In Memoriam of Jovan Divjak: the Hero of Sarajevo

By Dr Carna Pistan 

Dr Carna Pistan is an affiliated Scholar at the Center for Constitutional Studies and Democratic Development and Marie Curie Global Fellow for the project “Illusions of Eternity: the Constitution as a lieu de mémoire and the Problem of Collective Remembrance in the Western Balkans”

(11 March 1937 – 8 April 2021)

It is with sadness that the Center for Constitutional Studies and Democratic Development has learnt of the passing of Jovan Divjak – the former Bosnian army general, who defended Sarajevo during the 44-month-long siege of the city. The siege of Sarajevo began 29 years ago and lasted until 29 February 1996. It was the longest siege of a capital city in modern history (1.425 days), and one of the most dramatic and emblematic events of the violent dissolution of the former Yugoslavia, with thousands of civilians killed and wounded. 

With the outbreak of the war in BiH in April 1992, Jovan Divjak firmly rejected the logics of nationalism and division along ethnic lines, and fought for a multi-ethnic BiH. Although he was an ethnic Serb born in Belgrade and a retired officer of the Yugoslav National Army (JNA), he immediately chose to fight against the army he had served under and joined the practically unarmed Bosnian army, which was just being formed, to defend Sarajevo and BiH’s independence. As he once explained: “It was natural to be with those who were attacked, who did not have weapons […]. The idea of a multi-ethnic Bosnian army had won me over.” Divjak identified himself as a Bosnian and anti-nationalist: […] I did not stay in Sarajevo as a Serb. I do not define my identity through religion or nationality. I am Jovan Divjak, a citizen of this country.” During the Sarajevo siege, Divjak coordinated the defense of the city, and became the Deputy Commander of the Territorial Defense of BiH and the Sarajevo Territorial District. Divjak’s memories of the Bosnian war (1992-1995) are to be found in his books: “Sarajevo, mon amour” (Buchet-Chastel, 2004 with a foreword by Bernard-Henri Lévy; Italian edition: Infinito edizioni, 2015), and “Rat u Hrvatskoj i Bosni i Hercegovini 1991–1995” (The War in Croatia and Bosnia and Herzegovina, Jesenski i Turk, 1999). 

After the war, Divjak continued to fight for a “civic BiH” by devoting himself entirely to humanitarian work. In 1994, he funded the Association “Obrazovanje gradi BiH” (OGBH – Education builds BiH), which assists with the education of children who lost their parents in the war. Over the years, OGBH has granted thousands of scholarships to orphans and children from poor families. In July 2001, Divjak was awarded the Legion of Honour by France for “his civic sense, his refusal of prejudice and ethnic discrimination.” He also won other international and national awards, including the Order of Lafayette, Sixth of April Award of Sarajevo, the International League of Humanists Plaque, and the Plaque of the Sarajevo Canton. He appeared also in the BBC documentary “The Death of Yugoslavia” (1995), Sergio Castellitto’s “Venuto al mondo” (2012), and is the subject of the Al-Jazeera World documentary “Sarajevo My Love” (2013). 

Nonetheless, in the post-war period Divjak faced several lawsuits related to the war. While in Sarajevo he remain one of the most beloved wartime figures, the hero who defended the city and the symbol of multi-ethnic BiH, in neighbouring Serbia Divjak is seen as a “traitor.” On 3 March 2011, while on his way to Italy for a conference, Divjak was arrested in Vienna in response to a Serbian arrest warrant accusing him of war crimes related to an attack on a Yugoslav Army convoy in Dobrovoljacka Street in Sarajevo of 3 May 1992, during which several JNA soldiers were killed. Although his name did not appear on the lists of the ICTY or those of Interpol, the Austrian police arrested Divjak on the basis of a “black list” drawn up after the Bosnian war by Milosevic’s Serbia, where his name appeared along with 17 other people who, like Divjak, opposed the war of ethnic cleansing. A few days later after being arrested, Divjak was released on bail, and finally an Austrian court rejected Serbia’s extradition request by basing its ruling on an earlier decision of the Hague tribunal (ICTY), which stated that there was not enough evidence to start proceedings against Divjak, as well as due to the inability to guarantee a fair trial in Serbia. Divjak denied the allegations and insisted he ordered the shooting to stop. Indeed, in a television recording of that event, Divjak can be seen shouting: “Do not shoot!” Furthermore, in January 2012, the Bosnian State Prosecutor’s Office suspended an investigation against 14 suspects, including Divjak, although in 2018, the Constitutional Court ordered the prosecution to reconsider the case. In March 2017, the Croatian State Attorney’s Office indicted Divjak and several other Bosnian Army officers for war crimes against Croats during the war in Bosnia. The lawsuits Divjak had to face in the post-war period sadly reflect what one could define as “Balkan stylememory-making” where heroes are often considered as war criminals, and war criminals as heroes. 

For many years now, students from the Johns Hopkins University SAIS Europe and the University of Bologna have had the opportunity of meeting Jovan Divjak at his Association “Obrazovanje gradi BiH” during the annual CCSDD Sarajevo Study Trip – a four-day study trip to Sarajevo organized to give students the opportunity to meet with representatives of organizations currently engaged in post-conflict reconstruction, human rights issues and democratic development of BiH. During these meetings, Divjak would tell students about the past and current political, social and economic situation in BiH, as well as historical facts about the former Yugoslavia and the conflict of the 1990s. With the former general as their guide, our students also had the unique opportunity of visiting two important places of memory: the Tunnel of Hope(the only connection Sarajevo had with the outside world during the siege), and the Old Jewish Cemetery (the largest Jewish cemetery in Southeast Europe, which was on the front line during the Bosnian war). 

General Divjak with a group of students of the CCSDD Sarajevo Study Trip

We will all remember these meeting and visits with utmost gratitude.

Thank you “Hero of Sarajevo” for everything generations of SAIS and UNIBO students have learnt from you!  

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What Turkey’s withdrawal from the Istanbul Convention means for women in Turkey and beyond

By Allegra Wirmer

Allegra is a first-year master student in International Relations at Alma Mater Studiorum – Università di Bologna, where she focuses on international affairs, security studies and the Middle East.

BBC website (https://ichef.bbci.co.uk/news/976/cpsprodpb/1547C/production/_117646178_mediaitem117646176.jpg)

In an unexpected, if unsurprising, turn of events, Turkish president Recep Tayyip Erdoğan announced his country’s withdrawal from the Convention on Preventing and Combating Violence Against Women and Domestic Violence on March 20th. The treaty, better known as the Istanbul Convention, creates obligations for State Parties aimed at protecting women from violence. The President’s move has ignited protest in Turkey and provoked widespread condemnations from international leaders, as it is seen as a further rejection of human rights standards by the Turkish leadership. For years, fears that Turkey is progressively drifting toward right-wing authoritarianism under the ruling Justice & Development Party (AKP) have worried its neighbors and the global community of states.

The Convention

The Istanbul Convention is a Council of Europe human rights treaty which was opened for signature in 2011, and currently has 46 signatories (among them the European Union). Of these, 34 have ratified the treaty. Ironically, Turkey was the first state to sign and ratify the Convention, which entered into force officially in August 2014. The treaty is the outcome of the Council of Europe’s long-term commitment to fighting violence against women through policy recommendations and initiatives around the continent, as well as landmark pronouncements by the institution’s judicial arm, the European Court of Human Rights. 

The Convention is the first legally binding international instrument focused specifically on the prevention of violence against women, articulated through a variety of provisions which encourage State Parties to take any necessary measures to counter this phenomenon. The treaty applies to all victims of gender-based violence but notes how particular attention must be paid to women, as they are disproportionately subject to such actions. The 81 articles, divided into 12 chapters, spell out obligations for State Parties constructed around the “4 Ps approach”: Prevention, Protection and support of victims, Prosecution of offenders, integrated Policies. The treaty emphasizes the State’s responsibilities to intervene not only where women are subject to violence in the public sphere, but also in the domestic sphere, where many gender-based abuses occur which are often ignored as intrusion into the private sphere of the family is traditionally frowned upon.

Interestingly, the Convention is outspoken in placing the phenomenon of violence against women in the wider context of gender-based discrimination in society. Indeed, the Preamble clearly identifies violence against women as only one of the expressions of “historically unequal power relations between women and men”, recognizing that advancements on the elimination of violence against women cannot be separated from societal progress on the issue of gender equality. This holistic view of such violence as a symptom of patriarchal dynamics of oppression is visible throughout the treaty, which does not merely focus on the topic as a crime but prescribes, for example, the need for an education-based approach to prevention. 

The situation in Turkey

Erdoğan’s decision to withdraw his country from the Convention sent shockwaves through the nation. The will to make Turkey the first country to denounce the treaty since its inception had been looming threateningly since last summer, when talks of withdrawal had inflamed public opinion, creating schisms within the AKP and even within Erdoğan’s own family. While hardliners indicated the Convention as the root cause of major problems in Turkish society, others close to the AKP had restated the need for membership to safeguard the rights of Turkish women. Among these voices was KADEM, the Women and Democracy Association led by Erdoğan’s daughter and daughter-in-law. The opposition, women’s associations and human rights organizations had been among the voices protesting the proposed action. Apparently, this unrest was not enough to steer the President away from his intents.

statement released by the government on March 22nd commented the decision as stemming from the supposed “hijacking” of the Convention by a group of people “attempting to normalize homosexuality – which is incompatible with Turkey’s social and family values”. The text nonetheless restates Turkey’s commitment to the protection of women, which it argues to be able to efficiently undertake even without the Convention, citing domestic legislation and its ratification of the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) as evidence.

