Representational image. | Image Courtesy: Rediff.com
 

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Shortly after the election of Donald Trump to the presidency of the USA, multiple authors on openGlobalRights were already debating what role, if any, international human rights could play in the struggle against the spread, normalisation and institutionalisation of the misogyny, racism and latent fascism of the Trump campaign. In the European context, memories of fascism and the Nazi Holocaust were important factors in the adoption of the European Convention on Human Rights (ECHR) in 1950. The drafters may have been driven by a broader agenda to contain democracy and socialist ideas, but the hope that a supra-national legal system of human rights protection would stabilise and safeguard liberal democratic institutions runs quite deep in the foundations of the ECHR.

Human rights law alone is unlikely to protect liberal democratic institutions from a fascist take-over.

Now that liberal democracies have delivered far-right regimes in Europe (and beyond) and contributed to the legitimation of xenophobic discourse and practices, there is indeed cause to ask whether international human rights law will actually deliver on its “promise”. The legal perspective from the European regime, however, suggests that human rights law alone is unlikely to protect liberal democratic institutions from a fascist take-over and that we are far from immune from the atrocities of the early twentieth century.

First, there is little in the ECHR that could be used to challenge the election of a party with fascist views through the ordinary democratic process, as opposed to challenging the laws or actions of such a regime. Article 17 of the ECHR states that nothing in the Convention implies that any state, group or person has the right to engage in an activity or act aimed at destructing the rights and freedoms in the Convention. But the focus and effects of this provision are limited. It only refers to actions that annihilate human rights; it does not speak to the ideology or political formation of the state. And it can only be used to exclude reliance on the ECHR (e.g., by individuals seeking to rely on Article 10 on the right to freedom of expression to disseminate racist views); it is not a self-standing provision on the basis of which an action can be brought directly before the European Court of Human Rights (ECtHR). The result is that although fascist ideology goes against any notion of universal human equality, that fundamental incompatibility carries little concrete juridical effects. After all, Golden Dawn, an openly neo-Nazi party, sits with a comfortable 7% in the Greek Parliament. 
 

Flickr/anokarina (Some rights reserved)
 

A mural at the Center for Civil and Human Rights in Atlanta, GA. Human rights law alone is unlikely to protect liberal democratic institutions from a fascist take-over.
 

Second, the ECHR would not necessarily prevent a regime with fascist aspirations from derogating from its human rights obligations. The creation of a supra-national machinery was designed to place human rights beyond the reach of the nation state. In particular, the ECHR purported to avoid a remake of the Weimar Constitution—which was suspended during the Third Reich—by placing limits on the ability of states to derogate from their human rights obligations. Pursuant to Article 15 ECHR, the ECtHR must verify that there is a “war or other public emergency” that justified departure from the ECHR and that the measures taken do not go beyond what is “strictly required by the exigencies of the situation”.

But there are reasons to doubt the resilience of this framework. Although states must notify the Council of Europe of their intention to derogate from the ECHR, the mechanism of Article 15 is largely reactive. This becomes particularly problematic under conditions of internal repression and of pan-European convergence towards the far right, where the prospects of a successful challenge diminish. Judicial control has been weak thus far on the ground that national authorities are best placed to determine the existence of, and the measures required to respond to, an emergency. Moreover, the interpretation of Article 15 ECHR has evolved to reflect the changing political and social conjuncture.  

For example, since 9/11, states are no longer required to demonstrate the existence of an imminent and concrete threat—intelligence over a possible terrorist attack on UK soil was sufficient to meet the Article 15 requirements—contributing to the collapse between normalcy and exception that underpins criticisms that the “war or terror” has led to a permanent state of emergency. And emergency measures passed to combat terrorism have often been used for purposes other than the aversion of the “security threat”. Many of the measures introduced in France after the Paris attacks of November 2015 have since been used to suppress political activism, including opposition to the infamous “Loi El-Komhri”, which dismantled many labour law guarantees for workers. The state of emergency also made space for more institutionalised forms of racism and Islamophobia, as the controversial “Burkini Bans” adopted on grounds of “peace and public order” demonstrate (the French Conseil d’Etat set aside some of the bans, but various regional bodies still refuse to comply). Thus, Article 15 ECHR has been no panacea to authoritarianism, even by liberal democratic regimes.

