Monday, September 10, 2018

John Bolton may be the Best Thing that Ever Happened to the ICC

For those of us who have followed John Bolton's long, storied crusade against the United Nations, which he once called the "hopeless captive of Soviet manipulation and Third World radicalism" it should perhaps come as no surprise that now that he has been given perhaps his last chance at real power, he's set about destroying the ICC.

The ICC has long been a thorn in the side of Republicans, who seem convinced it is not an impartial, international court staffed by professional judges from all over the world, but rather an anti-US kangaroo court hell-bent on destroying the United States (and, of course, Israel). Bolton was behind the infamous "Hague Invasion Act," which left open the possibility of Special Forces invading the Netherlands to rescue CIA agents hauled up before the court. While most Americans have likely never heard of the court, it seems to keep Bolton up at night on a regular basis.

Now Bolton, who has always seemed pathologically incapable of understanding basic human psychology, seems to believe that a huge, showy war against the ICC (over the possible bringing of charges against US service people in the war in Afghanistan) is a great idea. He seems unaware that he is about to lift the ICC out of obscurity and thrust it to the front of the Resistance, just as Jeff Sessions plucked ICE from relative obscurity and dropped it like a bomb into the middle of the midterms.

Since the US is not a party to the Rome Statute creating the court, it has zero say over what the court does, and will have to resort to bullying other members into pulling out. Some of Bolton's genius ideas include leveling sanctions against witnesses or even judges involved in the court. Boy, is that going to be a good look. Cause nothing says "guilty" quite like bullying others into dropping support for a prosecutor that is investigating you. Just ask Donald Trump.

Apparently, the Pentagon is "concerned" that US persons might be at risk of prosecution by the court, which is looking into war crimes committed in Afghanistan. Really? Because if no Americans committed war crimes in Afghanistan, than the Pentagon should sleep well at night, right?

If you're interested in reading about the measured, legalistic investigation into war crimes in Afghanistan currently being brought about by Prosecutor Fatou Bensouda and her team of seasoned international lawyers, you can do so here. And here's a summary of the career of lawyer Bensouda, the African woman who is daring to hold the US accountable for its actions, as countless European, African and Asian countries have already been held to account for crimes spanning World War II to the war in Darfur.

So good luck to John Bolton in his quest to discredit Ms. Bensouda and the ICC. The more he rants and raves, the more the US government looks like it has something to hide, the more famous the ICC becomes. The headlines are already making Bolton sound like an unhinged dictator, as though he needed any help with that, right along side the government of Myanmar, who have at least managed to avoid threatening violence against the ICC in response to a court referral about the genocide in Myanmar. Meanwhile, Duterte in the Philippines is also trying to withdraw his country from the ICC. What wonderful company Bolton keeps.

One wonders why all the fuss? If these countries have done nothing wrong, why not simply let the process go forward?

But in all seriousness, with so many governments attacking the ICC at once, it's worth doing everything to raise the profile of the court in the hopes that public opinion can be used to protect it. Forcing other member states to withdraw from the Rome Statute, which would also withdraw their funding, will be a primary goal for Bolton. So far, most states are holding firm, but public opinion will be key to keeping support up in member state countries.

Nancy Pelosi was recently on the cover of Time Magazine for the first time, long after Mitch McConnell, but better late than never. Who will be on the cover next, John Bolton...or Fatou Bensouda?

Update: Conservative columnist Marc Thiessen has now published an article claiming that the US should support a policy of amnesty for war crimes, genocide and crimes against humanity for reasons of political expediency.

Friday, August 31, 2018

Are Americans Prepared for Ethnic Cleansing in the United States?

Hannah Arendt called citizenship "the right to have rights," but it is also the right to be seen as a person by governments, the right to belong to a community, the right to exist in the eyes of the law. Denationalization is often used by governments to mark a particular group out as non-persons, sometimes in preparation for their removal or destruction. This process is often called "ethnic cleansing" or, when the intent is to destroy the group in question, genocide.

This week, the Washington Post published an article on the Trump administration's use of denationalization in the United States. In an op-ed in the Post, Eugene Washington decries the racism of the Trump administration's denationalization policies, including the confiscation of passports from Hispanic US citizens. Yet this move by the Trump administration goes beyond racism and into the dangerous territory of government-sponsored ethnic cleansing.

