Rethinking multicultural jurisdictions

Abstract

This article is about the rights of disempowered individuals within autonomous cultural groups. For more than a decade, multiculturalism theorists have been struggling to find a suitable balance between the policies they advocate and the need to protect the vulnerable members of the groups they seek to empower. One of the most convincing and innovative solutions to emerge has been Ayelet Sachar’s model of transformative accommodations (TA). Yet, the main argument presented in this article (based on an ethnographic study) is that this model is unfeasible due to the rule of conservation of power. This claim is illustrated by two case studies: the case of the Beit Ya’acov Primary School for Girls in Emmanuel in the Israeli Occupied Territories and the case of the Buduburam refugee camp in Ghana. The article concludes by suggesting that multiculturalists have yet to produce a satisfying response to what seems to be the principal challenge to the policy they advocate.

Keywords

Multiculturalism accommodations human rights Emmanuel Buduburam

Introduction

For more than a decade, multiculturalists, feminist scholars and policymakers have been troubled by the undesirable marginalizing effects of empowering a cultural group on vulnerable members of that group, particularly women (Deveau, 2006; Okin, 1997; Reitman, 2001, 2005; Shachar, 2001). The most convincing response to this bind thus far has been Ayelet Sachar’s model of transformative accommodations (TA) (Shachar, 2001). The claim made in this article is that, despite the theoretical appeal of TA, it fails to materialize in reality due to the rule of conservation of power.

The discussion proceeds in four parts. I continue below in Part 2 with a few terminological comments, offering a description of Shachar’s TA model. I then make my argument against that model, which runs along two trajectories: First, I argue that the same interest that leads the authorities to allow a cultural group some measure of legal autonomy will also make the authorities reluctant to protect vulnerable group members who appeal to them for protection of their rights. Second, the same intra-group power structure that induces the group’s vulnerable members to use its private fora for dispute resolution will also prevent them from appealing the private fora's decisions in a state forum. As Shachar notes, ‘[G]eneral principles and theoretical formulations may seem attractive on paper, but we cannot fully appreciate them until we see them interpreted and applied in a variety of specific contexts’ (Shachar, 2001: 8). Thus, Part 3 of the article presents and analyses two case studies I conducted that support and illuminate my argument: the case of the Beit Ya’acov Primary School for Girls in Emmanuel in the Israeli Occupied Territories and the case of the Buduburam refugee camp in Ghana. The analysis shows that multicultural theorists have yet to produce a satisfying response to what seems to be the principal challenge to the policy they advocate. Part 4 wraps up the discussion.

Multicultural jurisdictions as a solution to the paradox of multicultural vulnerability

Normative multiculturalism is a policy-oriented, normative discourse on the need to recognize and protect the rights of minority groups. ‘Private ordering’, also known as ‘private orders’, is one way in which minority groups try to preserve their culture and norms (Sagy, 2011). These private orders are legal systems that are administered without state interference and allow the group some degree of autonomous jurisdiction. In the multicultural terminology, this autonomy is referred to as ‘accommodation’, a term that captures a wide range of state measures designed to facilitate identity groups’ practices and norms.

Multicultural accommodations, in their various legal manifestations, generally aim to provide minority cultural groups with the option of maintaining the normative space in which law and cultural narrative are intertwined. However, as Will Kymlicka maintained, the real test of the multicultural model of citizenship lies in its ability to ‘explain how minority rights coexist with human rights, and how minority rights are limited by principles of individual liberty, democracy, and social justice’ (Kymlicka, 1995: 6). Feminist scholars were quick to point out that the social costs of multicultural accommodation are not equally distributed among group members, since the preservation of the group’s culture is often inextricably tied to the perpetuation of discriminatory practices and power imbalances within that culture (Okin, 1997). This bind – i.e. that the empowerment of an identity group by way of respecting its cultural rights entrenches the vulnerability of disempowered group members – is probably the most serious challenge to multiculturalism.