Nowhere in the statement is there mention of the realities of gender-based violence in the country, where femicides have increased drastically in recent years and violence against women is often justified in relation to male “honor”. The government’s extremely conservative stances on women’s status in society, often characterizing them exclusively as mothers and caretakers, show its prioritization of traditional ideals of family and masculinity over the livelihood of its female citizens. The consequences of this are evident: the Turkish women’s rights organization We Will Stop Femicides recorded 300 confirmed femicides in 2020. This number does not include the 171 women who were found dead and declared suicides or natural deaths in highly suspicious circumstances. High-profile cases of violence resulting in death and physical mutilation of victims, often coupled with sexual assault, spell the gruesome reality of fear and repression which Turkish women are forced to suffer most often at the hands of their own partners and family members.

The actions of the Turkish government have drawn criticism from around the world. From the EU institutions, High Representative and Commission VP Josep Borrell condemned the “dangerous message” sent around the world by Turkey, while Commission President Ursula von der Leyen called upon all signatories to ratify the Istanbul Convention. US President Biden released a statement rebuking Turkey’s “disheartening step backward”, emphasizing the need to fight gender-based violence also in light of a recent murder spree in Atlanta, Georgia, which had targeted Asian women. Local Turkish women’s associations decried the decision and called citizens to the streets for protest rallies.

Possible implications for the future

The repercussions of Erdoğan’s move will be unravelling in the coming weeks and months, but the possibilities are grim both domestically and internationally. Observers are worried about the fate of women’s and LGBTQ+ rights in Turkey, as both groups have been subject to marginalization and violence either at the hands of the government or with its tacit approval. In any case, his move widens the gap between Turkey and the West; what this means for the already stalled talks of accession to the European Union remains to be seen.

However, the Turkish decision could have wider repercussions when it comes to the adherence to the Istanbul Convention across Europe. The Convention is yet to be ratified by twelve signatories, six of which are members of the European Union. Among these, the governments of Hungary, Bulgaria and Slovakia have already openly stated their opposition to ratification. In July 2020, the Polish government announced its intention to withdraw from the Convention, which it had already ratified. In each of these cases, the Convention has been presented as an attack on national values of family and societal wellbeing by ominous liberal forces. This framing of the Convention by right-wing nationalist groups has contributed to the undemocratic spirals which have propelled many European countries further away from the guiding principles of the EU.

Whether Erdoğan’s initiative will have a domino effect of withdrawals from the Convention remains to be seen. Certain is that this event represents a dangerous precedent of politicization of international human rights standards, by creating a false partisan narrative around rights which should be seen as neutral and thus universal. By weaponizing human rights treaties such as the Istanbul Convention for political gain, leaders such as the Turkish president are reframing the human rights discourse in a way that corrupts its original meaning. Above all, these actions contribute to the further victimization of groups which are already extremely vulnerable and subject to discrimination, in Turkey and beyond. 

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The Repetition of History and Democratic Decay: The Case of Sri Lanka

By Carlee Wright

Carlee Wright is first-year MAIA student and Research Assistant at the CCSDD. She is also a Virtual Student Federal Service (VSFS) intern in the Political Section at the U.S. Embassy to Sri Lanka in Colombo. 

Most likely, many of us have heard the term “history repeats itself.” This phrase is used almost as a heed that sociopolitical and economic quandaries from the past could reemerge and cause similar issues for the current populace. In the case of Sri Lanka, this maxim is eerily relevant. History is indeed repeating itself –– and in almost an identical manner. 

The 18th Amendment to the Constitution: 

When former President Mahinda Rajapaksa came to power in 2005, he proposed the 18th Amendment to the Sri Lankan Constitution, later ratified by the Sri Lankan Parliament, which brought about several modifications. The most notable of these changes include the following:

  1. Bringing independent commissions under executive authority
  2. Substituting the 10-member Constitutional Council with a 5-member Parliamentary Council
  3. Giving the President power to remove the Prime Minister
  4. Establishing presidential immunity
  5. Eliminating presidential term limits

These changes to the Constitution were presented by the Mahinda Rajapaksa Administration as necessary given the vulnerable political situation in the country. Under former President Mahinda Rajapaksa, the nearly 30-year civil war in Sri Lanka ended. This conflict has often been characterized as ethnic between the Tamil and Sinhalese, but in reality it occurred as a result of economic injustice. The war laid the foundation for a political atmosphere that supposedly justified all-powerful politicians and reactionary policies. 

The 19th Amendment to the Constitution: 

Then, in a landmark election in 2015, Sri Lankans elected former President Maithripala Sirisena. One of the most notable elements of the Sirisena Administration was the approval of the 19th Amendment, which repealed the 18th Amendment. The main features of the 19th Amendment were that they: 

  1. Gave independent commissions back their independence
  2. Reintroduced the 10-member Constitutional Council
  3. Revoked the President’s power to remove the Prime Minister
  4. Allowed court cases to be brought against the President
  5. Limited the presidential term limit to five years

For many Sri Lankans, the Sirisena Administration reestablished democratic norms. 

The 20th Amendment to the Constitution: 

However, in November 2020, Sri Lanka elected Gotabaya Rajapaksa, the brother of Mahinda Rajapaksa and former Secretary of Defense, as President. President Gotabaya Rajapaksa implemented the 20th Amendment to the Constitution, which removes the 19th Amendment and essentially reinstates the 18th Amendment introduced under his brother. The contents of the Amendments are inherently indistinguishable. For example, the 20th Amendment once again: 

  1. Recategorizes independent commissions under executive authority
  2. Reintroduces the 5-member Parliamentary Council
  3. Grants the President power to unilaterally remove the Prime Minister
  4. Provides the President with immunity against legal proceedings during his/her presidency
  5. Removes presidential term limits 

Indeed, the 20th Amendment is essentially a replication of the 18th Amendment. In addition, another sociopolitical issue emerged once again that seemingly validated this expansion of power (at least for the President and his party): the 2019 Sri Lanka Easter bombings. This terrorist attack shook the island nation once again and gave President Gotabaya Rajapaksa a reason to consolidate his power with the excuse that the country’s stability depended on it. 

A Historical Approach to Understanding Unconstitutional Constitutional Amendments:

Another notable aspect of this repetition in history is that it is all happening within the legal framework of Sri Lanka’s Democratic Constitution. Therefore, another central question arises: is the 20th Amendment in Sri Lanka an example of an unconstitutional constitutional amendment?[1] These are amendments that adhere to the official constitutional amendment process, “but are aimed at achieving anti-democratic aims –– i.e., to help powerful presidents extend their term in office, to remove parliamentary or federalism-based checks on executive power, and to narrow or suspend basic human rights protections.”[2] Based on this definition, not only is the 20th Amendment clearly an example of an unconstitutional constitutional amendment, but the 18th Amendment is as well. 

The Future of Democracy in Sri Lanka:

The implications of the ratification of the 20th Amendment are alarming. President Gotabaya Rajapaksa announced at the inaugural session of the new Parliament that after revoking the 19th Amendment, the next step during his tenure would consist of “formulat[ing] a new Constitution suitable for the country.”[3] The will to draft a new Constitution, coupled with the fact that the political party led by President Gotabaya Rajapaksa, the Sri Lanka Podujana Peramuna Party, leads a majority in Parliament, might just establish Sri Lanka as an authoritative government with a president that manages to serve for life. Therefore, in the case of Sri Lanka, the 20th [unconstitutional constitution] Amendment may not simply contribute to the decay of democracy, but decompose of it entirely.


[1] An unconstitutional constitutional amendment, according to Dixon, Landau, and Roznai in their article “From an Unconstitutional Constitutional Amendment to an Unconstitutional Constitution? Lessons from Honduras” is defined as “the use of tools of constitutional change to undermine democracy.” 

[2] Dixon, Rosalind and David Landau. “Transnational Constitutionalism and a Limited Doctrine of 

Unconstitutional Constitutional Amendment.” Oxford University Press, vol. 13, no. 3, 2015, pp. 606-38. doi:10.1093/icon/mov039. Accessed 2 Oct. 2020.

[3] “Sri Lanka to Quash Constitutional Amendment that Pruned Presidential Powers: Sri Lanka 

Constitution.” EFE News Service, Aug 20, 2020ProQuesthttp://www.proxy.library.jhu.edu/login?url=https://www.proquest.com/wire-feeds/sri-lanka-quash-constitutional-amendment-that/docview/2435536531/se-2?accountid=11752. Accessed 7 Jan. 2021. 

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South Sudan’s decade-long transition: A country in search of a permanent constitution

By Zach Nelson

Zach Nelson is a first-year graduate student studying International Development at Johns Hopkins School of Advanced International Studies (SAIS). He was previously based in Juba, South Sudan, where he led research assessments on humanitarian accountability, and in Yangon, Myanmar, where he worked on conflict risk-monitoring.

