“Insanity in individuals is something rare – but in groups, parties,
nations and epochs, it is the rule”.
Fredric Nietzsche
Abstract: Genocide is the most serious crime against humanity. It is ancient in age but young in the arena of human rights scholarship. Ex-post holocaust 1940s, United Nations Convention on Genocide (UNCG) is supposed to be the historic document that set out to prevent and punish the crime of genocide. But the dream of ‘never again’ has brazenly shattered more than once. Since 1970s we have seen several more horrendous acts and events of genocide across the world. Millions more innocent souls were lost ever since. Realizing the continuity and complications it involves, intellectual and legal interest has ensued in the crime of genocide. How to define genocide, therefore, is the first stride. Obviously, it is the definition, national and international law, preventive and administrative measures depend on. But the very definition of genocide has turned to be an enigma. A massive debate surrounds the nature, methods, typology, intent and causes and consequences of genocide. A Polish legal scholar Raphael Lemkin, single headedly contributed so much to the concept of genocide that any scholar can hardly neglect his thoughts. Same is true for this essay. It draws heavily from the ideas and preventive suggestions made by Lemkin. However latest research and present day understanding has not been undermined either. The idea of ‘social death’ and destruction of people’s ‘way of life’ has been elaborated to explain the distinctiveness of the crime. Its’ predominant connection with war, however, has been mainly dealt at the subsurface level. The essay analyzes and advocates for a broader definition of genocide, believing it to be the most effective way of minimizing the possibilities of genocide in future. Incorporating ‘cultural genocide’ along with the prohibition of genocidal acts against minorities and indigenous people has been emphatically argued for. The overall approach adopted here is analytical and suggestive rather than investigative.
Naming the Crime:
The word ‘genocide’ is composed of the Greek prefix genos meaning race or tribe and the Latin suffix cide means killing[1]. Now the globally recognized term and the concept, genocide, was invented and introduced by Raphael Lemkin, a Polish Jewish legal scholar in the preface of his groundbreaking work, Axis Rule in Occupied Europe 1943, replacing the terms then in currency ‘homicide’, ‘barbarity’ and ‘vandalism’ that he himself also used in Madrid Conference 1933. While fleeing from Nazi atrocities and seeking refuge in USA, he carefully studied German occupation decrees and policies of exterminating Jewish population and providing opportunities to the self-assumed superior-race of German ‘Aryans’ to thrive and flourish. Germanization and denationalization did not signify the biological and physical destruction that it involved but only the imposition of the national pattern of the oppressor on the oppressed nation. To him, it was not only an act of depopulation or mass killing but a planned and premeditated process of a social and cultural destruction of a national group[2]. Genocide was the ‘word’ that adequately expressed the semantic precision and intensity of the crime with all its’ entirety. Beyond war crimes and crimes against humanity Nazi Germans were engaged in an offense that asked for a new interpretation and a fresh nomenclature. It was not only an act of extinguishing Jews but a systematic restructuring of European populations as well. However, post UN GC 1948, the social-scientific interest in the problem of genocide commenced in the 1970s continuing to date[3].
Putting the Evil in Abstraction – Defining Genocide:
Typologies and definitions of genocide vary from narrow to the broader context, depending on the normative and prescriptive assumptions of the definers, however maintaining a consensus on the core concept of the problem[4]. The most frequently quoted definition of ‘genocide’ is the one adopted by the UN General Assembly in December 9, 1948, in the International Convention on the Prevention and Punishment of the Crime of Genocide (IC-PPCG). Article 2 of the Convention says that, ‘genocide’ means any of the following acts committed with an intent to destroy, wholly or in part, a national, ethnic, racial, or religious group as such: “Killing members of the group; Causing serious bodily or mental harm to the members of the group; Deliberately inflicting on the group conditions of life calculated to bring its physical destruction in whole or in part; Imposing measures to prevent birth in the group; and Forcibly transferring children of the groups to another group”[5].
The above quoted definition is mainly stressing on physical destruction. Frank Chalk and Kurt Johnson further narrow down the definition to the physical elimination of the victims, failing to identify other forms of biological elimination in the following words: “Genocide is a form of one sided mass killing, in which a state or other authority intends to destroy a groups as that group and membership in it are defined by the perpetrators”. But exclusively linking it with the state or an authority puts other possible perpetrators in oblivion. However, broadens the range of the victim group by the very idea of being subjectively defined by the perpetrators[6]. Israel Charny settles down with what he calls a humanistic definition of genocide that, “a wanton murder of human beings on the basis of any identity whatsoever that they share[7].” Nevertheless, most of the scholars, agree that genocide is mainly a crime of the state, happening one way or the other, with the support of the state or some relevant authority[8].
Almost all the constituent elements of UNGC definition of genocide and those who confine it to physical death remain controversial. One might ask why a national, ethnic, religious and racial group might fall victim to the crime of genocide and lesbians, gays, and some political parties, for instance, cannot. The choice of categories appears to be arbitrarily made. Likewise the UN definition’s emphasis on ‘intent’ and not on ‘foreseebility’ is also problematic. The intent does help spotting the paradigmatic cases of genocide but not the borderline and controversial genocides. On the other hand too much stress on foreseebility might lead us to extremely broad definition that some of the scholars would either exclude or disagree with. Whatever, UN definition fails to capture all the contours of genocide. Similarly Lemkin’s definition compels us to raise two philosophically analytical questions. One is its’ connectivity with ethnicity that distinguishes genocide from other forms of political violences. Another is the victim’s vulnerability or defencelessness to the offenses of genocide[9].
Unfortunately the Convention’s definition falls far short of Lemkin’s comprehensive understanding of the issue. Neither the crimes listed under nor the scope it covers is exhaustive enough. Defining genocide in ‘Axis Rule,’ Lemkin writes, “Genocide has two phases: One, destruction of the national pattern of the oppressed group; The Other, imposition of the national pattern of the oppressor. The imposition in turn may be made upon the oppressed population which is allowed to remain or upon the territory alone, after removal of the population and colonization of the area by the oppressor’s own nationals. He rightly argues that hate speech, hate material and other preparatory acts of genocide must be included and be punishable as intent of genocide[10].
Lemkin was particularly conscious to not to restrict the concept to immediate physical destruction unless the objective is achieved immediately, which is a rare possibility. In case it does happen, it will stop defining genocide and will become just a homicide or mass killing. For Lemkin genocide is a coordinated plan of destroying the social, cultural, political, economic, religious, intellectual, biological and eventually the physical foundations of the oppressed group. During this process the oppressor attempts to destroy the victim’s institutions of political thought and self-governance through colonization. Its’ agency of trade, economic development and generation of wealth is ruined; Intellectual, educational and artistic institutions and activities are vandalized; moral, spiritual, religious and cultural institutions are devastated to successfully impose its own national pattern. Depopulation, forced castration, ruptured procreation, rape, enforced starvation and deliberate affliction of contagious and terminating diseases and child transfer are the forms of biological genocide that such invasions aim to[11]. Rwandan Tribunal, for example, revealed that the ‘rape victims’ usually refuse to procreate and participate in the communal life. Rape, therefore, is a serious crime of genocide[12].
‘Genocide is not war; it is more dangerous than war’[13] said Lemkin later. War is directed against sovereign states and is meant to destroy enemy’s arms, military and its battling capability. While genocidal assaults devastate civilian population. Aberrantly, both UNGC and the Nuremberg Trials place more emphasis on the physical destruction than Lemkin himself meant to[14]. But according to Martin Shaw, Genocide was primarily a problem of war nevertheless exceeding the bounds of war; it was just an afterthought that Lemkin extended his ideas beyond war[15].
Cultural Genocide as a Defining Characteristics and Controversies Surrounding the Concept:
Philosophically interpreting the 2nd phase of genocide as described by Lemkin, Caludia Card argues that several atrocities like killing the collectivities, rape, torture and ethnic cleansing are already part of war crimes and crimes against humanity. If genocide covers it all then cultural genocide as a distinctive form of political violence is both redundant and misleading. Redundant, because all genocidal attacks essentially eliminate or attempts to eliminate the social vitality and cultural identity of a group and its intergenerational connection; misleading, because unintentionally or indirectly, it suggests that certain genocidal attacks do not hurt or target the extermination of a group’s culture. She therefore brings in the notion of ‘social death’ which means eliminating or attempt to eliminate an ethnic, tribal, social or political group and its ‘social vitality’ as well. In her views, social death is central to the idea of genocide. Genocide therefore is the mass murder of a group simply on the basis of ‘who they are’, including women, children, sick, elderly and the disabled, irrespective of ‘what they are’. In a genocidal killing, disgrace and humiliation are often connected with the termination of helpless victims[16]. Rwandan Hutus’ hapless massacre of around 800,000 Tutsis just in 90 days is the worst tragic event of genocide and social death in the recent past[17].
There are cases where members of the oppressed group are condemned to play an act in the tragic episode of their own death. The victim themselves and their corpses are utterly disrespected and humiliated. In-fact, the harm afflicted to the victim is ethically distinct, worse than war crimes and crimes against humanity. Otherwise there was no reason to create the term genocide, and interpret its specific implications. It is social murder of the victim and supplementing disgrace that intensifies the acute crime of genocide. Those who survive physically loose social vitality and are often unable to rebuild their lives. Knowledge and memory is not enough to repair alienation and inter-generational disconnect. It is the element of social death in genocide that is not taken into account in war crimes and crimes against humanity[18].
Other Genocide scholars argue that all genocides may not be ‘homicidal’. For instance involuntary sterilization or forcible separation of children for different socialization, also make the acts of genocide. Such acts or policies eliminate the chances of the lingual, cultural and religious identity and continuity of the victim’s group. In the holocaust, Jews who had changed their religion were hunted down to exterminate the possibility of reclaiming or reconstituting their identity[19]. Genocide may not necessarily be the consequence of war although a war might be genocidal. It is one-sided harm lodged against a defenceless population. Therefore what distinguishes genocide is not targeting different groups but targeting the groups differently. Actually culpability and reasonable foreseebility of the destruction also constitute this evil. If a mass killing is sufficiently evil to attract an ethical opprobrium, this is definitely genocidal[20].
In-fact, no culture is cultivated in vacuum. Inhabitants cultivate and transmit it through a mosaic of arts, crafts and associational life in the territories they live on for centuries. For them, land is a cultural endowment than a commodity of exchange as dealt by market economy. The Victims life is socially meaningless even if they survive after the genocidal occurrence. Involuntary exodus or fleeing to save one’s life is tantamount to socio-cultural death, as they are unable to regenerate and transmit their cultural. Although, cultural identity is fluid and adaptable but members of the community posses sense of belonging. Historical continuity is institutionalized through imaginary, mythological and day to day traditions and practices. Consent and comprehensiveness, unless a person chooses an arduous exit, constitute a national pattern and contribute towards the overall nourishment and welfare of its members. Annihilation of the social-fabric of a group has far reaching impact on the well-being and nourishment of an individual. Sitting on the criteria, lesbian, gay and liberal-democratic-societies are also prone to genocide but not the swingers as the element of intent and disgrace is missing. Forced exile or uprooting a nation from its historical abode, debilitating its capacity to transmit its culture to next generations, is synonymous with social death. Even modernization, transformation and cultural exchange, if traded with intent – not an unforeseeable outcome of a prolonged process of destroying a language, culture and identity – may lead to genocide. It is therefore the conceptual tool of social death, which is most helpful to understand the borderline, controversial and complicated cases of genocide[21].
Despite the significance of cultural genocide as a defining characteristic, the term was removed from the final draft of UN GC. Former Communist and the Arab states were in favour of retaining the clause that the western powers were opposed fearing its’ obvious reference to Colonialism. Even the last attempt of Soviet Union to reinstate the prohibition of cultural genocide was unsuccessful. Actually the proposed minority rights Article in the Universal Declaration became controversial. Avoiding overlap of the protection of cultural rights with the provision of minority rights in the Universal Declaration of Human Rights was stressed vociferously by the representatives of Western States and America. Lebanese proposal of not denying cultural groups the right to free development and the Soviet proposal of the right to one’s ethnic, national culture, regardless of its minority or majority status was chopped-off in the final document. The article 3rd in the adhoc committee’s draft, prohibiting cultural genocide, survived till the constitution of Sixth Committee but was turned down by the votes of 25 to 16 with 4 abstentions in the end. They key argument for the inclusion of Article 3 was that cultural genocide is more often than not a prelude to the physical and biological genocide. As a consequence, though maintaining the rubric, the draft was significantly weakened by the removal of this clause[22].
There was no doubt in Lemkin’s mind that both physical destruction and undermining a way of life were the two ways of deliberately destroying a nation or an ethnic group. Much to his dismay, the latter category was, as pleased by the colonial powers, removed from the UN Convention[23].To Lemkin culture was the precondition for a group’s life. In his own words, ‘so called derived needs, are just as necessary to their existence as the basic physiological needs...These needs find expression in social institutions or…in cultural ethos. If the culture of a groups is violently undermined, the groups itself disintegrates and its members either become absorbed in other cultures which is a wasteful and painful process of personal disorganization and perhaps physical destruction…the destruction of cultural symbols is genocide…It menaces the existence of the social group existing by the virtue of its common culture…The destruction of a nation, therefore, results in the loss of its future contributions to the world. Such destruction offends our feelings of morality and justice in much the same way as it does the criminal killing of human being…though on a vastly greater scale[24].
The methods and techniques of genocide’ as derived from Lemkin’s unfinished History of Genocide include: ‘Physical – massacre and malnutrition, deprivation of livelihood…Slavery – exposure to death; Biological – separation of families, sterilization, destruction of foetus; Cultural – desecration and destruction of cultural symbols…cultural leadership, cultural centres…prohibition of cultural activities or codes of behaviour, conversion, demoralization’[25].
Ethnic cleansing sometimes known as ethnic purification, as reported by UN Commission of expert to the Security Council in 1993 is, ‘the planned and deliberate removal of a particular ethnic group from a specific territory by force or intimidation, rape and torture in order to render that area ethnically homogenous[26]’ However cultural genocide must not be confused with the gradual and creative adaptation of new norms and values which is a constant process in every culture. Violent disruption of that is no less than a genocidal intervention. Putting the element of ethnicity aside ethnic cleansing to W.A Schabas, however, does not necessarily feature in defining genocide because it does not reflect intent to destroy but only to expel the targeted groups[27].
Intent and Foreseebility as Qualifiers for Genocide?:
The word, ‘deliberate’ was replaced by ‘intent,’ ‘while drafting Genocide Convention[28]. As ‘deliberate’ means a clear intent but ‘intent’ may not qualify for deliberate will. Although ‘Intent’ is relatively a broader word but throws on several subjective questions. Since 1950s the element of intent as a qualifier for genocide has been controversial for opening-up the black-box of borderline and proximate cases.
Some of the readily asked questions in this context are the following: Was enforced agricultural collectivization and mass starvation of farmers in the 1930s caused by Stalin’s policies to produce ample amount of grains for industrial exchange genocidal or not? Can Mao’s political action for Cultural Revolution and great-leap-forward in the 1960s be defined as genocide? Can economic sanctions against Iraq in 1990s – caused physical and social harm to millions of people – be termed as genocidal[29]? There are scholars who say, if the intention was not genocidal, the mass starvation and death was an unintended consequence of the policy decision, not genocide. Others argue that farmers; death and destruction were foreseeable and their annihilation was more than likely a consequence of a particular policy. Israel Charny terms it genocidal. He argues that massive scale of death was foreseeable if not ‘intentional’ and ‘foreseebility’ is enough to constitute genocide. But the subtle nuance between ‘foreseebility’ and ‘intent’ along with its differential implications are debatable. This is just like a medical operation going wrong and resulting in death, exemplifies Claudia Card[30].
It is said that the intent was not to exterminate the indigenous people, but to occupy the territory in case of Australia, Canada and Latino America. Massive homicide occurred for other reasons, such as alcoholism, smallpox and malnutrition. But is the answer that simple, asks Damien Short. What connection it had got or might have with genocide, is still debatable for genocide scholars. Although a massive manslaughter and genocidal child-removal might have ceased now but some genocide scholars and indigenous people contend that colonial structure and practices continue with genocidal effects, if not intent[31]. The controversy could be dealt with the victim’s own consciousness about life, land and culture. In this connection, understanding the notion of cultural genocide, ethnic cleansing, ethnocide, cultural change and diffusion are also important[32]. However Leo Kuper maintains that equating colonization with genocide is an overstatement; though much of the colonialism is travailed with the blood of indigenous people[33] as is the case of north and south Americas, Tasmania, and Australia. But much of the colonial proceeding without genocidal conflict was his argument against[34].
Applying Lmkin’s understanding of genocide on Australian aborigines, Damien Short demonstrates Australian policies to be constantly genocidal. Avoiding inscribe any formal treatise between settler and indigenous people, Australian government maintains a reckless disregard of indigenous people’s right to land, language, culture and their way of life. Appalling injustice and racism is institutionalized in the last 200 years. The very effort of assimilating aborigines under the Reconciliation Act of 1991 as opposed to the demands of Aboriginal Treaty Committee is the denial of their separate historical, political and cultural life. In collusion with the government, extractive industries keep mining resources and destroying habitat of the indigenous people, trampling over their demands of holding a veto power[35] against the so called land or industrial development projects[36].
Far more disastrous assaults on the cultural integrity, autonomy and the indigenous people’s right to land are still in the offing. Participation and responsibilities, mutual obligations, reconciliation, indigenous people’s services in the mainstream were the genocidal acts in disguise[37]. The suspension of permit system on land use, coercive acquisition of their traditional habitats and extended leases without their free and prior consent and removal of their customary law and cultural practices with respect to land are just to mention the few. As described by Harry Nelson – a representative of the indigenous people – in a statement signed by 236 members and presented to the Minister of Indigenous Affairs, Australia, in 2008: This is our land. We want the government to give it back to us…and stop blackmailing us. We want houses but we will not sign any leases over our land, because we want to keep control of our country, our houses and our property…We want the Racial Discrimination Act 1975 reinstated now…We want community control…Everything is coming from the outside, from the top down…We want to be re-empowered to make our decisions and control our own affairs. We want self determination[38].
In continuum the Prescribed Area People Alliance (PAPA), a group of indigenous people released a statement in Sept 2008 saying: These assimilationist policies are destroying our culture and our lives. It is the stolen generations all over again. The Government is refusing to build us any housing unless we sign a lease of 40 years or above. We say NO LEASES. We will not sign…Our lives depend on our land. It is connected to our songlines, our culture and our dreaming[39]. PAPA’s key demand was to ‘stop the promotion of genocide. By the UN Genocide Conventions, one definition of genocide is: Conditions of life set to destroy the group in whole or in parts. Royal Commission into Aboriginal Deaths in custody rightly argued in 1991 that: Non-Aboriginal powers have to give up the assumption that they know what is best for aborigines who have to be lead, educated and manipulated and reshaped into the image of the dominant community. Instead Aborigines must be recognized for what they are, peoples in their own right, with their own culture, history and values[40].
Put simply, land is life and historic abode for a group’s social and economic existence. Depriving a group from its indigenous territory is genocide in consequence even if a pronounced intent is missing. Damien Short concludes that Australia is not only a continuing genocide[41] rather a series of continuing genocides as the indigenous people are afflicted with formidable physical harm, dispossession of land and the erosion of cultural and political autonomy as contended by Lemkin.
The Significance of Defining and Redefining Genocide:
Subsequent to the definition of genocide UNGC describes certain measures for its prevention in Article 3 & 4 as: “whosoever, whether constitutionally responsible rulers, public officials or private individuals commit genocide, conspire to commit it; incite directly or publically to commit genocide; attempt to commit genocide or are found complicit in genocide” are punishable. The Article 6 says that “persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the state in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those contracting parties which shall have accepted its jurisdiction”[42]. It is evident that UNGC conspicuously failed to prevent it happening, not only once, but repeatedly so. Cambodia, Bosnia, Rwanda and several other border cases are there to prove it.
One of the reasons could be identified as outdated and outmoded definition of genocide adopted by UNGC. Although it has got some of its strengths but the ensuing controversy and subsequent removal of cultural genocide from its final draft severely weekend its capacity for action[43]. History has demonstrated that it is the minorities that are more likely victims of genocide, what Lemkin and other advocates of cultural genocide already anticipated. Most states of the world are still reluctant to ratify the rights of minorities and indigenous people. That is why the Declaration on the Rights of Persons belonging to National, Ethnic, Religious and Cultural Minorities 1992 [44] and the Declaration on the Rights of the Indigenous People 2007[45] are still the declarations. So long as UNCG is not amended with a protective administrative and legislative machinery of religious, cultural, indigenous minorities’ rights, genocidal attacks shall remain a clear threat. Unfortunately member states usually avoid prosecuting individuals involved in the odious scourge of genocide within and outside their national borders, despites sufficient powers that UNGC vests the states with[46].
Revisiting and rigorously defining genocide is not an intellectual exercise only. It has got far reaching legal and empirical ramifications. Once the peculiar harm is agreed upon, it will help national and international law in prevention and prosecution. Most importantly a deterrence, effective punishment and appropriate reparation could be made possible for genocide survivors and their unfortunate descendents. Failure to do so will never help realise the dream of ‘never again’. UN’s inflexible understanding of genocide and rigid procedures, sometimes impede a timely action. Interest-driven position of powerful states and diplomatic arithmetic is another[47]. Apart from reinvigorating national and international law, will of the state to prevent and act against is also important.
In a study, H. Kemlan & V. Hamilton identified three factors that allow individuals to commit crimes against humanity: dehumanization, routinization, and authorization. Repairing social damage that conflict torn societies suffer from is as important as understanding the causes and consequences of genocide. Revitalization of international humanitarian law, criminal trials and judicial justice contributes in reconciliation and rebuilding peace[48]. Justice! Writes John Rawls[49] must be the central virtue of an institution as truth is actually a system of thought. If an institution does not deliver justice and a system of thought does not reveal truth, it needs to be abolished. No matter, how deeply rooted or how efficient it is, injustice must be reformed or out-rightly abolished. Although bad but not all injustices inflict harm or are absolutely intolerable but injustices that cause harm are particularly evil and genocide is an injustice that is evil too.
Over 50 years since the adoption of UDHR and IC-PPCG in 1948, a lot has changed. Cold war is over. The chief proponents of cultural genocide in 1948 have themselves had bitter experience of genocide. Several new states have joined the UN family. International human rights community ought to realize that a protocol prohibiting cultural genocide needs to be adopted in IC-PPCG without delay. That was a clause whose removal kept remorsefully haunting Raphael Lemkin till his death in 1959. If that seems a remote possibility, a clause might be incorporated in UDHR to begin with. The proposed amendments will help augmenting the moral cause set forth half a century back. Its’ the firm faith on human rights, not the real polity of states, that can lead humanity’s way forward[50].
******
End Notes and References:
[1] Card, Claudia. 2003. Genocide and social death, Hapatia Vol. No. 18, p. 66.
[2] Raphael Lemkin, himself had used the term ‘homicide’ and ‘barbarity’ in his paper in the Madrid Conference 1933. See: Prevent Genocide International. Fusssell, James. T. A crime without name: Winston Churchill, Raphael Lemkin and the origin of the word “genocide.” http://www.preventgenocide.org/genocide/crimewithoutaname.htm. Site hit on April 22, 2010.
[3] Fein, Helen. 2002, Genocide: An Anthropological Reader, Blackwells Publishers Ltd. p.75, Oxford, U.K.
[4] Ibid, p.76.
[5] International Humanitarian Law: Treaties and documents, Convention on the Preventions and Punishment of the Crime of Genocide: See: http://www.icrc.org/IHL.nsf/FULL/357?OpenDocument. Cite hit on April 22, 2010, at 15:29 hrs.
[6] Shaw, Martin. 2007. What is genocide, p32, Polity Press.
[7] Fein, Helen. p.79, Ibid.
[8] Ibid, P.79,
[9]Abed, Muhammad. 2006. Clarifying the concept of genocide, p.309-312, Journal Compilation, Metaphilosophy LLC and Blackwell Publishing Ltd. 9600 Garsington Road, Oxford.
[10] Genocide Prevention International, Chapter IX, “Genocide” from Raphael Lemkin’s Axis Rule in Occupied Europe: Laws of Occupation – Analysis of Government – Proposals for Redress, (Washington, D.C. Carnegie Endowment for International Peace, 1944, p. 79 – 95. See: http://www.preventgenocide.org/genocide/crimewithoutaname.htm. Site hit on April 22, 2010.
[11] Raphael Lemkin, Axis Rule in Occupied Europe 1944: Laws of Occupation, Analysis of Government, Proposals for Redress, p. 79. As cited in Shaw, 2007, p.26-27.
[12] Schabas W.A . 2004. as cited in the Book Review of ‘Genocide in the international law: The crimes of crimes , in The Book Review. Pp. 1105 – 1111. 1108.
[13] Power, Samantha. 2003. A Problem from Hell’, p. 51 as quoted by Shaw, M. p.36. Ibid
[14] Shaw, Martin, Ibid.
[15] Ibid.
[16] Card, Claudia, p.64-77, Ibid.
[17] Illibaziga, Immaculee. 2006. Left to tell: Discovering God amidst Rwandan genocide, Hay House, The University of Michigan, See the Book Review, http://books.google.co.uk/books?id=3nPZAAAAMAAJ. Site hit on April 25, 2010, at 15:33 hrs.
[18] Card, Claudia, p.64-77, Ibid.
[19] Ibid.
[20] Ibid, p64-68.
[21] Abed, Muhammad, Ibid. p. 312-329.
[22] Morsink, Johannes. 1999. Cultural Genocide, the Universal Declaration and Minority Rights, Human Rights Quarterly, p.1016, John Hopkins University Press.
[23] Short, Damien 2010, p.2, Ibid.
[24] Ibid, p.3.
[25] Ibid. P3-4.
[26] Carmichael, Cathie. 2002. Ethnic cleansing in Balkans, Nationalism and the Destruction of tradition, p.2. Routledge, New Fetter Lane, London, UK, Author’s emphasis.
[27] As cited in the Book Review of ‘Genocide in the international law: The crimes of crimes 2004’ William A. Scabas, in The Book Review. Pp. 1105 – 1111.
[28] Morsink, Johannes, Ibid.
[29]Abed, Muhammad. 2006. Ibid..