Shachar argues that, prior to her intervention in the debate regarding multicultural vulnerabilities, two academic responses dominated the discourse. One, the Re-Universalized Citizenship approach, generally attributed to Okin, according to which, in situations of conflict between the group and the vulnerable individual, the state should put its weight behind the individual. The second approach was the Unavoidable Costs model, generally associated with Kukathas. ‘According to this logic’, Shachar writes, ‘once individuals enter (or choose to remain within) minority communities, they are presumed to have relinquished the set of rights and protections granted them by virtue of their citizenship’ (Shachar, 2001: 41). Shachar faults both approaches for taking a ‘your-culture-or-your-rights’ attitude towards the bind of multicultural vulnerability.¹

Instead, Shachar promotes a model of joint governance she named TA. Generally speaking, models of shared authority offer ‘a repertoire of accommodation techniques which can be combined in creative ways in different social arenas’ (Shachar, 2001: 89). Shachar explains her focus on jurisdiction as follows:

The assumption that underpins this discussion is the belief that the key to breaking the “either/or” impasse lies in re-examining the question of jurisdiction – that is, the methodology for determining which legal forum has the authority to resolve a given legal dispute according to certain legal principles. From an institutional point of view, jurisdiction is essentially an expression of a political arrangement which separates powers between competing entities in a given polity. (Shachar, 2001: 89)²

Inspired by a decision of the Israeli Supreme Court in the case of Bavli,³ Sachar’s TA model rests on the following principles:

Sub-matter allocation of legal authority.

No monopoly rule.⁴

The establishment of clearly delineated choice options.⁵

How do these principles translate into practice? Shachar suggests that, as was done in the Bavli case in the context of family law, the cultural group would, for example, get exclusive jurisdiction over issues of group demarcation (marriage, divorce, recognition of lineage). However, based on the principle of sub-matter allocation of legal authority, the group will not have exclusive jurisdiction over the distributive aspect of family law: alimony, property division, and child support. The distributive sub-matter would be under the state's jurisdiction in the sense that it would be governed by state law.

TA, therefore, is based on two premises.

Given clearly delineated choice options group members will be able to reject their nomoi group's jurisdictional authority by, for example, inviting judicial review (I shall refer to this premise as ‘TA1’).

A ‘free market’ of jurisdiction will produce healthy competition between the state and the nomoi group (I shall refer to this premise as ‘TA2’).⁶

Shachar dedicated much of her writings on the issue to consideration of her model's ability to solve ‘real life’ situations. She applied her TA model, for example, in the case of Maria Martinez, a member of the Pueblo tribe.⁷ According to her, adoption of her model by the American Supreme Court would have resulted in less injustice, as

the Pueblo might have been ordered to establish educational or loan funds for Audrey and other such children who would eventually be forced to leave the reservation because the maltreatment of certain women, their mothers, is encoded in the tribe's family law traditions. (Shachar, 2001: 32)

What Shachar suggested was a tort-like remedy to discrimination by one’s tribal rules. Obviously, this was not a neat example for Shachar’s model as the distinction between the demarcation function and the distributive function of family law did not really play a part in her solution of the Martinez case.

When she considered the issue of religious private ordering, Shachar supported the approach of a Canadian governmental review committee (the Boyd Report). The Boyd Report suggested that, in the case of private religious arbitration, the state should recognize the potential inability of vulnerable group members to initiate judicial review over decisions that infringe upon their human rights due to their encapsulation within their religious community. Thus, the state should remove this burden from the harmed parties themselves by offering more rigorous ‘police patrol oversight’ over intra-group violations of human rights (Shachar, 2008: 598). These would include pre-mediation mandatory screening for domestic violence, mandatory counsel by an independent legal advisor to precede religious family mediation, sensitizing arbitrators to issues of gender inequality, and so on (Shachar, 2008: 600). These mechanisms – The Boyd Report and Shachar claim – would remove the burden of reporting violations of parties’ human rights from those vulnerable group members who probably would not be able to report such breaches without paying a heavy social, and sometimes economic, price. In addition, Shachar argues that religious tribunals should be offered autonomy to privately arbitrate in matters of family law as well as enforcement of their decision if they volunteer to ‘comply with statutory thresholds and default rules defined in general family legislation’ (Shachar, 2008: 601). Incentives for self-restraint can be effective because tribunals would fear that if they do not restrain themselves, the government would restrain them. This would, in turn, make their decisions less binding and therefore detract from their position of power within the community. However, the self-restraint mechanisms hinge on vulnerable community members’ ability to pull the fire alarm when tribunals fail to self-restrain.