In theory, Article 17 ECHR—prohibiting the destruction of rights and freedoms—could prevent a fascist government from invoking Article 15. But the professed neutrality of the human rights framework raises questions about the willingness of the ECtHR to express a clear judgment on, and openly condemn, the fascist nature of a regime. In the “Greek case”, several states objected to the invocation of Article 15 by the Greek military junta. But the Commission largely avoided the question, ruling that the junta had failed to establish that there was a communist conspiracy threatening the life of the Greek nation without making any mention of the dictatorial nature of the regime. Even if the ECtHR could be expected, in the abstract, to take a more robust position, this underestimates the concrete effects of far-right resurgence and the more covert forms fascism takes in the contemporary moment. It is difficult to imagine the ECtHR would bar Marine Le Pen, were she to be elected, from extending the state of emergency and further consolidating her power, even though the Front National remains rooted in the fascist project.  

Legally, the situation is quite different from the 1930s. At the time, there was no international human rights regime in place that could be brought to bear on the internal activities of the state. It would, however, be naïve—and dangerous—to think that the human rights framework will deliver on its promise to curb the impulses of fascism. On Trump’s election, Barack Obama attempted to present a façade of business-as-usual and ensure an orderly transition of power. A week into Trump’s presidency, there were already signs that blind faith in liberal constitutional institutions is fading. Hundreds of thousands took to the streets in protest of the “Muslim Ban” and recent research has already warned that the legal and institutional framework of the US Constitution provides little safeguards against an authoritarian turn. Commentators have asked whether international human rights law will come to the rescue. The European legal framework suggests that attempts to “lock-in” liberal democratic institutions through human rights instruments are unlikely to prevent or survive the rise of fascism. And there is therefore an urgent need to build alternative strategies of resistance, both in Europe and beyond.

Eva Nanopoulos is a Lecturer in Law at Queen Mary, University of London.

This article was first published on Open Democracy
 

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Israeli Defense Minister Avigdor Liberman addresses Knesset Defense and Foreign Affairs Committee, March 6, 2017. (Photo by Yonatan Sindel/Flash90)

Newsweek reported the warning pointed to “a red line for the Trump administration in its relationship with the Israeli government”:

“We received a direct message… imposing Israeli sovereignty [on the West Bank] would mean an immediate crisis with the new administration,” Lieberman told the Israeli parliament’s Foreign Affairs and Defense Committee. “The coalition should clearly state that there is no intention to impose [Israeli] sovereignty.”

The warning came after Likud KM Miki Zohar, who advocates annexation, stated on Israeli television Channel i24 last night that the two state solution was “dead” and Palestinians, while not having full citizenship, would nonetheless enjoy rights like every citizen, except for the right to vote for the Knesset — unless they serve in the army or to “serve the country” which he hastened to assure viewers they would not do.

Lieberman noted he’d been getting calls from “all of the world wanting to know if this is the position of the coalition,” continuing,
 

“[W]e need to separate from the Palestinians and not to integrate them. The decision to annex Judea and Samaria [the West Bank] would mean the integration of 2.7 million Palestinians in Israel.”
 

Rather confusing messaging from the Trump administration. Just last month Trump said he’d be “happy” with a one state solution “if Israel and the Palestinians are happy”. Ambassador to the UN Nikki Haley later walked that back, saying that the policy was still, two-state solution. Maybe Trump heard Palestinians are not happy. We may be hearing more on this latest development soon as Lieberman is due to meet with top U.S. administration officials this week in Washington.

This article was first published on Mondoweiss.net

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What next? EPA/Michael Reynolds

Time Magazine’s February 2017 cover will feature the Women’s March on Washington (WMoW), with the caption, “The Resistance Rises: How a March Becomes a Movement”.

The WMoW has rapidly become an umbrella protest for a variety of causes, and now shows signs of becoming a movement not just for protest, but to advance women’s rights and effect policy changes. But successful social movements don’t effect change simply via polite organised marches in Washington; they disrupt the status quo and pressure lawmakers into making changes with real consequences. And unlike certain other movements at work in the US today, the WMoW marchers are in a privileged position to make this happen.

After the WMoW on January 21, President Trump took to Twitter to demonstrate his approval: “Peaceful protests are a hallmark of our democracy. Even if I don’t always agree, I recognise the rights of people to express their views.” This is in stark contrast to Trump’s statements about Black Lives Matter (BLM).