[30] Card, Claudia, Ibid. and Charny, Israel.1994. p.64-94 as quoted in Ibid, p.70.
[31] Short, Damien. March 2010, Australia: A continuing genocide. p.2., to appear in the forthcoming Journal of Genocide Research, December 2010.
[32] Short, Damien. Ibid. p.2.
[33] Emphasis mine.
[34] Kuper, Leo. 2002. p.51, in Fein, Helen. 2002, Ibid.
[35] In utter disregard of the High Court’s decision in 1992 known as Mabo indictment that the indigenous people have a right to land or a native title surviving colonization. Similarly Northern Territory Land Rights Legislation 1975 that imparted a veto right to the indigenous people and the Native Title Act 1993 whose purpose was to validate land negotiations within the parameters of unequal powers between the conflicting parties, were sheerly disregarded.
[36] Short, Damien, Ibid. p.10-14.
[37] Dodson and Kit as cited in Ibid, p.14.
[38] Short, Damien. Ibid p.17.
[39] Ibid, p.17.
[40] Ibid. p.17, 22.
[41] In case of indigenous people some of the genocide scholars believe that ‘genocide’ should only be identified by the element of intent. Centralized development and reasonably foreseeable consequences – - on the indigenous people or otherwise – need not to be included in the definition of genocide, See: Schabas, W.A. as cited in the Book Review, Human Rights Quarterly. P.1109.
[42] International Humanitarian Law: Treaties and documents, Convention on the Preventions and Punishment of the Crime of Genocide: See: http://www.icrc.org/IHL.nsf/FULL/357?OpenDocument. Cite hit on April 22, 2010, at 15:29 hrs.
[43] Morsink, Johannes, p.1009. Ibid.
[44] Declaration on the Rights of persons belonging to National, Ethnic, Religious and Cultural Minorities, see: http://www2.ohchr.org/english/law/minorities.htm, Site hit on April 24, 2010, at 11:48 hrs.
[45] United nations Declaration on the Rights of Indigenous People, See: http://www.un.org/esa/socdev/unpfii/en/drip.html, Site hit on April 24, 2010 at 11:52 hrs.
[46] Schabas, William. A. Op. Cit, p.1110,
[47] Abed, Muhammad, Ibid. p. 309.
[48] Halpern, Jodi & Weinstein, M. Harvey. 2004. Rehumanizing the Other p.563-571, Human Rights Quarterly.
[49] John Rawls.1999 as cited in Card.C. 2000, p.65-66. Ibid.
[50] Morsenk, Jahannesan. Op. Cit. 1009.
The Context:
It was March, 2004 when the French Government proclaimed “all conspicuous signs of religious affiliation” unlawful in the public schools with a majority vote in the legislature. The decision was taken on the recommendation report i.e. ‘laicite et republique’ of the prestigious ‘Stasi Commission’. Although it does not explain what “conspicuous[1]” mean but it was clear that, Jewish skullcaps, Sikh turbans, large Christian crucifixes and Muslim hijab (headscarves) were to be taken illegal while in schools. The law came into effect on September the 2nd, the same year with the beginning of new session in the country. In itself, the law does not inscribe the removal of headscarves in particular, but as mentioned earlier, its mandatory compliance was too obvious and actually it was Muslim headscarf that was mainly to be discouraged[2].
This passionate epic de scarf, in fact, began with the expulsion of three Muslim girls from a suburban school of Paris upon refusal to remove their hijab (foulards), on October 3, 1989, by its principal declaring the very attire as a ‘sign of social garbage pail’. The decision was to defend laicite – the French vision of secularism – was his argument. Evoking substantial media and political response, the issue again emerged in 1993-4 and 2003-4 in the French parliament on expulsion of few other girls from schools; each time receiving a stronger political and public response. It is assumed that part of the reason was the growing influence[3] of anti-immigrants’ far-right political parties and several events associated with Muslim militancy in across the world. September the 11, 2001 terrorist attacks on the twin towers in New York was the most startling one[4]. Probably the issue would have disappeared in the annals of anonymity, had the press not presented it in an overly dramatic manner, underscoring perceptual threat of Islamic belligerence in the country and across Europe. But on simultaneously, media had also exposed French society to its profound crisis. How to deal with multiculturalism and dissident ideologies cum practices in the face of laicite, a doctrine of universalist enlightenment? Simultaneously, distressing events at home, and abroad like New-York, Palestine, Afghanistan, Iraq and Underground-blasts in Britain also stimulated public concerns about the Muslim’s ostentatious attachment to Islam[5].
Since then, a small piece of cloth has spurred gigantic debates all across France – even all over Europe - dividing school-staff, academicians, media, feminists, politicians, rights-activists and even friends and families over its’ semantics and implications in a modern secular society. Hence les affairs du foulard du as known in French, has become worthy of debating with reference to women-rights, right to equality and diversity, freedom of religion and conscience, and inter-alia ethnic relations and racial discrimination[6]. The present essay strives to approach a conclusion from human-rights perspectives. Here come the controversial arguments and positions:
Secularism and History Play their Role:
Present day effort to protect laicite and republicanism is very much embedded into the eighteenth century enlightenment move of France, the famous 1789 revolution including the ‘charter of the rights of man and the citizen’ and 1905 law that separated interests of the church and the state. Referring back to the progressive thinkers and leaders like Phillip Auguste, Napoleon B. Parte, Henri-the IV and Jean J. Rousseau is a household affaire in the French society. Irrespective of any implicit or explicit reference ‘March 2004 legislation of prohibiting headscarves in public-funded-schools is very much a continuation of a struggle to keep religion, its’ public display and affairs of the state separate[7]. A very progressive and respectable position, off course. But under the present political stream of regression it implies other way round. The very adoption of the law is a success of laiciete renouvele i.e. the conservative notion of secularism and right-wing parties who are not willing to accommodate diversity in a secular fabric of the society[8].
Clearly, the law never meant to discriminate Muslims, as witnessed by various political acts in the past. Central Government of France and Municipalities have been supporting Muslim population in building mosques, constituting Couseil Fracaise du Culte Musilman (CFCM), Counseil Regionnaux du Culte Musilman (CRCM), Counseil de Reflexion sur I’Islam (CORIF), construction of Muslim cemeteries, creation of a National School of Islamic Studies and declaring Eid holidays, national. In general the gradual presence of Islam in the public was facilitated from time to time[9]. There are others who believe that allegory of French discrimination against Muslims and Muslim resistance goes as early as colonial rule of France in Tunisia, Morocco and Algeria and the atrocities committed during and before letting these colonies go, particularly Algerian uprising when from 1954 to1956 when the French rulers massacred hundreds of thousands of Muslims. The Commission’s report, however, does acknowledge respecting individual’s ref un-conve i.e. right to conscience, and maintenance of state’s impartiality one’s private affairs but in matters of national-unity, the latter shall prevail, it affirms. But J.W. Scot[10] argues that a profound discriminatory intent “is the subtext of headscarves controversy, but secularism was its explicit justification.” A political measure to restrain Muslims, perceived of becoming a growing threat to social integrity as demonstrated by massive protests, organizability and militarism in Europe, was thought to be necessary. Thus regulate and scrutinize Islam[11] but why through scarves was still a question?
In a predominantly western culture, creating their own society and political structure based on certain principles of Islam was ethnically inevitable for Muslims who hail from diverse regions, traditions and classes. In doing so they are naturally influenced by the overriding culture. Here, religion serves as a coping strategy[12] to live in peaceful co-existence. But it is not assimilation rather a negotiative mechanism of existence in a new society. Therefore, women were obliged to observe relative-segregation, an emblem of Islamic tradition[13]. Hard-line acts of integration usually prove counter-productive; generating equivocal reaction from opposite quarters[14]. Such measures help extremist outfits and religious clerics to exploit the sentiments of moderate Muslim’s. Commenting on headscarves controversy in Europe, pan-Islamist organizations such as Hizb-ul-Tehrir and Hizb-u-allah have been observed saying that, Muslims will have to choose between faith and nationality[15]. Say, they cannot simultaneously be French or the British and Muslims; in itself against the very spirit of Islam.
Media Moves Politicians and Public Opinion:
Both electronic and print media fraught with the images, illustrations and op-eds., on, and about the evil designs of Muslim, their malicious mores and communitarian tendencies, fanned public fears. Likewise extra-ordinary conspicuousness given to the headscarf, normally worn by a small number of girls, turned into an Islamist icon, something to desist or abhor. Vilified pictures of the few evil characters transformed the whole population into a ‘foreign community’ in the eyes of the French public. Distorted and self-serving images and reflections about ‘Muslim-others,’ incurred severe implications on Muslim women, particularly those wearing hijab[16]or mohajebeh.
Drawing the example of Banktown gang-rape-reports (in Australian media)[17] is an apt case of how media was instrumentalizing the event to paint obnoxious portrayal of Muslim barbarity as ‘a product of Arab-Islamic culture’ at the expense of undermining the genuine tragedy. Most of the comments and reports were undoubtedly orientalised and racialized described as ‘coloured and imperialist depiction of rape’ by Paula Aboud[18]. Obviously the real issue of violence against women, which is not uncommon in any society, suffered. No surprise that post 9/11 similes of ‘all Muslims as potential terrorists’ in the mainstream media evoked equally abrasive reactions. Several men and women developed interest in Islam and some of the women turned mohajibas after[19]. Precisely put, unnecessary reasoning and extrapolation of a minor symbolic association demonstrate how public opinion, politics, history and culture conflated in generating a law[20].
What Women-Rights-Activists and Academicians have to Say:
Sociologically speaking, women’s segregation and confinement draws from placement of prime significance on family and sacredness of home by Islam, of which women are assumed to be the custodians. The analogy can be drawn from ‘ka’ba i.e. the house of God on earth’ as the centre of religious life and a most sacred place for the believers. Setting them free in public sphere might disintegrate family structure and societal-cohesion, as conceived by Islamic notions. In other words, women are perceived to be the potential source of fitna (anarchy and social disorder) while theologically the term refers to any cause of social and political disorder emerging from within or without. Men’s honour depends on women’s piety, and sacredness of ‘social space’ called home. Their segregation and seclusion is assumed to be a divine prescription in a Muslim community, nevertheless a highly sexist and discriminatory notion under modern feminist interpretations[21].
Isolating women is, but one way of regulating tension between sexual temptations and social-order[22] in an Islamic society. They are required to remain unsullied, and behave and clad modestly in the public. Covering up certain parts of their body is a religious obligation, as prescribed in Quran. However in the matters of entertaining and satiating the desires of their husbands, they should never refuse. On contrary, many women see hijab and separation as empowering and emancipating, if not liberating, coupled with social order. We know that women are never removed from public spheres in most of the Muslim societies – except from conservative orthodox kingdoms of Saudi Arabia and a brief period of Taliban regime in Afghanistan – as long as they abide by the norms of decency. To others, Islamic ideology of gender is paradoxical and deceptive. It simultaneously allows women to interact with the larger society and exercise their faculties in the public yet remain reserve and reticent home-makers too. In Gole’s view, veiled-women are not only the metaphors of protest; rather demonstrate the spectacular survival of religions in the secular world despite all odds[23].
It is true that women’s equality and removal of religion from public-institutions is a shared value[24] in the French society, but it is the media and parochial politicians, who would boil-down the complex issues of gender into trivial debates like ‘banning the headscarf or not’ and ‘Muslim women oppressed or emancipated’? In contemporary French society, notions of diversity and cohesion are embedded into the questions of religion, race and gender. Ironically, the politics of veil is enmeshed into the conservative dogma of patriarchal protectivism and a sort of rescuing measures on part of the government, equally oppressive of women’s own opinion and freedom of choice[25]. In-fact two of the first girls expelled from schools were newly convert, against the will of their parents – father, a secular Jew and mother, a catholic nun. Third one withdrew from protest being beaten up by her father for wearing the headscarf[26].
The hypocritical and sensationalist media, without denying its’ role in highlighting cases of rights’ violence, at times goes against diversity and women’s interests by quelling feminists and experts’ analyses and arguments to better serve its’ own political ends. As a consequence oppression-conscious Muslim women are caught in crossfire. Their views are usually subsumed in anti-Muslim streams of debate, while their protest over patriarchal control and gender discrimination within their own communities stands tantamount to disloyalty. Western feminism, less sensitive towards the racist behaviour and colonial tendencies of the west, undermines the contextual realities in the ‘politics of speaking and being heard’. Muslim women become double victim of sexism and racism[27] and turn out to be ‘others of the other’.
Noticing women as ‘careers or keepers of religion’ is nothing exceptional with Muslim societies. Even after the accession of enlightenment and secularism in Europe majority of women still hold religion close their heart[28]. For most women religion is a kind of spiritual experience that also serves as shield from day to day delinquencies. Getting married, and producing children in particular is a miraculous subjectivity of women’ life, intensely spiritual in essence[29]. It is just a cultural-essentialist belief that women who insist on headscarves sometimes even scarifying their education or career , stupidly follow their parents without intra-group criticism, questioning objectionable practices or striving to build-up their own personalities as conscious members of society[30].
Human Rights Conventions and Agencies Speak Out:
Most frequently referred Articles of ‘European Convention on Human Rights’ in this regard are ‘the right to private life, freedom of expression, religious expression and conscience, freedom from discrimination and right to education and equal opportunities[31]. European Convention on Human Rights (ECHR) considers, ‘public-moral and the rights and freedoms of others and social order as necessary in a democratic society[32].’ Focussing on Article 9 & 14 the European Court has upheld bans on Islamic-headscarves, both in case of Turkey and France[33].
The Court observed that headscarves in schools conflict with the values of plurality and equality of sexes but unfortunately that falls against the ‘right to education’ under Article 2 of Protocol 1, of which several girls were deprived of, on refusing to oblige academic authorities. If equality doesn’t imply ‘sameness,’ then European Court has failed to comply ‘all-equal, all-different principle’ of gender-equality, religious-freedom and personal-autonomy[34]. Representing Human Rights Watch, the director Kenneth Roth said “banning headscarves in state-schools would violate rights to freedom of religion and expression in France, as with the laws in Muslim countries forcing girls to wear headscarves[35].
Ideally, the school is a space, where cultural boundaries are produced and reproduced allowing assimilative as well as pluralistic processes without determining the end or ends of any such interaction. What schools best need to do, is to provide an environment where negotiative and creative dialogue could happen without coercion, prescription or compulsion. Otherwise, it might breach the right to education and equal access to opportunities. Often the boundaries of personal choice and identity of immigrants and minorities overlap with the supra-ordinate culture. Normatively, schools need to nurture a liberal atmosphere in human-rights perspectives where respect for individual choice and freedom can flourish accordingly. Any regulation, to address assumed or essentialist problems might result in structuring or restructuring power relations between ethnicities or imparting the state with unnecessary monopolistic powers[36] as we are seeing in France at present.
Conclusion:
It’s only a complex and multi-perspective analysis with respect to human-rights, gender and ethnic-relations that can help us understand such issues objectively. In a culturally diverse environment the dilemma and dynamics of conflicting symbolism keeps rebounding time and again[37].
Instead of compartmentalizing, over-politicization and denationalizing a community, what needs to be done by French Government – and other European countries getting harder on headscarf – is to build inter-cultural bridges between communities ‘subjected to ‘othering’. Paternalistic and masculine measures of protectionism and hateful narratives/illustrations of barbaric Muslim men and utterly submissive women as portrayed in French and western media would not serve the purpose. Secular philosophy of human equality, integration and state’s separation from religion is quite respectable in its motives but needs to be exercised as undogmatically as Islamism or any ideology. Superficial perceptions must step-aside and give-way to other complex possibilities of human identities and emancipation. Defending human-rights of women, already victim of marginalization and sexism, will become difficult if racist exclusions and stigmatization becomes a norm. What needs to be liberated first, is the concept of gender-discrimination and women-rights, from the narrow confines of hijab debate. Alongside, political and media-activism of Muslim women must be encouraged to assert their right to speak and emancipate themselves from dual oppression[38].
Besides other measures Muslim men and women need to become active in research and epistemological production to de-orientalise, de-westernize and de-imperialize knowledge about Islam and Muslim women[39]. No denying the fact that unequal, patriarchal and oppressive religious structures govern women’s lives in Islamic societies[40] as they do in several other societies, including the west though less in degree. Yet it is not the state or the law to prescribe women to cuddle or discard certain norms or symbols like the dress-code. What they can best do, is to create economic, social and political conditions/environment and similar structures helping women to exercise their right to equality, individual choice, freedom[41] and the right to self-development an self-esteem.
End Notes and References:
[1] Before agreeing on “conspicuous” there has been a heated debate on the choice of word and its implications. The word “ostentatious”, “visible” extra, and “outward” etc have been into the debate (Scot, J.W, 2007: 167-190).
[2] BBC News: http://news.bbc.co.uk/cbbcnews/hi/world/newsid_3532000/3532937.stm. Site hit on September 28, 2009, 13:51 hrs. And BBC World, http://news.bbc.co.uk/2/hi/europe/4424776.stm, (15.12.2008) hit on September 29, 09, at 13:36 hrs.
[3] So much so that Nicolas Sarkozi, head of the conservative party UMP, once said that headscarves are like female genitial mutilation or like arranged marriages. http://www.youtube.com/watch?v=kWta4xB4gQ0, hit on September 30, 2009 at 08:54 hrs.
[4] Scot, J.W. 2007. The Politics of Veil. 21, Princeton University Press, New Jersey
[5] Scott, J.W. Ibid. 21-24, 35-37,
Brown, J.R. 2007. ‘Living Islam: Women, Religion and the Politicization of Culture, 69-65, London: I.B. Taurus Publishers
[6] Andrew, Mc. in Moghissi, H. 2006. Muslim Diaspora: Gender, Culture, and Identity. P.153, Routledge, London and Newyork.
[7] Brwon, J.R. ibid. 11-33.
[8] Andrew, Mc. in Ibid. 153.
[9] Brwon, J.R. Ibid. 43-49.
[10] Scot. J.W. Ibid. 90.
[11] Dreher & Ho 2009: Dreher, Tanja. & Ho. Christopher, ed. 2009, ‘Beyond the Hijab Debates: New Conversations on Gender, Race and Religion.’ 1-15, Cambridge Scholars Publishing.
[12] Martin 2005, in Aune, Kristine, Sharma, Sonya and Vincett, Gisselle. 2008. ‘Women and Religion in the West: Challenging Secularization’. 146. Ed. Ashgate Publishing Company, USA.
[13] Askantber, A. 2002: 51.
[14] Dreher & Ho Ibid, 1-15.
[15] Afshar H. et al 2008: 168-169.
[16] Brwon, J.R. 2007, Brown, J.R. 2007. ‘Living Islam: Women, Religion and the Politicization of Culture.’ 92-94, London: I.B. Taurus Publishers.
[17] A Muslim gang of Lebanese origin raped several white women in the suburbs of Sydney in Australia in 2000. Despite focussing on the crime and effective measures to deal with it media was playing up the case and specified the very act of violation as if promoted by Islam and Muslim Culture, See Aboud, P. In Dreher & Ho. 2009: 122-125.
[18] Dreher & Ho Ibid. 122-125.
[19] Ramji, Rubina. 2008. ‘Being Muslim and Being Canadian: How second generation Muslim Women Create Religious Identities in Two Worlds’ in ed. Aune, Kristine, Sharma, Sonya and Vincett, Gisselle. 2008. ‘Women and Religion in the West: Challenging Secularization’. Ed. Ashgate Publishing Company, USA.
[20] Brwon, J.R. Ibid. 92-94, 155-157.
[21] Douglas & Compo in Asaktanber 2002: 31, 39-40.
[22] Mernici: 1975 in Asktanber, A. 2002: 32
[23] Asaktanber, A. 2002: 33-38; Gole 1991 in Aaktanber, 2002: 135.
[24] Brwon, J.R. ibid. 81-85,
[25] Dreher & Ho. Ibid 1-15.
[26] Scott, J.W. Ibid. 30-31.
[27] Davis, Y. et al & Hussain, S. in Dreher & Ho. Ibid. 81-91.
[28] Asktanber. Ibid. 39.
[29] Aune, K. et al. Ibid. 223.
[30] Andrew, Mc. 2006: 154 in Moghissi Ibid, Ramji, R. 2008:199 in Aune et al Ibid & Asaktanber Ibid. 213.
[31] Articles 8, 10, 9, 14 & 2 sequentially.
[32] Marshall, J. 2008. Marshall, J. ‘Conditions for Freedom? European Human Rights Law and the Islamic Headscarf Debate,’ 640-645Human Rights Quarterly,Vol.30, The John Hopkins University Press.
[33] DW & BBC News, DW-World Deuche Welle, http://www.dw-world.de/dw/article/0,,3850797,00.html, (10.11.2005) hit on September 29, 09, at 13:34 hrs.
[34] Marshal, J. Ibid. 641-645.
[35] HRW, September 28, 2009. Human Rights Watch, http://www.hrw.org/en/news/2004/02/26/france-headscarf-ban-violates-religious-freedom, hit on September 28, 2009 at 13:20 hr
[36] Andrew, Mc. in Moghissi, Haideh. 2006. Muslim Diaspora: Gender, Culture, and Identity. 158-158, Routledge, London and Newyork.
[37] Andrew, Mc. in Moghissi, Ibid. 154.
[38] Dreher & Ho. Ibid. 7-11; Abu-Lughod, 2002: 788; Ann A. 18-29 in Dreher & Ho. Ibid. 10, 18-30.
[39] Aboud, Paula. 2007:136-145 cited in Dreher & Ho. Ibid. Abood, Paula. 2000, ‘Seeing Rape through Race-Coloured Glasses,’ in ed. Dreher, Tanja. & Ho. Christopher, Ed. 2009, ‘Beyond the Hijab Debates: New Conversations on Gender, Race and Religion.’ Cambridge Scholars Publishing, UK.
[40] Askatanber, A. Ibid. 41
[41] Jill Marshal, Ibid. 654
‘Along with death and taxes, risk is one of the certainties of life’[1] ‘Every day, I am afraid of the next[2]’
Introduction:
Life is a struggle through natural and socio-economic risks. But it is the poor who are affected most seriously by the risk, of whatever sort it is. It eats up their belongings, disrupts their livelihoods and at times threatens their life too. Although risk, shocks and uncertainties share conceptual boundaries but they are not synonymous. They can be dealt together in poverty studies but in this article, I am confining my explanation to risk and adversaries of risk.
I am going to unpack the issue in two parts: First is the brief description of different kinds of risks and their hazardous impact on the poor. Second is the significance of ‘risk’ in poverty studies. Considering risk as a crucial element of poverty studies is my key argument as leaving it unaddressed might cause a major deficit in the subject. In the second part, coping strategies of the poor households in coping and combating risks are illustrated. My approach of dealing with the issue is relatively different from the conventional pattern of listing down the stereotypes of livelihood diversification. I will rather explore various approaches and attitudes of the poor in responding risks, their innovativeness and ingenuity in dealing with risks and pressures on their livelihood and sources of livelihood.
I: SIGNIFICANCE OF RISK-ISSUE IN POVERTY STUDIES
Risk is a major or minor hazardous event, likely to happen without any reliable prediction (Lipton and Sinha 1999: 5; Anderson 1999: 3). It is ambient in the poor rural economies that not only decreases the existing capacities of the poor rather factors in regenerating poverty (Fafchamps 1999: 4) and pushing the poor down to further risks. All risks are fluctuations that damage the life systems of the poor. They push the non-poor in to poverty and intensify poverty of the poor. Risks inequalize[3] the inter- and intra-household distribution of resources and when occur are difficult to handle (Lipton and Sinha 1999: 4-5).
The poor are highly susceptible to risks due to lack of: assets, productive resources, stocks and stores, exchange entitlements and claims, savings or access to services and credit. Their social support mechanism, owing to their less reciprocal capability, happens to be poor and sources of information remain limited, weakening their capacity to absorb shocks[4]. In acute circumstances, the only asset, they have, is their body to invest in the labour market (Chambers, 1983: 113-117; Fafchamps 1999: 6; Swift 1989: 9-11). Along with affecting their material well being, risk puts them under psychological stress and diminishes their utility and ritual pleasures, which may result in social exclusion (Fafchamps 1999: 3-4) and indignity.
Risks can be of large- i.e aggregate or small- i.e idiosyncratic scale with variant frequency and force. Aggregate risks affect the whole community simultaneously like famine, drought, cyclone, floods, epidemic, pests/rats-attack, market fluctuation, crop failure and warfare etc. While idiosyncratic risks affect a particular household or individual like illness, death, disability, accident, theft or any other physical or economic loss. The span of risks could be longer or shorter but the repercussions of risks keep unfolding long after they occur. Some of them are recurrent, others are once off, and so are the people’s responses (Davies, 1996; Fafchamps 1999).
Severe risks not only harm livelihoods but also erode people’s entitlements to necessary commodities and services. People can suffer from famine not because of production failure but because of entitlement exchange failure (say labour or cattle price does not equate food prices). Hence, during drought or famine, the poor starve or remain uncured even in the availability of food or drugs in the market, because of their depleted rights to these commodities and vital services (Sen, A. 1981 as cited in Swift: 1989: 9).
Agriculture, in which the poor predominately operate in, is a fragile and risk-prone sector. A plethora of risks and uncertainties surrounds the livelihood of rural poor (Robinson and Barry 1987; Fleisher 1990; Anderson and Dillon, 1992 as cited in Anderson 1999: 1). Moreover mechanization, agri-inputs and now genetically modified organisms (GMOs) expose them to new risks and fears. Without knowing the nature of risks and traditional coping strategies, it is difficult for NGOs and international development agencies to evolve risk management tools and make successful interventions (Anderson 1999: 1-2).
For development planners and practitioners, it is crucial to understand seasonal risk coping strategies of poor households to devise initiatives corresponding their rationality and preferences. It needs to be insured that other institutions are providing necessary inputs and services along with risk-support facilities. Otherwise either the poor avoid participating in any development programmes fearing increased liabilities or fall back in their effort to cope-with food deficit or insecurity (Nabarro et al. 1989: 70-73).
