plan to restrict their freedom of movement. In 2015, another alarm bell rang: The situation in the camps had become so dire that thousands of Rohingya boarded unsafe vessels on the Andaman Sea. An international crisis ensued when, in the face of the unprecedented numbers seeking asylum, Burma’s neighboring countries began turning back the boats.

When Rohingya insurgents attacked several border posts in October 2016, the government responded with unrestrained fury. Openly invoking the hate speechpropagated by militant Buddhist monks, government officials have characterized the Rohingya as “dirty,” terrorists, and liars. By November 2016, human rights groups were warning that the military was systematically employing extrajudicial killings, torture, and sexual violence against the civilian population in the name of counterinsurgency. And in February 2017, a U.N. report concluded that the so-called “clearance operations” likely amounted to crimes against humanity. The violence, already severe, escalated sharply following the deaths of 12 security officers on Aug. 25. In response, the military launched an all-out attack on the Rohingya. Credible estimates suggest that over a third of the Rohingya population has fled. Thousands more attempt to cross the border into Bangladesh every day.

The plight of the Rohingya suggests that early warnings of the sort promised by the doctrine of R2P do little to prevent atrocities against vulnerable groups. The high risk of mass atrocities was clear from the escalating communitarian violence, the documented uptick in online hate speech beginning in 2012, and the tightening of official restrictions on the Rohingya’s movement and activities.

And the Rohingya are not the only post-R2P victims of long-telegraphed mass atrocities. In 2009, Sri Lanka slaughtered tens of thousands of Tamil civilians in the final phase of its war against the Liberation Tigers of Tamil Eelam. The bloodbath was neither sudden nor unpredictable. The security forces had committed systematic abuses throughout the conflict and had expelled aid workers and journalists from the field of combat in late 2008. More recently, South Sudan’s descent into violence and anarchy was preceded by the breakdown of a power-sharing agreement and rumors of ethnic militias forming. In both cases, the threat of atrocities was clear, yet the international community took no action to prevent them.

These examples underscore the fact that a lack of advance notice is not the critical obstacle to action on mass atrocities. It’s politics. Many powerful countries are reluctant to permit action that impinges on another state’s sovereignty, lest the precedent be used against them later. This is particularly true for countries (like China, India, and Russia) fighting insurgencies within their own territory. And for those who lack these disincentives, the costs of action may still present a barrier. International actors are aware that humanitarian interventions are rarely simple exercises and often presage long-term commitments. And in the aftermath of the Libyan intervention, where R2P was explicitly invoked, they are particularly wary of the potential for making a bad situation worse.

Early warning has not saved the Rohingya because it can’t offset the countervailing interests or cooperation challenges that make preventing or halting mass atrocities difficult. And unfortunately, these dynamics are particularly pronounced in the present crisis. The Burmese government, including its Nobel Peace laureate civilian leader, Aung San Suu Kyi, has made a concerted push to brand the Rohingya as Islamic militants. Tapping into international counter-terrorism narratives simultaneously bolsters the legitimacy of the military operation against the Rohingya and undermines their status as innocent civilian victims of state abuse.

Additionally, the international community is already struggling to respond to mass atrocities elsewhere, most prominently in Syria, but also in the often-overlooked wars in Yemen, the Central African Republic, and South Sudan. In tandem, these two factors mean that the Rohingya are in competition with other atrocity victims for attention and assistance — and the terrorism allegations, however far-fetched, may make them appear comparatively less deserving.

Finally, the fact that the attacks on the Rohingya are taking place against the backdrop of a singularly apathetic U.S. administration further reduces the likelihood of intervention on their behalf. Under President Trump, the U.S. has removed human rights conditions on arms sales, gutted the State Department’s human rights and democracy promotion mission, and threatened to withdraw from the U.N. Human Rights Council.

However vulnerable to charges of hypocrisy the United States has been in the past, its rhetorical commitment to human rights and willingness to exert pressure has provided a constraint on repressive states that seek the support of the West. But a world in which the United States openly ignores human rights constitutes a permissive environment for the commission of atrocities. Burma knows this, and it has seized the opportunity to finally rid itself of the Rohingya with little risk of interference.

Rohingya Refugees Flood Into Bangladesh

Photo credit: Allison Joyce/Getty Images

via The World Knew Ahead of Time the Rohingya Were Facing Genocide — Foreign Policy

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