The term "ethnic cleansing" first gained popularity during the wars in the Balkans to describe a package of related actions by the government, including deportation, detention, rape and murder, to remove an unwanted ethnic group from the country. Many have questioned the use of the term ethnic cleansing in place of the term genocide. Ethnic cleansing, however, can employ both violent and non-violent means. Denaturalization, detention and deportation are examples of non-violent methods of ethnic cleansing, as are the forced, mass seizures of land, the creation of lists and registers of people, and the requirement that certain groups wear distinguishing badges or clothing or carry ID that states their ethnicity, race or religion.

Denationalization has often been part of ethnic cleansing campaigns around the world. The German government used denationalization as an early stage of its genocidal campaign against Jews. Statelessness has figured prominently in the Myanmar government's genocide against the Rohingya. In the Dominican Republic, black Dominicans of Haitian origin have been stripped of their citizenship to ease the way for their deportation.

It is important to take note of the Washington Post's story because denaturalization is qualitatively different from many other Trump administration policies on immigration. Prior US government policy focused on the removal of Hispanic immigrants. Trump administration policy is focused on the removal of Hispanics, full stop. As a country, we have now officially crossed the Rubicon. Ethnic cleansing is now the official policy of the US government.

As is typical of Trump, he attempted to deflect attention from his own policies and plands by falsely claiming that other people someplace else were doing the same thing. To me, his recent tweets about South African and "white genocide" signal a frightening preview of what Trump may have in store for us here in the United States.

The larger question we must ask ourselves is where this ethnic cleansing campaign is headed. The Trump administration likes to turn up the heat very slowly so it can be difficult to notice when important milestones are reached, but make no mistake, this WaPo article is a major turning point.

Will non-violent ethnic cleansing measures give way to a campaign of wide-spread violence? Will this violence use official government institutions, like border patrol, or unofficial militias? If so, what will be the response of the American people? What will be the response of the international community? Welcome to uncharted waters.

Tuesday, August 28, 2018

Who Decides Who is Rohingya?

A computer can’t create identity, only verify it.
Yesterday, the UN released a damning report alleging the government of Myanmar is guilty of genocide against the Rohingya, a Muslim minority ethnicity living in the Rakhine state near the border with Bangladesh. The Rohingya have long been discriminated against and targeted for violence in Myanmar, which limits citizenship to certain ethnic groups. Huge numbers of Rohingya already live in exile, many recognized as refugees, in countries like Bangladesh, Pakistan, Saudi Arabia and Malaysia. While the situation of the Rohingya has been bad for a long time, there is no doubt that things have gotten substantially worse since 2017.
The plight of the Rohingya evades solution. Despite multiple UNHCR attempts at resettlement, few countries wish to take Rohingya refugees. Many remember the Rohingya “boat people” crisis of 2015, as multiple countries refused entry to boats of stranded migrants, preferring to leave them to starve rather than risk creating a “pull factor” for more migrants.
The scale and duration of the suffering has given rise to a perennial feeling among human rights advocates that this simply cannot go on, that each fresh horror must be a breaking point that will lead to some sort of resolution. Desperate people often turn to inventive methods to at least provide some sort of solution. Enter: the Blockchain community.
What does blockchain have to do with the Rohingya?Because the Rohingya are stateless, those who have not been recognized as refugees in countries like Bangladesh and Malaysia have no ID, cannot access services even provided by the private sector, such as bank accounts or cell phone accounts, or even prove who they are to one another.
A bunch of startups, such as Humaniq, have begun exploring the idea that distributed ledger technology, often called blockchain, could help stateless people create their own, non-governmental registry that could serve as an ID and verification system. The Rohingya Project seeks to bring this technology to the Rohingya, setting up a group blockchain for all Rohingya people so they could, for example, transfer money or keep a record of their information. In some ways, the blockchain would serve as a quasi-government for otherwise stateless people.
Rohingya could use the blockchain to access some services that can be done by computers, like transferring and storing money, storing important personal information and creating a credit history. However, the problem with blockchain is that while it can store and verify someone’s identity, it cannot create that identity. An identity can only be created by people.
A ledger can record your identity, but it cannot create it.
One’s personal identity is the creation of multiple layers of connections with community, with family, with culture and with gender. These forms of identity are fluid, overlapping and changeable. It’s malleable and something over which you have a certain amount of control.
But your legal identity, your nationality, is given to you by others. It’s something over which you have almost no control. And human beings have long since decided that a legal identity can only be created by states. Only a government is vested with the ultimate authority to verify who you are as a matter of law. This function is part of the state’s sovereignty over every aspect of our lives. Ultimately, and despite the best efforts of internationalists and anarchists, we exist as legal persons with rights only because we are allowed to exist by governments. On paper, basic human rights are assured to everyone despite what a particular government may or may not think, but go and tell that to a stateless person. Make no mistake, you are a person only because your government says you are.
Checking to see if you are a person…
In a recent article in the online magazine Crypto-Disrupt about blockchain as a solution for the stateless Rohingya diaspora, David Cullinan makes a bleak admission about the limits of technology to solve problems created by the exclusive sovereignty of states over our lives. He writes that the Rohingya blockchain, which would allow access to some banking services, would be available to everyone who had “passed a test to verify that the person is genuine Rohingya.” What organization would design this test? How would it be administered? Would there be an appeals process for those denied access? Sure sounds to me a lot like the functions of a government ID agency.
As long as a verifiable identity gives rise to rights and access to valuable services, as long as it has a value, deciding who gets this valuable identity will require some sort of administrative body, some sort of government to pick the winners and losers, the ins and the outs. In short, a verifiable identity will always require a government. There’s no technological fix for that problem, unfortunately.