A reveler celebrates in Juba the eve of South Sudan’s independence on 9 July 2011. Ten years later, his country remains without a permanent constitution.” Credit: Creative Commons  

In September 2018, South Sudan’s major warring parties signed the Revitalized Agreement on the Resolution of Conflict in South Sudan (R-ARCSS), bringing five years of brutal civil war to a close. February 2021 marks one year since the establishment of the Revitalized Transnational Government of National Unity (RTGoNU). The formation of the RTGoNU was hailed as a major achievement because it indicated that the implementation of the R-ARCSS was succeeding.

However, a year after the formation of the RTGoNU and nearly a decade since becoming the world’s youngest country, South Sudan remains in dire straits. The country is in the throes of a protracted humanitarian crisis,[1]subnational conflict has ticked up and chances of a political settlement appear dim.

President Salva Kiir and first Vice President Riek Machar—the two main belligerents of the country’s brutal civil war—maintain a delicate peace. However, continued quarrelling over power-sharing arrangements and decentralization of authority threaten to derail the fragile progress that has been made. 

Many of these disagreements between Kiir, Machar and other aggrieved parties can be traced to the fact that South Sudan is a country without an official constitution. A series of transitional constitutions, coupled with weak rule of law, has inhibited the ability of the South Sudanese leadership to deliver services, craft a national identity and maintain harmony between its 64-recognized ethnic groups. South Sudan faces potentially destabilizing national elections as early as 2022, in what some observers are calling a “final showdown”between Kiir and Machar. To forge a durable political settlement and prevent further violence, space must be created for constructive dialogue to reassess critical constitutional provisions.

As starkly articulated in the International Crisis Group’s (ICG’s) February 2021 country report: “South Sudan—the world’s newest country—needs a reset, if not a redo.” Part of this process should be crafting a permanent constitution. 

Key Constitutional Issues

The architecture of government and decision-making is currently set out in the Transitional Constitution of South Sudan (TCSS). Initially conceived to be a temporary governing document at the time of South Sudan’s July 2011 independence, the TCSS is riddled with provisions that concentrate power in the executive, thus limiting consensus-building between the heavily-armed ethno-political blocs of the Dinka (President Kiir’s ethnic group and the nation’s largest), the Nuer (Machar’s bloc and the country’s second largest ethnic community) and the Equatorians, a scattered grouping of ethnicities along the southern border. 

Constitution-making in South Sudan has been exclusive and identarian 

South Sudan’s first governing document, the Interim Constitution of South Sudan (ICSS) was the outgrowth of the 2005 Comprehensive Peace Agreement (CPA) that marked the end of the 25-year civil war between the Khartoum government and southern rebels, represented by an austere commander named John Garang, who was at the helm of the Sudan People’s Liberation Army/Movement (SPLA/M).[2] The ICSS was drafted by signatories entirely without popular participation. The lack of citizen engagement was justified on the grounds that the ICSS was first concerned with stopping armed conflict, and then with fashioning a state.  

The ICSS set a precedent for a constitutional process that was exclusive and opaque. At the time of independence, concerned with securing his own power base, newly-minted President Kiir commissioned a constitutional review committee, through which the TCSS was established. This committee was stacked with elites directly affiliated with his political apparatus. The President’s appointment of a handful of opposition officials and civilian representatives to the committee was a weak attempt at popular participation, derided as feckless and performative. 

While the majority of provisions in the TCSS mirrored the ICSS, key alterations were the result of an exclusive, opaque process; veering South Sudan away from a consociationalist federal arrangement and vesting extraordinary power in the office of the executive.

The TCSS concentrates power in the hands of the executive

Three clauses in the TCSS have concentrated power in the center and have resulted in a presidency that controls the content of constitution-making while insulating itself from accountability for its actions.

Derivation of Authority (Article 3(2))

“The authority of the government at all levels shall derive from this Constitution and the law” Article 3 (2)

Traditional federal constitutions derive their authority from the will of the people, rather than the letter of the law. As discussed, the credibility of the TCSS, was suspect from its inception: lacking popular participation and not reflective of the norms, needs and desires of the South Sudanese people.

Extraordinary executive authority (Article 101)

“The President shall perform the following functions: “supervise constitutional institutions…initiative constitutional amendments and legislation…remove a state Governor and/or dissolve a state legislative assembly in the event of a crisis in the state.”


Article 101, which enumerates the responsibilities of the office of the President, created a king-like executive in South Sudan. President Kiir has interpreted these provisions as being without limit. For instance, only eighteen months after independence, he summarily dismissed the governors of both Lakes and Unity State. This act was wantonly unconstitutional and motivated by the governors’ perceived comradeship with VP Riek Machar. President Kiir has consistently exercised these provisions without due process.

In the run-up to the 2013 civil war, Machar publicly announced his intention to challenge Kiir in the 2015 federal elections. Harnessing his constitutional powers, Kiir worked to eviscerate Machar’s power base. In what many observers credit with the single act that most contributed to the start of conflict, in July 2013 Kiir stripped Machar of the vice presidency and dismissed all the ministers and deputy ministers of his cabinet. The civil war would erupt less than five months later.

Kiir retains unitary constitutional authority to strip any official of his or her role and can declare a state of emergency in defense of the “national interest.”

Non-democratic secession process (Article 102 (2))

“If the office of the President falls vacant, the post shall be assumed by the Vice President pending elections that shall be conducted by the National Elections Commission within sixty days of the vacancy.” Article 102 (2)

There is little doubt that VP Machar is interested in Kiir’s job. The fact that the VP does not automatically become president and that the National Elections Commission controls the reelection process, is a brazen mandate directed by the Presidency to ensure that makes it very difficult for Machar to assume the top post. 

Indeed, this clause underscores the wider instrumentalization of the ethnic security dilemma that persists in the country today. Factions locked out of power have few incentives to believe their access to decision-making structures are legally backstopped by constitutional provisions. They feel pressured to take up arms in order to secure their own sense of safety and well-being. This then leads to a brutal feedback loop of conflict that has played out with alarming regularity in post-independence South Sudan.

The Path Forward

While it is debatable whether constitutional issues were the sparks that catalyzed the South Sudanese Civil War, they certainly contributed to maintaining violence and restricting opportunities for successful resolutions. 

In order to ensure a peaceful transition and build constitutional resilience to shocks, South Sudan needs a permanent constitution. The TCSS was always considered a placeholder document; conceived as a constitution for a “nation-in-waiting” until a more robust constitutional process could occur after the predicted independence referendum. 

The new constitution must incorporate provisions that constrain the power of the executive, mandate the separation of powers and harness South Sudan’s diversity in a way that decentralizes decision-making and builds a culture of inclusivity.

Ensuring an open and participatory process is key: representative participation ensures durability and confers legitimacy. South Sudan’s permanent constitution must afford citizens the opportunity to fashion the constitution in their own image. There is a hearty appetite for this across all strata of South Sudanese society. A key indication of the centrality of constitutional issues is the fact that constitutional reform is a foundational pillar of the R-ARCSS—namely, the formation of a National Constitutional Review Committee which is tasked with triggering the process of building a permanent constitution. As of the time of writing, the constitutional committee has been appointed, but is currently inactive.

The primacy of power sharing. South Sudan’s winner-take-all electoral system offers few avenues for the inclusion of rivals. To prevent electoral losers from taking up arms, the position of the first vice-presidency could be reserved for the presidential runner-up with at least one other vice-presidency designated to the third most successful candidate (under the RTGoNU, there are five vice presidential positions). Furthermore, while decentralization is articulated in the TCCS, it has hardly been implemented since independence. Devolving power and decision-making to the regional and local levels creates buy-in and empowers local officials. 

Look to regional partners for successful ‘diversity management’ mechanisms . One option could be a home-grown ‘house of nationalities’, as in neighboring Ethiopia (although the current Tigray conflict calls the effect of such a system into question), whereby one representative from each of South Sudan’s 64 recognized ethnic groups would be elected to the lower house of parliament. This would have the dual effect of mitigating majority dominance and creating a platform where all ethnic groups have an equal stake, perhaps fostering an environment for the forging of a national identity. Another option could be rotating the presidency and top cabinet positions between ethnicities every election cycle.

Overall, the drafters should promote broad-based accommodation, balancing integrative design with an executive tempered by strong liberal institutions. Such a process will necessarily require compromise between South Sudan’s power-brokers, who at the moment, remain mostly opposed. Thus, creating space for substantive dialogue on constitutional reform must be a key priority, underscored by inclusive, local participation. 


[1] With 400,000 dead since the outbreak of fighting in 2013, four million people displaced and nearly half the population (5.8 million) in a state of acute food insecurity (UN OCHA South Sudan Humanitarian Needs Overview 2020)

[2] The SPLA represents the movement’s armed wing, while the SPLM is the movement’s political wing.

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The opposition of the people of Myanmar to the military coup is the last hope for democracy

By Daniele Rumolo

Daniele Rumolo is a human rights practitioner with over a decade of field work experience in the Balkans, Middle-East, and Asia with the United Nations and other international organizations. 

