Tuesday, August 19, 2014

Expert Witness Says Kenyan Government Failed to Protect Victims of Sexual Violence

A landmark class action case against the Kenyan government is unfolding in the Nairobi High Court. Sexual violence survivors and Kenyan non-governmental organizations (NGOs) acting on behalf of all victims of sexual violence committed in the aftermath of the 2007 Kenyan presidential election brought a case against the government alleging numerous violations of the Kenyan constitution for the government’s failures to protect them, to investigate and punish the perpetrators, and to provide reparations.

At the most recent hearing, the petitioners’ lead expert witness testified about these failures. The witness, Patricia Nyaundi, is a Kenyan women’s rights leader, a former member of the Truth, Justice and Reconciliation Commission (TJRC), and the secretary of the Kenya National Commission on Human Rights. She argued that the government has failed in its responsibility to protect persons from violence and continues to neglect victims by failing to recognize their claims of sexual and gender based violence (SGBV) and to remedy their situation.

Case No. 122 of 2013 was filed in February 2013 on behalf of eight victims of post election violence and four NGOs, Coalition on Violence Against Women (COVAW), Independent Medico-Legal Unit (IMLU), the Kenyan Section of the International Commission of Jurists (ICJ), and Physicians for Human Rights. Eight Kenyans, two men and six women, from various areas of Kenya, were victims of sexual and gender based crimes during the post-election crisis. Even though the case was filed early last year, proceedings did not commence until 2014 due to the government’s failure to respond until Judge Isaac Leanola threatened to proceed with the trial without the government.

The petitioners allege that the government failed to anticipate and adequately prepare police practices to prevent violence. They also argued that the government had a duty to investigate and prosecute perpetrators of human rights violations and failed to take steps to investigate violations of sexual and gender based crimes. Further, the petitioners allege that the government failed to provide necessary care and compensation for their suffering. The petitioners are asking the High Court to issue a declaratory order stating that specific rights, including the right to life, prohibition on torture, the right to equality, and freedom from discrimination, were violated during the post-election violence as a result of the Kenyan government’s failure to protect its citizens. The petitioners are also seeking to establish a database for victims of SGBV committed during the post-election violence and set up an independent body tasked with monitoring of the provisions of reparations to the victims.

The respondents include the Attorney General, Department of Public Prosecutions, Inspector General of the National Police Service, Independent Police Oversight Authority (IPOA), Ministry of Medical Services, and Ministry of Health and Sanitations. In response, the Attorney General and Director of Public Prosecutions have denied the petitioners’ arguments and instead claim that many victims of the post-election violence sought and obtained protection within the police stations around the country, and victims were also able to obtain necessary medical services. In response to the petitioner’s claims that thousands of cases of sexual violence have never been investigated, the government argues that it was not obligated to investigate cases where the victims failed to report the crimes to the police. The government also argued that the police took steps to prevent the violence, but the magnitude of the violence and speed at which the violence spread across Kenya prevented the police to provide security for every Kenyan.

Patricia Nyaundi testified for parts of seven days, beginning on March 25. She was called as an expert in human rights and international law to testify about the violations following the presidential election and the government’s responsibility to protect its citizens. Ms. Nyaundi focused her testimony on the findings in the Waki Commission report and the Truth, Justice and Reconciliation Commission report and said that the Kenyan government failed to properly respond and protect victims of sexual and gender based violence committed after the disputed presidential elections in 2007. Ms. Nyaundi noted that a single hospital reported more than 900 cases of sexual and gender based violence during the post-election violence, and the director of the hospital testified that these victims were only “the tip of the iceberg” with respect to the full magnitude of the SGBV crimes committed during the violence. Ms. Nyaundi further stated that the police themselves committed sexual and gender based crimes instead of protecting the victims.