Risk studies suggest that expansion of opportunities and removal of constraints to diversification and provision of opportunities of education, credit, non-farm enterprise, and infrastructure are the most reliable policy implications to help the risk affected poor (Painter et al 1994; Jazairy et al 1992; Ravallion 1995; Dercon and Krishnon; 1996 as cited in Ellis 1998: 25-30)
It is essential to understand, how poor people themselves see risk and vulnerability and think of the ways to reduce them. To them, risk is not limited to income or consumption loss as it is conventionally perceived to be. It can be of personal liberty, self-esteem, mobility, social interaction and so on. There is a whole range of intangible risks that needs to be taken in to account for appropriate policy interventions (Chambers 1989: 4, Beck 1989: 27-28).
Thus risk is one of the generic features of poverty. It is not possible to understand poverty without understanding causes and consequences of risk. Studying risk provides us with insights about poverty and vulnerability. Risk mitigation, risk-management and risk-reduction is inevitable to reduce poverty. Despite having elaborate mechanisms (explained below), poor households are not capable to eliminate vulnerability unless rendering them extensive support. Governments and development agencies need to develop socio-economic safety nets and instruments to eliminate risks from the lives of the poor (World Bank 2000/01: 151-158).
II: THE POOR HOUSEHOLDS’ COPING STRATEGIES TO RISK
Poor households adopt number of strategies in response to risk. These strategies are diverse, complicated and context specific. It depends on demography and ecology of the area and the nature and degree of risk they are confronting with. Different households respond differently to the same risk depending on their resources, assets, income and skills they posses. Furthermore, ethnicity, cast, gender, social support systems, cultural values, available opportunities and some other variables also shape their responses. (Adams and He 1995; Davies and Hossain 1997; Hart 1994; Reardon et al. 1992 as cited in Ellis 1998: 5-13).
We can distinguish between risk-management and risk-coping attitude of the poor. Chronic poor look for survival strategies in order to stabilize their food and income. Relatively better off are usually proactive and engage in cumulative activities to improve their condition and lift them out of the risk. The former ones are ex-post options or coping strategies taken up in desperation while the latter are ex-ante measures or risk management methods adopted by choice in their struggle to reduce vulnerability (Alderman and Paxon 1992; Carter 1997; World Bank 1990 as cited in Ellis 1998:7-11)
Cutting on basic needs like food, clothing, medicine and education are commonly adopted measure in precarious situations. Others would find off-farm or non-farm labour. Some of them would put additional members to work, sell home-made crafts or assets or draw on savings or seek loan or sell livestock or migrate or mortgage/sell land (if available). It must be pointed out that risk coping decisions that poor households make are logical, sequential and carefully selected, not haphazard ones. For instance mortgaging/selling of the productive resources, say land or cattle and/or migration would be the last resorts opted for (Taal 1989: 18-20, Nabaro et al. 1989: 68-69; Rocha 1999: 13-24).
Example: Households Responses to Economic Crisis in Indonesia
(Since 1997 to 1998 the poor households resorted to the following practices in order to cope with the rising prices and declining purchasing power)
| Coping Strategies |
Rural h.hs |
Urban h.hs |
| Doing additional job |
49% |
37% |
| Asking children to work |
18% |
22% |
| Asking other h.h members to work |
19% |
14% |
| Reducing the quantity and quality of food |
45% |
50% |
| Withdrawing children from school |
3.3% |
2.3% |
| Reducing medical expenses |
67% |
73% |
| Withdrawing savings |
10% |
18% |
| Borrowing from others |
31% |
40% |
Source: Descriptive information derived from Rocha, (1999) and concisely tabulated by this author.
Mixed cropping as practiced by Dobo village of Sudan is one way of food insurance (Tall 1989: 19). Similarly intercropping is an on-farm diversification to cope with insecurity of food. Richards, P. (1986) has meticulously studied the seasonal hunger coping strategies of Mogbuama people of Sierra Leone. Mogbuama subsistence rice farmers are likely to run out of food before the next year harvest usually due to earlier rainfall or sickness. The smallest households and those involved in litigation are the most common victims. Cassava, maize, egusi or some vegetables are cultivated immediately after clearing and before planting rice for the next year. These crops work as hunger breaker for poor households and normally women take that initiative (Ibid: 116-119).
Coping strategy, as argued by Davies, S. (1996: 45-59) is a complicated phenomenon. It depends whether the risk is structural or proximate in an area. One household’s coping strategy can be another household’s livelihood and one times livelihood can be another times coping strategy. People facing with periodical food-shortage adapt means to cope with hungry season. In a persisting risk environment coping strategy turns into adaptability. Hence coping is a short-term response while adaptation reflects a permanent change in livelihood behaviour. Adaptability is actually a shift in moral economy, which occurs when risk becomes chronic.
The landless poor also draw on common property resource (CPR) to meet day-to-day food stress or scarcity. Women and particularly children are known to collect food grains or gather wild plants, fruits and leaves to appease their hunger even at the cost of their health.
| Case Study: Fatu, 55 years old woman lives in village Kilimahewa (Tanzania), has three daughters, all married. She married three times. Her first husband divorced her, second was imprisoned for theft and third died after long illness. Her third husband left her impoverished, spending all their savings on his treatment. She kept taking care of her own mother till her death. She did not inherit any land from her parents. Currently she receives gifts from her daughters and neighbours; otherwise her support networks are very little.
She, sometimes, goes for day laboring (construction), which she does not want to. Her other source of livelihood is selling ming’oko, a wild root crop, which she is doing for last two years. She is discontented with this un-profiteering activity but continues to dot it rather than offering herself most often for day labor. Ming’oko is an ordinary crop, which is eaten as a snack or mixed with cassava to make a meal. The work itself is tough. Fatu and other women leave early in the morning and reach the forest after four hours walk. Having some rest they dig the roots with hoe for four to five hours. Lions inhabit the forest too. Women make fire and stay their overnight. On second day they leave for the village. Before selling, they boil and clean the roots. The selling takes no time but the whole effort is worth shs 700-1000 only.
Fatu is deprived of any respect what her age, kinship and religion might have offered her. During her third marriage she was able to partake in communal activities, what she has dropped now. She can hardly pay the most pressing market-place fee. She has lost whole cultural capital and is striving to cope with her marginal position.
Source: Extracted from Seppala, P. (1996) and abridged by the author. |
Children are reported to open rat holes to glean food (Sengupta 1987, Cain 1977 as cited in Beck 1989: 25). Fuel requirements are fulfilled by collecting cow dung, twigs and dry leaves. Poor households change dietary habits and food preparation methods under stress. Eating broken rice grain, drinking boiled-rice-water, having food left over by the well off and eating fatter (to fill more) than thinner variety of food and even spacing food or fasting are quite a few examples. Share rearing of cattle is also a customary means of getting productive animal/s in poorest villages (Beck 1989: 23-27).
Conclusions:
Risk is part of human ecology. The poor are the worst victims of risk because they live in isolated, remote and risk prone areas. Unavailability of infrastructure and government services and lack of opportunities exacerbate the effects of risks. Risk ultimately affects national growth and economy, what government rarely consider. Understanding risk is essential for effective policy formulation and programmatic intervention. If not eradicated totally, it is absolutely possible to manage and control risk through multi-pronged strategies. Without managing risk poverty alleviation is either short term or symptomatic.
What I have emphasized here is, understanding risk and risk responses of the poor. Indigenous strategies adopted by the poor households are not only indicators of poverty but also suggest clues for development intervention effective planning.
—————–
References:
Anderson, R. Jock (1999[5]), Risk and management in rural development: A review, Rural strategy background paper, No. 7, Rural development, World Bank
http://www.worldbank.org/poverty/rural development/background/anderson/ (17 March 2002)
Beck, Tony (April 1989) Survival strategies and power amongst the poorest in a west Bengal village, IDS Bulletin Vol.20, No.2, pp. 23-32, Institute of Development Studies, Publication unit, Sussex.
Chambers, Robert (April 1989) Vulnerability, coping and policy: Editorial introduction,
IDS Bulletin Vol.20, No.2, pp.1-7, Institute of Development Studies, Publication unit, Sussex
Davies, Susanna. (1996) Adaptable livelihoods: Coping with food insecurity in the Malian Sahel, Macmillan press ltd., Great Britain.
Ellis, Frank. (October1998) Household strategies and rural livelihood diversification, The Journal Of Development Studies, Vol.35, No.1, pp.1-38, Published by Frank Cass, London.
Fafchamps, Marcel (October1999) Rural poverty, risk and development, Center for the Study of African Economics, Oxford University, Report submitted to the Food Agriculture Organization (FAO), http://www.economics.ox.ac.uk/Members/marcel.fafchamps/homepage/
(17 March 2002)
Lipton, M., Sinha, S. et al. (October 1999) Damaging Fluctuations, Risk and Poverty: A Review: Background paper for the World Development Report 2000/20001. Poverty Research Unit at Sussex (PRUS), www.worldbank.org/poverty/wdrpoverty/background/ sinhalipton.pdf, Washington D.C: World Bank, (18 March 2002)
Nabarro, David, et al (April 1989) How households cope in the hills of Nepal: Can development initiatives help? IDS Bulletin Vol.20, No.2, pp. 68-74, Institute of Development Studies, Publication unit, Sussex.
Reardon, Thomas (1997) Using evidence of household income diversification to inform study of the rural non-farm labour market in Africa, World Development, Vol.25, No.5, pp 735-747, Elsevier Science Limited, Great Britain.
Richards, Paul (1986), Coping with hunger: Hazard and experiment in an African rice farming system, The London research series in geography, Allan and Unwin publishers ltd. London, United Kingdom.
Rocha, G. Mercedes (2001) Private adjustments: Household responses to the erosion of work, Edited by A.J. Grinspun, CIESAS Occidente, Guadalajara, Mexico, Bureau for Development Policy, SEPED Conference Paper Series, UNDP.
http://.undp.org/seped/publications/conf_pub.htm (17 March 2002)
Seppala, Pekka (1996) The politics of economic diversification: Reconceptualizing the rural sector in South-east Tanzania, Development and Change, Vol.27, pp.557-577, Institute of Social Studies, Published by Blackwell Publishers, Oxford, UK.
Swift, Jeremy (1989) Why are rural people vulnerable to famine? IDS Bulletin Vol.20, No.2, pp. 8-15, Institute of Development Studies, Publication unit, Sussex.
Taal, Housainou (April 1989) How Farmers cope with risk and stress in rural Gambia,
IDS Bulletin Vol.20, No.2, pp. 68-74, Institute of Development Studies, Publication unit, Sussex.
World Development Report (2000/2001) Attacking poverty, World Bank (2000), Oxford university press
[1] Source: A statement by MacCrimmon and Wehrung 1986, as quoted in Anderson R. (2001)
[2] Source: A poor ma from Russia , Voices of the poor , World Bank
[3] The same argument is debated for diversification (in response to risk). Some forms of diversifications have equalizing impact but most of them favour the well off (Adams and He 1995 as cited in Ellis 1998).
[4] If the risk is sudden and intensive, it may be termed as shock. Moreover Fafchamps is using this word interchangeably with risk (see Fafchamps, 1999, Rural poverty, risk and development).
[5] Despite my utmost effort, I could not find online publication/placement date of this article. Some other background papers mention 2001; I guess this should be sometimes 200.
“People place their hopes in God,….since government is no longer
involved in such matters[1].”
Introduction:
Life of the urban poor is a synonym of unending struggle. Without struggle their very existence is threatened[2]. There is a whole range of goods and commodities they have to make effort for. They have to work hard for their livelihood, settlement, food, health and several other necessities of life. Knowing the value, they also try to seek useful information and build social networks. With the lack of any state benefits or social security their struggle becomes even intensive. In this article, I am describing various efforts made by the urban poor for their day to day survival. Several means and methods are mentioned adopted by the poor to make a living and find a shelter. Survival of the urban poor mainly depends on their own efforts than any governmental support is my key argument. Absence of any formal policy in most of the poor countries forces them to find their own ways of survival. The conclusions I am going to draw surround on the observations about, ‘why and how the urban poor manage their survival themselves and analysis’ of the nature and form of their efforts.
Background:
Hostile political and economic forces exclude the poor from labour and services sector. A major shift from labour- to capital-intensive productivity and technological standardization drive them out of industrial sector too. Low wages, low return and insecure working tenures push them down to substantial level. Under these conditions, the poor mostly depend themselves and look out for multiple ways of survival (Salway and Wood 2000: 670-677). Sluggish economic growth or turndown, inflation, centralized planning and increasing unemployment forces more and more people towards self-employment (House et al 1993: 1).
Urban poverty has generally increased in third world countries. A massive number of workers have been retrenched under economic recession or structural adjustment programmes. Wages have declined and inflation has caused expensiveness. Obviously the worst victims are the poorest populations of cities (Gilbert 1994: 605-608). Governments have drawn back subsidies and welfare entitlements on basic goods and services. With shrinking resources and facilities the poor are forced to help themselves than placing hopes on any formal institutions (Iglesias 1992; Glewwe and Hall 1992 as cited in Gilbert 1994:608-609; Ferguson 1992: 62-70).
Lack of Governmental Support and the Urban Poor’s Efforts to Survive:
De Soto (1989) argues that state bureaucracy and regulations pertaining to petty trading and settlements are a determining factor for urban migrant poor to adopt informal[3] even illegal activities for their survival (Thomas 1995: 35, emphasis added). Survival efforts of the urban poor can be discussed here in two areas: i) Livelihood and ii) Settlement. But it will reflect these efforts going far beyond their concrete conceptions.
i) Livelihood efforts:
Being unemployed or under-employed in government or manufacturing sector, the poor are compelled to create some sort of job for themselves. There is clear evidence from Latin American and African cities where number of the poor engage themselves into minor income generation activities. Mostly unskilled and some of the skilled professions like repairing automobiles or becoming electrician, carpenter, barber or cobbler are part of the choice (Thomas: 1995: 9-14). Shoe cleaning, day-labouring, street vending, scavenging, domestic services, petty trading, becoming a porter, coolie or messenger and even begging are just a few of the activities urban poor adopt to survive (Gilbert 1994: 611-612; Thomas 1995: 17). In Lima for example, selling handprints, sweats and chocolates, cigarettes, ball pens, cheap trinkets, plastic bags, soaps, mirrors, combs and telephone tokens are common jobs to earn some coins (Thomas 1995: 9-10). In desperation, some may opt for some criminal activities like pick pocketing, buying and selling stolen goods, prostitution, petty theft, shop lifting, burglary and playing tricks or fiddling (Seethuraman 1981 as cited in Thomas 1995: 19).
Although informal job or micro enterprises also involve enormous effort and competition but the poor somehow manage it to earn a living. It is the last resort for survival to the poor. To supplement their food several families have been observed planting vegetables and fruits in public plots in Nairobi and other African cities (Rakodi and Devas 1993; House et al 1993; Dasgupta 1992a,b; Drakakis-Smith 1990; Gefu 1992; Fashoyin 1993; Lautier 1990 as cited in Gilbert 1994: 611-614). Increased involvement of women and children in to income-generating activities or labour market is another means of coping with economic crisis (Boyden and Holden 1999; Dagenais 1993; Standing 1989; Mckayas as cited in Gilbert 1994: 616-621).
For many, risk-taking is part of survival efforts. For instance, out of 600 hawkers in Snatiago (1987), 87% were working without permit. Despite having applied for one, established shopkeepers pressurized Municipality not to legalize them. Three-quarters of them (around 66%) were household heads and 60% were the sole providers of their family. They always worked under harassment and fear of stock confiscation or imprisonment by the police (Thomas 1995: 57). Likewise hawking is a main livelihood source of several urban poor in Nairobi. All of them are unlicensed but on contrary to Santiago, they are highly organized and protect their ‘own’ sites with force. The de-facto right of their sites was recognized and respected by the fellow hawkers not by Council workers whom they bribed (Mitullah 1991: 18 as cited in Beall and Kanji 1999:10).
Table.1.1: Percentage of informally working population in urban areas
| Country (City) |
Year |
% |
Africa
Burkina
Ghana (Kumasi)
Niger
Nigeria (Lagos)
Togo |
1986
1974
1976
1976
1976 |
73
65
65
50
50 |
Table.1.2: Percentage of informally working population in urban areas.
Asia
India (Calcutta)
Indonesia ( Jakarta)
Pakistan |
1971
1976
1972 |
40-50
45
69 |
Source: Chambers (1990 as quoted in Thomas1992: 66). Entries selected by this author
Lack of infrastructure also hampers the poor to find an employment or commute for daily work. If government makes any promises, it takes so long that people are frustrated by that time and have to think of alternatives. For instance (see Ferguson 1992:63-65, 68-69) a migrant Jamaican farmer diversified his income by making and selling crafts to the tourists. Loosing income with excessive competition he switched over to making toys, rugs and belts and then to selling Coca-Cola. Each gave little profit in the town and he could not go far due to lack of roads and transport facility. Under his restricted means he has to support his children’s education as education is not free. If late for transport or some other reason, factory owners do not let them in or deduct their half-day salary, saying, ‘it is not our problem.’ Poor workers have to walk long distances to get to their workplace.
Investing in ROSCA[4] is another survival strategy for the urban poor. Many a men and women are known to subscribe with ROSCA throughout South Asia. They keep a rupee or two aside from their daily income and circulate it in ROSCA members. It helps them to get some money rotationally without interest. This amount is used for consumption or for productive purposes. It also proves to be valuable in ceremonies or in crisis and helps to build social network as well (Sethi R. 1995: 163, 174-176).
The poor urban families make their best to strengthen and develop social ties. Given the lack of state security they depend on their relatives, neighbourhood and community when sick or unemployed or suffering from a tragedy. People migrate from rural to urban areas usually with cooperation of any relative in the city (Roberts 1995: 163).
ii) Settlement efforts:
Administrative rules (say in Peru) have been resisting back migrant peasants’ arrival and settlement in cities. The system is unwilling to accept them. They are excluded from state benefits and facilities as a norm. Consequently the poor adopt casual works and occupy public or private lands for their settlement (de Soto 1989: 11, as cited in Thomas 19995: 11).
State institutions rarely plan to accommodate migrant and the growing poor in urban areas. Even the most fundamental problem of shelter is resolved[5] by the poor themselves. Most of them occupy deserted, fragile or dirty spaces around the city. Waste embankments, city outskirts, dumpsites and flood prone areas are the common choices. Gradually these locations convert into large squatters or slums. To settle into these areas, they have to deal with brokers’ mafia or police who charge their own commission. A vast majority of them installs their makeshift houses themselves. Despite so many struggles, threat of demolition by the authorities hovers upon their heads (Salway and Wood 2000: 675-676). According to a rough estimate 30-80% urban population of underdeveloped countries lives in self constructed squatter settlements (UN 1994, as cited in Roberts 1995: 158).
Table.2: Estimates of the percentage of city population in squatter settlement (1980).
| City |
Total Pop.
(000) |
Squatter settlements
No. (000) % |
| Ababa
Luanda
Dar’slam
Bogota
Lusaka
Tunis
Mexico(c)
Karachi |
1668
959
1075
5493
791
1046
15032
5005 |
1418
671
645
3241
396
471
6031
1852 |
85
70
60
59
50
45
40
37 |
Source: Habitat (1987 as quoted in Thomas 1992: 96). Entries selected by this author.
Before occupying a space many of them have to live as tenants or lodgers in a congested environment. For example in a slum at Santiago 140 persons were living in 18 rooms only (Gilbert 1994: 79-80 as cited in Thomas 1995: 96). In many Latin American cities like Lima, Salvador, Caracas and Guayaquil vast public land has been invaded by the poor for self-help housing. Local authorities turned blind eye, perhaps to avoid responsibility of settlement and service provision. It does not mean that self-help housing is easy or cheap in Lima; it also needs constant effort (Thomas 1995: 96-99).
Table. 3: Growth of self-help housing in selected Latin American cities (1969-1990)
City
|
Year
|
City pop
(000) |
Self-help-
housing Pop.(000) |
% |
| Mexico
City |
1970
1976
1990 |
7314
11312
11783 |
3438
5656
9470 |
47
50
60 |
| Lima |
1969
1981
1991 |
3003
4601
4805 |
805
1150
1778 |
24
25
37 |
| Caracass |
1971
1985 |
2200
2742 |
867
1673 |
39
61 |
Source: Gilbert (1994 as given in Thomas 1995: 97). Span and cities reduced by this author.
Women and Survival Efforts:
Women’s efforts for survival are highly significant and worth describing separately. Although less recognized but their contribution exceeds men in times of crisis. In most of the cases they bear double responsibility i.e doing household chores as well as regular work for income. Sometimes single mothers can survive better than in their husband’s presence (Chant 1991 as cited in Roberts 1995: 165). Most of them survive on domestic services some of them are forced to opt for prostitutes, if they fail to find work that can support them and their family (Ferguson 1992: 70).
Case Study 1: From Domestic Servant to Street Trader in La Paz
Soledad is thirty. She has a textile stall in La Paz center. Fourteen years ago she came from a village to work as a housemaid. In the large house she had a mattress in a cupboard, which housed electricity meter, brooms and buckets. She was at the beck and call of the family round the clock. After a year, fed-up with spiteful outbursts of family members she moved to another. It was no different from the previous one. By the time she got acquainted with Filmeno, a factory worker, whom she got married. The new couple began to live in a small rented room and soon had two children. Then Soledad got the job of a washerwoman. Being pregnant, It was too hard a job to continue. Now the couple decided to move to El Alto, where they bought a small piece of land and constructed a small room with the help of friends. There she had her third baby, a premature sickly girl who died within a year. When her mother came to live with her, Soledad began to sell homemade food together with one of her neighbours. She stopped doing that because they always argued over money. Then she took up smuggling small textile consignments, buying them from Peru and selling them in La Paz. She would make four bus trips in a week. In spite of bribing customs and steady fall in prices, she made fair sum of money and saved some of it. This became even vital when Filmeno lost his job under government’s austerity programme. Depressed, he started drinking. Soledad was now in a position to buy things from women smugglers herself. So she devoted all her energies to her textile stall in the city center. Unfortunately her relationship with her husband got worse. Eventually, she threw him out of the house. Source: Verkoren and Lindert (1994:46, as quoted in Thomas:1995: 80). Abridged by this author.
The life of a poor Zimbabwean woman ‘Esther’, studied by Schlyter (2001: 3-14) is a best example of women’s survival efforts. Her squatter settlement, which she built herself, was bulldozed twice by the town Council. With her persistence struggle she succeeded to build a suitable house with her own income. Low-cost-housing unit was the only facility she got from the town Council. From vending to, sewing, poultry raising, trading, lodging, running a welding-workshop and even a shebeen are all the various occupations she adopted one after other to earn some money and raise her five children. Council laws, property ownership and working rules, housing and zoning regulations were rather a hindrance to Esther’s efforts.
Burman and Lembete (1995: 28-30) interviewed some low educated mothers in Cape Town. Out of 19, three were divorced others were unwed mothers. Being discriminated by their kinfolk, they had to depend entirely on themselves for their and their children’s survival. Two of them were cleaners, one saleslady, one a bakery attendant and others were trained nurses, teachers, secretaries and like that. Their income hardly ranged from R.120 to R.1000/month. Almost all of them did work part time in shops or houses to compensate their insufficient income.
Being unskilled and uneducated many poor women turn to seek credit from micro- credit organizations or from a relative. They set up micro-businesses to earn some profit. Hundreds of women are running micro enterprises like handy-crafts, sewing and tailoring through credit in South Asia and Latin America. One Bangladeshi woman, for instance, was so much successful in making fish-nets that she bought a rickshaw for her husband (Berger 1989: 107, 1021-1022).
To protect their source of livelihood women are not passive all the times. There are number of female street traders in Mexico City whose only source of income are mini stalls in the market (McVey 1997 as cited in Beal and Kanji: 1999: 11). Each of them has occupied specific spot in the city center. To hold their trading space they actively resisted the city authorities who tried to evict them. They succeeded to save their sites in return of political support they promised to the councilors. They knew that losing their spots meant losing their livelihood (ibid: 10).
Children and Survival Efforts:
Sad, but it is a reality that children also engage in labour to supplement meager income of their family. They contribute in household income through multiple tasks and share domestic work (Beall and Kanji 1999: 13). Some of them work independently, others with their parents. They can be found in cottage industries, family enterprises and services, often working in harmful conditions (Thomas 1995: 85).
Case Study 2: Child Work in Bogota’s Quarries and Brickyards
Around 100 children work in Bogota quarries and brickyards. These enterprises operate with primitive technology, involving intensive labour. On average, children work 9-12 hours/day and 7 days a week. They usually work as helpers to their parents or other adults. In quarry, they assist extracting large rocks and feeding them into hoppers, then shoveling material into crushers and at sieving. In brickyards, they transport and pile up bricks. Having dried, they put them into the kiln for firing. Finally they load them into the trucks. They also lead mules deriving the mill and carry coal to the kiln. About half the children receive payment in kind and others are paid through their parents. Their daily wage is less than 1US$.
Source: Salazar (1988: 49-60 as quoted in Thomas 1995: 86-87). Abridged by this
author.
Some poor children, as in Jamaica, pick up food from garbage and bottles or tins to sell and reduce burden on their parents (Ferguson: 1992:66). Thousands of children work in carpet and support industries in Pakistan to supplement their households’ income.
Conclusions:
As we have seen, the urban poor have to make numerous efforts just to survive in antagonistic environment. They make efforts at individual, household or community level as the circumstances demand. When governments fail to plan to accommodate them, they settle in haphazardly wherever they find an empty space. Possessing a public land or living on a dumpsite only reflects a fundamental necessity of having a shelter. Moving from place to place or holding a squatter settlement is actually a struggle for a house. They know that permanent housing is directly linked with permanent employment.
When there is no room for a descent employment either in public or private sector they choose whatever occupation seems to help them survive. ‘Endeavours of Soledad and Asther’ is a complete metaphor of the life of urban poor. Shifting occupations of the Jamaican hawker is but to find a reliable form of income. Growing vegetable on public space is a way to secure food.
Like the Bangladeshi woman, saving pennies or setting up a micro-enterprise is a desire for self-sustenance. For underemployed women of Costa Rica, doing an extra job is to align efforts to fulfill their children needs. Bribing local authorities like Nairobi hawkers or resisting the threat of eviction like Mexican traders are only two forms of the same end i.e to protect their livelihoods. These are actually the symptoms of fear and uncertainty. This all happens because there is no administrative arrangement to accommodate street traders. Scavenging or pick pocketing is the indicator of wide spread unemployment. Trash picking of children or labouring in brickyards/quarries is an economic safety to poor parents not a sign of shortsightedness. Opposite to government claims, education is still expensive in most of the places.