Just before the election, he singled out a BLM protester at one of his rallies and said he should be “roughed up”. He has called the movement divisive. His new administration has added a new page to the White House website entitled Standing Up For Our Law Enforcement Community which states:

The dangerous anti-police atmosphere in America is wrong. The Trump Administration will end it … Our job is not to make life more comfortable for the rioter, the looter, or the violent disrupter.

Many in the BLM movement have read this as a threat to protesters. So why the apparent double standard?

One obvious explanation is that the women’s marchers were, in Trump’s terminology, “peaceful” – no clashes between police and protesters, no violence, no rioting or looting. Indeed, many who supported the WMoW took to social media the next day to pat themselves on the back for executing a peaceful protest during which no-one was arrested.

But unsurprisingly, many BLM activists argued that white privilege played a major role in how the protest was perceived by the public and handled by the police. The Washington march itself was attended overwhelmingly by white women and was far less radical in tone than a BLM march despite their common goals.

Clearly, the two movements are disconnected. Two viral photos from the WMoW demonstrate the distance between them.

This image of Angela Peoples has received widespread attention. It’s a fair point: 53% of white women in America voted for Trump, and while the estimated 500,000 women protesting in Washington most likely didn’t, most of their peers did.

In this second photo, protester Amir Talai draws attention to the divisions between WMoW organisers and attendees about the role of race in the protest. As some women of colour began criticising their white allies, they started to make them feel alienated from the cause – and the sometimes heated dialogue between white women and women of colour on the WMoW Facebook page is testament to the tensions that persist.

While the WMoW’s white protesters are willing to accept women of colour in support of their cause, many aren’t willing to return the favour by supporting BLM: only 51% of white Americans aged 18-30 support BLM, and far fewer actually show up at protests.

It would be a huge wasted opportunity if these movements couldn’t bridge the gap between them. We should expect more and more protests during the Trump Administration, and the time is right for action.

Clearly, WMoW has something to learn from BLM. Here are five core lessons.

1. Be inclusive

The WMoW must be inclusive of all women, regardless of race, class, religion, age, political beliefs, sexuality, or their possession of a vagina (yes, trans women are part of this movement too). BLM has done this very well: spearheaded by LGBT women, many of the movement’s leaders are to this day young, queer, and trans women of colour. If the WMoW wants to succeed as a movement, it will have to live up to that standard.

2. Act local

The key to mobilising a movement beyond one march is to organise self-sustaining sub-groups across the country. This will include local organisations coming together under the banner of one name, whether the WMoW, the “Resistance” or something else. It also means lobbying local and state politicians. Activists can do this by asking their mayors to designate their cities as sanctuary cities for immigrants, or by calling state representatives to oppose legislation that would limit women’s reproductive health options.

3. Be political, but not partisan

BLM has deliberately represented itself as “revolutionary” in political orientation, often supporting left-wing candidates but not aligning itself with a particular political party. That helps it push candidates harder. From before the primaries even began in early 2016, its protesters were highly visible throughout the campaign, making their demands a constant issue. If the WMoW wants to match its power, it will have to step away from partisan alignment and push policy demands across the spectrum – especially once the 2018 midterm elections start to ramp up.

4. Civil disobedience works

A variety of nonviolent civil disobedience and peaceful protests must be used to have the greatest effect. Civil Rights campaigners in the 1960s used civil disobedience to resist Jim Crow segregation by sitting at whites-only lunch counters, resisting efforts to remove them; today, BLM protesters have taken to stopping traffic on busy highways. In short, peaceful protests are fantastic for bringing awareness to a problem, but they don’t disrupt the status quo or bring pressure on lawmakers to make changes.

5. Keep going

Angela Peoples’ photo speaks a very particular truth: many of these white middle-class American cisgender women are new to protest politics. That is not a bad thing – but if the WMoW is going to effectively challenge the Trump Administration and Congress on women’s rights, they are going to have to keep showing up. Even when they don’t feel like it. Even when it’s inconvenient. Even when they might get arrested for civil disobedience. Successful social movements are not all sunshine and “pussyhats”; much of the work is tedious, tiresome, and thankless.

BLM protesters understand this. They show up day in and day out to have their voices heard. The Resistance, or whatever we’re calling it, will have to do that, too.

(Laura Graham is Assistant Professor of Sociology, Trinity College Dublin)

This article was first published on The Conversation.
 

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