The government began its cross-examination of Ms. Nyuandi on May 14, 2014 (the case has not been assigned consecutive hearing dates and so far has proceeded with only one or two hearing days each month). During the cross-examination, government lawyers representing the Attorney General, Director of Public Prosecutions, and Independent Police Oversight Authority questioned the strength of the Waki Commission’s methods and findings and the witness’s views on Kenya’s obligations to SGBV victims under national and international law.

For example, the Waki Commission report stated there was an increase in the commission of sexual and gender based violence during the post-election crisis. The government repeatedly asked Ms. Nyaundi to explain this reported increase of SGBV given that prior to 2009 Kenya did not distinguish reporting rape, defilement, and sexual violence as separate crimes. Ms. Nyaundi explained that while rape was not recorded as a separate crime, a demographic survey conducted in 2009 showed that one in four women had experienced SGBV. The witness also pointed out that the lack of available statistics from the time of post-election violence were due to victims’ fear of the police and the stigma attached to rape and sexual violence within Kenyan society. Ms. Nyaundi acknowledged that the Sexual Offences Act passed in 2006 provided for a robust legal framework to prosecute sexual and gender based crimes, but implementation of the law poses a serious challenge. In addition to the implementation, Ms. Nyaundi testified that the Kenyan culture of silence and stigmatization of victims, along with a defeatist attitude that reporting crime will amount to nothing, prevented many victims from reporting SGBV crimes. Ms. Nyaundi specifically noted that the lack of statistics available for sodomy and forced circumcision against men is due to the patriarchal society where the stereotype of manhood is highly valued, preventing men from speaking publicly about the violations.

The government also questioned the witness about the role of the government in protecting its citizens. The government argued that it is impossible to protect every single Kenyan, rather the government’s responsibility is to provide security and the policy duty is to the public at large, not for specific individuals. Ms. Nyaundi rejected the government’s claim arguing that the law guarantees that every citizen has a right to life, and once an individual’s right is violated, the state should have machinery in place to carry out investigations and arrest and punish the perpetrator. She further noted that there is a contract between a citizen and the state, and the state cannot exclude itself from its responsibility simply because protection of such rights may be inconvenient.

While Ms. Nyaundi argued that the state has the responsibility to protect its citizens, the government’s lawyers posed questions on citizens’ obligations to ensure that rights are protected and guaranteed. The state cannot investigate crimes without receiving reports. Thus, individuals have an obligation to report crimes in order for police to follow up and investigate. Ms. Nyaundi did not dispute that citizens have obligations to report crime under normal circumstances. However, in circumstances like the post-election crisis, where Kenyans experienced the breakdown of the law and were unable to reach police stations, the burden then switches to the state to exercise additional responsibility.

The petitioners also argued that the state not only failed to protect them, but has also failed to compensate them for their violations. The government argued that victims could have launched their grievances with various government bodies, such as the IPOA, Gender and Equality Commission, or the Human Rights Commission, but chose to pursue public interest litigation instead.

Ms. Nyaundi pointed out that the government chose to treat victims of various violations differently. While the government compensated internally displaced persons (IDPs) and created a database for IDPs, it has failed to take any action in acknowledging the suffering of victims of sexual and gender based violence. Further, while some government bodies may have jurisdiction to hear complaints of sexual and gender based violations, the gravity of these crimes and the importance of highlighting the plight of so many victims necessitates the establishment of a separate entity whose mandate would cover SGBV crimes and serve as a voice for victims whose suffering has gone unaddressed. The establishment of such entity would be an important first step in raising the issue of SGBV and its magnitude within the society. It would be also be an important step in recognition by Kenya that sexual and gender based violence occurred during the post-election crisis, and victims require reparation and recognition of their suffering.