Running a sheben or smuggling can be legally objectionable but for Asther and Soledad there was no way out. Prostitution is immoral but it is better to die with hunger. The debate of fair-unfair and legal-illegal means of income is either official dichotomy or an elite perception of the poor. For them, it isn’t deliberate but a way of survival. So long as government continues behaving indifferent to the poor, they will have to survive on their own efforts.
+++++++++
References Cited:
Beall, J. and Kanji, N. (August 1999) Households, livelihoods and urban poverty, Urban governance, partnership and poverty series, Theme Paper No. 3.
www.bham.ac.uk/IDD/acticities/urban/urbangove/theme_papers
Site-hit: (10 April 2002)
Berger, Marguerite (1989) Giving women credit: The strengths and limitations of credit as a tool for alleviating poverty, World development, Vol. 17, No. 7, pp. 1017-1032, Printed in Great Britain.
Burman and Lemlembete (1995) Building new realities: African women and ROSCAs in Urban South Africa, (in) Ardener and Burman (1995) Money-go-rounds: The importance of rotating savings and credit associations for women (ed.), Berg publishers limited, Oxford.
Carter Michael, R. and May, Julian (1999) Poverty, livelihood and class in rural South Africa, World Development, Vol. 27, No. 1, p. 1-20, Printed in Great Britain.
Ferguson, James (1992) Jamaica: Stories of poverty, Race And Class, Vol. 34, No.1
pp. 61-71
Gilbert, Allan. (1994) Third world cities: Poverty, employment, gender roles and environment during a time of restructuring, Urban Studies, Vol. 31, Nos. 4/5, pp. 605-633.
House, William J., Ikiara G. and Mccormick, D. (1993) Urban self employment in Kenya: Panacea or viable strategy?, World Development, Vol. 21, No. 7, pp. 1205-1223, Printed in Great Britain.
Mead, Donald C. and Morrisson, Christian (1996) The informal sector elephant, World development, Vol. 24, No. 10, pp. 1611-1696, Printed in Great Britain.
Roberts, Bryan R. (1995) The making of citizens: Cities of peasants revisited, Hodder headline group, Great Britain.
Schlyter, Ann (2001) Esther’s house-home, business and lodgers’ shelter: Multi-habitation in Citungwisa, African urban economies series, Nordic African Institute, Uppsala.
Sethi Raj, M. (1995) Women’s ROSCAs in contemporary Indian society, (in) Ardener and Burman (1995) Money-go-rounds: The importance of rotating savings and credit associations for women (ed.), Berg publishers limited, Oxford.
Thomas, J.J (1995) Surviving in the city: The urban informal sector in Latin America, Critical studies on Latin America series, Pluto press, London.
Thomas, J.J. (1992) Informal economic activity, LSE handbooks in economics series, Harevester Wheatsheaf, Great Britain.
Wood, G. and Salway, S. (2000) Policy Arena: Introduction: Securing livelihoods in Dhaka slums, Journal of International Development J.Int. Dev. 12, 669-688 (2000)
[1]Source: A poor man from Armenia, Voices of the poor (World Bank)
[2] I realize that urban poor is not a homogenous category. There are layers and strata among the poor. But in this essay I will generally refer to ‘all the urban poor’ who are struggling for their survival.
[3] Conceptually informal work falls in informal sector. Usually it is associated with poverty. But all informal workers may not be poor and all urban poor may not be (although many do) working in informal sector (Mead and Morrisson 1996: 1611). Thus my use of the term ‘informal’ and examples taken from informal sector will be just by default.
[4] ROSCA (Rotatory Social Credit Associations) is not confined to the poor in South Asia. Well off people also set up ROSCAs. But there is a huge difference of scale.
[5] The word ‘resolve’ has been used in a very conservative context.
Introduction:
In theoretical terms, humanitarian intervention has been defined as, “the threat or use of force across state borders, by a state (or a group of states) aimed at preventing or ending widespread and grave violations of fundamental human rights of individuals other than its own citizens, without the permission of the state within whose territory the force is applied”[1]. According to Roland Dannreuther, the NATO coalition that waged the war against Federal Republic of Yugoslavia (hereinafter FRY) essentially decided that the Yugoslav authorities had forfeited, at least temporarily if not permanently, the right to political and territorial control over Kosovo due to the systematic abuse of human rights of the Kosovar Albanians[2]. The decision for the humanitarian intervention in Kosovo has perhaps been the most controversial of the post-cold war period and has raised fundamental and divisive questions about the nature and form of the emerging international order[3]. The aim of this essay is to examine and evaluate the (Il)legality and at least the legitimacy of the NATO intervention in Kosovo, and also to discuss the implications of this operation to the international law and the future of humanitarian intervention. In order to do so, a short review of the historical background of Kosovo and the roots of the crisis will be needed.
1. Socio-political context:
History reveals that ethnic Albanians and Serbs had competed for power in the region of Kosovo all through the 20th Century. As a part of Socialist Federal Republic of Yugoslavia (hereinafter SFRY), Kosovo had a status of Socialist Autonomous Province within the Socialist Republic of Serbia. In March 1981 Kosovar Albanian students of the University of Pristina organized protests demanding that Kosovo become a republic within SFRY, but the protests were brutally suppressed by the Yugoslav police and army[4]. During the 1980s, ethnic tensions continued with frequent violent outbreaks against SFRY authorities resulting in a further increase in emigration of Kosovo Serbs and other ethnic groups[5]. However, after the amendments to the Serbian Constitution in 1989, Kosovo’s autonomy was drastically reduced and the political and cultural oppression of Kosovar Albanians intensified. As a consequence, Albanian nationalism and separatisms in Kosovo, combined with the economic factors, such as high rate of unemployment, led to growing ethnic tensions between the Serbs and Albanians. Belgrade policy aimed at changing the ethnic composition of Kosovo and creating an apartheid-like society[6], resulted in thousands of refugees fleeing to Albania.
Kosovo’s population in 1998 stood at 1.3 million of which 90% was ethnic Albanian, most of them Muslims[7]. On the other hand, Serbia argues its claims on Kosovo on the fact that the centre of Medieval Serbia was to be found in this particular province. Serbs consider Kosovo the cradle of their culture, religion and national identity[8].
2. The Kosovo Crisis:
When Slobodan Milosevic took power in Serbia in 1989, he began to build his power-base as defender of Serbian minorities throughout SFRY, especially in Kosovo[9]. His aim was to protect the Serbs in Kosovo, being discriminated at the hands of Kosovar authorities. In 1989 Milosevic abolished Kosovar autonomy, re-asserted Serbian direct rule and purged Kosovars from jobs in government and education[10]. As a result, Kosovar Albanians, led by Ibrahim Rugova, began non-violent campaigns which were aimed at creating a parallel network of schools, health-care centres and municipal government run by the Kosovars themselves[11]. However, there was no support for the non-violent resistance movement and this very fact led many Kosovar Albanians to conclude that violence was the only way to attract international attention[12]. During 1991-1992, the European Union appointed the Badinter Arbitration Committee to establish the state recognition guidelines for the former Yugoslavia. Nevertheless, according to the Committee, Kosovo did not meet this standard, since it did not have the status of federal republic[13]. Kosovo was also by-passed in the 1995 Dayton talks, and after that the Kosovar Albanians lost any realistic hope of outside help[14].
In the year 1998 Kosovar Albanians formed the Kosovo Liberation Army (hereinafter KLA) which was comprised of small armed groups that started with guerilla fighting in rural areas, hoping for the international intervention[15]. Consequently, the retaliation by Serbian Security Forces became heavier, leaving 300 000 Albanians homeless. In October 1998, a ceasefire was agreed and the international OSCE monitoring mission was inserted, but in February 1999 the fighting resumed. The six-nation Contact Group comprising of US, UK, France, Germany, Italy and Russia summoned both sides to talks in Rambouillet, France. The core of the Contact Group plan included the disarming of the KLA and the withdrawal of Serb forces with supervision from an “enabling force” of 30 000 NATO troops. The plan also provided for a restoration of Kosovo’s autonomy and its independent institution[16]. However, the Serbian delegation refused the proposal.
3. NATO Intervention Interventions and the Question of Illegality:
In March 1999 NATO launched a bombing campaign over Kosovo without UN Security Council authorization. The use of force followed several years’ escalation of violence between Serbian forces and KLA, and failed negotiations culminating in Serbia’s refusal of the international Contact Group’s plan for Kosovo during the negotiations in Rambouillet, France. The rationale for military intervention by NATO rested not on the immediate threat of humanitarian catastrophe in early 1999, but rather on a mix of past experiences and future concerns[17], combined with the principal goal of preventing further oppression of Kosovar Albanians and ensuring the withdrawal from Kosovo of the military, police and paramilitary forces. In the period March 24, 1999 to June 11, 1999, the Independent International Commission on Kosovo (hereinafter: the Commission) estimates the number of killings in the neighbourhood of 10 000, with the vast majority of the victims being Kosovar Albanians killed by FRY forces; approximately 863 000 civilians sough or were forced into refuge outside Kosovo and an additional 590 000 were internally displaced[18].
NATO intervention within the territory of the FRY in 1999 has risen questions of fundamental importance to the international society, specifically with regard to the international law concerning the use of force and “the weight of modern international human rights principles in modifying traditional international law on that subject”[19].
3.1. Jus ad bellum:
Providing for clear regulation of use of force in international relations has been an aim of international law for long time, and was one of the main concerns leading to the establishment of the United Nations[20]. Article 2(4) of the UN Charter generally prohibits the use of force in international relations. However, the framers of the Charter were aware that armed conflicts between states would not disappear by legislative decree, thus they did not naively pursue the goal of permanent and universal peace, but rather tried to create a global system that would make armed conflicts exceptional events[21]. The UN Charter permits uses of force in three instances[22].
First of all, article 39 (Chapter VII) confers on the Security Council the responsibility to “determine the existence of any threat to the peace, breach of the peace, or act of aggression”, and to “make recommendations, or decide what measures shall be taken [...], to maintain or restore international peace and security”. Further, articles 43-49 concern the modalities of taking such measures, including the use of military force. However, on March 1999 NATO decided to proceed with a military intervention without obtaining, or even seeking UNSC authorization, and without making any sort of secondary appeal to the General assembly[23]. On the other hand, it was clear that UNSC Resolution 1199 was not sufficient in itself to provide a legal basis for the use of armed force by UN Member States or international organizations[24].
Secondly, the right to use force in collective self-defence is set out in Article 51 of UN Charter. This right is, however, limited by the authority of UNSC, and lasts only “until the Security Council has taken measures necessary to maintain international peace and security”[25]. Furthermore, the ICJ in its decision in the Nicaragua Case clarified other parameters of collective self-defence[26], by stating that this right may be exercised only by the State having been the victim of an armed attack[27], and only if the victim-State explicitly request collective defence[28]. It is clear that in the case of intervention in Kosovo, none of the above mentioned criterias has been met by NATO.
Thirdly, Chapter VIII of the UN Charter permits regional arrangements (including regional security arrangements) but subject them to the authority of the UNSC. As established by the Article 53, “[...] no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council [...]”. “Although there is a subsidiary argument about implied authorization to use force once a conflict has been formally treated by the UNSC as a threat to international peace and security […], it remains difficult to reconcile NATO’s recourse to armed intervention on behalf of Kosovo with the general framework of legal rights and duties which determines the legality of the use of force”[29].
On the other hand, it can be argued that, despite restrictions on the use of force imposed by the UN Charter, there has developed in customary international law an independent right of military intervention in the affairs of other states for purpose of protecting individuals from grave violations of human rights[30]. Proponents of this view point to the provisions in the UN Charter and other legal instruments that support international promotion and protection of human rights. However, international law on these matters is not yet settled, and it remains open to question whether NATO intervention in FRY can be legally grounded in the “right to intervene” or possibly in the responsibility to protect[31].
In addition, it should be noted that, although NATO intervention in Kosovo was not authorized by UN, UNSC chose not to condemn it. Russia tabled a draft UNSC resolution on 26 March 1999 condemning NATO’s use of force, but only Russia, China and Namibia voted in favour, leading to the defeat of the resolution[32].
3.2. Jus in bello:
Situations of armed conflicts are governed primarily (but not exclusively[33]) by International Humanitarian Law (IHL). One of the fundamental principles of IHL is the principle of distinction between civilians and combatants, as well as between civilian and military objects, and this principle is nowadays codified in Articles 48, 52 and 53 of the Additional Protocol I to the Geneva Conventions. Although Protocol I has not been ratified by all members of NATO, the above mentioned articles are widely considered as the rules of customary international law, thus impose obligation on all start.
According to the Amnesty International report “Collateral Damage or Unlawful Killings? Violations of the Laws of War by NATO during Operation Allied Force”, NATO did not always meet its legal obligations in selecting targets and in choosing means and methods of warfare[34]. Air attack on the headquarters of Serbian state radio and television in which 16 civilians were killed, represents “a deliberate attack on a civilian object and as such constitutes a war crime”. Moreover, in various attacks on bridges, which generally may be considered as the legitimate targets, NATO forces failed to suspend their attacks after it was evident that they had struck civilians[35]. Finally, in several cases, including the attacks on displaced civilians in Djakovica, “sufficient precautions were not taken to minimize civilian casualties”[36]. Summing up, the position of Amnesty International on the intervention in Kosovo is that “civilian deaths could have been significantly reduced if NATO forces had fully adhered to the laws of war”[37].
However, the Independent International Commission on Kosovo is of the view that NATO succeeded in selective targeting, complying with the principles of the IHL, “with only relatively minor breaches that were themselves reasonable interpretations of military necessity in the context”[38]. The Commission has taken into account and given great weight to the Final Report of the ICTY in which the Tribunal concluded that “the most serious allegations against NATO relating to the law of war were not of sufficient merit to warrant further investigation”[39]. Nevertheless, the Independent Commission has also taken into account the above mentioned Amnesty International report, and admitted that “some practices do seem vulnerable to the allegation that violations might have occurred, and depend for final assessment upon the availability of further evidence”[40].
Finally, the Independent International Commission on Kosovo concluded that the NATO intervention in FRY was illegal but legitimate[41].
4. Kosovo Intervention and the Question of Moral Legitimacy:
Kosovo operation, at least in official circles of the allied forces, has been portrayed as if a ‘new era of moral rectitude’ has commenced, ending the old practices of human rights abuse and crimes against humanity. The ‘new humanism’ along with the ‘new world order’, fortuitously at the turn of the ‘new millennium’ is about to rescue ailing humanity from the burden of the oppression and tyrannical governments. That was a sense conveyed by the allied forces at the various occasions, while the reality was often quite contrary. By enforcing the ‘new humanism’ with force, a kind of old order i.e. an order of awe and authoritarianism was reinforced. “Peace lost, power won”[42] and sidelining United Nations[43], the aggressors strengthened old rules of the game i.e. of power and aggression, in the “cloak of moral righteousness”[44]. And in this tale of tragedy there is no good and evil but only evil and less evil. Besides all reservations, however, the fact of protecting number of human lives through this mission can never be undermined[45].
The overall approach that we have adopted in analysing Kosovo crisis is predominantly humanitarian but it must not be neglected that USA and its allied forces had very strong political motives behind that we would not go into details save cursory mention. The aerial strikes were made with scientific precision, but up in the air, to avoid any possible loss of NATO soldiers[46]. The staff was strictly advised to fly at higher altitude, unapproachable for any surface to air missiles. Naturally, the targets remained less precise and less accurate at the expense of greater risk to civilian lives on earth[47].
Despite the harmful effects and the threats that a humanitarian intervention might pose to the stability of a state whose sovereignty is being violated, it is being increasingly realised amongst the experts that heinous ‘crimes against humanity’ should be no longer permissible at the pretext of national security or state sovereignty. “If humanitarian intervention is indeed an assault on sovereignty”, as described by Kofi Anan shortly after Kosovo crisis, “then how should we respond to a Rwanda and a Srebrenica on gross and systematic violations of human rights that affect every precept of our common humanity?”. The Genocide convention from 1951. also recognizes the need for humanitarian intervention, where justified, to protect people from the human rights abuses[48].
UN Security Council faced a severe disagreement over the questions of using force in Iraq, mindful of the fact that it might set precedence for unlawful intervention in other states, which is no less than a war of aggression against the weaker states. Any act of humanitarian intervention is assumed to be illegal, if it is not authorised by UN Security Council. But if the UNSC fails either to seek endorsement or effectively discharge its duty to protect humanity, is there a possibility to initiate any such action without the sanction of UN authority or are there certain principles outside the UN system that can be employed to protect a group of people being massacred by its own state? Knowing the intricacies, it is more than likely to suppose that a humanitarian crisis occurs somewhere but UN fails to reach a consensus, usually hampered by the irrational veto power held by its five permanent members. Therefore, experts incline to think of a possibility to morally justify a humanitarian intervention without UN authorization, as the last resort, save the action is not politically motivated[49].
Others, such as Henry Shue and Geoffery Robertson, argue that UN sanction for a humanitarian intervention need not to be inevitable. Alternatively, there should be an impartial and democratic body, knowing that UN has failed to become a democratic or impartial body, mandated to decide for a humanitarian intervention in response to conscious shocking atrocities inflicted by a state upon its own nationals. Robertson argues that though Kosovo intervention was a breach of Article 2(7) of the UN Charter, it could be justified under the following reasons: ample evidence is available that long before NATO air strikes, Belgrade was bent upon a genocidal mission against Kosovar Albanians causing severe humanitarian crisis and massive influx of refugees in neighbouring countries threatening prospects of peace in the region. Tantamount to ‘crimes against humanity’, the very act called for a humanitarian action under the Article 7 of the Rome Statute constituting International Criminal Court[50].
The International Commission on Intervention and State Sovereignty (ICISS), established after the Kosovo crisis, stipulates the need for ‘use of force’ if circumstances desire so, to put an end to a genocidal war, crimes against humanity or an expedition of ethnic cleansing. In response to the recommendation made by the Commission’s report, a resolution on ‘the responsibility to protect’ was adopted by UN World Summit in 2005. Amidst divergent views, the Commission adopts a middle course by advocating the respect for ‘internal affairs of the state’ and simultaneously highlights the ‘responsibility to protect’. It acknowledges and reaffirms that external interventions might set off anti-state elements, disturb internal order of the state and ensue chaos. It also encourages the states to settle its internal disputes in a peaceful manner[51].
Finding no way out, humanitarian NGOs have also been influencing interventionist decisions in the times of similar crisis. Oxfam lobbied for humanitarian intervention in Zaire (1996) and in Sierra Leone (2000). Human Rights Watch and World Vision were in favour of armed intervention in Kosovo to protect Albanian Muslims. CARE International mobilized support for humanitarian intervention in Haiti to restore its elected government (1991) and in Somalia (1993). Regarding Kosovo, Oxfam wrote a letter to the British prime minister urging him to use the threat of force, “as the only remaining option to uphold citizen’s rights in war”. “This may not be the ideal option but it is the least worst option”, Oxfam said[52].
Given the constrains in winning over consensus for humanitarian intervention, the illegal acts of intervention, directed towards legal reforms, seem to be a rational choice to several experts. Obviously any such acts need to be rational and morally justifiable as well. Allan Buchanan[53] recommends eight such preconditions for illegal acts directed towards legal reforms, coupled with rational justifications. These could be summed up as: “the more a system approximates its normative ideals, greater the difficulty to justify illegal acts of intervention or to justify a violation to the existing norm; the less defective the system in terms of substantiating justice, greater the challenge to justify illegal acts; closer the system to the ideals of a legitimate system, greater the burden to justify; the more an act violates the fundamental and morally defensible principles of the system, greater the burden to justify it; greater the improvement in the system or stronger the system, the greater the burden to justify the illegal acts that are likely to improve the legitimacy of the system of international law; the illegal acts that succeed to change dimensions of substantive justice are easier to be justified and finally the illegal acts that are more likely to contribute in making the system consistent with its morally defensible principles are easier to be justified”.
Any such intervention, e.g. abolishing slavery, introducing the principles of non-discrimination, and even fighting for freedom from the colonial oppression, should result in fundamental reforms in the international law or constituting a new customary international law at best. While making a responsible choice, certain illegal acts could be advisable if such acts are directed towards the essentially required reforms. However it depends of the conscientious choice of the actor whether breaking of domestic law is committed towards the change that is demanded for the larger good[54].
Conclusion:
Several conclusions could be drawn from Kosovo case such as: Early warning alone rarely helps. A strong political will to commit substantial resources is also necessary. A humanitarian intervention involves serious risks of escalating tension and atrocities but eventually it does more good than harm. It was not the NATO bombing that provoked Serbian attacks, rather FRY military was unfolding an elaborate plan for torture, ethnic cleansing and large scale expulsion of Kosovar Albanians. However, bombing did provide an excuse in which Serbian army could intensify its mission to operationalize its brutalities. Indecisiveness of the international society, multiple and multifarious political agendas and mixed signals always hamper effective diplomacy. Threat and coercive diplomacy, the mode that was adopted in negotiations with Serbian administration, violates the norms of UN Charter and is more than likely to fail[55].
A disproportionate veto power, in this case Russian, makes things problematic for humanitarian intervention. Hence NATO went for its humanitarian mission without UN approval. The Kosovo intervention is believed to be illegal, for not being sanctioned by the Security Council, but morally legitimate given the scale of humanitarian crisis. Before that, all possible diplomatic efforts had been exhausted. The mission was inevitable to protect Kosovar civilians from Serbian oppressive regime.
Underfunded and understaffed, the humanitarian support fell far short of the need on the ground, creating problems for resettlement and administrative arrangement at the end of the operation[56]. As a natural consequence of all humanitarians crisis, hundreds of thousands of people fled to the neighbouring Albania and Macedonia putting immense relief and rehabilitation pressures on the respective governments. Lack of preparedness and poor coordination aggravated the crisis further. Despite this all, the conditions of the camps and the level of supplies were much better than we normally see in response to the crisis in Africa (and Asia). It is quite evident that the political objectives were more or less achieved but humanitarian loss afforded was more than NATO leaders had probably imagined[57].
Kosovo intervention can be judged effectively and successfully only if we see things from an empirical approach. Precisely put, it was a success from realist political perspective, but from a ‘normative’ and ‘constructivist’ angle it was no less than a disaster. It was rather a blow to humanitarian progress. More an expression of ethnocentrism and arrogance than a collective progress towards humanitarian cause. Failing to create gemeinschaft society and a collective sense of “we-ness” at international level, the very act has opened up new avenues to the relativist eccentricities. It is also clear that states rarely operate purely for humanitarian aims. Kosovo operation did achieve a lot in terms of saving hundreds of thousands of lives and restoring peace and stability in the region but profoundly damaged the development of ‘international society’ and ‘international humanitarian regime’. Post September the 11, 2001 – interventions in Afghanistan and Iraq, based on parochial and self serving agenda of the powerful few, was another fatal blow to the evolution of international society and humanitarian law[58].
References:
Books:
1. Baaz, M., 2009. The Use of Force and International Society. Stockholm: Jure Förlag AB.
2. Baylis, J., Smith, S. & Owens, P., 2004. The globalization of world politics. Oxford: Oxford University Press.
3. Buckley, M. & Cummings, S.N., 2001. Kosovo: Perceptions of War and its Aftermath. London: Continuum.
4. Chomsky, N., 1999. The new military humanism: Lessons from Kosovo. London: Pluto Press.
5. Foley, C., 2008. The thin blue line: How humanitarianism went to war, London: Verso.
6. Holzgref, J.L. & Keohane, R.O., 2003. Humanitarian intervention: Ethical, legal and political dilemmas. Cambridge: Cambridge University Press.
7. Ignatieff, M., 2000. Virtual War: Kosovo and Beyond. London: Chatto & Windus.
8. Seybolt, T.B., 2007. Humanitarian Military Intervention: The condition for success and failure, Oxford: Oxford University Press.
Articles:
1. Baaz, M., 2008-09. Human Rights or human wrongs? Towards a “thin” universal code of international human rights for the twenty first century. Sartryk Ur Jurisdisk Tidskrift.
2. Caplan, R., 1998. International Diplomacy and the Crisis in Kosovo. International Affairs: Royal Institute of International Affairs, [Online]. 74(4).
3. Joyner, D.H., 2002. Kosovo Intervention: Legal Analysis and a More Persuasive Paradigm. EJIL, [Online]. 13(3).
4. O’Conell, M.E., 2000. The UN, NATO, and International Law After Kosovo. Human Rights Quarterly, [Online]. 22.
5. Simma, B., 1999. NATO, the UN and the Use of Force: Legal Aspects. EJIL, [Online]. 10.
Reports:
1. Amnesty International, 2000. Collateral Damage or Unlawful Killings? Violations of the Laws of War by NATO during Operation Allied Force (Summary). [Online], Available at: http://www.arnehansen.net/000609nato.htm [Accessed 20 October 2009].
2. Independent International Commission on Kosovo, 2000. Kosovo report. [Online], Available at: http://www.temple.edu/lawschool/drwiltext/docs/The%20Kosovo%20Report.pdf [Accessed 18 October 2009].
3. International Crisis Group, 2008. Report on Kosovo. [Online], Available at: http://www.crisisgroup.org/home/index.cfm?id=1243 [Accessed 30 October 2009].
International Instruments and Court Cases:
1. Additional Protocol I to the Geneva Conventions 1977.
2. Charter of the United Nations 1945.
3. Convention on the Prevention and Punishment of the Crime of Genocide 1951.
4. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgement [1986] ICJ.
Websources:
1. Anon, Flashback on Kosovo’s war. BBC News, [Online], Last updated: 10 July 2006. Available at: http://news.bbc.co.uk/2/hi/europe/5165042.stm [Accessed 31 November 2009].
2. International Commission on Intervention and State Sovereignty, 2001. The Responsibility to Protect. [Online], Available at: http://www.iciss.ca/report2-en.asp [Accessed 19 October 2009].
3. Wikipedia, the free encyclopedia, Kosovo (Kosovo in Communist Yugoslavia). [Online], Available at: http://en.wikipedia.org/wiki/Kosovo#Kosovo_in_Communist_Yugoslavia [Accessed 31 October 2009].