Friday, August 17, 2018

Venezuelans Living Abroad Can’t Get Their Passports Renewed. They Need a Humanitarian Status, Now.

Missing! Have you seen this booklet?
My Venezuelan friend sent me a text message the other day: “Can the UN help me get my passport renewed? Is there some kind of UN passport I can get? Mine expires at the end of the year and I can’t get a new one.”
In case you were wondering, no, the UN cannot help you get a passport. With the exception of the refugee travel document, passports are issued by states. UN staff members receive a light blue laisser-passer denoting their diplomatic status, but this document does not and cannot replace their passport. In the modern world of international travel, the passport occupies the place of a mythic, sacred object, a talisman of incredible power.
But why would my friend, a well-traveled and successful professional, be having trouble getting a passport?
Turns out the Venezuelan government has stopped issuing passports, or any documents for that matter, to anyone, abroad or in Venezuela. Oh, I’m sure if you know the right people, you can still get one. But most people are simply out of luck until the government decides to start doing its job again. Apparently, the Venezuelan government has signed legislation allowing expired passports to continue to be used for visa purposes, but it is unclear if such documents will be accepted by other countries. (The reasons for the sudden shortage of passports stem from the official claims of lack of paper and ink to rumors that the government wants to prevent people from leaving.) The Venezuelan government can sign whichever laws it wants, nothing can force, say, the government of the United States to put a visa in an expired passport.
In the meantime, other countries need to come up with a plan for any Venezuelans who are left stranded without documents.
Much of the news coverage of Venezuela and passports has focused on the mass exodus to neighboring countries, but the passport issue will effect Venezuelans living all over the world. It is problem for which all governments will have to find a solution. The Irish government is apparently already aware of the problem, but doesn’t seem to have come up with a solution yet.
The easiest solution would be to provide Venezuelans without documents a temporary humanitarian visa and travel document. But whatever the solution, governments should take steps to resolve this now, and not wait for large numbers of people to be left stranded without a solution.

Tuesday, July 24, 2018

There Is a War Coming Over “Birthright Citizenship” (jus soli) in the US and No One is Ready