During her testimony, Ms. Nyaundi emphasized the barriers that victims faced in reporting a crime. Not only did victims face difficulties in accessing police stations, but many chose not to report a crime because they knew the police would not take appropriate action. In addition to the mistrust of the police, culture played an important role in victims’ unwillingness to speak up about their suffering. Male victims were particularly silenced in reporting a crime because of the patriarchal culture. However, the fact that the Waki Commission did not interview a single male victim does not mean that no crime against men occurred, Ms. Nyaundi noted. Ms. Nyaundi called on the government to take action to recognize the magnitude of SGBV crimes in the country, set up a database for victims, and spearhead an agency that would lead a discussion on SGBV in Kenya and allow victims to seek justice and reparations.

At the conclusion of Ms. Nyaundi’s cross-examination, Judge Leanola adjourned the case until August 27 when the court will resume its hearings of witness testimony. The trial is expected to continue through the end of 2014.

Eva Nudd is a member of the ABA IHRC's Steering Committee. She is currently working with the International Center for Transitional Justice in Kenya on police vetting and sexual and gender based violence projects. She previously was a public interest law fellow at the Open Society Justice Initiative where she worked on issues of international criminal law.

The Open Society Foundations has been providing support to the ongoing litigation in Kenyan courts. For more information, please see the following case report.

Reprint: International Justice Monitor

Saturday, August 9, 2014

AAAS: Using Geospatial Technologies to Support Human Rights Research and Documentation

When: Friday, September 5, 2014

Time: 9:00 a.m. - 10:30 a.m. EDT

Where: 1200 New York Avenue NW, Washington, D.C. 20005

Human rights organizations are increasingly using scientific evidence-gathering techniques to support and strengthen their work. In this workshop, experts in remote sensing and geographic technologies from the AAAS Geospatial Technologies and Human Rights Project will present the opportunities provided by these technologies (e.g., remote sensing, geographic information systems (GIS), and GPS), and how they may be used in human rights research and documentation efforts. Workshop participants will develop an understanding of the technologies, how they can affordably incorporate them into their own work, ways the technologies have been used and may be exploited in the future, as well as competencies that will enable them to identify misuse of the technology.

This event is hosted by the American Association for the Advancement of Science’s (AAAS) Geospatial Technologies and Human Rights Project and On-call Scientists Project. Please register for in-person attendance or to watch the live-stream of the event no later than 3 September 2014.

For questions about the use of geospatial technologies for human rights, contact Susan Wolfinbarger at swolfinb@aaas.org. For questions related to this event, contact Theresa Harris at tharris@aaas.org.


America: Leader of the Unfree World

On Friday, the U.S. Sentencing Commission voted unanimously to allow nearly 50,000 nonviolent federal drug offenders to seek lower sentences. The commission's decision retroactively applied an earlier change in sentencing guidelines to now cover roughly half of those serving federal drug sentences. Endorsed by both the Department of Justice and prison-reform advocates, the move is a significant step forward—though in a global context, still modest—in reversing decades of mass incarceration.

How large is America's prison problem? More than 2.4 million people are behind bars in the United States today, either awaiting trial or serving a sentence. That's more than the combined population of 15 states, all but three U.S. cities, and the U.S. armed forces. They're scattered throughout a constellation of 102 federal prisons, 1,719 state prisons, 2,259 juvenile facilities, 3,283 local jails, and many more military, immigration, territorial, and Indian Country facilities.

Compared to the rest of the world, these numbers are staggering. Here's how the United States' incarceration rate stacks up against those of other modern liberal democracies like Britain and Canada:

That graph is from a recent report by Prison Policy Initiative, an invaluable resource on mass incarceration. (PPI also has a disturbing graph comparing state incarceration rates with those of other countries around the world, which I highly recommend looking at here.) "Although our level of crime is comparable to those of other stable, internally secure, industrialized nations," the report says, "the United States has an incarceration rate far higher than any other country."