Demonstrators hold placards calling for the release of detained State Counselor Aung San Suu Kyi during a protest against the military coup outside the Chinese embassy in Yangon, Myanmar, 14 February 2021. Protests continue across the country despite orders banning mass gatherings and reports of police arresting anti-coup protesters in night-time arrests. Myanmar’s military junta on 13 February ordered the arrest of several prominent anti-coup activists while suspending privacy laws that restricted police from detaining suspects or searching private property without court warrants. EPA/LYNN ©

An unlawful seizure of power

In the early hours of 1 February, the Myanmar Army – known as the Tatmadaw – detained the country’s political leadership ahead of the swearing in ceremony of the new parliament following the political elections held in November 2020. Among others, the Tatmadaw detained President U Win Myint, State Counsellor Aung San Suu Kyi, and all previous Ministries and parliamentarians of the National League for Democracy (NLD). Following the designation of the military-appointed Vice President Myint Swe as Acting President in accordance with article 73 of the Constitution, Myint Swe declared a state of emergency pursuant to article 417 of the Constitution and transferred legislative, judicial, and executive powers to the Commander-in-Chief for an initial period of one year. 

Several authors and organizations, including the United Nations Office of the High Commissioner for Human RightsUniversity of New South Wales’ Professor Melissa CrouchUniversity of South Australia’s Senior Lecturer Dr Adam Simpson, and the International Commission of Jurists, have exposed the fallacies of the legal justifications put forward by the Tatmadaw to give legitimacy to their unlawful seizure of power. One of their most central critiques is that there was no emergency, constitutionally defined as an attempt “to take over the sovereignty of the Union by wrongful forcible means” resulting in “disintegration of the Union” or “disintegration of national solidarity”. The Tatmadaw staged the coup on the basis of electoral fraud without presenting any plausible evidence of their claims that over 10 million votes (approximately one third of the electorate) were fraudulent. 

On the contrary, preliminary conclusions of international observers (here and here) recognized compliance with international standards and the Union Electoral Commission (UEC) violated Covid-19 regulations certified the results. The NLD was certified to have won 399 seats of the 664-seat bicameral Union Parliament, which includes the 166 unelected military seats granted to the Tatmadaw by the 2008 military-drafted Constitution. Therefore, even if the claims by Tatmadaw had held ground, the NLD would still maintain a majority of sets that could be contested during elections. Lacking a legally valid state of emergency, the actions by the Tatmadaw aimed at overthrowing an elected Government are unlawful. 

The Civil Disobedience Movement

The opposition to the Tatmadaw materialized immediately after the arrest of the NLD politicians, with hundreds of thousands of people taking the streets to express their opposition to military rule and support for the continuous democratic development of Myanmar, request the unconditional release of the elected leaders, and demand a future based on the rule of law, respect of human rights, and fair economic development. Peaceful acts of protest continued in the night with people banging pots from their balconies given the imposition of curfews by the Tatmadaw in a failed attempt to halt the wave of opposition. 

A strong signal to the Tatmadaw came from doctors and nurses, who decided to go on strike despite a still-troubling COVID-19 situation. However, the doctors stressed that Myanmar’s health system is underdeveloped due to decades of neglect during military rules and it relies mostly on external support. Therefore, the consequences of the coup – including possible sanctions, cutting of political ties with foreign countries, and interruption of delivery of aid and vaccines – may impose even more dramatic consequences on the population of the country. The decision of the medical personnel was shortly followed by other civil servants, including teachers, public transport sector, and occasionally police officers, as well as employees of private businesses such as banks and, most recently, monks. 

Based on the example of other recent protests in the region, including Hong Kong and Thailand, the leaderless Civil Disobedience Movement continued to grow in size and creativity despite the great personal risks. While initially it was principally ethnic Bamar-based, the protests quickly obtained the support of minority ethnic groups. These protests show a solid cohesion of the Myanmar society against the military. Women, men, boys, and girls are peacefully demonstrating day after day and represent the last stronghold against an abusive military. They ask the world for actions rather than words and reiterate their readiness to give everything they have to prevent the military from returning the country to the black days of isolation regardless of personal risks.   

On 9 February, police opened fire on peaceful demonstrators, critically injuring a 19-year-old woman who later became the first victim of this coup. While incidents have remained limited albeit there has been an increase in recent days, the Tatmadaw and security forces have not yet made systematic use of force to silence dissent. However, memories of the Tatmadaw’s brutal actions to suppress the student movement in 1988 and the monk-led Saffron Revolution in 2007, coupled with decades of ruthless military campaigns in the ethnic States including Kachin, Shan, Karen, and Rakhine, have led to the belief that a violent suppression of dissent is inevitable. On 16 February, the United Nation Special Rapporteur on the Human Rights situation in Myanmar launched a preventive appeal to all who could potentially have some influence on the Tatmadaw to call for calm and continued respect of the right of the people of Myanmar to peacefully demonstrate and express their dissent. This was preceded by a statement from 14 embassies in Myanmar calling on security forces to refrain from violence and condemning the ongoing arrests.

How has the Tatmadaw responded so far?

Upon seizing control, the Tatmadaw took swift actions to cement their power by establishing a State Administration Council (SAC) headed by the five generals composing the top of the military chain of command. This body immediately replaced judges at the Supreme Court as well as judges in State and Regional courts. The lack of independence of the Myanmar judiciary, both civil and military, had already been repeatedly highlighted as one of the main obstacles to a genuine democratic advancement of the country – these military appointments will likely result in a farcical display of justice by the Tatmadaw to support their pretenses of legality. The politicization of the judiciary and the processes brought before the military-appointed courts is already evident with the laughable charges brought against the President – having violated Covid-19 regulations for waving at a NLD convoy in the electoral period – and the State Counsellor – having illegally imported walkie talkies and violated Covid-19 regulations – which may lead to imprisonment. Convictions will bar them from running in the future elections announced by the Tatmadaw at the end of the emergency period. Their exclusion will likely be certified by the UEC, whose members have also been replaced in full with military appointees and whose first task was annulling the results of the elections by withdrawing the letters of accreditation issued to the elected members of Parliament. 

To respond to the protests, the Tatmadaw first shut down Facebook, which is the most commonly used source of information in Myanmar. When users migrated to Twitter, it shut down that service as well, before ultimately switching off the internet for almost three full days. Currently, connectivity has been restored, although shutdowns occur during the night, with some speculating it is due to firewall upgrades carried out by Chinese companies on the overall Myanmar network structure. The Tatmadaw also approved a Cyber Security Law which imposes serious restrictions on online freedom of expression, and whose vague provisions allow for arbitrary interpretation and application with the scope of silencing dissent by imposing medium and long-term imprisonment penalties. During the NLD government, obsolete laws on defamation that lacked any clarity on the extent of their coverage were systematically used to shield politicians and Tatmadaw from criticism. There are therefore serious concerns that this Cyber Security Law will negatively impact the enjoyment of fundamental rights and freedoms, as voiced in an unusual statement opposing the passing of the bill issued by a telecommunication company registered in Myanmar.     

This law, and above all its potential application, is perfectly consistent with the approach of repression that the Tatmadaw uses when faced with opposition. As of 16 February, 426 people have been arrested, including members of the Parliament, UEC, and NLD civil society organizations, as well as students, activists, civil servants, reporters, artists, monks, and lawyers. Human Rights Defenders and members of civil society reported that the military and the police, in some cases supported by unidentified thugs, carried out door-to-door night raids to take people away. Complaints were made that the internet shutdown imposed through the night was instrumental to prevent information and alerts sharing. Residents of the areas where these raids took place have reportedly organized themselves to patrol streets and defend themselves. While the need to respond to these kidnapping-like operations is more than comprehensible, the creation of area-based patrol groups in a country characterized by tens of different armed groups with various degrees of control over various territories is nonetheless a concerning development once more caused by the Tatmadaw.    

From a human rights perspective, according to the findings of the monitoring activities of the United Nations Office of the High Commissioner for Human Rights, most detainees are held incommunicado without having access to lawyers of family members. The secrecy of military processes and actions, and to an extent the complete disregard for the rule of law by the Tatmadaw, make it unclear if any form of due process has been respected, including being brought before a court to hear the charges leading to the arrest, or if the treatment of prisoners, including freedom from torture or ill or degrading treatments and access to medical assistance, has been in compliance with national and international laws. The UN office warns that if circumstances of detention, including locations of deprivation of liberty, are not timely clarified, these acts may amount to enforced disappearances.    

What is next?

It is nearly impossible to predict what will happen in the coming days in Myanmar. What is certain is that the Civil Disobedience Movement will continue to oppose a return to military rule that, over approximately 70 years, has only brought poverty and injustice to Myanmar. History indicates that the Tatmadaw feel no remorse in killing thousands, as they did in the so-called 8888 Uprising. The people of Myanmar are fully aware of it. However, for the seventeenth day now, they fearlessly and peacefully demand their right to have their vote respected. 

The international community is toothless. The United Nations Security Council remains a hostage of its veto system that allows permanent members like China and Russia to protect the Tatmadaw. On 4 February, falling short of issuing a resolution, the members of the Security Council released a statement in which they expressed concern and emphasized the need for the continued support of the democratic transition in Myanmar. The United Nations Human Rights Council held a special session on 12 February producing an incredibly weak resolution, at least from the point of view of the substantive action the people of Myanmar are asking for. The Secretary-General’s Special Envoy for Myanmar warnedthe Tatmadaw of possible severe consequences in case of violent repression of the demonstrations. However, she failed to qualify her statement or indicate any consequence. The first country taking a strong position was New Zealand  which cut diplomatic ties with Myanmar. The United States was the first to impose sanctions and it redirected 42 million USD allocated to the Government to civil society organizations. Canada and the United Kingdom also have imposed targeted sanctions while the European Union is still considering the matter.   