Most Americans are shocked that 80% of the world’s countries do not let you be a citizen just because you were born in that country. When I traveled to Australia a few years ago while pregnant with my son, a friend, a lawyer no less, joked that if I had my baby there, “he will be Australian!” She actually thought that if I had my baby in Australia, he would be an Australian citizen.
Jus soli, or “birthright citizenship,” as Americans usually call it (reflecting the fact that it occurs automatically at birth,) is written into our Constitution, despite what some Trump administration officials would have you believe. I will not plunge into the logic of the argument that the 14th Amendment says something different from what it plainly says (plenty of others have done soalready), nor do I wish to spend the time to point out that the history of the Americas in general is one of automatic jus soli for countries that have so long received large numbers of immigrants, and that it is firmly based in the English common law, nor do I want to speak of the very real problems jus sanguinis countries are experiences today as they struggle with statelessnessand excluded minority groups.
While Trump administration official Michael Anton’s op-ed in the Washington Post came as a shock to many people, in reality he is merely putting forth the opinion of many far-right nationalists, an opinion they have been mulling over and working on for years. The fact that Michael Anton had a job in the Trump administration means that these views are no longer “fringe” as some people continue to hopelessly claim, but have very much entered the mainstream. At what point to we accept that a large number of Americans, both inside and outside of academia, support the end to jus soli? That many people voted for Trump to achieve just such an aim and that Trump is now searching for judicial appointments that will use the law to achieve these ends? Is anyone who believes in a multi-cultural, plural America prepared for the coming war?
We are lucky that the right to automatic jus soli is written so clearly into the Constitution and that we have prior Supreme Court cases, chief among them Wong Kim Ark, to support our view. Sure, history, facts and the Constitution are on our side. But laws can be changed and Constitution is always up to interpretation, no matter how strong a precedent may seem. The radical right has been working on this issue for years and they have long had a fair amountof support in the government. Yet while the radical nationalist movement in the United States has already placed champions in key positions in the Trump administration, academia and elsewhere, including people like Michael Anton and Steven Miller, there are few left-leaning civil society group in the United States working to protect jus soli.
Conservatives have been arguing about jus soli for quite some time and many prominent conservatives support it, or are at least having a dialogue about it as a matter of public policy, but neither the center-left nor the far-left are engaged. The issue might as well be invisible. While many civil and immigrant rights organizations and lawyers support jus soli, the issue barely registers for larger American advocacy groups, or within even the radical left wing of the Democratic Party, or among liberal activists who work outside the party. Nor is it a topic of conversation for more mainstream groups. It was not an issue raised by either Hillary Clinton or Bernie Sanders during the 2016 election. We are, quite frankly, asleep at the wheel.

Friday, July 6, 2018

Statelessness and ISIS

This week, the New York Times published a story on the women and children left behind by ISIS. With the destruction of much of the Islamic State, thousands of women and children have been left in limbo, their countries of origin refusing to take them back.

While armed conflict is always a cause of statelessness, the situation of many of these women is unique. Though they may not have formally renounced their nationality before joining ISIS, many joined the caliphate with the intention of becoming a member of an autonomous, Islamic society. Now, with the destruction of the Islamic State, they are being treated as though they renounced their original nationalities - as though they are stateless.

While the Western media depicted the Islamic State in wholly negative terms, particularly in regards to its treatment of women, many women saw an opportunity to help create a utopian, Islamic society devoid of western influence and interests and the globalization that has swept away traditional life across the world. While many may dismiss this goal as dangerously na├»ve, in the eyes of many recruits, the Islamic State offered an alternate society.

The limbo now experienced by many former female members of ISIS shows the enduring emotional and psychological connections that define membership in a state, beyond the fact of identity papers or registration. While technically foreign-born members of ISIS had a nationality in some state, in essence, they had renounced this nationality in order to take on the nationality of ISIS. Trust between these citizens and their former states has been broken, a trust that is fundamental to the relationship between citizen and state, and one that is not easily mended.

Thursday, June 14, 2018

Ending China's One Child Policy Is Only the First of Many Steps to End Statelessness in China

According to a noted Chinese expert's recent op-ed in the Washington Post, China may be considering ending its hated one child policy. Among the other abuses well documented by the media is the fact that many children in China are born invisible to the state and illegal under the law. These children are stateless or at risk of statelessness, unable to obtain documents such as the required hukou, or household booklet, and living in the shadows, unable to work or attend school.

Even if the policy ends, it will not be easy to obtain a citizenship for those "second children" who are living without documents. Governments around the world often struggle to rectify past registration gaps. Many governments fear the social and political impacts of mass enfranchising large groups. Families who end up with stateless members often come from poorer areas or minority ethnic groups. Sometimes, while a program may be created by the government, individual stateless people are told they don't qualify or are accused of fraud.

The best way for China to rectify the problem of statelessness for "second children" born under the One Child Policy would be to institute a period of blanket registration for families who can prove residency in China. Such an exception to China's nationality law would require a massive public relations campaign to inform families of their rights. Governments tend to not be very good at such programs. Will stateless people themselves be able to take part in crafting the solution? Governments often forget to consult the very populations they are trying to help.

The end of China's One Child Policy will not be the end of the suffering of stateless Chinese, unfortunately, but only the first step in a long journey towards acceptance. It will remain to be seen if the government is serious about redressing past wrongs, or merely wants to sweep the mistakes of the past under the rug.