4. Wikipedia, the free encyclopedia, Demographics of Kosovo. [Online], Availble at: http://en.wikipedia.org/wiki/Demographics_of_Kosovo [Accessed 31 October 2009].
[1] Buchnan, A., 2003.
Reforming the international law of humanitarian assistance, in ed. Holzgref, J.L. & Keohane, R.O.,
Humanitarian intervention: Ethical, legal and political dilemmas. Cambridge: Cambridge University Press, p. 130.
[2] Buckley, M. & Cummings, S.N., 2001. Kosovo: Perceptions of War and its Aftermath. London: Continuum, p. 12-13.
[3] Ibid.
[4] Wikipedia, the free encyclopedia, Kosovo (Kosovo in Communist Yugoslavia). [Online], Available at: http://en.wikipedia.org/wiki/Kosovo#Kosovo_in_Communist_Yugoslavia [Accessed 31 October 2009].
[5] Ibid.
[6] Independent International Commission on Kosovo, 2000. Kosovo report. [Online], Available at: http://www.temple.edu/lawschool/drwiltext/docs/The%20Kosovo%20Report.pdf [Accessed 18 October 2009], p. 1.
[7] Wikipedia, the free encyclopedia, Demographics of Kosovo. [Online], Availble at: http://en.wikipedia.org/wiki/Demographics_of_Kosovo [Accessed 31 October 2009].
[8] Anon, Flashback on Kosovo’s war. BBC News, [Online], Last updated: 10 July 2006. Available at: http://news.bbc.co.uk/2/hi/europe/5165042.stm [Accessed 31 November 2009].
[9] Ignatieff, M., 2000. Virtual War: Kosovo and Beyond. London: Chatto & Windus, p. 13.
[10] Ibid.
[11] Ibid.
[12] Caplan, R., 1998. International Diplomacy and the Crisis in Kosovo. International Affairs: Royal Institute of International Affairs, [Online]. 74(4), p.747.
[13] International Crisis Group, 2008. Report on Kosovo. [Online], Available at: http://www.crisisgroup.org/home/index.cfm?id=1243 [Accessed 30 October 2009].
[14] Ibid.
[15] Supra note 12, p. 749.
[16] Supra note 6, p. 29.
[17] Supra note 6, p. 57.
[18] Supra note 6, p.1.
[19] Joyner, D.H., 2002. Kosovo Intervention: Legal Analysis and a More Persuasive Paradigm. EJIL, [Online]. 13(3), p. 597.
[20] Ibid, p. 599.
[21] Baaz, M., 2009. The Use of Force and International Society. Stockholm: Jure Förlag AB, p. 112.
[22] O’Conell, M.E., 2000. The UN, NATO, and International Law After Kosovo. Human Rights Quarterly, [Online]. 22, p. 58.
[23] Supra note 6, p. 59-60.
[24] Simma, B., 1999. NATO, the UN and the Use of Force: Legal Aspects. EJIL, [Online]. 10, p. 7.
[25] Charter of the United Nations, Art. 51.
[26] Supra note 22, p. 59.
[27] Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgement [1986] ICJ, p. 103, 195.
[28] Ibid, p. 105, 199.
[29] Supra note 6, p. 60.
[30] Supra note 19, p. 601.
[31] See: International Commission on Intervention and State Sovereignty, 2001. The Responsibility to Protect. [Online], Available at: http://www.iciss.ca/report2-en.asp [Accessed 19 October 2009].
[32] Bellamy, A.J. & Wheeler, N.J., Humanitarian intervention in world politics, in Baylis, J., Smith, S. & Owens, P., 2004. The globalization of world politics. Oxford: Oxford University Press. p. 530.
[33] Human Rights Law does not cease to be applicable in times of war.
[34] Amnesty International, 2000. Collateral Damage or Unlawful Killings? Violations of the Laws of War by NATO during Operation Allied Force (Summary). [Online], Available at: http://www.arnehansen.net/000609nato.htm [Accessed 20 October 2009].
[35] Ibid.
[36] Ibid.
[37] Ibid.
[38] Supra note 6, p. 66.
[39] Ibid, p. 64.
[40] Ibid, p. 66.
[41] Ibid, p. 2.
[42] The comment was actually made by the head of the Centre party of Israel and the wife of the ex-Chief of staff as cited in: Chomsky, N., 1999. The new military humanism: Lessons from Kosovo. London: Pluto Press, p.11.
[43] As described by Alexander Solzhenitsyn, cited in: ibid.
[44] As commented by a prominent military and strategic commentator (the name is not mentioned), cited in: ibid.
[45] Chomsky, N., 1999. The new military humanism: Lessons from Kosovo. London: Pluto Press, p.11.
[46] Back in 1993 USA had lost 18 of its soldiers in Somalia when a black Cobra Helicopter was shot down by an anti-air craft missile. Under pressure from the soldiers parents and the public USA had withdrew its troops from the peacekeeping operation.
[47] Seybolt, T.B., 2007. Humanitarian Military Intervention: The condition for success and failure, Oxford: Oxford University Press, p. 83.
[48] Foley, C., 2008. The thin blue line: How humanitarianism went to war, London: Verso, p. 150.
[49] Ibid, p. 149-152.
[50] Robertson, G. & Shue, H. in Foley, C., supra note 49, p. 152-153, and Chomsky, N., supra note 45, p. 17.
[51] Supra note 6, p. 3.
[52] Supra note 48, p. 159-169.
[53] Supra note 1, p. 159-160.
[54] Holzgref, J.L. & Keohane, R.O., 2003. Humanitarian intervention: Ethical, legal and political dilemmas. Cambridge: Cambridge University Press, p. 158-163.
[55] Supra note 47, p. 3-4.
[56] Supra note 6, p. 3.
[57] Supra note 47, p. 82-84.
[58] Baaz, M., 2008-09. Human Rights or human wrongs? Towards a “thin” universal code of international human rights for the twenty first century. Sartryk Ur Jurisdisk Tidskrift, p. 423-426 & 432.
February 3rd,2011
Human Rights | tags:
crimes against humanity,
Croatia,
ethnic cleansing,
former Yugoslavia,
genocide,
hate,
hatred,
humanitarian intervention,
humanitarian response,
Kosovo,
Muslim,
prejudice,
rape,
responsibility to protect,
Serbia,
war crimes |
Comments Off
“Feminism is the radical notion that women are people”.
Cheris Kramarae & Paula Treichler
Introduction:
In plain terms feminism can be defined as,….“a movement for social, cultural, political and economic equality of men and women. Though the issues of feminism might vary from culture to culture but they are globally tied together in their campaign to end gender-based discriminatory practices against women[2]”. No singular feminist perspective or unified theoretical framework exists around. The most prominent ones’ are radical feminism, socialist, modern, post-modern and liberal feminism. But this distinction hardly matters to discuss and underline feminist contribution to our understanding of genocide, slavery, segregation and apartheid that this article is meant for. Most feminists agree that socially and culturally institutionalized patriarchy and unequal distribution of power between men and women are the source of violence, discrimination and exploitation of women.
Feminist Perspectives on Slavery:
It was Harriet Stowe’s novel, ‘Uncle Tom’s Cabin’ by that first brought the issue of slavery to public in America and even contributed to the civil war and later on public policies in the 1830s. Likewise Francis Wrights’ radical ideas that made her notorious non conventional ideas influenced the public mind. Anti-slavery and women rights campaign in the same era by the two sisters Sarah Grimlke and Angelina, beginning by their hatred for slavery for being severely reprimanded by their parents on teaching a slave companion, an illegal act then. Refusing marriage and conventional life they joined Quaker society in Philadelphia and found it too conservative. Both organized women for ‘American Anti-Slavery Society’ delivered fiery speeches, prepared pamphlets and profoundly influenced public conscience and national agenda surmounting general disliking and attempts on their lives (Becoming Human, HRQ, p.10,11).
Ms. Deborah G. White describes the plight of women slaves and the general effect of slavery on American society and culture, much neglected by male historians, in her landmark work, Aren’t I a woman?: Female slaves in the plantation south (1985). Both black and white men treated female slaves as a sexual substance, she observes. The role of slave woman and her significant contribution in the plantation economy and the division of labour based on age health and fertility status was understudied. She was grossly misunderstood as a (slave) child-breeder, a nurturer and an asexual mother (earth). Her relationship to other women, and her role in the black family and culture was rarely taken into consideration. She reveals a startling fact that post-child-bearing-age women were most often assigned heavier tasks than men. She believes that occidental, white, racist, imperial, slavocratic, and masculine mentality misrepresented female slaves under their preconceived patriarchal notions. (Deborah G. White 1985 in Thomas, G. 2005).
Slavery annulled woman’s identity as ‘women’ and their institutionalized rape was used to annihilate their and their men’s resistance. The western patriarchal mindset reduced women’s identity to objects of servitude or simply non-beings. Superimposed western notions of ‘manhood’ and ‘womanhood’ as biological facts served to continue slavery and exploitation (Davis A.Y.1971 as in James J.1998). Virginity, purity and domesticity were the defining characteristics of Victorian women, all denied to a slave women. Black women were presented as an entity without soul associated with overt sexuality and perverted behaviour, simply an animal that breeds while it is the white women who mothers. ‘White man’ was predated by ‘black women’ threatening the sanctity of white woman and her household. Not possessing a male protector, family and home – signposts of western womanhood – further added to her purported subhuman status. Surviving institutional rape constituted her demonized character because a true woman would rather prefer death than being sexually abused. Hence the interests of white men were juxtaposed with white women[3].
Institutions and practices endorsing coerced, servile or highly unequal marriages and the sale of wives and minor girls subjected to prostitution, debt-bondage, recruitment of child soldiers, traffic in persons and the sale of human organs constitute new forms of slavery even if they are embedded in cultural norms or opted out against poverty. Such Obvious forms of human rights abuses tantamount to slavery but are tolerated under institutionalised cultural and patriarchal values. The same values are sometimes somewhere translated into the legal norms (OHCHR Fact Sheet, Welch, C. E. 2009:100).
Kavin Baily argues that despite legal abolishment, sexual slavery thrives in the new global economy aligned with the mechanics of violence. For instance, young girls are commoditized in the international spots of tourism and several metropolitan capitals of the world, at times with parental consent. Far worse than the old slavery, victim women are marketed and disposed off quite quickly given their age and sexual utility. Investors from various countries are very active in this quick-to-start, low-investment, high-return business usually run in collusion with the police and high officials. Severely beaten up to submission, they are coerced or raped to elicit consent for sexual slavery. In turn the victims receive nothing save a bare minimum food and a place to squeeze in. Around 27 million people are damned to slavery or live in slave like conditions even today (Bailey, K. 1999).
The Slavery Convention 1926 defines it as “the status or condition of a person over whom any or all of the powers of ownership are exercised (OHCHR).” It failed to include bonded or farm labour, child sale, pornography, genital mutilation, sexual enslavement and forced prostitution despite recommendations by certain members of the Slavery Commission. Thanks to the gender-sensitive efforts of ‘Anti Slavery’ (NGO), the Supplementary Commission of 1956 however includes a host of practices defined as contemporary forms of slavery including sexual exploitation of underage children. Despite long recognition of such practices as new forms of slavery and outright human rights abuse, its abolition is proving difficult and protracted because of the state collusion, social acceptability and underlying interests of patriarchal institutions. Feminists believe that gender equality and abrogation of culturally endorsed slavery-like practices alone can help eliminate new forms of slavery (Welch C.E. 2009:98-100).
Feminists Perspectives on Segregation:
Slavery and apartheid are squarely condemned but ironically, women’s subjugation and truncated rights of property ownership, business management, involuntary veiling, workplace discrimination, denying voting rights, confinement and even their lack of control over their own bodies are considered to be the cultural values (Fellmeth A. 2000: 695). With the commencement of Taliban regime in Afghanistan (1996), as one of the worst example, women’s rights were the first causality. Their Right to schooling, work, voting and movement were immediately suspended through enactment of such measures grossly illegal under the international law. More or less a similar situation exists in several other countries of the south (Verdirame. G. 2001: 4). Women’s disadvantageous position in the labour market is reinforced by patriarchal traditions of housekeeping, child-care and their subordinated role in society. Roles like nunnery, teaching, nursing, catering, typing, assisting, corresponding to their stereotype roles, dismisses them to become a proprietor, engineer, supervisor etc (ILO 2000: 115).
Women’s work is supposed to be under-skilled, undervalued and underpaid, all because of the public-private split in the market-sphere denying them the status of full personhood, citizenship and entitlement to human rights (SEP: 2004). Corporations and religio-political institutions, antagonizing women’s human rights, exploit public-private division by low wages, keeping women’s policy priorities secondary and sustaining inhumane conditions of work (Binyon G. 1995).
Marxist feminists believe that the equal status of men and women in the communal forms of production was skewed in favour of men with the invention of private property and its control by men. Surplus generation thereby changed the family structure to patriarchy where women and slaves were assumed to be part of the property. Economic development proved a counterproductive force for women. Their emancipation can come through their economic liberation and equal participation in the market. Other feminists argue that women’s biosocial reproductive role must be given equal economic significance, ignored by conventional economists (Reed 1973, Leacock 1972, Saffioti 1978, Vogel & Benston 1995 as cited in SEP 2004).
Feminist Perspectives on Genocide:
Ethnic cleansing or wilful elimination of an entire social group perpetrated by the state or a powerful faction in their struggle of nation-building, state-formation or manufacturing a homogenous identity constitutes genocide. Although mass killing of men is inseparable from genocidal attacks, women are specifically subjected to brutal sexual and physical violence. In a genocidal situation the most intensive, horrifying and bestial acts of violence committed against women. Violent bands usually rape, humiliation and torture them to disgrace separatists or an adversary. Women-specific massacre has been seen in Indian Gujrat 2002, Rwanda 1994, Bosnia 1993-1995, East Pakistan 1971 and Nanjing 1937 in the near past. (Mojab, S. 2003, 1-2).
Horrendous torture was inflicted upon Tutsi women in Rwandan genocide 1994. Along with rape, spears, arrows or other sharp objects were pierced into the vaginas of women or shot into their genitals. Characteristic organs of Tutsi women such as sharp nose or long fingers were cut off. Several Tutsi women were given to Hutu men in reward of killing maximum Tutsis. Women were forced to have sex in exchange for temporary shelter or held captive for sexual slavery by the militia or military. Women were gang raped, their sexual organs were mutilated and in some cases raping corpses was also reported (AI, 2004: 2-5).
Abdomens of pregnant women were slashed open to throw their foetuses into the fire during the genocidal attack against Muslim women in Indian Gujrat 2002. Tender age children were sexually molested and burnt alive. Hindu religious symbols were cut out on the bodies of sexually assaulted women. Bharat mata, ‘the motherland of India’ was ideologically blended with the persona of Hindu women. Muslim rule in the past was interpreted as the mythological rape of Hindu women, hence justifying rape of Muslim women. In other words it was an act of reclaiming the motherland of India (IIJ, 2003: 4-21). In the former Yugoslavia public assault was used as weapon of terror and ethnic cleansing.
The pattern of violence suggests that women’s bodies were particular site of brutalities with innovative forms of torture. Their bodies were perceived to be the reproductive medium of a particular ethno-religious identity (Sarkar, T. 2002). In their violent attempt of shifting the demographic ratio, the rapists described their act as changing the victim’s identity. It reflects the nationalist patriarchal perception that male ‘germ’ constitutes one’s identity while woman’s body is just a container. Humiliating women is perceived as vital part of constructing the manly image of ‘patriotic’ attackers (Panwani J. 16, IIJ 2003: 30).
Rape often results in pregnancy, disease, divorce, stigma and stereotyping. In many cultures victim women are abandoned or killed by their male relatives to avoid ‘shame’ (Rowland, R. 1995: 12). Rape survivors, impregnated or otherwise and the widows are discriminated or ostracised within their own families and communities. Contracting HIV/AIDs, STDs[4], fistula, trauma and other psychological disorders is a lifelong ailment that causes social humiliation. Many keep silent under the fear of being stigmatized, marginalized or discriminated. During post-conflict investigations, several women told, they were guilty of being survived. Some of their own community members asked them to have cooperated with the perpetrators, if they had survived. Several women were discarded by their husbands, many could never get married and other told of not seeking medical assistance, even if it was available to conceal the fact of having been raped (Al 2004: 5-7).
Police remained either silent or collaborated with the extremist Hindu groups during the genocidal attacks in Gujrat. Several years down the road, the criminals could not be brought to justice simply because of the patriarchal and communal biases of the judges and prosecutors. The law is inherently skewed towards men. The absence of witness or rejecting women’s witness plays assists denying justice to the victim women. (AI 2005).
The Genocide Convention 1948 defines genocide as: “killing members of a group, causing serious mental or bodily harm to the members of a group, deliberate inflicting on the group the conditions calculated to bring about its physical destruction in whole or in part and imposing measures intended to prevent births within the group….. (UN CPPCG).” ‘Intent’ is considered to be a defining characteristic of genocide, emphasising on ‘the purpose of the offender’ not the ‘outcome.’ For women the ‘outcomes’ are as serious as ‘intent’. The term ‘genocide’ and its’ subsequent definition, though quite broad and rich in semantics and content, still ignores several aspects and impacts of genocide that women specifically experience. The term ‘gendercide[5]’ i.e. sex-selective mass killing coined by Marry A. in 1985 is a theoretical breakthrough in the field of genocide research. Although ‘femicide’ and ‘gynocide’ are also used somewhere but to her keeping the term gender-neutral is important. The rubric however mostly covers humiliation and rape of women followed by murder (Gendercide Watch 2010).
Gendercide happens both in times of peace and war. Nation-building, state-formation, identity-preservation and patriarchal culture are the key culprits causing genocide. Non-state oppressive groups and communities, religious establishments and/or military are the potential perpetrators. It is not a mere coincidence that patriarchal and state violence go side by side. In-fact the state itself, all its apparatuses and institutions are inherently intertwined to serve and protect patriarchal structures. Feminists argues that violence against men is classified as a matter of public concern, calling for state intervention, while rape and torture against women as a private matter to be resolved by the individuals implicated, causing a greater barrier in seeking justice (Fellmeth, A.X 2000: 668).
The ideas and insights shared by feminist analysis of genocide calls for incorporating elements of gender in the UN Convention on Genocide. Their analysis helped adding aspects of gender to the racial, ethnic and religious groups as mentioned in the respective convention and offers policy options and strategies to prevent genocide (Mojab, S. 2003).
Conclusions:
State sovereignty and authorizing state to eliminate human rights abuses holds little value to women as it means more powers to men and patriarchal orders within the state. State sovereignty structurally undermines men’s oppression of women. Manoeuvring public-private classification men halt state intervention to eliminate injustices both at home and outside. The very division is manipulative, failing to contribute in policy measures favouring women. Women suffer violence more at the hands of men than from the state. It is one of the reasons that little changed has occurred despite state’s commitment in CEDAW to eliminate sexism from their respective societies. Several states still have reservations even to sign in on cultural grounds (Fellmeth, A. 2000: 669-677, 695).
Ideology, institutional structure and human rights practices subordinate distinctiveness of women rights, violence against women in particular. For instance, rape is far more a serious crime than simply a breach of human rights. Feminists are battling to incorporate women rights into the patriarchically defined bill of human rights that ignores several discriminations and violences suffered by women both in times of peace and war. The terms ‘people’ and ‘everyone’ used in UDHR ignores the fact that men wield more power and subjugate women in most societies. By subordinating compliance to the culture and politics UN undermines built-in prejudices and violences against women. Male dominated definitions of ‘rights’ and ‘freedoms’ stressing rights exercised in the public sphere, makes women rights infringement invisible. The ‘declaration on the violence against women 1993’ is a milestone achievement of feminists as it acknowledges the inequities of power resulting in systematic violence and discrimination against women (Rowland, R. 1995: 9).
Both CEDAW and CEVAW[6] were brought into existence with the feminists’ efforts stating that both public and private discrimination against women violates women’s human rights calling upon member states to take action (Fraser A. 1999). It is with the feminists’ struggle that international law is progressively realizing the significance of women rights and the need of protecting them from genocide, institutionalized segregation and sexual slavery. Contrary to the conventional human rights theorization – which is abstract, deductive and hierarchical – feminist understanding is empirical and compassionate. It is self-conscious, tentative and rooted into the contemporary socio-political and economic realities. Conventional jurisprudence, essentialising human persons as legal entities, is less likely to acknowledge claims made by women. It boils down international human rights into international politics only. Therefore human rights law has been a miserable failure. In-depth analysis reveals law to be inherently a gendered and oppressive system, reflecting male interests and experiences, vehemently purported by liberal nation-states. Feminist contribution underpins the insights of life that women experience differently from women. Precisely, inclusion and plurality is the essence of feminist thought. Broader outcome of feminist contribution in human rights is not women-specific; it rather engenders a profound impact for the betterment of whole society (Binyon G. 1995: 2-5).
*********
References Cited:
Books, Reports and Articles:
- Aaron Xavier Fellmeth 2000, Human Rights Quarterly No. 22, pp.658–733, Johns Hopkins University Press, USA.
- Arvonne S. Fraser 1999, on Becoming Human: The origins and Development of Women Human Rights, No. 21.4, 853-906, John Hopkin University Press, USA.
- Claude E. Welch, Jr. 2009, Human Rights Quarterly, Vol 31, 2009, The John Hopkins University Press.
- International Initiative of Justice, 2003, Threatened Existence: A Feminist Analysis of the Genocide in Gujarat-
- International Labour Office 2000, Woman, training, work and gender: A partnership of equals, Geneva, Occupational sex segregation, Inefficiency, rigidity and discrimination.
- Kevin Baley, 1999, Slavery, Economy and Disposable People: New Slavery in the Global Economy, Los Angeles, University of California Press. Human Rights Quarterly, Book Review.
- Shahrazad Mojab, 2003, Kurdish Women in the zone of genocide and gendercide, Al-Raida, Volume 21, No. 103, Fall 2003,
- Rowland, Robin 1995, Human rights discourses and women: Challenging the rhetoric with reality, in Symposium: Human rights and the sociological project, ANZJS Volume 31, No.2, August 1995.
- Sarkar, Tanika 2002, Semiotics of Terror: Mulsim women and children in Hindu Rashtra, Economic and Political weekly, July 13, 2002.
- Gayle Binyon 1995, Human Rights, A feminist perspective, Human Rights Quarterly, 17.3, 209-526, John Hopkin University Press.
- Guglielmo Verdirame 2001, Testing the Effectiveness of International Norms: UN Humanitarian Assistance and Sexual Apartheid in Afghanistan, Human Rights Quarterly 23, 733–768, The Johns Hopkins University Press, USA.
- Amnesty International: India: 2005, Three years later still no justice for the victims of violence in Gujrat, Public Report, 25 February 2005.
Web Sources:
- Amnesty International, 05 April 2004, See: http://www.amnesty.org/en/library/info/AFR47/008/2004, Site hit on July 07, 13:14,
- Definition of Feminism, Ezine Articles, See: http://ezinearticles.com/?Definition-of-Feminism&id=1697184, Site hit on July 07, 2010, at 09:26hrs
- Gendercide Watch 2010, What is Gendercide, http://www.gendercide.org/what_is_gendercide.html Site hit on July 02, 2010 at 13.hrs.
- Definition of Feminism, See: http://ezinearticles.com/?Definition-of-Feminism&id=1697184, Site hit on July 07, 2010, at 12:29 hrs.
- Jyoti panwani, 2003, Communalism combat completes a decade, See: http://www.countercurrents.org/comm-punwani140903.htm, Site hit on July 2010, 22:36 hrs.
- OHCHR, Fact Sheet No- 14, Contemporary Forms of Slavery, http://www.ohchr.org/Documents/Publications/FactSheet14en.pdf, Site hit on July 08, 2010 at 12:13 hrs.
- OHCHR, Slavery Convention signed at Geneva on 25 September 1926, See: http://www2.ohchr.org/english/law/slavery.htm, Site hit on July 09, 2010 at 13:34 hrs.
- OHCHR, Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, See: http://www2.ohchr.org/english/law/slavetrade.htm, Site hit on July 09, 2010 at 13:36 hrs.
- Stanford Encyclopaedia of Philosophy 2004, See: http://plato.stanford.edu/entries/feminism-class/, Site hit on July 7, 2010, at 17:52 hrs.
10. Thomas, Grg. 2005, Man and woman, slavery and empire, Reconstructing gender in Plantation America, GENdA, A Journal of African Culture and African Women Studies, Issue 7, 2005, See: http://www.amazon.com/reviews/R6UIFVFXPPSI4, Site hit on June 28, 2010, at 13.00 hrs.
[1] The author is a peace and human rights activist and works for a an international human rights NGO in Pakistan. The article was written in July 2010.
[2] Definition of Feminism, See: http://ezinearticles.com/?Definition-of-Feminism&id=1697184
[3] Hazel H. V. Carby, 1984: Ideologies of womanhood ( as mentioned in Thomas, G. 1987: 19, 27 in JENdA),
[4] Sexually Transmitted Disease (STD),
[5] Marry A Waren first coined in the term in her book, Gendercide: The implications of sex selection in 1985. She says that, by analogy, gendercide would be the deliberate extermination of persons of a particular sex (or gender)…. The term also calls attention to the fact that gender roles have often had lethal consequences, and that these are in important respects analogous to the lethal consequences of racial, religious, and class prejudice” Her analysis mainly focuses of anti-female gendercide. Source: Gendercide Watch.
[6] Convention on the Elimination of All forms of Discrimination against Women (CEDAW 1979) and Coalition on the Elimination of Violence against Women (CEVAW)
February 3rd,2011
Human Rights | tags:
discrimination,
feminism,
feminist,
genocide,
history of slavery,
rape,
secondary status of women,
segregation,
slavery,
subjugation of women,
subordination of women |
Comments Off
Introduction:
Sociologically feminism can be defined as,….“a movement for social, cultural, political and economic equality of men and women. Though the issues of feminism might vary from culture to culture but they are globally tied together in their campaign to end gender-based discriminatory practices – and violence – against women[1]”. No singular feminist perspective or unified theoretical framework exists around but essentially they all agree that socially and culturally institutionalized patriarchy and hierarchical structure of power between men and women are the source of all forms of violence and discrimination against women.