The Association of Southeast Asian Nations (ASEAN), which is theoretically the only body that could exert some influence on the Tatmadaw, is unlikely to take any action, in compliance with its principle of non-interference in domestic matters, with a number of its members having described the coup as “an internal affair” On 1 February, ASEAN’s Chairman issued a statement calling to adherence to the principles of its charter, including democracy, the rule of law and good governance, respect for and protection of human rights and fundamental freedoms. No other information has been made available on any other action, diplomatic or otherwise, that ASEAN may have taken with the Tatmadaw.     

Talks of sanctions, which appear to be the only measure at disposal, have pros and cons, but have been heavily criticized by several analysts and Myanmar experts. Private companies could play an important role by ceasing any engagement with military companies and their affiliates, as strenuously recommended by the Independent International Fact-Finding Mission on Myanmar, while continuing deals with non-military businesses after implementing thorough human rights due diligence processes. 

Politically, it is unlikely the Tatmadaw will willingly relinquish power and restore the situation they have disrupted. The risk is that they will stall until the interest of the international community will fade away and they will have to reluctantly engage to an extent with the Tatmadaw. Meanwhile, the Tatmadaw will have free hand to arrest and terrorize the population of Myanmar by adopting and selectively implementing undemocratic laws without any compliance with international norms and principles. Once they feel secure enough, they may call for elections in which only military approved candidates will participate to pursue, in the words of the Commander-in-Chief, “discipline-flourishing democracy and development of the country”. 

Therefore, the only solution is to support in any possible way the Civil Disobedience Movement and their demands for democracy and respect of the electoral results. While the Tatmadaw will seek some form of international recognition, it becomes imperative that the level of attention and advocacy on Myanmar remains on everybody’s agenda, including states, international and non-profit organizations, academia, and civil society movements at large. Avoiding long-term adaptation to the status quo appears to be the most feasible response in an effort to uphold democratic and human rights principles.  

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Constitutional crisis continues: Kyrgyzstan’s constitution set for amendment

By Aspen Brooks

Aspen Brooks is a CCSDD Research Assistant and a first-year MAIA student at Johns Hopkins SAIS Europe.

Vyacheslav Oseledko/Agence France-Presse — Getty Images

If Kyrgyzstan is Central Asia’s “island of democracy,” the sea level is rising to hazardous levels. Instability and a power struggle following annulled elections left an opening for political opportunism in an already precarious constitutional order: an opportunity that Sadyr Japarov seized. Appointed interim President and Prime Minister in October, Japarov has now won a new presidential election, and empowered by a referendum regarding constitutional amendments, is poised to shift the government’s very structure. 

October unrest

Mass protests after Kyrgyzstan’s elections in early October led to President Sooronbai Jeenbekov resigning and appointing former MP Japarov as both interim President and Prime Minister. Before the protests, Japarov had been serving a prison term for attempting to kidnap a political opponent, but was freed by protestors during the unrest. 

The widespread protests were sparked when the Central Election Committee (CEC) announced the official election results, with only four out of 16 participating parties meeting the 7% vote share threshold to enter parliament. All four parties had close ties to the incumbent, Jeenbekov, or other established elites, which alongside credible accusations of irregularities in the election including vote buying prompted serious concerns about the legitimacy of the election.[1] The opposition parties announced that they would not accept the election results, and the CEC annulled the elections.

The country has shown a relatively strong civil society for the region, with the Tulip revolution of 2005 and April revolution of 2010 toppling President Askar Akayev and President Kurmanbek Bakiyev respectively. Although it could be argued that the citizenry’s resistance to corruption and election rigging demonstrates their commitment to democracy, it does not appear that Japarov shares the same commitment. 

Japarov began consolidating power by appointing a friend, Kamchybek Tashiev, as head of the State Committee for National Security (UKMK). Japarov and Tashiev oversaw a new anti-corruption campaign, which was met with criticisms of targeting political opponents—a claim supported by the fact that both leading opponents for the presidential election were imprisoned. In preparation for the January election, Japarov then resigned from the presidency and with the approval of Parliament appointed allies as acting president and prime minister so that he was eligible to stand as a candidate for the presidential election. 

Constitutional implications

Currently, Kyrgyzstan has a semi-presidential parliamentary system, but with a significantly more powerful president. In the referendum held alongside the January presidential election, voters opted to change to a presidential form of government through constitutional amendment. This will grant broader powers to Japarov, and opens the door to exacerbate authoritarian tendencies in the presidency. The January elections, unlike October, have been recognized as respecting basic freedoms by the OSCE, although observers also noted that Japarov had an advantage “from disproportionate financial means and misuse of administrative resources.” Although the voting process for the referendum was well conducted, its constitutionality remains questionable given that it was put forward by a parliament that extended its own term following the October electoral crisis.

The precise content of the upcoming constitutional amendments remains to be seen, but the shift to a presidential system will drastically expand the powers of the presidency, and likely do so without meaningful checks from other branches of the government. 


[1] The Organization for Security and Cooperation in Europe (OSCE) disclosed they had, “received numerous credible reports from interlocutors throughout the country about instances of vote buying and abuse of administrative resources.” This is in addition to election observers reporting witnessing civil servants pressured into participating in campaign events, hostile misinformation campaigns, intimidation, and concerns about the misuse of the right of voters to temporarily change their registration address leading up to the election. On the day of the election, ODIHR LEOM observers reported witnessing at least one instance of money being distributed to voters as well as bussing of voters. (Statement of Preliminary Findings and Conclusions, ODIHR)

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US Supports Dr Ngozi Okonjo-Iweala to Lead the WTO (Finally)

By Arthur Appleton

Arthur Appleton, JD, PhD is an Adjunct Professor of International Trade Law at SAIS Europe and a Partner with Appleton Luff – International Lawyers.

Ngozi Okonjo-Iweala Photographer: Fabrice Coffrini/AFP/Getty Images

Elections have consequences and the US presidential election is having positive consequences for the World Trade Organization (WTO). On Friday 5 February 2021 the Biden administration announced its strong support for the appointment of Dr Ngozi Okonjo-Iweala to be Director General of the WTO – a nomination that the Trump administration blocked in autumn 2020. This is an important development for several reasons:

  • The US change of position marks the reengagement of the United States with multilateralism, the WTO, and the rule-based international trade system.
  • When appointed, Dr Okonjo-Iweala will be the first woman and the first African to head the WTO. With the exception of Roberto Azevêdo (Brazilian) and Supachai Panitchpakdi (Thai), all previous GATT and WTO Directors General have been from the developed world.
  • The Trump Administration’s decision to single-handedly block Dr Okonjo-Iweala’s appointment was particularly disruptive as the post of Director General had been vacant since August 2020. Its decision was also unusual as the United States is a major beneficiary of the international trade regime and Dr Okonjo-Iweala knows the United States well. A Nigerian citizen, Dr Okonjo-Iweala studied and worked for many years in the United States and acquired US citizenship in 2019.

Gender, race and developing country considerations are important in the WTO’s appointment process. Even more important is the experience Dr Okonjo-Iweala will bring to the WTO. She holds a BA in Economics (magna cum laude) from Harvard and a PhD in Regional Economics and Development from MIT. A mother of four, she worked for 25 years at the World Bank, rising to the position of Managing Director. She also served twice as Nigeria’s Finance Minister, where she was known as a debt reform and anti-corruption advocate, and she served for three months as Nigeria’s Minister of Foreign Affairs. In addition, Dr Okonjo-Iweala is the former Board Chair of Gavi (The Vaccine Alliance) and sits on the Boards of both Twitter and Standard Chartered Bank. In short, she is extremely well-qualified to manage and lead the WTO.

Dr Okonjo-Iweala will face many challenges when her appointment is finalized. She will have the difficult task of restoring US confidence in the international trade regime. She will also have the difficult task of making the WTO more responsive to the needs of the developing countries which make up the majority of its membership. Finally, she will be tasked with reform of the WTO’s dispute settlement system. The Trump administration was hostile to the WTO in general and the WTO’s Appellate Body in particular. It held the dispute settlement system hostage by blocking all Appellate Body appointments; this eventually led to the Appellate Body’s (hopefully temporary) demise. Although it was never clear how the Trump administration would “reform” the dispute settlement system, the US Trade Representative’s criticisms were ably presented in a 174 page USTR Report. There are points raised by the USTR that merit careful consideration by Dr Okonjo-Iweala’s and the WTO’s membership. 

Dr Okonjo-Iweala’s credentials are impeccable. Her ability to rise to the top of the World Bank and the government of Nigeria, and her ability to navigate both the corporate and the NGO world bode well for her ability to lead the World Trade Organization. Both developed and developing countries should be enthused.

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The Italian “National Memorial Day of the Exiles and Foibe” and the “the Eastern Border Affair”: Another Wall in European Memory?