Shachar further suggests some similarly purposed mechanisms in the context of judicial review of religious tribunals’ decisions. These are: (1) relaxing the standards for judicial review of religious tribunals decisions in family matters; and (2) allowing third parties to request judicial review where the affected party is too vulnerable to invite it herself.⁸

To summarize, in the context of religious private ordering, Shachar proposes:

That the state would give incentives to religious tribunals not to violate human rights of vulnerable group members. For this to happen Shachar has to assume TA1 (i.e. that individuals have the choice to ask for a review of decisions that discriminate them, in person or through third parties). Otherwise, tribunals can commit to self-restraint but fail to act on it.

Relaxing the standard for judicial review of decisions by religious family arbitration tribunals. This proposal relies on TA2, i.e. that the state has an interest in protecting vulnerable individuals within religious and cultural groups, which it sometimes holds back out of respect for culture and religion, and would step in upon request from injured parties.

The problem with multicultural jurisdictions

It is easy to see why the TA model is probably the most innovative and widely adopted response (by both scholars and practitioners) to the bind of multicultural vulnerability: it is a nifty theoretical solution to the problem.⁹ However, my empirical research shows that reality unfolds otherwise. The reason for the model’s inadequacy is what I call the ‘rule of conservation of power’, according to which the power of a group remains a constant in relation both to individuals within it and to the state. My empirical findings suggest that, as a result of this rule, TA1 and TA2 are, in fact, false premises.

The literature on multiculturalism, like the literature on private ordering, tends to ascribe a passive role, if any, to the public order in the development of private orders. Multiculturalists assume that the state is interested in holding a monopoly over the administration of law. Given this initial premise, they consider it self-evident that when the state is asked by vulnerable group members to protect them from intra-group oppression or violation of rights, it will be more than willing to reassert control. What multicultural theorists fail to consider, however, is that the state often has a vested interest in the group’s private forms of ordering and, hence, is reluctant to retake control when asked to do so by the vulnerable.

Under the rule of conservation of power, the type of interest the state has in a group’s private ordering is a derivative of the group’s power in relation to the state. If the group is weak, the state might not exert itself to supply the group’s legal needs due to, for example, the high political, social, or monetary costs of regulating the group given its cultural distinctiveness. The same interest that led the state to assign legal functions to the group will then also lead it to eschew monitoring infringements of the rights of vulnerable group members. When the group is strong, multicultural accommodations are often the manifestation of that power as well. That same power will enable the group to prevent the state from effectively monitoring violations of the rights of its individual members.

The second part of my argument is that the very social powers that shape group members’ decision to turn to a private forum for dispute resolution also deter them from rejecting their group’s jurisdictional authority, as clearly delineated as that may be. I submit that, when it comes to infringements of the rights of disempowered individuals within identity groups, the problem is not only with the question of the ability to ‘pull the fire alarm’ by turning to a state court for judicial review. It is not only the matter of the ability to identify cases of breach. Indeed, it is vital to look also at the reality of the morning after the judicial review to determine whether TA effectively safeguards the rights of individuals within their identity group. It is thus my contention that the same social sanctions or incentives that deter or encourage individuals from appealing to the state to address violations of their rights at the outset will continue to deter or encourage them at every stage of the legal process.

The argument against TA1

The case of the Beit Ya’acov Primary School for Girls in Emmanuel

I now turn to two case studies I conducted that both illuminate and support my claims against TA. My first argument is that authorities often do not reassert control even when asked to do so by vulnerable group members. This is because the state has a certain stake in private ordering. I also argue that the power of the group in relation to the state determines that interest. The case of the Beit Ya’acov Primary School for Girls in Emmanuel is a case of a powerful group. Ultra-orthodox Jews are a minority within Israeli society which holds both political and social power which far exceeds their group’s size in proportion to the population. The reasons for their immense power in Israeli society have been widely discussed elsewhere (Barzilai, 2005; Cohn, 2012). Suffice it to say that, for the purposes of this essay, their power has translated into multicultural accommodations in the form of, amongst other things, educational and legal autonomy.

As will become clear, in that case the group’s power ultimately deterred the state from monitoring violations of the rights of individual members of the group. The Emmanuel case is an especially vivid illustration of my argument in that it demonstrates how the same motivation that shaped the state’s initial accommodation of the group’s difference underlies the state's subsequent monitoring policy, leading it, at times, to even retreat from an initial willingness to intervene in the community’s affairs.