Demonstrating, how women-specific-violence is far more serious in its nature and effects, lacunas in the international human rights law (IHRL) and international humanitarian law (IHL) will be pinpointed from a feminist perspective. Women’s rights are pushed to the margins of IHRL and IHL, save offering additive and compartmentalized protections during armed conflicts and genocides. No denying a fact that remarkable changes are underway but in terms of structure and content, the law is inherently deficient and biased. Other than enforcement problem, overdeveloped role of the patriarchal state and societal-order also cause a barrier towards change. Where improvements are admirable, its impact and behavioural change is yet to be seen (Gardam J. 1998). Feminists claim that both national and international law is gendered, putting it rightly, male-gendered, conceptually, technically and procedurally. Jurisprudential framework and substance largely favour men (Fellmeth, A.X. 2000, 268-270). Drawing on feminist theory and research methodology, the proposal in hand aims to underline violence against women, particularly during genocides and armed conflicts, and proposes adequate reforms in the legal and political structures to eliminate the evil.
Violence against Women during Genocide and Armed Conflicts:
Ethnic cleansing or wilful elimination of an entire social group by violent means, spurred by the state or a powerful faction of society, constitutes genocide. Civil war, war over religions, territories and ethnicity between one or more than one groups, happening internally or internationally, characterizes armed conflict. Although mass killing of men is inseparable from genocides and armed conflicts, women are specifically subjected to brutal physical violence and sexual assaults. Mostly it is women who face the terribly intensive, horrifying and bestial acts of violence in a genocidal situation and at times in armed conflicts too. Violent bands usually rape, humiliate and torture women to disgrace an adversary, a separatist group or a warring faction. History is witness that women have been brutally assaulted in Indian Gujrat 2002, Bosnia 1995, Rwanda 1994, Uganda 1979, East Pakistan 1971, Cambodia 1970-1975, Nanjing 1937 and several other places of conflict (Mojab, S. 2003: 1-2, Stewart, J.G: 2003, 313-315).
Horrendous torture was inflicted upon Tutsi women in Rwandan 1994. Coupled with rape, spears, arrows or sharp objects were pierced into their vaginas or women were shot into their genitals. Characteristic organs of Tutsi women such as pointed nose or long fingers were cut off. Tutsi women were rewarded to Hutu men for killing maximum Tutsis. Women were forced to have sex in exchange for temporary shelter or held captive for sexual slavery by the youth militia or military. (AI, 2004: 2-5). Abdomens of pregnant women were slashed open to throw their foetuses into the fire during the genocidal attacks on Muslim minorities in Indian Gujrat 2002. Along with sexual assault Hindu religious symbols were carved on women’s bodies. Bharat mata, ‘the motherland of India’ was ideologically blended with the persona of Hindu women. Retrospective Muslim rule, interpreted as the mythological rape of Hindu women, justified the rape of Muslim women to reclaim the motherland of India (IIJ, 2003: 4-21). In the former Yugoslavia, striping off, public assault and humiliation of women was used as weapon of terror and ethnic cleansing.
The pattern of violence suggests that women’s bodies are particular site of brutalities with innovative forms of torture during a conflict. Their bodies are assumed to be the reproductive medium of an ethno-religious identity (Sarkar, T. 2002). In their violent attempt of shifting the demographic ratio, the rapists describe their act as changing the victim’s identity that reflects nationalist patriarchal notion of male ‘germ’ constituting an identity and woman’s body serving as medium. Humiliating women is perceived vital in constructing the masculine image of patriotic nationalist order (Panwani J. 16, IIJ 2003: 30).
Rape often results in pregnancy, disease, divorce, stigma and stereotyping. Avoiding ‘shame’ victim women are usually abandoned or killed by their male relatives (Rowland, R. 1995: 12). Rape survivors and widows are discriminated or ostracised within their own communities. Contracting HIV/AIDs, fistula, trauma and other psychological disorders cause social humiliation. Many keep silent fearing stigmatization and marginalization. Many do not seek medical assistance, even if it is available, to cover the ‘shame’ of having been raped. Others can never get married (Al 2004: 5-7). Law enforcement agencies remain silent or collaborate with the powerful during genocides or armed conflicts. Numerous criminals cannot be brought to justice because of the patriarchal biases of the judges and prosecutors (AI 2005).
Inadequacy of International Human Rights and Humanitarian Law:
‘Intent’ or deliberate inflicting on group the conditions bringing about its physical destruction’ is defining characteristic of genocide, emphasising on ‘the purpose of the offender’ not the ‘outcome.’ For women the ‘outcome of rape’ is as serious as ‘intent’. The term ‘genocide’ and its’ subsequent definition ignores several aspects and impacts of genocide, women specifically experience. Therefore feminists prefer using ‘gendercide[2]’ i.e. sex-selective mass killing, coined by Marry A. in 1985. It sounds neutral but the rubric mostly covers humiliation and rape of women followed by murder (Gendercide Watch 2010). Gendercide happens both in times of peace and war. Nation-building, state-formation, identity-preservation and patriarchal culture are the key culprits causing genocide and armed conflicts. It is not a mere coincidence that patriarchy and state-violence go side by side. Actually all the state apparatuses and institutions are intertwined with patriarchal structure. Feminists argue that violence against men is classified as a matter of public concern, calling for state intervention, while rape and torture against women is identified as a private matter to be resolved by the individuals implicated (Fellmeth, X.A 2000: 668).
Suffering from a prolonged and deafening silence, it was only after the ICTY[3] 1995, that sexual violence against women was declared as grave breaches of human rights. Still the provisions of IHL and its subsequent protocols dealing with the protection of women address women’s issues in relationship to men not as a subject on their own right. The clauses dealing with ‘women’s honour’ actually call for protecting the attributes seen important to men, say modesty, chastity or reproductive role of women. The concept of men’s honour, however is complicated, mainly circulating around his mental integrity. The said law assumes harms to ‘a person’ as harm to the state. States normally feel reluctant in claiming compensation for the persons politically and economically less significant i.e. mostly women. The UN Compensation Commission pertaining to Armed Conflict, however, recognizes claims for mental and bodily harm resulting from sexual assault but in practice the progress is slow. Protecting girl-child in armed conflicts, who are equally vulnerable, still receives little attention. Fair-trial demands and need for protecting victim and witness women remains tenacious, not necessarily inconsistent (Gardam & Charlseworth 2010).
Although UN World Conference (1993) declared violation of women’s human rights as violations of fundamental human-rights principles and humanitarian law, stressing on states’ effective response and laying emphasis on integrating women’s rights into the mainstream of human rights that was followed by the declaration on the Elimination of Violence against Women acknowledging women’s vulnerability during armed conflicts (Fraser A. 1999). But the existing regime does not consider the reality of women in letter and spirit, feminists believe. Once again the lacklustre behaviour of the state was observed in case of horrible sexual abuses against women in Rwanda. Deplorably, it took four years in prosecuting the first rapist and that too after a massive pressure from international women activists. Reports suggest that sexual violence against women in various types of conflicts is rather on the rise (Judith Gardam, 1998).
More than a decade down the road, it is clear that Vienna’s success was limited. Despite its own assertion to ‘integrate women’s rights in the UN system’ women’s concerns continue to be marginalized. It even fails to insert the word ‘women’ where ‘racial’ religious, ethnic, linguistic, or other forms of oppression make a mention. Women’s issues are lumped together on the margins. In reality, women face multiple oppressions, and ‘additive approach’ can hardly address it. Claiming rights as part of a group is easier than evoking provisions of gender-based discrimination and violence. IHRL’s and IHL’s tendency of ignoring or trivializing women’s human rights is still the same. Women’s point of reference is far removed from the international jurists undermining the range and impact of abuses on women. Entirety of their experiences falls ‘outside’ the scope of those theorizing and formulating law. Despite working group’s enormous efforts, their recommendations could hardly move beyond the preliminary documents (Mertus & Goldberg 2000).
Authorising the state to eliminate abuses holds little significance to women as it means more powers to men and patriarchal orders within the state. State-sovereignty structurally undermines men’s oppression of women. Manoeuvring public-private classification, men halt state intervention to eliminate injustices. The very division is manipulative, failing to contribute in policy measures favouring women. Women suffer violence more at the hands of men than from the state. Little change, hence-while, has occurred despite state’s commitment in CEDAW to eliminate sexism from their societies. Several states are still reluctant even to sign in CEDAW (Fellmeth, X.A. 2000: 669-677, 695). The terms ‘people’ and ‘everyone’ used in UDHR ignores the fact of men wielding power and subjugating women. Subordinating compliance to the politics of culture UN undermines built-in violence against women. Male dominated definitions of ‘rights’ and ‘freedoms’ make women’s rights’ infringement invisible (Rowland, R. 1995: 9). Given the present order, holding expectations from the state to free women from cruel, inhumane and degrading treatment is a wild goose chase (Charlesworth & Chinkin 2000).
A Feminist Approach towards the Issue:
Ontologically, reality is a social construct. So is the knowledge. Therefore, social deconstructionist[4] methodology to analyse, and constructivist approach[5] to resolve the problem are the most appropriate for the purpose. This simple idea holds profound implications in favour of women. Like all social knowledge, it presumes, IHRL & IHL has been created, framed and expanded or limited by our own experiences. Shaped and constructed by men, the present international regime, reflects and promotes their perceptions of reality and interests. Precisely, deconstructionist approach could be described as “signifying a project of critical thought whose task is to locate and ‘take apart’ those concepts which serve as the axioms or rules for a period of thought[6].” From a feminist perspective, this method deconstructs, analyzes and understands the rules and values constructed by men, critique them, and strives to reconstruct knowledge form women’s point of view. This method exposes the underlying prejudices and assumptions of the apparently gender-neutral laws. Despite their diversified theoretical positions most feminists agree on the strength and outcome of this method. Coupled with the deconstructivist method, feminist practical reasoning as a method of research can also help understanding women’s perspective, their feelings and experiences. The method prefers context, diversity and individual experiences over the abstract theories and notions, usually constructed by men. Disciplines like Sociology and Political Science are overly inclined towards generalizing social realities often ignoring disparities based on gender (Fellmeth, X.A: 2000).
What is significantly different and important in this approach is examining what’s happening around and how to combat it through a women’s lens, keeping in mind not to isolate women from multiplicity of factors affecting human rights. It observes that the ‘additive approach’ of putting women’s concerns within the masculinity-defined categories and theories without altering the existing frameworks – of power, politics, rights and freedoms – is no less than a forced fusion bound to fail in practice. Conventional approach and women’s rights cannot coexist. It is the epistemological framework that is meant to change entirely (Mertus & Goldberg 2010).
Contrasting conventional human-rights theorization – which is abstract, deductive and hierarchical – feminist approach is empirical, considerate and compassionate. It is self-conscious, tentative and rooted into the socio-political and economic realities. Conventional jurisprudence, essentialising human persons as legal entities, boils down international human rights into international politics. In-depth analysis reveals law to be inherently a gendered and oppressive system, vehemently purported by liberal nation-states. Feminist analyses underpin the insights of life that women experience differently from women (Binyon G. 1995: 2-5).
Several questions need to be raised while looking at the inherent lacuna of IL and its’ failure to address violence against women in genocides and armed conflicts. Say, who constitutes law and in which socio-cultural context? It must be asked who is looking into the problem and how does he interpret it? What is the focus of his – as it is mostly a man – investigation? What does he infer from the way it occurred? How representative is the jury mainly with respect to gender? How much closer or removed the jurists are from reality? Whose views count? Also, questioning the place of ‘rape’ in domestic and international system of law is crucial.
Broadly it is important to ask whether the problem is being addressed as a human-rights problem or simply a breach of law. Are structural or institutional factors being considered? In other words, asking a women-question, that feminists always do, is very important. Questioning how the norms, practices and rules affect women is equally essential? This is less important to ask what efforts states are making to prevent violence against women. What is important to ask is whether the state is struggling to change the processes and material conditions that regenerate male oppression and violence? What are the norms and values tolerating, condoning or supporting violence? In what manners state and patriarchal institutions encourage these conditions, why and who benefits from (Julie Mertus & Pamela Goldberg 2010)?
A Feminist Way Forward:
The proposed research stresses on more inclusive, diversified and broad-based international human rights framework. A more expansive and broader epistemology of human rights will emerge from women’s leadership, input and experiences. As a result an integrated spectrum of human-rights will come along with potential measures to eliminate gender-based violences. Examining human-rights with a gender-lens is almost a new strategy, more realistic and human-friendly, removed from bureaucratic, hierarchical and conventional complexes, woven by men in their favour. This approach is meant to dismantle public-private dichotomy suggesting viewing violence against women as violence against a dignified human person. It proposes to place systematic violence and oppression against women together with all other forms of systematic violences. Demanding women’s equal representation in the institutions of power, justice and law enforcement agencies, it strives for a revolution.
Based on genuine and in-depth agreement of both men and women, including the flexibility of agreeing to disagree, it is the most powerful approach of understanding and constituting law. Balancing law, by removing its lope sided tendencies, justice can follow through. With feminist efforts will help incorporating not only women’s experiences but of all the oppressed and powerless sections of society. A re-examination of Geneva Conventions, IHL, IHRL and UDHR from women’s perspective is demanded, calling for a substantial change in content not of form only. Women assuming the leadership and decision making role in resolving and transforming conflicts, the problems might be resolved or at least minimised quickly. Precisely, inclusion and plurality is the essence of feminist approach. Broader outcome of feminist contribution in human rights is not women-specific; rather it engenders a profound impact for the betterment of whole society.
*********
References Cited:
Books, Reports and Articles:
Aaron Xavier Fellmeth 2000, Human Rights Quarterly No. 22, pp.658–733, Johns Hopkins University Press, USA.
Arvonne S. Fraser 1999, on Becoming Human: The origins and Development of Women Human Rights, No. 21.4, 853-906, John Hopkin University Press, USA.
Amnesty International: India: 2005, Three years later still no justice for the victims of violence in Gujrat, Public Report, 25 February 2005.
Gayle Binyon 1995, Human Rights, A feminist perspective, Human Rights Quarterly, 17.3, 209-526, John Hopkin University Press.
Hillary Charlesworth & Christine Chinkin 2000, The boundaries of International law: A Feminist Analysis, Manchester University Press, UK.
International Initiative of Justice, 2003, Threatened Existence: A Feminist Analysis of the Genocide in Gujarat, Judith D. Gardam, 1998, International Review of the Red Cross, No. 324, Women, Human Rights and the International Humanitarian Law, Please see: http://www.icrc.org/web/eng/siteeng0.nsf/html/57JPG4, Site hit on July 14, 2010 at 17: 47.
James G. Stewart 2003, Towards a single definition of armed conflict in international humanitarian law: a critique of internationalized armed conflict, IRRC, Vol- 85. No. 850.
Rowland, Robin 1995, Human rights discourses and women: Challenging the rhetoric with reality, in Symposium: Human rights and the sociological project, ANZJS Volume 31, No.2, August 1995.
Sarkar, Tanika 2002, Semiotics of Terror: Muslim women and children in Hindu Rashtra, Economic and Political weekly, July 13, 2002.
Shahrazad Mojab, 2003, Kurdish Women in the zone of genocide and gendercide, Al-Raida, Volume 21, No. 103, Fall 2003,
Web Sources:
Amnesty International, 05 April 2004, See: http://www.amnesty.org/en/library/info/AFR47/008/2004, Site hit on July 07, 13:14,
Definition of Feminism, Ezine Articles, See: http://ezinearticles.com/?Definition-of-Feminism&id=1697184, Site hit on July 07, 2010, at 09:26hrs
Definition of Feminism, See: http://ezinearticles.com/?Definition-of-Feminism&id=1697184, Site hit on July 07, 2010, at 12:29 hrs.
Gendercide Watch 2010, What is Gendercide, http://www.gendercide.org/what_is_gendercide.html Site hit on July 02, 2010 at 13.hrs.
Jyoti Panwani, 2003, Communalism combat completes a decade, See: http://www.countercurrents.org/comm-punwani140903.htm, Site hit on July 2010, 22:36 hrs.
Judith Gardam 1998, Women, Human Rights and International Humanitarian law, International Review of the Red Cross, No. 324, Please see: http://www.icrc.org/web/eng/siteeng0.nsf/html/57JPG4
Judith Gardam & Hillary Charlesworth Women in Armed Conflict: protection of Women in Armed Conflict. See: www.genderandpeacekeeping.org/resources/5_Protection_of_Women_in_Armed_Conflict. df. Site hit on. July 2010, at 15:46 hrs.
Julie Mertus & Pamela Goldberg, 2010, A perspective on women and international human rights after the Vienna declaration: the inside/outside construct, See http://www.law-lib.utoronto.ca/Diana/fulltext/mert.htm, Site hit on July 13, 2010 at 17:37 hrs., reproduced with permission from the copyright holder. Please cite as 26 New York University, Journal of International Law and Politics 201.
OHCHR, Slavery Convention signed at Geneva on 25 September 1926, See: http://www2.ohchr.org/english/law/slavery.htm, Site hit on July 09, 2010 at 13:34 hrs.
Stanford Encyclopaedia of Philosophy 2004, See: http://plato.stanford.edu/entries/feminism-class/, Site hit on July 7, 2010, at 17:52 hrs.
What is Feminist Deconstruction: http://deconstructingwoman.com/articles/about/, Hit on July 14, 2010 at 09:15.
[1] Definition of Feminism, See: http://ezinearticles.com/?Definition-of-Feminism&id=1697184
[2] Marry A Waren first coined in the term in her book, Gendercide: The implications of sex selection in 1985. She says that, by analogy, gendercide would be the deliberate extermination of persons of a particular sex (or gender)…. The term also calls attention to the fact that gender roles have often had lethal consequences, and that these are in important respects analogous to the lethal consequences of racial, religious, and class prejudice” Her analysis mainly focuses of anti-female gendercide. Source: Gendercide Watch.
[3] International Criminal Tribune on Former Yugoslavia (ICTY).
[4] The method was popularised by the philosopher Jacques Derida but later on used by several social scientists to analyse social problems, Sociologists in particular.
[5] Constructivism is a theory of knowledge or epistemology arguing that that humans generate knowledge and meaning from their experiences. The approach draws on the constructivist and experiential learning ideas of Jean Piaget. Piaget’s theory of constructivist has had wide ranging impact on learning theories. Please See: http://en.wikipedia.org/wiki/Constructivism,
[6] David D. Allison as cited in What is Feminist Deconstruction: http://deconstructingwoman.com/articles/about/,
“Injustice anywhere is a threat to justice everywhere.” Martin Luther King.
“If we cannot make globalization work for all; in the end it will work for none”
Kofi Annan.
Introduction:
Borrowing its name from an ancient goddess of victory in war, Nike is now the official brand-name of the largest sports and apparel corporation in the world. ‘Blue Ribbon Sports’ was its genesis that later on transformed herself into Nike in the beginning of 1970s. Symbolized by the sign of ‘swoosh’ Nike is now a name synonymous with the world of sports. In his search for light, sportive yet robust athletic shoes, Phillip Knight, the founder, CEO and chairman of Nike picked up the idea from a Japanese shoe manufacturer Onitsuka while working in partnership with the Oregon University coach Bill Bowerman in the sprouting years of 1960s. Starting with as minor a distributor of shoes as from the back of his car, Nike’s success is skyrocketing. Its sale moved from $10 million to $270 million in 1970s. ‘A fitness and flying revolution for feet’ what the American athletes were looking for, is the secret of Knight’s Nik’s popularity. Within two decades Nike emerged as an athletic shoe juggernaut in 1980s and 1990s.
Come the age of free market, sprawling mantra of media, advertisement and transnational investment in the 1990s the Greek goddess ‘symbolized by swoosh’ became ubiquitous trespassing the ring of sports. May it be the city centre of Northern metropolis or the supermarkets of Southern towns; Nike’s sign is conspicuously present. No surprise that its’ annual return shot up to the phenomenal amount of $12 billion in 2000s and exceeding $22 billion late 2008/9. Nike’s CEO Phil Knight is the 5th richest man of America, worth $5 billion[1]. Headquartered in Oregon USA, Nike is still a top sportswear with its attractive jingles, ‘run on air,’ ‘just do it,’ and ‘running’. Star sportsmen like Michael Jones and Tiger Woods are paid as high as $8-10 million dollars just to wear a Nike swoosh. Bear in mind, the amount exceeds the salary of 700,000 workers for a month in a Nike factory in Indonesia, Pakistan or Vietnam. Suppose Mr. Knight gives up his one year’s profit the salary of all Nike workers could be doubled. Thanks to globalization, free trade zones and cheap labour supply in third world countries[2].
Lead by USA and Britain in 1980s neo-liberal approach of economic development began to dominate the national and international landscape of political priorities. Cutting down the role of the state, free flow of capital, profit maximization and private provision of employment was adopted as the driving force behind economic development. End of cold war in 1989 unleashed new opportunities and territories for global investors. Developing countries began to look for foreign investment for their national growth employment generation. Tariffs were slashed; free trade zones set up, taxes toppled over and labour laws and environmental concerns were only a remote consideration in their investment negotiations. Multinational and Trans-national Corporations i.e. MNCs and TNCs materialized the opportunities and rapidly transplanted their production-units and supply-chains in the poor countries where labour supply was abundant and material cheap. So much so around 60,000 TNCs are now operating across the globe with 800,000 supply-chains all over the world[3].
The Case Description:
Following the suit, Nike’s 900 supply factories are situated in 50 countries, all poor and underdeveloped. In order to have a focused discussion and better analysis, I will confine my reference to Indonesia, Vietnam and Pakistan only. Given the horrible conditions of work, ridiculously low wages and exploitation of child-labour Nike’s factories were critically renamed as sweatshops. The issue came to fore when USA’s ‘Life Magazine’ published the story of a 12 years old Tariq in 1996. Stitching diligently and immersed in the pile of Nike footballs, as was shown in the picture, the boy worked for a Nike factory in Pakistan for 12 to 14 hours a day. It was the first story ever that unmasked an ugly face of ‘the goddess’ to American public. Several articles, news-stories and documentaries followed, unfolding the dreadful reality of globalized production and supply.
75 to 80% of Nike labour comprises on 10-14 years boys and mostly girls. Girls usually outnumber boys save on the supervisory positions. Most of the girls are struck if they get married, otherwise fired at the age of 35 to replace with a young and energetic lot. Unionization is strictly prohibited. Normal working hours run from 12-16 hours and overtime is a must. The day is interspersed with one hour lunch-break; toilet use is permitted twice a day and water intake is rationed. Young workers keep in-hailing machine fumes, toxic glue and lather and cloth wool. 77% of them get lung cancer or acquire swear respiratory diseases[4] and turnover is high.
According to internal pricing and production documents[5] each worker should produce one shirt every 6.6 minutes and against each shirt or a pair of shoe which is sold from $150-250 a worker is paid 30-40 cents around 310th to 460th part of its retail price. On average every worker sews one pocket every 17 seconds, means 3338 pockets in a day[6]. Though occasionally, if the poor workers demand higher remunerations they are either beaten up by the supervisors or by the local police. Verbal abuse is a norm to speed up the work. In a typical Vietnamese factory only 1 doctor is available to 6000 workers and only for 2 hours a day. Young workers keep collapsing due to unbearable heat, toxic air and poor nutrition. In April 1997, 10000 out of 13000 workers went on strike demanding a pay raise. One worker was locked-up in a factory room for the whole week and was interrogated by the military for organizing labour[7].
Box 1.Once Indonesian Noble peace prize winner Jose Ramos-Horta said that ‘Nike should be treated as enemy, in the same manner as we view army and the government as the perpetrator of human rights abuses.’ What is the difference between the behaviour of Nike and Japanese imperial army in WW II. Yes! Nike has created 115000 jobs in Indonesia but only at subsistent wages which hardly contributes towards sustainable economic development’. Source, Ibid.
Nike prefers hiring young girls in its apparel factories as girls in Indonesia, Vietnam and Pakistan are normally obedient and docile due to cultural orientation. What else Nike is doing, if not contributing towards the feminization of poverty. A gender neutrality assumption of globalization is proves false[8] on visiting any of the Nike’s supply factories.
Box 2. The famous American basketball player Micheal Jordan, sponsored by millions of dollars to wear Nike outfits, once happened to see other side of Nike in China and Indonesia where 12-14 years old girls were forced to work for 12-14 hours a day. He was moved so much that he gave all 26 million USD that he made that year for the sweatshops welfare in China and Indonesia[9].
In Vietnam sweatshops, if a worker fails to produce her monthly quota, she is struck with a punishment of 15 to 20 % deduction from her salary. Beating, harassment and sexual abuse is not uncommon. The factory owners are brutal and wield police force and local mafias to harass, beat up and at times kill the workers who demand a higher remuneration or try to unionize. An atmosphere of fear noticeably features workers’ behaviour. Misconduct and manhandling of one in front of other workers serves as an instrument to set example for others to remain in limits[10]. In 2008, around 20,000 Nike workers organized a strike in Vietnam against the poor wages and awful working conditions[11], but in vain.
Globalization and International Children Rights, Women Rights and Labour Rights Context:
Although experts and scholars disagree on the chronology, causes and consequences of globalization but in the present context, I will emphasise transnational investment, production and supply aspect of globalization. According to Frederic Jameson, ‘Globalization reflects the sense of an immense enlargement of world communication, as well as of the horizon of the world market, both of which seem far more tangible and immediate than in early stages of modernity’. David Held defines ‘globalization’ as ‘a process which embodies a transformation in the spatial organization of social relations and (economic) transactions – assessed in their terms of extensity, intensity, velocity and impact-generating transcontinental or inter-regional flows and networks of activity, interaction and the exercise of power’.[12]
In reference to TNC’s practices in their supply-units we find them guilty of violating all international human rights principles stated in various conventions. The Article 25 (1) states that ‘everyone has the right to a standard of living adequate for the health and well being of (her)self and of her family.’ Similarly the right to an ‘adequate standard of living’ also makes a conspicuous appearance in Article 11 of IC-ESCR stating that, ‘the state parties recognize the right of every one to an adequate standard of living for (her)self and her family’. The Convention on the Right of the Child also recognizes ‘the right of every child to a standard of living adequate to the child’s physical, mental, spiritual, moral and social development’ under Article 27. Work related rights and decent standard of living is also recognized in all other regional conventions as well[13]. Slavery and slave-like practices are prohibited both in customary and the treaty law. Slavery is prohibited together with the slave trade, servitude and forced or compulsory labour in the Article 4, 5 and 6 of the American and other regional Conventions. Article 1(1) of Slavery Convention defines slavery as ‘status or condition of a person over whom any or all forms of powers attached to the right of ownership are exercised’. The condition implies violation of the right of every one to be recognized as ‘a person’ before the law according to the article 16 of IC-CPR. It is widely accepted that trafficking in women, forced prostitution and child labour are modern-day-forms of slavery[14].
