Opinio Juris

Over at National Security Advisors, our colleague Dave Glazier has a superb post on whether the Gitmo defense attorneys are responsible for the ills of the military commissions, as the Wall Street Journal's far-right editorial page seems to believe. Here's the intro:

The Wall Street Journal published a scathing editorial today blasting the military and civilian defense attorneys it portrays as unreasonably obstructing the capital military commission prosecutions of high value terrorists, including alleged 9/11 mastermind Khalid Sheikh Mohammed (KSM). It is not surprising that a paper noted for its politically conservative editorial stance should defend the government's general approach to the so-called "War on Terror." But it is disappointing to see the editors of a paper that is generally well regarded for the basic quality of its journalism get so many points of law, history, and fact wrong, as well as to question the integrity of so many career military lawyers and judges. It is also ironic to see how far the editors have shifted their views on the role of law and justice since the time of the trial they hold up as a prototype.

The post includes a fascinating discussion of the events underlying Ex parte Quirin — and the Journal's rather different take on that case in 1942. Check it out!

They number at least 12,000,000, though a precise count is impossible because many governments refuse to consider them a legitimate category for census purposes. They suffer serious and widespread employment discrimination, especially their women, leading to unemployment rates often 6-8 times greater than the countries in which they live. They are sequestered in dangerous, environmentally-degraded slums, surviving in substandard housing that often lacks basic necessities like electricity, light, sanitation, heat, and potable water. Their children often receive no education, and those that do are normally placed in segregated — and vastly inferior — "remedial" schools. They receive substandard health care, if they receive any at all, and as a result have a high infant mortality rate and appallingly short average life expectancies. They often lack access to the basic personal documents they need to secure their rights, such as birth certificates, local residence permits, and passports.

They are the Roma, Europe's own underclass.

Most of the time they are simply ignored, even though the country in which their life is arguably the most difficult — newly-independent Kosovo — is only an hour by plane from Zurich. And when they aren't ignored, they often wish they were. Witness what recently took place in Italy:

SMOKE rose yesterday from the smouldering ruins of a Gypsy camp attacked by vigilantes in a run-down industrial suburb of Naples in the shadow of Mount Vesuvius.

The charred remains of the makeshift wooden shacks, mattresses and belongings at the site in Ponticelli crunched underfoot. Dogs scavenged through a pile of uncollected rubbish nearby.

Police guarded another squalid "nomad camp" beneath an overpass after the inhabitants fled during the night to avoid meeting a similar fate. Signs of their flight were everywhere, with doors to shacks left open and the ground strewn with clothing, shoes, bicycles, plastic bottles, pots and pans and children's toys.

[snip]

In Rome, where Gianni Alemanno, the new right-wing Mayor, has vowed to dismantle "nomad camps" to reduce street crime, police raided a Roma camp, taking the inhabitants by bus to detention centres. Mr Alemanno has promised to deport 20,000 illegal immigrants.

But in Naples local people pre-empted the crackdown and took the law into their own hands. Scores of youths on scooters and motorbikes wielded iron bars and threw Molotov cocktails at the Roma shanty towns. Their anger came to a head after a 17-year-old Roma girl entered a flat in Ponticelli and apparently tried to steal a six-month-old girl. The child's mother and neighbours gave chase and the teenager escaped being lynched only after police moved in.

Naples erupted in fury, with women leading the marches on the Roma camps to the chant of "Fuori, fuori" ("Out, out") and "Go home, dirty child stealers". Young men, allegedly on the orders of the Camorra, the Naples Mafia, set the sites ablaze, blocking attempts by the fire brigade to put out the fires. Exploding gas canisters completed the destruction. The women jeered at the firemen, shouting: "You put the fires out, we start them again."

Hundreds of Roma families fled for their lives, their belongings piled on to small pick-up trucks or handcarts. Some have been taken under police protection. Others have found refuge at Roma camps elsewhere in the Campania region, while a few have been taken in by Naples residents shocked at the outbreak of xenophobia.

The arson attacks come from festering anger over rising crime and urban degradation, much of it blamed on Roma gypsies and the estimated half a million Romanians who have emigrated to Italy since Romania joined the European Union. The Roma rights group Opera Nomadi says there are 2500 Roma in Naples, 1000 from Romania and 1500 from Balkan areas.

It's an old story: demonize the victims — accusations of baby stealing? In 2008? — and then blame them for their own mistreatment. Unfortunately, it's a story that is all too common: not only do 68% of Italians want all of the Roma expelled from their country, 79% of Czechs and even 68% of Germans feel the same way about their own Roma populations. Percentages in many other European countries would no doubt be similar.

On the bright side, the world community has not completely ignored the events in Rome and Naples. Spain criticized Italy's crackdown on the Roma in no uncertain terms, stating that it "rejects violence, racism, and xenophobia." Similarly, the OSCE's Office of Democratic Institutions and Human Rights quickly issued a press release that "called on the Italian authorities to ensure the protection of the Roma population and urged politicians and the media to refrain from anti-Roma rhetoric."

It is also worth noting that Roma recently won an important legal victory at the European Court of Human Rights. In D.H. and Others v. The Czech Republic, eighteen Roma children from Ostrava brought a complaint against the Czech Republic alleging that their segregation in "special" schools for students deemed "mentally deficient" constituted degrading treatment under Article 3 of the ECHR and represented a racially-discriminatory denial of their rights to education, in violation of Article 14 and Article 2 of Protocol 1. In a landmark decision, the Court held in favor of the Roma children:

On 13 November 2007 the Grand Chamber held by 13 votes to four that there had been a violation of Article 14 (prohibition of discrimination) of the European Convention on Human Rights read in conjunction with Article 2 of Protocol No. 1 (right to education). The decision's cornerstone finding was that the prejudicial impact of the special school system on the Roma children applicants was unlawful discrimination in violation of fundamental rights guaranteed by the European Convention. However, perhaps the most groundbreaking element of the Court's decision was that it explicitly embraced the principle of indirect discrimination, upholding the principle that a prima facie allegation of discrimination shifts the burden to the defendant state to prove that any difference in treatment is not discriminatory. This ruling places interpretation of the European Convention in consonance with the standards set out in the European Union's Directives on burden of proof in cases involving sex and race discrimination and discrimination in employment on diverse grounds.

The complaint in D.H. and Others was brought by a superb NGO, the European Roma Rights Centre. I urge all of our readers to consider getting involved with the ERRC, or with Roma issues generally. The existence of a European underclass is bad enough. Not doing anything to improve its existence is simply unacceptable.

For a heartbreaking, and all too typical, video of Roma refugees living on the municipal dump in Belgrade, unable to return safely to their homes in Kosovo, see here.

HAT-TIP: Una Hardester, an Outreach Coordinator with the Trafficking Victim Services Program at the remarkable US Committee for Refugees and Immigrants.