Some individual states like Louisiana contribute disproportionately, but no state is free from mass incarceration. Disturbingly, many states' prison populations outrank even those of dictatorships and illiberal democracies around the world. New York jails more people per capita than Rwanda, where tens of thousands await trial for their roles in the 1994 genocide. California, Illinois, and Ohio each have a higher incarceration rate than Cuba and Russia. Even Maine and Vermont imprison a greater share of people than Saudi Arabia, Venezuela, or Egypt...

Excerpt, read the entire article here.

Obama Authorizes Humanitarian Drops and Limited Airstrikes in Iraq

[Click image to be redirected to a video of Obama's speech.]

President Barack Obama said he authorized airstrikes against militants in Iraq if they threaten U.S. personnel, and he dispatched planes to drop food and water for trapped civilians threatened with “genocide.”

U.S. aircraft dropped supplies today to Iraqis threatened by fighters from the Islamic State extremist group near Sinjar, close to the border of Syria. All the planes safely left the airspace.

The airlift was precipitated by the plight of about 50,000 people, half of them children, who have been stranded in mountainous territory after advances by the militant Islamic State. The people are Yezidis, an ethno-religious minority. The militants have also targeted Christians, Obama said.

The extremists “have called for the systematic destruction of the entire Yezidis people, which would constitute a genocide,” Obama said tonight in televised remarks from the White House. “The United States of America cannot turn a blind eye.”

Obama, who campaigned for office on a vow to end the Iraq war, and oversaw the full withdrawal of forces from Iraq in 2011, said the U.S. has no intention of putting forces on the ground. He said he authorized airstrikes against Islamic State militants if they move toward the Kurdish city of Erbil, where the U.S. has diplomatic personnel.

Excerpt, read more here.

When Dangerous Logic is Used to Justify the Killing of Innocent Civilians

Image credit: A Palestinian man holds his daughters, who were injured in an Israeli tank attack, as he leaves al-Shifa hospital, Gaza City (Getty Images).

After the September 11 terrorist attacks, Osama bin Laden argued that Al Qaeda was perfectly justified in killing all those people inside the World Trade Center because they weren't really civilians–they were complicit in U.S. might and misdeeds. Didn't their taxes fund America's CIA assassinations and war planes? As every American understood perfectly well at the time, the attack that day would not have been justified even if all office workers in the Twin Towers had voted for a president and supported a military that perpetrated grave sins in the Middle East. Or even, indeed, if they were all subletting spare bedrooms to U.S. soldiers.

Killing civilians is wrong, no matter how often those who do it insist that the humans they killed weren't really innocent. Everyone understands this truth when the civilians being killed are one's countrymen or allies–but forget it quickly when the civilians are citizens of a country one is fighting or rooting against in war, even though the civilizational taboo against killing civilians becomes no less important.

The latest to succumb to this seductive illogic, to insist that slain civilians weren't really civilians, is New York University's Thane Rosenbaum, who writes in the Wall Street Journal:

Gazans sheltered terrorists and their weapons in their homes, right beside ottoman sofas and dirty diapers. When Israel warned them of impending attacks, the inhabitants defiantly refused to leave. On some basic level, you forfeit your right to be called civilians when you freely elect members of a terrorist organization as statesmen, invite them to dinner with blood on their hands and allow them to set up shop in your living room as their base of operations. At that point you begin to look a lot more like conscripted soldiers than innocent civilians. And you have wittingly made yourself targets.

For purposes of this article, let's set aside all the adults killed in Gaza, just for the sake of argument. The dead Palestinian children are evidence enough that "real civilians" are being slaughtered. In the above passage, the author focuses on the dirty diapers rather than the baby that produced them. Elsewhere, he acknowledges the revolting number of kids killed in this conflict, and then adds, as if it's concession enough, "Surely there are civilians who have been killed in this conflict who have taken every step to distance themselves from this fast-moving war zone, and children whose parents are not card-carrying Hamas loyalists. These are the true innocents of Gaza." In fact, even a toddler whose father is a card-carrying Hamas loyalist is an innocent, by virtue of being a young child!

Except, read entire article here.