By Dr. Carna Pistan 

Affiliated Scholar at the Center for Constitutional Studies and Democratic Development and Marie Curie Global Fellow for the project “Illusions of Eternity: the Constitution as a lieu de mémoire and the Problem of Collective Remembrance in the Western Balkans”

Example of a foiba

February 10 is the Italian “National Memorial Day of the Exiles and Foibe” (or Giorno del ricordo in Italian language). It was established in 2004 to commemorate the victims of the Foibe massacres and the Istrian-Dalmatian Exodus. Yet the two events, Foibe and Exodus, are never easy to recount, as they are both strictly related to the very complex “Eastern border affair.” A “foiba” (plural “foibe”) is a natural sinkhole, up to 200 meters deep, formed by water erosion; it is a natural phenomenon typical of the Karst (Carso) region – an area today divided between Italy, Slovenia and Croatia. Between the second half of 1943 and 1947, parts of Venezia Giulia and Dalmatia, which were then Italian territories, were occupied by the Yugoslav armed forces who committed mass killings against the local Italian population. These mass killings are known as Foibe massacres as they took place near these natural karstic cavities, in which the corpses of the victims were thrown. Today, however, the term Foibe is often used in a more symbolic way so as to encompass all the victims of Yugoslav repression (not only those thrown in the sinkholes which represent a minority of victims, but also those who died on the road to deportation, or in Yugoslav jails and concentration camps). The term Exiles refers to what then followed: the Exodus of almost all of the Italian population from Istria and Dalmatia as a result of the transfer of most parts of Venezia Giulia from Italy to Yugoslavia through the Paris Peace Treaty of 10 February 1947. 

For many years, the memory of Foibe and the Exiles was buried in oblivion. The Exodus occurred during the Cold War, when Italy had to solve the question of Trieste with Yugoslavia. Once the temporary solution to this was found through the 1954 London Memorandum, the political interest was to preserve good relations with Yugoslavia, which soon became an important commercial partner. In addition, from the 1950s Yugoslavia became a useful non-aligned state between the two blocs. Thus, a sort of tacit agreement was reached between the two countries: Italy did not evoke the memory of Foibe and the Exiles; in turn, Yugoslavia never asked for the delivery of Italian war criminals, as provided for in the Peace Treaty. 

It was only in the 1990s, following the fall of communism and the break-up of Yugoslavia, that the first attempts aimed at including the memory of Foibe and the Exiles in the official national memory took place; these attempts then culminated in the adoption of the Law 92 of 30 March 2004. The latter established the Giorno del ricordo with the aim of “preserving and renewing the memory of the tragedy of Italians and of all victims of foibe massacres and of the exodus of people from Istria, Fiume [Rijeka] and Dalmatia after the Second World War and of the more complex “Eastern border affair.” The date chosen for the remembrance day was 10 February – the anniversary of the signature of the 1947 Paris Treaty, with which Italy ceded Istria and Dalmatia to Yugoslavia. Furthermore, the 2004 memory law granted to all relatives of the victims (excluding those condemned by a court for collaboration with the Nazis) an award, consisting of a medal with the imprinting “La Repubblica italiana ricorda” (The Italian Republic remembers). The 2004 memory law also envisaged the establishment of a museum of Julian-Dalmatian civilization in Trieste and a Museum of Fiume in Rome. Thus, since 2005 the Memorial Day has been celebrated in Italy each year on 10th February with a number of initiatives, involving schools, public and private television, and local and national institutions (including the Presidency of the Republic).

Location of the foibe

Although the 2004 memory law was welcomed and acclaimed by many, and voted by almost all political forces present in the Italian Parliament, the establishment of the Memorial Day has also been criticized by several intellectuals. The major critics involve the officially accepted narrative about Foibe and the Exodus (promoted by the Italian right and accepted by the left), which is mainly structured around two main points: the communist Yugoslav partisans killed and expelled Italians, and for a very long period of Italian history, politicians and schools ignored what had happened. Both points correspond to the historical truth, but they have been criticized because they represent only one part of the truth. The other part of the truth is a longer history of violence, which began with Fascism and its policy of oppression of the minority Slovenes and Croats; it then continued during the Italian-German occupation of Yugoslavia, and the horrors of the Nazi-Fascist repression; for example, in the Italian occupied areas, civilians were killed as reprisals for the deaths of Italian soldiers and thousands were put in concentration camps. The Italian crimes, certainly, do not justify the Yugoslav reaction, the Foibe massacres and Exodus, but they certainly help to better understand the historical context under which they occurred. 

Yet it is true that memory-making is always selective (as its main goal is identity creation), but the concept of “ethics of memory” also exists asking us to recognize our own national guilts committed during an undemocratic past. By erasing its own faults from the past, the Italian official narrative about the Foibe and Exodus follows a typical nationalist construction of victimhood (the innocent Italian people) and blaming the other side (barbaric Slavs) for all evils. It further allowed Italy to consider the two events as an ethnic cleansing or (quasi-)genocide, which is contrary to what has been already established by historical research; the latter has shown that the primary targets of Yugoslav repression were supporters of the Fascist regime and opponents of the Yugoslav Partisan forces; atrocities have been thus committed also against Slavic collaborators, meaning that Slovenes and Croats too were killed and left dying in the sinkholes. Furthermore, it is claimed that “millions” were killed in the Foibe, while the usually accepted numbers for the Exiles is 350,000, and for those killed and thrown into the caves between 5,000 and 15,000. Thus, there is no need to exaggerate with the numbers; as has been observed “by any standards, this was a massacre and an exodus”. Finally, the date chosen for the remembrance day has also been the object of criticism; it is not only the anniversary of the 1947 Peace Treaty, but it comes just two weeks after the “Day of Memory” (Giorno della memoria) which commemorates the victims of the Holocaust. By calling the Foibe an “Italian Holocaust” some intellectuals have seen the Giorno del ricordo as a kind of counterbalance of the Giornata della memoria

Not surprisingly, since 2004 the Italian official narrative about Foibe and the Exiles has triggered memory wars with Slovenia and Croatia. While several people in Croatia consider the Italian Memorial Day a form of neo-fascist revisionism, others in Slovenia argued that Slovenes persecuted during fascism should also be commemorated. Thus while Italy commemorates on 10th February the Exodus and the Foibe, Slovenia celebrates on 15 September the “restitution of the coast to the motherland”, and commemorates the persecution of Slovenes during Italy’s monarchy. Today, with all three countries in the European Union, and with Italy pushing the EU institutions to institute a “European Day of Remembrance of the Victims of the Foibe Massacres,” without the inclusion of the Italian crimes in the Julian March, there is a risk that the divisive narrative about the Foibe and Exile will become another wall in European Memory. 

Disclaimer: The views expressed herein are the author’s own and do not necessarily reflect the position of the CCSDD

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Security as a Patriarchal Structure

By Amber Malone

“Without a feminist perspective, policymakers will be limited in their capability to address the needs of insecure populations, and women – especially asylum-seeking women – will continue to be disproportionately impacted by violence.”

In the piece that follows, student blogger, Amber Malone, charts the exegesis of how traditional approaches to security obscure the contribution of women, accentuate male bias, and inadvertently reinforce male dominance in issues that address security challenges especially for groups that are often at risk, and on the fringes of society.

Amidst the seemingly insurmountable challenge of displacement, how governments “speak security” frames the discourse surrounding the protection of refugee5s and internally displaced persons. Underlining the conferral of refugee status and protections, the duality of security – state security and human security – raises a few critical concerns. Which of the two should be prioritized? Is a balance conceivable? How should States respond to humanitarian matters while respecting national interests and the wellbeing of vulnerable groups?

More importantly, while states struggle with effective migration governance, insecurities are increasing amongst one of the most vulnerable subsets of the refugee and migrant population: asylum-seeking women. Some States – grappling to control the flow of refugees for the benefit of national security – have enacted policies and continue to pursue practices that increase the vulnerability of refugee women. While there tends to be much focus on incorporating human security as a complementary tool to state security in migration management, some scholars call for a greater emphasis on a feminist perspective in  human security. Reexamining human security through the lens of feminism not only allows States to challenge power dynamics, but also address the growing insecurity of vulnerable populations, more specifically migrant and asylum-seeking women.[1]

The issues surrounding the governance and management of migration run deeper than legal limitations. The policies that governments enact are rooted in social, political, and economic structures that intertwine gender and security. Many contemporary security scholars and practitioners claim that addressing security concerns from a feminist approach offers deeper insight into a gender hierarchy in international affairs, the behavior of States, and the insecurity of groups on the periphery of interstate politics.[2]

A feminist critique of human security serves to render more visible the experiences of women and challenge the patriarchal assumptions and male privilege in security. This feminist critique of migration policy poses one question: how and whose security is emphasized in the management of migration?

As a conceopt, security is usually defined by the status quo or discourse set by diplomatic and inter-state relations. State interest in limiting the conferral of specific rights based on citizenship does not always coincide with the concept of human rights.[3] Under the scope of state security, differences translate into threats to national interests, and the rights and needs of refugees and migrants often take a backseat to ideological issues.[4] Traditionally, States regard security from a realist, militarized perspective. This particular approach delineates security as simply protection from invasion or attacks by other powers.[5] This realist approach presents a narrow conception of security given that it positions the State as the sole focus of security and does not consider the human costs.[6] Furthermore, the merging of feminist studies with international relations reveals a “gender dimension” in the practice of security. More specifically, it unpacks the entrenched roles and characteristics given to men and women in the practice of security.