‘The right to work, equal pay for equal work, and just and favourable remuneration is recognized by UDHR Article 23. While Article 24 states that ‘everyone has a right to leisure and rest, including reasonable limitations of working hours and periodic holidays with pay’. Article 7 of IC-ESCR states that, ‘states parties recognize the right of everyone to the enjoyment of just and favourable conditions of work’. The respective rights are enshrined in the additional Protocol of American Convention on Human Rights (ACHR) under Article 6&7. In CEARD, states parties acknowledge ‘the right of everyone….to equality before law in the enjoyment of the right to work, equal pay for equal work and to just and favourable conditions of work’. Likewise CEDAW reiterates same rights as ‘the right to the same employment opportunities, the same criteria of selection, free choice of employment, the right to promotion, job security and all benefits and the right to receive vocational training and equal remuneration and equal treatment and equal respect of work of equal value and equal treatment in the evaluation of the quality of work’ for women are acknowledged[15].
According to the Article 25 of UDHR, ‘everyone shall have the right to social security as a member of society. According to the social security clauses of ILO ‘minimum standard convention 1952,’ every worker has a right to medical care, sickness-benefit, injury-benefit, family maternity benefit, invalidity and survivors’ benefit. Under Article 5 of IC-ESCR states take ‘gender needs and obstacles’ into considerations. The Article 9 & 16 under special protocol of ACHR 1988 provides benefits of work related accidents, occupational diseases, child-birth and special benefits in case of mental or physical disabilities[16].
Convention on the rights of the child adopted in Nov.1989 and entered into force on Sept 1991 is acceded by 191 states, the largest number comparing with any other convention. In the said conventions, the child is considered as a ‘full member of the society’ though family is considered her natural and fundamental group but the child is never a property of the family. The convention assumes child as an active subject of the rights not an object of the adults. In their formative age children are susceptible to any kind of influences and are not in a position to defend their rights. It states that every child under the age of 18 shall be considered as a child and most of the rights acknowledged by the convention are non-derogable. ILO Convention 138 specifies working age as 15 but in many countries the age is 18 or even higher. Under Article 31, ‘every child has a ‘right to leisure, to rest, to play and engage in recreational activities’ being crucial for the development of the child as capable and potential member of the society. The right to education (28), freedom of expression (13), the right to health & health facilities (24) and the right to social security and insurance (26) and all of these rights are interdependent an interconnected[17]. In reference to the working conditions of Nike factories, not a single right of the workers and children is respected.
Critical Role of NGOs, Media and Academic Experts:
‘Slavery if the shoe fits,’ ‘poverty is awesome,’ ‘we can end sweatshops, boycott Nike’, buy shoes that are made under suitable working conditions, ‘dot it just’, Nike the King of Sweatshops,’ were the main slogans of NGOs and media resistance to Nike. Several strategies such as letters, emails, sign petitions, naming and shaming campaigns and seminars were organized to compel Nike from avoiding its shameful and abusive practices in Asian countries. It is their efforts that established the fact of TNCs’ involvement in a range of labour rights and workplace abuses but it is the child-labour issue that mainly the attention of global media and transnational NGOs. Foul Ball Campaign and Global March against Child Labour gave further impetus to the gravity of the situation to be addressed. John Patret an MIT graduate wanted to customise Nike shoes with the label ‘Sweatshops’. His order was cancelled. How ironic! But there fact was revealed.
World Visions (WV) and Community Action Abroad (CAA) – which is now Oxfam-Australia – were the first two NGOs that started campaigning against Nike sweatshops. WV later on engaged with Nike to devise an education project for its workers in Asia but Oxfam had reservations. Currah, the Director of CAA wrote to WV in 2000 that, ‘my concern is that ‘the corporation’ is using its relationship with WV to undermine the campaign to persuade it to improve the working conditions in its supply-factories.’ The Director of WV wrote back to CAA that ‘it still supports the cause and this engagement must not be seen as WV’s connivance to some of its’ controversial operations’. It is clear that despite having a common goal in mind the two NGOs had diversified approach to deal with the problem[18]. Succumbing to the pressure and after repeated denials and blatant lies, it was for the first time in 2002 that Nike concedes the detestable working conditions in its supply factories.[19]
On the other hand a new product politics is emerging with the efforts of conscientious citizens and civil society. The customers are beginning to brood-over what they buy and how it affects the end producer. Clean Clothe Campaign against exploitative garments factories in Europe and No Sweat campaign against Nike in America is slowly but gradually changing the behaviour of brand-conscious TNCs[20].
Additionally, the increased transitional economic operations, technological development and social intensification processes, protests and consumer boycotts are also turning international. NGOs and internet campaigners are increasingly convincing world consumers to boycott Nike – and other TNCs products – producing their goods under unfavourable working conditions. It is a new way of ‘punishing’ the abusive producers[21]. But knowing the possible hazards of their operations the corporations still try to trivialize acts and events of rights abuses. International Multi National Monitor came up with a list of top 100 corporate criminals in 1990 and Nike is one of them.
State Behaviour of Indonesia, Vietnam, Pakistan and & USA in Particular:
With a deregulated economy, massive unemployment and legal ambiguity of TNC’s accountability to home or host country, Asian states remain either helpless or unwilling to impose any restrictions. Government of Pakistan is taking every measure to attract FDI whatsoever. Say, all Nike products have free shipping facility. When Nike severed its contract with the supply chains of Pakistan close to 2000s, Government of Pakistan made umpteen efforts to pull it back and it finally returned in 2007. Pakistan’s former president used to say that FDI and TNCs are like birds on a tree, any minor disturbance might cause them fly away. In a similar tone the former prime minister would say that Pakistan offers the best environment for FDIs as we providing them a hundred percent equity in profit and returns, implying zero taxation on foreign companies[22]. Already existing trade unions were made ineffective, directly or indirectly.
The Socialist Republic of Vietnam has a state owned trade union and is extremely hostile to other trade union and turns a deaf ear to any organization voicing labour concerns and injustices. Vietnam police brutally quashed protest demonstration against Nike in 2008 and 100 union leaders were fired from job. In Indonesia, a new Manpower Bill prohibits independent unions and strikes on public places while allowing arbitrary ejections from companies, and required advance submission of names of strike leaders to a military dictator who had murdered millions of civilians. Roughly 30% of Nike’s total business cost goes to payoffs for Indonesian generals, government officials and cronies[23]. The USA constitution states it very clearly that any corporation found guilty of using slave labour to produce its products will be prosecuted but Nike and no other TNCs has ever been brought to justice for their slavery-like practices in 3rd world countries.
Nike’s Response: Policies, Codes of Conduct and Improvement Efforts:
After prolonged denials, debates and consumer actions Nike agreed to come up with some favourable policies and collaborative efforts to support its workers abroad. In 2004 Nike rolled out its elaborate plan to improve conditions in its supply-chains which describes that by 2011, CSR will be a driving force behind of Nike’s operations, excessive overtime in contact factories eliminated, compulsory educational training arrangements made, freedom of association ensured, multi-brand collaboration on compliance issues in 30% of the supply chains achieved, lean manufacturing in all our supply-chain removed, collective bargaining training provided, true value of labour and adequate wages promised, workers rights protected and collaborative efforts between, governments, trade unions NGOs and corporations enhanced and possible support in this regard extended. According to Nike herself compliance quality in contact factories is gradually improving[24]. Despite every effort it is difficult to change corporations over all approach which is more charity oriented than based on rights and dignity of a persons. The following graph is an apt illustration of that.
The number of companies with health & safety policy is higher than overall number of those with human rights policies as corporations see them to be unrelated issues, Source: Benchmarking corporate policies on labour & human rights goals Occasional Paper Series, Capital Matters, Harvard School of Law, N0.5, Nov, 2009
Another such admirable effort was Nike’s – along with few other TNCs – accreditation to the Fair Labour Association (FLA) in 2008. The most distinctive recognition by FLA, which is still awaited for Nike, demonstrates the corporation’s commitment and systematic efforts to bring its contact factories to the levels to labour compliance standards[25].
Nike Foundation and Save the Children’s (USA) partnership to empower adolescent girls was one such effort. The Nike Foundation awarded Save the Children $1.58 million grant for a three-year project. The Foundation began part of its work with leading local, national and international organizations aimed at education, improvement of health removing injustices to adolescent girls and creation of economic opportunity for girls. Maria Eitel, the president of Nike Foundation said that ‘we are excited for working with Save the Children….and to demonstrate the benefits of investing in girls, both as a means to improve the lives of girls themselves and the positive impact that this will have on their communities’ [26].
On November 2009 in Washington D.C, Nike, and four other top U.S Companies agreed to back up an international programme for the improvement of compliance with labour standards and competitiveness in their supply-chain-factories. The made a commitment that Nike, Gap, Levi-Strauss, Walmart and the Walt-Disney will together contribute 1$ million to a joint programme, ‘Better Work’ of ILO and International Finance Corporation – a private sector lending arm of the World Bank. The programme will contribute towards assessment and training for better compliance with labour standards. Better work brings Governments, Corporations, Employees and Workers together to assess labour standards’ compliance, take remedial measures and publish periodical reports[27]. According to Climate Count Scorecard Nike scored on top in 2009 for its voluntary efforts to reduce its climatic contamination efforts. Climate Scorecard evaluates 90 corporations on their voluntary efforts to minimize their environmental degrading operations23.
In June 2009 Greenpeace name and shamed supermarkets and hose manufacturers whose mindless consumption of raw material is denuding forest and causing climatic shifts in the Amazon .Recently a group of TNCs including Nike came up with a moratorium with Greenpeace that they would stop buying leather from Brazilian Amazon region – the largest cattle range in the world – as the suppliers are clearing more and more forest to clear pastures for their cattle. Tatiana Carvalho, a Greenpeace campaigner termed it as a great step but he warned that tracing the origin of leather is difficult act as it is bought and sold in the open market. Without an effective tracking system, it is difficult for the producer to know where a piece of leather is coming from deep from the Amazon or from the forested land or from the grazing lands of the country. But still it is demonstrates Nike’s commitment to reduce deforestation in the Amazon. The moratorium is moving towards success and in July 2009, Greenpeace made its fourth consecutive report public[28].
The Analysis:
‘World has enough for everyone’s need but not for everyone’s greed’. Mahatma Gandhi.
Business friendly economists stress that controversies and campaigns over large corporations’ overseas operations such as sweatshops’ hue and cry adversely affects the companies’ smooth supply of products, inflicts damage to their reputation and downturns share prices. Others argue that fair corporate-supply chain relations and compliance with labour standards actually reduces employees’ turnover, improves supply chain production potentials and multiplies long term returns[29].
Business creates both positive and negative impact on society. Since long, the questions, though not with the urgency of present times, have been raised about social responsibilities of business such as the legitimacy of the profit, limits of public control, profit dividends to the shareholders, redistribution of wealth, and obligations to the community and the place where resource are extracted or labour is harnessed and lastly who should have the right to decide about and how far. Such questions gave birth to the notion of corporate sustainability, corporate social responsiveness, corporate social performance, corporate social responsibility, and ‘corporate citizenship’ quite recently. Precisely, in the words of European Commission’s Directorate for Social Affairs, ‘CSR is a concept whereby the companies integrate social and environmental concerns in their business operations and interactions with the stakeholders on voluntary bases’[30].
State vs. voluntary self-regulation debate is historical and is still on. Several public litigations have been filed against TNCs for violating human rights and ILSs in USA and rejected under the clause that ‘human rights observance is the responsibility of the state’ where a TNC is operating. Nevertheless the growing influence and power of TNCs in the absence of any binding regulation of corporate governance demands that corporations should take the responsibility along with the home and the host state. Although corporations have always been asserting for self-regulation than state-imposed legislation but whatever changes we have seen or the code of conduct and compliance principles corporations adopted are the result of NGOs and citizen’s pressure or international trade unions[31]. But the point is that along with the globalization of investment-capital, we must stress the globalization of opportunities, fair representation, human values and social justice.
Under the leadership of Kofi Annan UN took Global Compact Initiative and Norms of Business in 1999. Involving more than 100 corporations including Nike, UN came up with 10 principles and 18 norms based on ILS, HRL and environmental principles without creating any compulsory and legislative apparatus. The key objective was to create a sense of Corporate Citizenship and CSR. Being an inter-state organization, UN is not in a position to enforce standards and measure progress, unless the Corporate voluntarily go for any such independent assessment and measure progress[32].
As UN is gradually coming out of its difficulties for being undermined in post 9/11 wars, I think in dealing with the excesses of TNCs like Nike and hundreds of other such species, UN has a special role to play in coordination and support from the home and host-states, NGOs, the Corporations and conscientious citizens. The former commissioner for OHCHR has worked on a project Realizing Rights: Ethical Globalization Initiative that motivated CEOs of the 10 large TNCs in creating Business Leaders Initiative for Human Rights (BLIHR) to work on how human rights can be made consistent with business operations and how can HR principles be integrated into the their business policies. Two of them have already made some progress and working UN is working with other 8 to enshrine HR principles in their business policies[33]. A predominant tendency of the supremacy of the market is to commoditize everything and once you commoditize something you can do anything to it or inflict any sort to violence to it, may it be nature or a human person[34]. What TNCs do is no more than machinize or commoditise workers and eke out as much as production in as minimum time as possible.
As IHR principles were originally devised to be protected and fulfilled by the states through various acts of commission and omission. But in the present times one country’s direct or indirect violation of human rights in the jurisdiction of other countries and the effects of globalizations are seriously challenging the state’s capacity to address these issues. Resource constrain makes the challenge even bigger. Corporations make investment decisions on the basis of taxes, environmental regulations, availability of required material, labour laws and wage levels that diminishes the will and the capacity of the states to regulate the TNCs setting up their businesses in their countries. Poor countries with higher levels of unemployment are usually afraid of imposing any lest the companies choose otherwise[35].
Elimination of child labour from sweatshops has been facing all such difficulties as mentioned above. But some progress was necessarily made in this context. Kneeling down to CSOs pressures on World Federation of Sporting Goods Industry (WFSGI), FIFA and intentional football brands an international meeting was convened in coordination with ILO, UNICEF, Faire Trade Foundation, Anti-Slavery International, Save the Children Fund, Oxfam, Sialkot (Pakistan) Chamber of Commerce and the Government of Pakistan to address the issue in sports industry of Pakistan in November 1996. In February 1997, the Government of USA, WSFGI and Sporting Goods Manufacturing Association proposed a strategy to abolish child labour from sports industry. Thereby sports TNCs and NGOs created a partnership that included registration of all contractors to ensure that no football stitcher is below 14 and establishments of an internal monitoring department to monitor age and arrange required training. A social disaster mitigating programme was devised to rehabilitate children removed from football-stitching and provision of adequate schooling, discouraging new entrants, community awareness on health and growth consequences of child labour, and income generating opportunities to recover the income loss.
Razia and her family regularly received football stitching work from a local contractor at their home. One such morning the contractor told her that he is no more allowed to deliver home-based football stitching for child labour involvement in the family. He also told her that if she is interested in doing football stitching work she will have to come to the factory at the workplace. Living far from the industry and haven four little children, it was not possible for her to commute for work. Her husband was a daily wage labourer who would cooperate with his wife and children in football stitching. Additional income helped them to have batter food and participate in socio-cultural activities of the community. Her husband was a casual building worker and when he would not find a daylong work economic difficulty would further. Within a few days the family has lost a significant portion of their monthly income. After a couple of month or so she came to know that a football manufacturer was planning to set up a village based football manufacturing centre. The news was a sigh of relief for her as she supposed that she will be able to go to village based manufacturing centre but only if her elder daughter who was just 13 could take care of her younger children. Adopted from Source: Bahr A. Kazmi & Magnuse Macfarlane, p.194
The partnership reported implementation of the programme to FIFA, WFSGI and international media on November 1998 on the first day of the World Cup. The programme was implemented in Pakistan’s sports industry with varied effects. Some of the families who lost their supplementary income were not happy. The box above illustrates one such case[36].
Conclusion – Where does the responsibility of human rights lies:
International human rights law was constituted by the states and for the states to respect and promote human rights within its jurisdiction, ill suited to deal with the trans-state or transnational entities, currently known as TNCs or MNCs. The law needs to retailer itself in order to respond to the challenges of globalization. To our dismay, ‘a Corporate’ constitutes an entity of a ‘social citizenship’ hence entitled to the right to life, liberty and property. Therefore, it is by law, difficult to restrain their operations or coerce them to comply with certain standards. The first thing that international law needs to do is to ‘depersonalize’ the corporate to come up with different sets of national and international regulations. They corporate need to be democratized and held accountable to the citizens and the state wherever they operate and where they are registered. It is ‘people’ not the ‘profit’ that should be placed at the heart of all business interventions. The corporations, more than often not only undermine ILS, rather undermine the whole democratic system as well. Working together might help us to win over the corporate greed. Better alternatives are available to process and provide goods and services to fulfil essential human needs. It is not the shareholders whom the corporations are answerable alone but it is the people, the environment, future of humanity and they have a duty to. The corporations must not be immune from democratic and human rights norms and standards. They are subject to same demands as made from a democratic system of governance and that is of transparency, accountability, empowerment of the people and respecting principle of equality and human dignity.
At the end it is futile to expect that MNCs, TNCs and Business Groups and Chains alone can make things better. Without a cooperation and collective action from states, civil society, individual citizens and consumers, NGOs and UNOs, it is never possible to constitute a just and socially responsible society and a dignified life for everyone. As a measure of corporate social responsibility whatever initiatives have been taken by TNCs most of them offer inadequate and poor services coupled with the absence of independent assessment and driven by a charity approach. Even then they leave no stone unturned to manipulate their alliance with global compact, labour standards and other such associations to build their image amongst customers that might yield in bigger sales and larger profits.
In nutshell, social issues, as we have seen, are always complicated and multidimensional and ask for multidimensional and far-reaching solutions, which are sometimes out of the capacity of underdeveloped countries. NGOs too have limited capacity and business organizations, are willing to take, but a partial responsibility, given the very nature and purpose of their investment.
******
[1] The Big One, A Documentary Michael Moore, See:
http://www.youtube.com/watch?v=qfQzAbpdH_U
[2] History of Nike, Iconography explained, Nike’s heritage, Swoosh and Brief History, See: http://xroads.virginia.edu/~CLASS/am483_97/projects/hincker/nikhist.html
& Korky Van About.Com: Shoes, From Greek Myth to Sports and fitness powerhouse, See: http://shoes.about.com/od/athleticshoes/a/nike.htm
[3] Sorcha McLeod, 2005, Business and Human Rights in Rohna K.M.Smith and Christien van den Anker Ed. The essentials of Human Rights, 2005, p.28-29, London, Great Britain.
[4] Sweatshops: Poverty is awesome: See: http://www.toolness.com/nike/faq.html
[5] The Corporate by Mark Achbar, Jennifer Abbott, Joel Bakan, (documentary film), See: http://video.google.com/videoplay?docid=3203253804055041031#
[6] The Big One: A documentary film by Michael Moore.
[7] Facts and FAQs about NIKE’s labour Abuses , See:
shttp://www- personal.umich.edu/~lormand/poli/nike/nikelabor.htm
[8] Myra Marx Ferree and Aili Mari Tripp, 2006, Global feminism, p. 3-5, Newyork University Press, Newyork.
[9] http://www.youtube.com/watch?v=d6ikyNu1Q_c&NR=1
[10]Nike: The king of Social Injustice…Sweatshop, http://tpzoo.wordpress.com/2009/03/24/nikethe-king-of-social-injusticesweatshops/
[11] Human rights for workers: How our global economy undervalues work andworking people, The durability of Nike’s sweatshops. See: http://humanrightsforworkers.blogspot.com/2009/07/durability-of-nikes-sweatshops.html
[12], Manfred B. Steger, 2009, Globalization: a very short introduction, p.13, Oxfaor University Press, Newyork.
[13] Asbjorn Eide 2000, in Human rights: Concepts and standards, Ed. Symonides, Jansusz 2000, p.128-129, 141-142, Ashgate publishing, England.
[14] Manfred Nowak 2000 in, Ibid, p.80-81
[15] Katarina Tomasevski 2000, p.240-249 Ibid,
[16] Asbjorn Eide 2000, p.146-147, Ibid
[17] Youri Kolsov 2000, p.160-163 Ibid.
[18] Barbara Rugendyke , NGOs as advocates for development in the globalized world, p.165: http://books.google.com/books?hl=en&lr=&id=zmmgl6XQEuAC&oi=fnd&pg=PR13&dq=barbara+rugendyke&ots=98YOO- oL8&sig=PCdYy_UefEs4_61lYn4ACAEBT7c#v=onepage&q=nike&f=false
[19] Rob Van Tulder and Alex Van Zwart, International business Society Management: Linking corporate responsibility, p279-284 http://books.google.com/books?id=mdj_bgKbzFMC&printsec=frontcover&dq=International+business+Society+Management:+Linking+corporate+responsibility,&lr=&cd=1#v=snippet&q=oxfam%20nike&f=false
[20] Michele Mitchelette et al, Politics, products and markets: Exploring political consumerism past and present, 2004, p.127-129, New jersey
[21] Monore Friedman, Boycotts: Effecting change through market and media, 1999, p. 159-160, Routledge, Great Britain, London.
[22] Nike returns to Pakistan, June 2007, BusinessAssurance.com, http://businessassurance.com/nike-returns-to-pakistan/
[23] Human rights for workers, July 2009, The durability of Nike;s sweatshops, http://humanrightsforworkers.blogspot.com/2009/07/durability-of-nikes-sweatshops.html
[24] Responsibility Document, See: http://www.nikebiz.com/responsibility/documents/3_Nike_CRR_Workers_C.pdf
[25] Fair labour assoctiona releases its annual 2008 annual report, FLA highlights new strategies for preventing labour rights violations: October 6, 2009, See : http://www.fairlabor.org/images/NewsandPublications/NewsReleasesandStatements2009/2008_apr_release.pdf
[26] Save the Children UK, June 28th, 2007, Nike Foundation and Save the Children team up to empower adolescent girls ,http://www.savethechildren.org/corporate/partners/nike-foundation-and-save-the.html
[27] Nike,Unilver, HP, Tope latest climate scorecard, GreenBiz. Com, See: http://greenbiz.com/news/2009/11/18/nike-unilever-hp-top-latest-climate-counts-scorecard
[28] Andrew Downie, September 22, 2009, Can Nike and Wal-Mart save Amazon?, The Christian Science Monitor: http://www.csmonitor.com/World/Americas/2009/0922/p06s07-woam.html
[29] Aoran Bernstein and Christopher Greenwald, November 2009, Capital Matters, Occasional Paper Series, No. 5, http://www.law.harvard.edu/programs/lwp/pensions/publications/occpapers/occasionalpapers5.pdf
[30] Michael Blowfield and Allan Murray, Corporate Responsibility: A critical introduction, 2008, p.13-15. Oxford University Press, USA.
[31] Sorcha McLeod, 2005, in Busnines and human rights 2000, Ed. Smith, R.K, The essentials of human rights, p.28-29.
[32] Brigette Hamm 2005, The need to strengthen the responsibilities of business for human rights, in Michael Windfuhr, 2005, Beyond Nation State: Human rights in times of globalization, p.255-269 and Mary Robinson, 2005,Corporate social responsibility and workplace standards, p.266-269.
[33] Mary Robinson, Ibid, p.255-269 & 266-269.
[34] Michel Foulcat 2005, Method in The global resistance reader. Ed. by Louise Amoor, p.88-89,).
[35] (Michel Windfuhr 2005, Ibid, p.12-13).
[36] Rory Sullivan, Ed. 2003, Business and human rights: Dilemmas and solutions, p. 179-193, Greenleaf Publishing Limited, Shiefield, UK.
February 3rd,2011
Human Rights | tags:
child rights,
corporate globalization,
corporates,
discrimination,
exploitation,
football,
globalization,
Indonesia,
labour,
lower wages,
NIKE,
Pakistan,
poor,
sweatshops,
Vietnam,
wages,
women rights |
2 Comments
There have been many Mahatmas in India whose sole objective was to remove untouchability but everyone of them has failed. Mahatmas have come and Mahatmas have gone but untouchables remained untouchables. Dr. B.R. Ambedkar’ dialogue with Mahatma Gandhi (1933)[1].
The Enigma of Identity:
Caste has been described as a unique phenomenon of social organization in South Asia. It is a system of rigidly classifying people into various strata determined by one’s birth, descent or occupation. Inter-caste mobility or switch-over is conventionally difficult. Its origin is discovered to be rooted in the Aryan invasion of India (about 1500 BC)[2] and the creation of and Hindu dharma – the religious code of conduct. According to Vedas (the ancient sacred scriptures), human society is divided into four Varnas – castes or colours i.e. Brahamins – the priestly class, Kushatryas – the rulers and defenders of the land, Vaishyas – the traders and merchants, and Shudras – the artisans and agricultural labourers. There is another class that falls outside the ambit of four Varnas that is known as Achutyas or untouchables, the ritually impure people mostly engaged in servile occupations. Karma (good or bad deeds that cause effects) and reincarnation (the cycle of birth and death) are held responsible to punish or reward a person to be born in a dignified or degraded caste. Traditionally, it is the caste that determines one’s vocation too[3].To our dismay, around 144 forms of untouchability are found in India[4]. The so called untouchables themselves are further divided into scores of sub-castes and categories known as jatis. The deeper one goes, the wider and complicated it becomes. Several jatis themselves might be unaware where do they belong to in the mythical ideology of Vedic Varnas[5].