To summarize the facts of the Emmanuel case, in 2008, Yoav Laloum, the Director of the Noar Kahalacha Organization,¹⁰ petitioned the Israeli Supreme Court regarding the ultra-orthodox Beit Ya’acov Primary School for Girls.¹¹ In response to the request of Haredi¹² parents, the school had established a separate track for girls from more observant families. In practice this meant that the overwhelming majority of the students in the new track were Ashkenazi (i.e. of Jewish-European descent), while the other track was comprised primarily of Mizrahi girls (from families of Jewish-Arab descent), with the students in the two tracks taught in separate classrooms. The respondents claimed that the separate tracks had been created because the Mizrahi families are less strict in their observance of Jewish law than the Ashkenazi families and, thus, their daughters would negatively influence the Ashkenazi girls. The Supreme Court rejected this claim and, ruling that the segregation could not be justified, ordered the reintegration of the school. However, the parents of the Ashkenazi students refused to send them to the integrated school, creating, instead, a segregated ‘pirate’ school for their daughters.

In 2011, Laloum filed a second petition with the Supreme Court, requesting an injunction against the Education Ministry, the Emmanuel local council, the Independent Education Center (the Haredi institution in charge of the school under Israeli law), certain teachers at the Beit Yaakov School, and the parents who were refusing to send their daughters to the integrated school. The petition requested that the respondents explain why they have not ‘fulfilled their legal obligation to use all means available to them to eliminate discriminatory practices against Mizrahi girls wishing to enrol in Haredi schools’. After the filing of the second petition, the Ashkenazi parents agreed to send their daughters to the school, but on the condition that the separate tracks be reinstated.

The Supreme Court’s retreat from monitoring

In a 17 May 2010 decision, the Israeli Supreme Court held the Independent Education Centre (IEC) and the parents of the Ashkenazi students at the Beit Ya’acov School in contempt of the court order. The sanction imposed was a fine of 10,000 shekels per day for the IEC and 200 shekels per day for each parent, for every additional day that they disobeyed the court order. One month later, the IEC announced that it was willing to comply with the court order and integrate the school. However, according to the IEC statement, the parents of the Ashkenazi girls were continuing to refuse to send their daughters to the integrated school or to pay the fines for non-compliance. As a result, on 17 June 2010, the Supreme Court ruled that the parents in contempt would be arrested unless they were to inform the Court in writing by the next day of their intention to comply with the desegregation order. As none of the parents was willing to comply with this, the Court issued an order for their arrest. That same day, tens of thousands of ultra-orthodox Jews gathered in Jerusalem and B’nei Brak¹³ to protest the Supreme Court’s decision. The protesters waved posters and signs declaring ‘We Choose Torah’, ‘High Court against the People’ and ‘God Will Rule for All Eternity’, as well as ‘Flotilla Terrorists Free! Students’ Parents to Jail’ (OSTER, JTA, 17 June 2010).¹⁴ Later in the afternoon, 34 of the 38 fathers who had refused to send their daughters to the integrated school reported to jail escorted by the protesters. Four fathers and 22 mothers did not show up for their incarceration.

A watershed in the Supreme Court’s willingness to intervene in this matter was its decision not to arrest the mothers who did not report to jail. Haredi groups published threats against the execution of their arrest. On 19 June 2010, for example, an activist at the headquarters of the struggle for the Emmanuel parents warned the media that they would demonstrate in unprecedented numbers: ‘The demonstrations against the imprisonment of the Haredi mother who starved her children will be increased by 22 fold if the police attempt to forcibly arrest the Emmanuel mothers’ (Nakshoni Hardi, 2010).¹⁵ A statement to the press from the headquarters the next day went even further: ‘If the High Court [Supreme Court] decides to jail the mothers, the war will become a war of modesty and not just education, and then the demonstrations will be of a completely different calibre, very violent.’ Yitzhak Sheinin, one of the struggle’s organizers, expressed his hope that ‘the judges will have the sense to use the ladder to come down from the tree [they have climbed up]’. He added, ‘If this does not happen, what we witnessed last week will serve as an example alone. No [Haredi] woman will ever come to prison. This is a case of self-sacrifice. What, did she murder someone?!’ (Ynetnews.com, 21 June 2010).