The United Nations University defines human security as “being concerned with the protection of people from critical and life-threatening dangers, regardless of whether the threats are rooted in anthropogenic activities or natural events, whether they lie within or outside states, and whether they are direct or structural.”[7] Through the traditional lens of security, humanitarianism is viewed as entirely separate or unrelated. In other words, state security tends to put issues such as human displacement, resettlement, and protection on the periphery of politics. However, security, in a general sense, is the condition of feeling safe and protected, a concept often encompassed in human rights discussions. Therefore, the protection of human rights is intricately linked to human security. As such, contemporary security or state security alone is insufficient for addressing human welfare.

Many contemporary scholars and schools have challenged this unidimensional understanding of security. However, their criticisms, for the most part, have not acknowledged how interstate politics and migration management are driven by notions and values intrinsically linked to masculinity.[8] Without a feminist perspective, policymakers will be limited in their capability to address the needs of insecure populations and women – especially asylum-seeking women – will continue to be disproportionately impacted by violence

Structural violence has a disproportionate, gendered impact upon human bodies.[9] Numerous studies demonstrate a strong link between the structural and sexual violence against women in militarized societies in times of peace and during times of conflict. [10] Therefore, how governments approach issues of security is gendered and gendering. According to Sheperd (2010), there are two ways in which violence is gendered in masculinist societies that uphold militarism as a security ideology. First, there is physical violence or the threat of physical violence, such as rape, against vulnerable populations to strip them of their political or economic assets. Second, there is gender violence that occurs due to socially constructed ideas about masculinity and femininity.[11] This violence is also gendering because it reproduces binary oppositions surrounding masculinity, femininity, and the militarized conception of security.[12]

Escaping persecution and conflict poses gendered risks and burdens. In their countries of origin, transit countries, and host countries, refugee and asylum-seeking women face numerous challenges.[13] In refugee camps, women are often tasked with the responsibility of logistical and administrative duties in addition to being the primary caretakers of their families. Furthermore, the gendered challenges that refugee women face are further exacerbated by camps in which the social and geographical structures are continually changing. Refugee women are forced to compensate for inadequate facilities and a lack of resources such as healthcare, food, water, and firewood.[14] These challenges create precarious and unsafe situations for women. Instead of providing solutions to the subjugation of women, refugee camps become a hotspot for violence and exploitation, reinforcing their subordination.[15]

A feminist critique of human security serves to render more visible the experiences of women and challenge the patriarchal assumptions and male privilege in security. This feminist critique of migration policy poses one question: how and whose security is emphasized in migration policy?

Redefining security and insecurity through postmodernist feminist theory amplifies the range of women voices.[16] In addition, a feminist approach legitimizes the “provision of care” as an essential component of security. Tickner argues that constructing a concept of security based on a feminist perspective requires a postmodernist approach as prevalent approaches to security are militarized and focus on great powers.[17] Furthermore, a postmodern feminist perspective reveals the gender hierarchies and gender roles that are enmeshed in the challenges that refugee men and women face. The first area of concern is data collection to identify high-risk areas. This initiative would involve the participation of field offices, organizations, and volunteers to identify current risks for sexual and gender-based violence and the accessibility of available protection services in refugee complexes. Second, improving the accessibility of resources and educating in-field organizations about gendered insecurity would aid in developing preventive strategies and responses to SGBV and other gendered security challenges. In addition to more a comprehensive response, extending critical information concerning social and economic affairs as well as bureaucratic regulations to individuals will help refugee and asylum-seeking women make informed decisions and mitigate recourse to desperate measures.


[1] “The Ethics of Care and Global Politics.” The Ethics of Care: A Feminist Approach to Human Security, by Fiona Robinson, Temple University Press, 2011, pp. 41. JSTOR, http://www.jstor.org/stable/j.ctt14bt8bq.5.

[2] Tickner, J. Ann. “Feminism and Security.” Security Studies: a Reader, edited by Hughes, Christopher. Routledge, 2011, pp. 47.

[3] “The Global Compact for Safe, Orderly, and Regular Migration: What Is Its Contribution to International Migration Law?” QIL QDI, 2 May 2019, http://www.qil-qdi.org/the-global-compact-for-safe-orderly-and-regular-migration-what-is-its-contribution-to-international-migration-law/.

[4] Newman, Edward. “Critical Human Security Studies.” Review of International Studies, vol. 36, no. 1, 2010, pp. 77–94. JSTOR, http://www.jstor.org/stable/40588105.

[5] Hama, Hawre Hasan. “State Security, Societal Security, and Human Security.” Jadavpur Journal of International Relations, vol. 21, no. 1, June 2017, pp. 2, doi:10.1177/0973598417706591.

[6] Kerr, P. 2010. ‘Human Security’, in A. Collins, ed., Contemporary Security Studies (pp. 121–135). New York, NY: Oxford University Press.

[7] Newman, Edward 83.

[8] Tickner, J. Ann. “Feminism and Security.” Security Studies: a Reader, edited by Hughes, Christopher. Routledge, 2011, pp. 49

[9] A. Gasztold, A Feminist Approach to Security Studies, „Przegląd Politologiczny” 2017, nr 3, pp. 184

[10] Shepherd, Laura J. “Gendering Security;” The Routledge Handbook of New Security Studies, edited by J. Peter Burgess. Routledge, 2010, pp. 73

[11] Shepherd, Laura J. “Gendering Security;” The Routledge Handbook of New Security Studies, edited by J. Peter Burgess. Routledge, 2010, pp. 75

[12] Shepherd, Laura J. “Gendering Security;” The Routledge Handbook of New Security Studies, edited by J. Peter Burgess. Routledge, 2010, pp. 77

[13] Skou, Viktoria. “Women in Dadaab:On the Gendered Insecurities in Forced Displacement.” Lunds universitet- Statsvetenskapliga institutionen, pp. 6.

[14] Skou, Viktoria. “Women in Dadaab: On the Gendered Insecurities in Forced Displacement.” Lunds universitet- Statsvetenskapliga institutionen, pp. 14.

[15] Sinead Murray and Anne Achieng, Gender-Based Violence Assessment Hagadera Refugee Camp Dadaab, Kenya (Nairobi: IRC, 2011), 4.

[16] Tickner, J. Ann. “Feminism and Security.” Security Studies: a Reader, edited by Hughes, Christopher. Routledge, 2011, pp. 48

[17] Tickner, J. Ann. “Feminism and Security.” Security Studies: a Reader, edited by Hughes, Christopher. Routledge, 2011, pp. 48

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Human rights and democracy in the covid-19 era: experience from Republic of Moldova

By Sorina Pinzaru

In this short article, student guest contributor Sorina Pinzaru reflects on the declaration of a State of Emergency in the Republic of Moldova during the covid era, and the ramification same has had for human rights and freedoms of its people.

Being a state that has been cultivating democratic principles for relatively few years, the Republic of Moldova is still strongly influenced by the long soviet experience. Principles such as the rule of law, separation of power, fundamental rights and freedoms are weak and not always fully guaranteed. Especially during a state of emergency, the exceptional legal order may lead the way for systematic human rights violations and undermine democratic principles. On the grounds of this, states of emergency are critically important from a human rights perspective. In order to limit freedoms and fundamental rights, constitutional and international provisions must be respected during a state of emergency.

For the first time in its history, the Republic of Moldova declared a state of emergency to deal with the pandemic. Although the Moldovan Constitution allows for a state of emergency, it does not define in detail what constitutes an emergency or regulates questions related to competence, limits, or controls. Accordingly, an organic law regulates all such aspects.

On March 17, 2020, the  Moldovan Parliament adopted Law no.54 to amend Law no. 212/2004 on the regime of the state of emergency, siege and war.  Article 20 of the law on the regime of the State of Emergency, Siege and War, which provides for the measures applicable during the state of emergency was supplemented by a new letter k). It allowed the “application of other necessary measures”.  A similar provision – exercise other necessary attributions-  was introduced in articles 22 (attributions of the Commission for Exceptional Situations of the Republic of Moldova), 24 (attributions of the Civil Protection Service and Exceptional Situations) and 25 (attributions of the Ministry of Interior). Furthermore, the part“adopt, amend or abrogate organic laws and electoral legislation” of article 4, para. 2, was cancelled.[1] In other words, organic laws and electoral legislation could be adopted, amended or abrogated during a state of emergency.  The amending law entered into force only after its publication in the Official Gazette, on March 18, 2020. On the same day, March 17, a Parliament Decision no. 55 was issued, declaring the state of emergency with an immediate effect.[2] When the amending law of the state of emergency regulation was modified, the state of emergency was already in force.

 At point 12 of article 2 of the Decision regarding the power attributions of the Commission for Exceptional Situations, the expression “application of other necessary measures” was proposed again to prevent, mitigate and eliminate the consequences of the coronavirus pandemic (COVID-19)”.

A group of MPs addressed the Constitutional Court of the Republic of Moldova with a petition to check on the constitutionality of the amending provisions on the State of Emergency, Siege and War and point 12 of Decision no. 55.[3] The petitioners claimed that adopting the contested provisions of Law no.54 and Decision no.55 on March 17, 2020, the Parliament of the Republic of Moldova defied the following fundamental constitutional principles and the expressed norms of the Supreme Law:

  • Art. 23 of the Constitution – The right of every person to know his duties;
    • Art. 54 of the Constitution – Restriction of the exercise of individual rights and freedoms.