Achutyas or Maleechas was their religio-cultural identity, heavily stigmatized and loaded with indignity and almost always abhorred by the subjugated castes and classes themselves. The British colonial rulers identified them as ‘depressed classes’ and while specifying certain legal rights for them, they were recognized as Scheduled Castes (SCs). ‘Harijans, ‘the Children of God’ was a euphemistic attribution attached to them by Mohandas Gandhi. Rejecting all nomenclatures as either innately biased or paternalistic, they would now prefer themselves to be identified as Dalits. Dalit is a Sanskrit word that means ‘crushed’, ‘broken’ or ‘oppressed people’, used for the first time by a lower-caste reformer, Jotyba Phule, the founder of Satyashodhak Samaj, an oppressed class movement, in the mid 19th century in India. Apart from some journalistic currency in the 1930s, the term was owned and frequently used by the great Dalit leader, Dr. B. R. Amebdkar, himself a Dalit too. Come 1972, the rise of Dalit Panther Movement and Dalit manifesto, the word gradually become the symbol of honour, hope and resistance for the oppressed and discriminated classes all over South Asia. Dalit Panther manifesto defines Dalits as, “members of scheduled caste or tribes, the NeoBhuddists, the working people, the landless and poor peasants, oppressed women and all those who are being exploited politically, economically and in the name of religion. To the noted Dalit scholar Gangadhar Pantawane, “Dalit is the symbol of change and revolution. He believes in humanism and rejects the existence of God, rebirth, soul and sacred books that preach discrimination, karma, reincarnation, fate and heaven to keep him enslaved”[6].
The worst form of Brahiminic ideal is discernible in the treatment of women, where untouchability, patriarchy and subservience all unite for the ordeal a lower caste woman. Simultaneously, caste is the sign of dismal poverty, oppression, discrimination, domination and exclusion embedded in south Asian societies – a subject of national shame and perhaps a barrier towards the development and modernization, social justice and democracy[7].Dalit population of India is estimated to stand around 169 million (16%) according to the 2001 census, largely living in rural areas (80%) with a small proportion (20%) settled in towns and big cities Around 90 million more across South Asia who fall in this category[8].
Scope of the problem:
‘Beyond the religious sanctions of ritual purity and impurity, the present form of caste and caste-based-discrimination is the creation of western colonial governance, as is communalism’, believe Nickolas Dirk and Gyanendra Pandey. ‘It is, off course, unbelievable to say that the caste was invented by the British but its contemporary form is the outcome of socio-political encounter between the colonial rulers and the Indian masses, they argue. It was under the British dominance that ‘the caste’ was systematically used to define and organize bewildering diversity of South Asia through an ideological canon. Manufacturing ‘the caste’ as a fundamental structure and a widely-pervasive, holistic and totalitarian religio-social order was the product of a British strategy. Precisely, colonialism constituted ‘caste’ the way it is functioning today. Though, the phenomenon is still mystified in the interpretations of orientalists, British administrators, missionaries, political actors, thinkers and Indian reformers but the British did play tier part. Modernization, too simplistic a justification for colonialism, was never an end but to thrive on underlying frictions and fault-lines of the colonized societies. Although ‘caste’ does not exhaust all forms of social organization of the subcontinent and its foundations were always there but it was the too clever British who used it to serve and sustain their colonial power and maintain a social order in tier favour. Its’ new forms were entrenched and appropriated by the colonial masters[9].
Though politically less pronounced, caste concerns are equally serious in Pakistan and Nepal, other than India. Out of 3 million Hindus, as per official statistics, more than 80% could be classified as Dalits in Pakistan. Official circles and statistics either deny or undermine the size of their population in Pakistan. Dalits’ figure is told to be around 300,000 out of the total population in the most recent 1998 census in Pakistan. However NGOs and Dalit activists, along with the minority political representatives, estimate their population close to 2 million. One of the reasons of underestimation by the government, perhaps is, to not to take any responsibility to come up with the special programmes for their development[10].
Most of the Dalits who chose to stay back in Pakistan after the partition live in the province of Balochistan, Sindh and Siraiki region. Like their Indian counter parts they are largely poor and eke out their livelihood from agricultural labour, artisanary work and other menial services. Dalits engaged in agricultural labour are landless and completely dependent on the landlords for their survival, mostly languishing under the debt bondage. Incidences of intimidation, harassment, abduction, assault, rape, forced marriages and forced conversions keeping happening, frequently. They are not allowed to use the same pots and hearths that the privileged classes have specified for themselves. Mingling into the social gatherings and ceremonies, other than their own, is a privilege rarely heard off. Most of them have internalized a lower self-image and are chronically sick and malnourished[11]. Majority of Hindus do not hold National Identity Cards (NIC) and births, deaths and wed-locks are not registered. Absence of NIC and lack of valid proof for their marriages sometimes cause severe problems, especially in casting vote, forced marriages and travel or stay outside their own town etc[12]. Revengeful response for a maltreatment of Indian Muslims is a supplementary trouble they keep suffering from time to time. Tit for tat reprisals on Hindu minorities in reaction to the demolition of Babri Mosque (1992) and Muslim massacre in Gujarat (2002) are two of the worst cases. Their children are either not accepted by the school administration or made to quit soon after they join, through an insulting behaviour. Unfortunately, what multiplies their vows is their internal subdivision, each considering itself as a superior genre. So much so that one cannot worship another’s gods[13]. Although the Constitutions of Pakistan prohibits any discrimination in its article 27 (1) in the words that ‘no citizen, otherwise qualified for appointment in the services of Pakistan, shall be discriminated against in respect of any such appointment on the ground only of race, religion, caste, sex, residence or place of birth[14].But there is no specific provision categorically prohibiting violations against the rights of the Scheduled Castes or recommending affirmative action’s for them. In reality, social and economic discrimination with the Scheduled Castes is quite common in all spheres of life. Though, some measures have been taken to enact the ‘Bonded Labour Abolitions Act 1992’ but no serious effort has ever been made. Bonded labour, one of the contemporary forms of slavery, is spectacularly present in Pakistan. The 1996 report of ‘Anti-Slavery International’ describes that Pakistan is one the few countries in the world where slavery still exists in the form of bonded labour. Approximately 1.7 million numbers of men, women and children are working in slave like conditions in exchange of so called debt. It is a sheer failure of the government of Pakistan to implement its National Policy and Plan of Action (2001) to abolish bonded labour and rehabilitate the freed labourers, majority of which come from Dalit Community. Labourers released with the effort of Human Rights Commission of Pakistan (HRCP) and other NGOs continue living in inhuman conditions in the outskirts of the big cities .The 6% employment quota reserved for Scheduled Caste is hardly ever used by them[15].
Official statistics place Dalit population in Nepal around 13% while unofficial sources believe it to be around 21% (4.5 million) of the Nepalese population. The periodic reports of the Committee on the Elimination of Racial Discriminations (CERD) reassert the continuation of discrimination and oppression of Dalit minorities in Nepal. Constitutional and legal prohibitions against certain discriminations are frequently contravened due to poor implementation measures by the government. Nepalese Dalit Activist, Kamla Hamachuri remarks that “We have received many promises and assurances from legislators in the past, but there were never any deliveries. It takes more than promises to change the thinking and attitude of society.” Stark discrimination is obvious in all public facilities and services such as the provision of water, sanitation and electricity or may it be health, education or employment. Meagre income, menial work and make shift settlements are a mark of their presence[16].
Day to day, inter-caste frictions lead to major conflicts usually causing severe harms to the lower caste communities. Just a touch is enough to invoke the wrath and fury of an upper caste man or woman. Pulling an oak of water from an upper caste tap or spring might result in public insult, severe beating or torture of the victim and his or her family. An impurity attached to the lower caste person is believed to contaminate food and water, if they touch it. Even if the animals belonging to the lower caste eat grass or drink the same water as do the animals of upper caste people, the revenge would not be any softer. Dalits of Nepal are compelled to opt for menial tasks like sweeping, cleaning, removing animals’ and human excreta and might face severe retaliation, should they refuse to do so. The new constitution, promulgated in 1990, prohibits caste-and-work-based discrimination but the fact falls contrary to the constitutional provisions. Any incidence of violence, abuse or crime committed against Dliats in Nepal is rarely investigated or punished. Police force, public officials, respective authorities and law enforcing agencies either participate or condone such contraventions[17].
Sociological Failure in Constituting Caste Discrimination as a Human Rights Issue:
Traditionally, sociologists have assumed caste to be the defining feature of Indian social organization, in other words a sign of Indian society, religion and culture, regardless of the harms it may cause to the society. Sociological romance with social organization and inter societal relations has barred it see things from a humanitarian rights perspectives. For them, caste has been a matter of functional give and take. Therefore, it has been offering limited insights and little remedies for number of social evils that are presently acknowledged as human-rights violence or abuse to human dignity. Cast-and-decent-based-discrimination is one such case upon which sociologists have spilt much ink on its’ structural and functional utility than posing the question of its elimination or transformation. It was, rather, supposed to be one of the several ways of organizing a society. But such an approach triggers several questions. Is it the limitation of sociological scope or inability of sociological theory that has constrained this discipline to approach certain problems from human rights perspective? Before moving towards the growing sociological theory of human rights, It is pertinent here to briefly describe how the way caste has been, conventionally, seen by the discipline of sociology.
Caste is supposed to be ever-present all throughout the south Asian history. Even the history of India has been narrated as a structural-functional process of task-distributions and caste-configuration. Understanding caste was thought to be pivotal in understanding India or to understand Hindu religion or culture. Caste grouping and classification was contemplated to be a part of South Asian world view by the western individualistic mind. Louis Dumont’s famous book Homo Hierarchicus (1996) describes caste hierarchy as a central phenomenon of Indian society and caste ascendency in the lower caste as an emulation process of upper-caste. Dumont argues that western atomistic mind confuses ideal with the real. Function of Sociology is to bridge the lacuna of individualist mind failing to see human persons as an abstraction of gregarious humanity. Therefore the foundation stone of Dumont’s sociological study of India was the systematic fabric of caste relations in the society. In his view, a sect cannot exist in India without befitting itself in a caste hierarchy. While criticising western individualism and aligning himself with de-Tocquevillian’s associationalism, he seems admiring caste-laden society of India, though not in a categorical manner[18]. Another sociologist, A.M. Hocart opinionated quite comfortably that an under-caste tiller enjoys the privileges of a prince. He thinks, the washer-man, the cobbler, the weaver and the drummer all are analogous there. All are priests. All are kings[19].Actually, he is denying that tension ever existed between the caste hierarchies.
Commenting on Sociologists’ inappropriate understanding of the caste as a Vedic and scriptural vision of the society, Heesterman and Raheja argue for the inexplicability of similar hierarchies and discriminations in the Muslim and Christian societies. Caste system, they further argue, as a structural-functional system depicted in the textbooks is an invention of Sociologists and Anthropologists who were trying to make sense of the mind boggling complexity of Indian society. Fourfold model of Varnas and mutual interdependence was understandable to the functionalist comprehension of sociologists. To Dumont, castes are separate but interdependent groups of occupations, ascribed by hereditary customs. The principle of Vedic purity-impurity postulates their mutual division and dependence apart. Each Jati declines the privilege of marital exchange to the other, keeping the assimilation of ritual impurity out. But reality disapproves Dumont’s theory, as boundaries of caste are well present in non-Hindu societies as well[20].
In short, Sociological theory has failed to offer any solution to the problem, other than extending its own interpretation. Apart from sociology, as firmly believed by Dr. Ambedkar, elitist nationalism, and so called republicanism and modernism all have failed to offer any solution to the dilemma of contagious casteism. To him the solution lied in Buddhism, the only religion that evolved out of a struggle against caste-based social organization. Buddha did not believe in God, soul, karma and the process of reincarnation. He created Sanghas (communes) of his followers as a model of an egalitarian society[21]. Each man is an equally respectable human and a potential Buddha, if he succeeds to overcome desires and his false self. Ambedkar, rejects the view that Hinduism could ever be cured form the disease of caste. He was of the view, that caste hierarchies are incorrigibly permeated in Hindu Dharma. His vow to not to die as a Hindu and his public conversion to Buddhism in 1956, with thousands of his followers is an emblem of his revulsion from Hinduism. Gandhi, on contrary believed that caste hierarchies are a perversion of Hinduism and it can be purged from. Reforming Hindu society was the way out.
A famous row between M.K. Gnadhi and Ambedkar in 1930s over the rights of Dalits demonstrates their opposing position. Gandhi went on a prolonged hunger strike protesting against the separate electorate for Dalits proposed in Poona Pact in 1933. Fearing violance if Gandhi died Dr. Ambedkar eventually gave in and compromised on the reservation of few seats for Scheduled Castes in national legislature of 1936, much to his remorse later[22]. After independence (1947), Indian Government passed numerous laws and constitutional amendments in favour of the depressed classes. Despite significant constitutional measures and favourable policies, majority of India’s untouchables continue to facing disadvantages, discrimination and violence[23]. Nevertheless, soft or stringent, less or more, economic or social, colonial or pre-colonial, sanctioned by religion or not, no one can deny the ubiquitous nature of caste-based discriminations in South Asia. It is only a human-rights approach and respective remedies that can help eliminate the problem.
Cast and Descent Based Discriminations Are Human Rights Abuses:
Recent resonance of the issues is evidence that cast-based discrimination has always been a human rights issue[24]. Cruel, degrading and in-human treatment to a huge population of India is a racist tradition. It is a form of modern segregation and apartheid. According to an estimate in India, everyday 2 Dalit houses are set on fire, 2 Dalits are murdered, 3 Dalit women are raped and 2 Dalits are assaulted every-hour and several other abuses are just a matter of routine[25]. It is the largest detriment towards the political, economic and social emancipation of millions of people[26]. Contrary to the past, state-driven National Commissions in India and Nepal now accept many of the excesses reported by NGOs and Newspapers.
Accepting it rather meekly, Dalits have long been struggling against this evil custom. Reform movements initiated by Jyotiba Phule (1860-1890), Mohandas Gandhi (1915-1948), B.R. Ambedkar (1930 – 1956) and several other anonymous efforts have been instrumental for that. Mass conversions to Islam, Christianity and Buddhism also served a similar purpose. Caste question has been important during partition, sometimes resounding even today. But quite recently, it is being expressed into a language of human-rights, the most suitable vehicle to address the issue[27].
The very first article of Universal Declaration of Human Rights (UDHR) challenges caste-based discrimination in the following words: “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood[28]”. The UN Committee’s (on racial discrimination) interests in caste issue in 1996 was a milestone for Dalit struggle observing that “the situation of the scheduled castes and scheduled tribes” is covered under the treaty’s “descent” term, and “it does not solely refer only to race”. The Committee criticized India for not providing sufficient information on the implementation of the country’s measures to improve the condition of scheduled castes. Article 1 of the International Convention on the Elimination of All forms of Racial Discrimination[29] (ICERD) says that “racial discrimination” shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, and national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life”[30].Indian government has been denying that ICERD includes caste-based-discrimination[31] while the Government of Pakistan even denies the existence of caste in a Muslim society and trivialises the sufferings of a smaller Hindu population, there.
Smita Narula’s report, “Broken People: Caste Violence against India’s Untouchables (1999)” attracted international attention and gave impetus to the movement within India and abroad too. Likewise the “Black Paper on the Status of Dalit Human Rights” produced by National Campaign for Dalit Human Rights (NCDHR), based on Indian official statistics and Commission reports, generated added interest in the concerned circles in 2003. Another ‘petition’ submitted to the UN demanding freedom of millions of people in Asia built pressure on Indian government to implement its Constitutional Act (Article 15 & 17) of abolishing caste-discrimination. ‘The petition’ also called on UN to encompass caste-based-discrimination into ICERD and to appoint a Special Rapporteur on the problem of untouchability. Dalit activists also organized the world’s first ever Dalit Convention in October 1998 in Kuala Lumpur, Malaysia. Meeting the prime minister of India, Dalit activists presented him “the petition,” the “Black Paper” and 2.5 million signatures of protest[32].
On August 2000 Human Rights’ expert R.K.W. Goonesekere presented his working paper to the ‘Sub-commission on Human Rights’ on work-and-descent-based discrimination in its’ 53rd session. Arguing against caste-discriminations he said that in such discriminations “victims are singled out, not because of a difference in physical appearance or race, but rather by their membership in an endogamous social group, isolated socially and occupationally from other groups in society….It also held that there is “no doubt that social institutions in respect of which the term ‘caste’ is applicable” are covered by the term “descent”, and therefore that discrimination arising from constitutes racial discrimination under CERD….In its’ General Recommendation XXIX, it “strongly condemned descent-based discrimination as a violation of the convention”. For the severity of the problem in there, he confined his report on South Asia only. Subsequently the U.N. Sub-commission on the ‘Promotion and Protection of Human Rights’ unanimously adopted the resolution against discrimination based on work and descent on April 2001. The resolution addressed the issue of caste and reiterated that work-and-descent-based-discrimination is prohibited under international human rights law[33]. World Conference against Racial Discrimination (WCAR 2001) strongly recommended that “all governments, and in particular those whose citizens suffer from caste or descent-based discrimination and abuse, should ratify and fully implement the International Convention on the Elimination of All Forms of Racial Discrimination. All governments should support efforts to implement the resolution on discrimination based on work and descent adopted by the U.N. Sub-commission on the Promotion and Protection of Human Rights in August 2000. Concerned governments should extend invitations to the Special Rapporteur on racism to investigate caste-based and other forms of discrimination based on descent in their respective countries….All governments should ensure that caste-based and similar discriminations against marginalized populations is explicitly addressed in the declaration and programme of action of the WCAR, and any follow-up plan of action thereafter· Dalits in South Asia and other populations in similar situations should be explicitly acknowledged as groups of people who have been subject to perennial and persistent forms of discrimination and abuse on the basis of their descent[34]”. The WCAR’s allocation of 20 paragraphs to the issue of work-and-descent based-discrimination was another landmark success of Dalit rights movement.
Transforming Social Behaviour and Bringing National and International Law into Action:
It took years of Dalit activists to win the attention of United Nations, Amnesty International, Human Rights Watch and other Influential NGOs and institutions. Scores of consultations, press conferences, conventions, seminars and rallies were organized by Dalits all over South Asia for Dalit consciousness and mobilization. Efforts to induce media and civil society were made with noticeable success. Indian Dalits have also filed law-suits in Superior Courts pressing for the need of judicial justice and remedies. State and provincial legislators and the respective ‘Ministries of Human Rights and Minority Affairs’ were also approached to play their role in eliminating the evil. But it has long been observed by human rights experts that, it is easier to ignite a national and international action against discriminations-de-jure than the de-facto ones. It is particularly valid in the case of caste-based-discrimination. The fact is that change in law is not a big deal. What is problematic, is the practice. Despite constitutional provision in all three of the countries mentioned, there is no substantial change on the ground[35].
The horrendous indignity afflicted to Dalits poses several questions. How can sociological understanding contribute towards the elimination rather than admiring its organizational attributes? Why some of the violations are quickly recognized as human rights violations while others not? How could marginalized groups and communities translate internationally recognized claims into social action? Why did International Conventions and International NGOs took so long to recognize untoucability as a human rights concern? If Caste is socially embedded and ideologically driven, what measures could be taken for social transformation. Is it only the strict implementation of international human rights law and constitutional measures that will halt such violations or something else too is required? I personally believe that social transformation is a must coupled with the effective implementation of constitutional and human rights law[36].
The impact of Dalits’ intensive lobbying at national and international level must not be overestimated. Despite significant progress since the beginning of Dalit campaigns in 1980s, occupation-and-caste-related discriminations are rampant in South Asian societies. Dalit struggle has succeeded to lobby with the national and international human rights bodies but failed in changing behaviours. International law holds limited powers in changing national legislation and domestic policies while changing behaviours is almost impossible for international law. Putting an end to untoucahability is the goal that does not appear any closer[37]. The question is how to look beyond law and how to address the issue from socio-political perspective. Not to conform to or offer sociological exegesis but to change. This is the challenge for emerging sociology of human rights. Another pertinent question is can law change behaviour or behaviour changes law. I believe that solution lies in the behavioural transformation through mass mobilization coupled with successful implementation of law.
Although international human rights law provides enough avenues and legal provisions in which victim groups can also register complaints and grievances. Advocating removal of abuses becomes even difficult when relevant provisions are already available with the domestic constitutions[38] as is the case with India, Nepal and Pakistan. But the richness of language and the provision of legal instruments is not sufficient. Punishing perpetrators for specific abuses and reforming institutions that perpetrate such crimes is a must if national governments are serious. Usually it is the states that cause difficulties through denial and trivialization. A colossal amount of work and institutional changes still remains ahead. Dalits and Dalits’ rights activists are doing their job. It is the national governments that need to act swiftly and effectively.
*******
End Notes and References
[1] The most prominent protagonist and the chief architect of India’s Constitution Dr. B.R Ambedkar’s dialogue with M.K. Gandhi around 1933 in the wake of Poona Pact proposing a separate electorate for the untouchable’s of India. The latter was opposed to the separate identity and political representation of Dalits while the latter favoured the proposition.
http://www.youtube.com/watch?v=q_Sy8S1vxEM, Site hit on April 12, 2010, at 22:34 hrs.
[2] The Aryans are said to have invaded the dark skinned original inhabitants India, occupied their territories and relegated their status to the lowest rung of society, later on ideologically justified in the ancient scriptures known as Vedas, see in: Fawley, David. http://www.hindunet.org/hindu_history/ancient/aryan/aryan_frawley.html
[3] Origin of Castes: Division of the Caste,
http://www.dalitchristians.com/Html/dalit_and_caste.htm, hit on April 13, 2010, at 11:33 hrs.
[4]As mentioned by Vincent Manoharan, General Secretary, National Campaign on Dalit Human Rights on his talk to the European Parliament on ‘Caste Discrimination in South Asia’” held at the European Parliament (EP) in Brussels on April 6, 2008. See.
http://www.dalits.nl/080604.html, hit on Apri 19, 2010 at 10:35 hrs.
[5] Kak, Subhash. 1996. In ‘A note on caste.
Annals of the Bhandarkar Oriental Research Institute, vol. 77, p.1, here pp1, pp. 235-240.
[6] Bharati, Sunita Reddy. October 19, 2002.
“Dalit” A term asserting unity, EPW Discussion; Mendelsohn, Oliver & Vicziany, Marika. 1998. The Untouchables: Subordination, Poverty and the State in Modern India pp.2–5
[7] Dirk, Nickolas, B. 2001. Caste of Mind, Princeton University Press
[8] Human Rights Watch: A global concern: August 2001, Vol 13, No. 3(G), p.6.
[9] Dirks, Nickolas B. 2001, Ibid.
[10] Aliani, Shahbano. (August 25, 2009) Caste in Pakistan: The Elephent in the Room,
http://reddiarypk.wordpress.com/2009/08/25/caste-in-pakistan/ hit on April 12, 2010, at 18:55 hrs.
[11]ActionAid–Pakistan 2010, Sanitary workers mobilise to end discrimination and unequal treatment, Waheed H. & Javeria M.,
http://www.actionaid.org/eu//index.aspx?PageID=5338, hit on April 9, 2010, at 15.51 hrs.
[12]Hindu Marriage Registration: An Unfulfilled promise, Javeria, M. Dar, M. Uzma, T.,
http://www.actionaid.org/pakistan/index.aspx?PageID=5259, hit on April 12, 2010.
[13]Sikand, Yogender. May 2006. SikhSpectrum.Com Quarterly, Issue No. 24,
http://www.sikhspectrum.com/052006/dalit.htm.
[14] The Constitution of the Islamic republic of Pakistan.,
http://www.pakistanconstitution-law.com/const_results.asp?artid=27&title=Safeguard%20against%20discrimination%20in%20services [15] International Dalit Solidarity Network Working globally against the discrimination based on Work and descent, ,
http://idsn.org/uploads/media/PakistanUPRpdf.pdf, Site hit on April 12, 2010, 2015 hrs
[16] Human Rights Watch 2004. Discrimination against Dalits in Nepal,
http://www.hrw.org/legacy/english/docs/2004/02/09/nepal7322.htm, Site hit on April 14, 2010, at 11:18 hrs
[17]Bob, Clifford. 2007. Dalit rights are human rights: Caste discrimination, international activism and the construction of a new human rights issue,
Human Rights Quarterly 29 (2007) 167–193, The Johns Hopkins University Press, USA.
[18] Dirks, Nickolas B. Dr. Ibid.
[19] A. M. Hocart 1968, On Caste: Religion and Power,
Contributions to Indian Sociology pp. 45-63
[20] Kak, Subhash. 1996. Ibid. 12Felix Raj. S.J 2001, ibid.
[22] [22] Thomas C. Mountain March 17, 2006, Why do India’s Dalits hate Gandhi? By, Online Journal Contributing.
[23] Bob, Clifford, 2007. P192. Ibid.
[24] Bob, Clifford. 2007. Ibid.
[25] Human Rights Watch, August 2001, Vol. 13, No. 3(G) Caste discrimination: a global concern A Report by Human Rights Watch for the United Nations World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance. Durban, South Africa, September 2001, p2-3.
[26] Human Rights Watch, August 2001, p25. Ibid
[27] Bob, Clifford. 2007. p.173, Ibid.
[28] Universal Declaration of Human Rights, Artilce 1,
http://www.un.org/events/humanrights/udhr60/hrphotos/declaration%20_eng.pdf, Site hit on April 14, 2010 at 19:43 hrs.
[29] International Convention on the Elimination of All Forms of Racial Discrimination,
adopted 21 Dec. 1965, 660 U.N.T.S. 195 (
entered into force 4 Jan. 1969),
reprinted in 5 I.L.M. 352 (1966).
[30] International Convention on the Elimination of All Forms of Racial Discrimination http://www2.ohchr.org/english/law/cerd.htm, site hit on April 14, 2010, 22:03 hrs.
[31] Bob, Clifford. 2007, Ibid. [32] Ibid, p. 178 [33] Human Rights Watch: August 2001 Vol. 13, No. 3(G)Caste discrimination: A Global Concern, Bob, Clifford, p. 182, Ibid [34] HRW 2001, p5 Ibid [35] Bob, Clifford. P.190, Ibid. [36] Ibid. [37] Bob, Clifford, 2007, p.184, OpCit. [38] Bob, Cifford 2007, p.193, ibid.
February 3rd,2011
Human Rights | tags:
achootyas,
b r ambedkar,
caste based discrimination,
caste system,
dalit rights,
dalit struggle,
dalits,
Hindus,
human rights,
new human rights,
scheduled castes,
social practice,
untouchables |
Comments Off