The inclusion in Articles 20, 22, 24 and 25 of Law 212/2004 of expressions such as “application of other necessary measures” or “exercise other necessary attributions” defied the principle of predictability and accessibility of the Law provided in art. 23 of the Constitution. In order to meet the condition of predictability, the law must be sufficiently detailed so that a subject of law can reasonably understand the content of the law and be predictable in terms of its consequences.[4] Not only laws must be made known to the public, but the subject of law should reasonably expect the rule may be changed. It is practically infeasible to analyse the predictability of the amending provisions- “application of other necessary measures” or “exercise other necessary attributions”- as they thereof do not provide the necessary clarity about how and which rights and freedoms may be restricted. The provisions offer imprecise and generic power to the authorities. These may trigger harsh side effects.

The lack of a precise legal rule to determine exactly what measures might be applied, and the spectrum of the powers of the authorities, open the possibility of potential abuses by the competent authorities. The regulatory framework in such a sensitive period should be carried out in a transparent, predictable, and unobtrusive manner, to remove, as far as possible, the eventuality of any arbitrary situation or the abuse of those called to apply the provisions. However, this is impossible, because the subject of law does know what to expect from the authorities, due to the imperfection related to accuracy, clarity, predictability and necessity.

The notion of a state of emergency established in Article 1 defines as a set of measures with a political, economic, social character. Once established, these measures should be expressly provided by law, precise and predictable. Only in these conditions will be observed art.54 of the Constitution, which expressly establishes that rights and freedoms can be restricted only in the cases provided by law. However, by adopting Law no. 54 and the Decision no. 55, the Parliament admitted a norm by which the fundamental human rights and freedoms may be restricted by measures that are not provided by law.

According to Article 5 of Law no. 212 on the regime of the State of Emergency, Siege and War, during a state of emergency, may be restricted the exercise of individual rights or freedoms of citizens under art. 54 of the Constitution. The restrictions provided for in paragraph (1) should be in accordance with the obligations arising from international treaties on fundamental human rights to which the Republic of Moldova is a party.

Restriction of human rights and freedoms is an exception regulated by the fundamental law, which gives the legislators leverage to act in certain critical situations, being able to impose limits, in situations expressly provided for by the law, on guaranteeing certain fundamental rights. Reference should be made to the Universal Declaration of Human Rights, namely Article 29 para. (2). In order to restrict individual rights, the provision shows the necessity of an expressed regulation, considering first of all the compliance with the principles of accessibility, clarity and predictability. The law within the meaning of this provision must provide exhaustive and precise perspectives on the rights and freedoms to be restricted.

The European Convention on Human Rights enshrines the possibility of the restriction of rights in several circumstances: in the case of the freedom of thought, conscience and religion. ECHR offers the same textual approach in the case of freedom of expression, the rights to respect for private and family life, as well as in the case of freedom of movement. It is emphasised the obligation of the state for providing the restriction of rights by law. In order to build a legislative framework designed to intervene promptly in the elucidation of exceptional situations, the legislative text should expressly provide for the rights and freedoms to be restricted.

The provisions of art. 4 paras. (1), art. 5 para. (2), art. 12 para. (3), arts. 18-19, art. 21, art. 22 para. (2) of the International Covenant on Civil and Political Rights, lays down the manner of restricting certain rights. In the sense of this international norm, it is imperative to regulate the restriction by law but also to have specific reasoning.

In the context of the petition submitted to the Constitutional Court, the expressions used by the legislators in the text of the amending law: “application of other necessary measures” or “exercise other required tasks” do not offer the subject of law an expressed guarantee on the respect of rights and freedoms. In a state governed by the rule of law, the legal norm must always be interpreted prioritising the freedom over authority. This way of interpretation is natural since the text is aimed at guaranteeing the fundamental rights and freedoms. Where a term broadening the authority’s powers is used, the term must always be interpreted stricto sensu. In this context, expressed and specific provisions on the restriction of rights are necessary.

Law should guarantee the principles of predictability and accessibility. In the European Court of Human Rights’ jurisdiction it is important to ensure these two principles and to establish the conditions for a sufficient precision to regulate the conduct and foresee the consequences.

 The ECtHR recalls that a “law”, within the meaning of Article 10, section 2 of the Convention, is a rule formulated with sufficient precision allowing citizens to decide their conduct and foreseeing, reasonably, depending on the circumstances of the case, the consequences that might result from a particular fact.[5] On the contrary, the expressions introduced do not provide the possibility to anticipate certain events, requests or prohibitions from the authorities and does not offer the possibility to decide about the conduct not yet covered by the legal norms.

 Also, the activation of article 15 could be interpreted as a protection measure in favour of the state for not being accused at the European Court of Human Rights, it is a premise for Human Rights violations.

Having examined the request, the Moldovan Constitutional Court claimed that the authors of the petition were limited to a simple statement which criticised the provisions that would be likely to cause serious harm to human rights and fundamental freedoms. The Court considered that the arguments must be brought regarding the intensity and possible damages. Moreover, arguments supporting the imminent and irreparable negative consequences of the risk were needed. The Court considered the risk being abstract and a solid motivation was necessary in order to suspend the notified prohibitions under the State of Emergency. The mere invocation of the risk did not represent a sufficient and convincing motivation.  And the Court did not take into consideration any international obligation to which the Republic of Moldova must conform in order to constitutionally restrict the fundamental rights. Therefore, the Constitutional Court rejected the request, retaining it unmotivated, and did not consider the international obligations that must be respected.

Starting with May 17, 2020, the state of emergency has been continuing only in public health. It was prolonged for several times with the maintenance of most of the bans approved during the state of emergency.[6]

The organizational effort of the authorities was appreciable even if the efficiency in combating the spread of COVID-19 infection proved to be unsatisfactory. It suffered from the involvement of the political factor to the detriment of the professional one in the process of adopting and implementing measures to prevent and combat the spread of COVID-19 infection. The discussion and adoption of decisions on multiple platforms, with the participation of representatives of the country’s top leadership, was followed by the formalization of those decisions by the competent institutions. This has considerably diminished the share of the voice of medical professionals in the process of making final decisions.

The Commission for Exceptional Situations and the Extraordinary National Commission of Public Health did not have a clear and transparent decision-making mechanism. Consequently, several adverse effects emerged with a negative impact on human rights including the reduction to 48 hours of the term for contesting the administrative sanctions, not being guaranteed the rights to defence; a restricted term up to 24 hours to contest the provisions of the CSE without any possibility of rescheduling.[7]  Moreover, the effectiveness of deterrents for those who violated the restrictions imposed by the authorities during emergencies was undermined by the lack of adequate legal provisions for the application of individualized punishments, which were initially exaggerated and used arbitrarily to later be declared unconstitutional.[8] There has been an attempt to pass a law rapidly involving a loan agreement  with Russia which could have involved fraudulent schemes against citizens’ interests. The law however was declared unconstitutional.[9]

The Moldovan state has been challenged by the pandemic crisis: not only  because of the limited financial resources but especially because of the rule of law weakness which cannot guarantee the respect of human rights. Not having lived under a fully democratic regime for many decades is an important factor which explains the difficulty and the slowness that the country tries to overcome.


[1] Article 4, para. 2 of the Law no. 212/2004 on regime of the state of emergency, siege and war not amended: “During the state of emergency, siege or war, established throughout the country, it is not allowed to amend the Constitution, adopt, amend or repeal organic laws and electoral legislation, as well as conduct elections of central and local public authorities and republican and local referendums available at: https://www.legis.md/cautare/getResults?doc_id=27022&lang=ro# .

[2] Parliament Decision no.55 available at: https://www.legis.md/cautare/getResults?doc_id=120817&lang=ro .

[3] Also art.2, point 12 , of the Decision no.55 provided for “exercise other necessary measures”.

[4] Case of Rotaru v. Romania, Application no. 28341/95, ECtHR Judgment of 04.05.2000.

[5] Case of Amihalachioaie v. Moldova, Application no. 60115/00 para. 25, ECtHR Judgment of 20.04.2004.

[6] https://cancelaria.gov.md/sites/default/files/hotarirea_cnesp_nr.35_27.11.2020.pdf.

[7] http://ombudsman.md/despre/stiri-covid-19/.

[8] http://www.constcourt.md/libview.php?l=ro&idc=7&id=1884&t=/Media/Noutati/Cuantumul-minim-de-450-unitati-conventionale-al-amenzii-aplicate-persoanei-fizice-pentru-nerespectarea-masurilor-de-profilaxie-prevenire-sisau-combatere-a-bolilor-epidemice-daca-acest-fapt-a-pus-in-pericol-sanatatea-publica-neconstitutional-sesizarile-nr-61a2020-nr-62a2020-i-nr-67g20120.

[9] http://www.constcourt.md/libview.php?l=ro&idc=7&id=1836&t=/Media/Noutati/Acordul-intre-Guvernul-Republicii-Moldova-i-Guvernul-Federatiei-Ruse-privind-acordarea-Guvernului-Republicii-Moldova-a-unui-imprumut-financiar-de-stat-neconstitutional.

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