The threats directed at the Supreme Court did not end with these general pronouncements to the press of the intention to hold violent demonstrations. Supreme Court Justice Edmond Levy, who chaired the three-judge panel, was assigned bodyguards after receiving personal threats related to his involvement in the case. The same day that the threat of escalation was made (20 June), the Supreme Court issued a stay of execution regarding the arrest of the 22 mothers. Five days later, representatives of the parents and the petitioners filed a joint request to resolve the case through mediation. This included a request to extend the Supreme Court’s stay of execution regarding the mothers and to release the fathers who had been arrested, so that the parties could settle the dispute out of court. Justice Levy ruled as follows:

The request will be considered on the 27th of June, 2010. Nonetheless, I would like to clarify that those who are incarcerated are in jail for not complying with the Court's order and for attempting to prevent its implementation. The duty to obey the Court is fundamental and as such it is not subject to any form of mediation. Thus, the only way to be released from prison is to obey the Court's decision [by providing a written declaration of intent to abide by the desegregation order]. (1067/08 27 June 2010)

At first glance, Levy appears to have taken a hard-line approach. However, upon deeper scrutiny, it is apparent that while he was not willing to release the incarcerated fathers simply to facilitate an out-of-court settlement; the decision to consider the request not to incarcerate the mothers three days after the request’s submission amounted to a de facto granting of the request (as the parties had requested a three-day stay of execution regarding the mothers’ incarceration). Justice Levy’s decision therefore represented a retreat on the part of the Supreme Court from its intention to incarcerate all the parents who had disobeyed the desegregation order.

On 27 June, a hearing on the matter was held in the Supreme Court. The Ashkenazi parents’ representative announced that the petitioners and respondents had reached an agreement. Since there were only three more days left until the end of the school year, the students would resume studies, but with all three days devoted to learning about ‘love for Israel’. Under the agreement, the parties were to formulate a long-term solution during the summer break. The proposal was endorsed by the State Prosecutor’s Office. The state attorney declared that the compromise should be considered compliance with the Court’s desegregation order and that the enforcement measures that had been taken, such as the arrest of the fathers, had achieved their purpose. The Supreme Court ruled as follows: ‘We congratulate the great leaders for their attempts to bring peace, sorority, and friendship between the hawks. We assume that with due effort and in cooperation with the relevant governmental and local authorities, particularly the Ministry of Education, a solution can be found to the problem, which manifests itself in all of its harshness in the current petition.’

Given this compromise, the Supreme Court ordered the release of the fathers from prison. On 25 August 2010, the parties reported back to the Court regarding the solution they had reached. They informed the Court that the Ministry of Education had allowed the Ashkenazi Haredi parents to open a separate school the following school year, which would not be funded by the state, at least in its first year. Despite what the Court described as ‘apparent affinity’ between the establishment of a new school and the segregation policy that had led to Laloum’s initial petition, the justices concluded that since the Beit Ya’acov School itself would no longer be segregated, the proceedings that were specifically relevant to the original petition had been concluded.

As mentioned above, Haredim is a powerful group in the context of the State of Israel. Orthodox Judaism is the official state’s religion. Thus, Haredim ‘play a power role in state power foci’ (Barzilai, 2005: 218). Haredim have been granted autonomy to control their communities in various areas of life, including law. They also have an autonomous education system based on ultra-Orthodox instructions, which has not only been accepted but is also financially endorsed by the state. Moreover, because of the Haredim’s political power, the Israeli Supreme Court ‘tends to be mindful and does not rule against Haredi interests because anti-Haredi rulings may result in legislation and government sanctions that could limit judicial powers’ (Barzilai, 2005: 219).

The Beit Ya’acov case offers a nearly perfect application of the TA model: the Israeli system adopted a police patrol oversight, whereby Noar KaHalacha (a third-party intervener) was able to ‘pull’ the fire alarm and call attention to violations of the rights of weaker members of the community (the Mizrahi girls). However, while the Israeli Supreme Court initially showed willingness to intervene in the Haredi community’s autonomy in response to an appeal by individual members whose rights had been infringed upon by the group, when the group made a sufficient demonstration of its power and began to threaten the Court and the public order, the Court decided to retreat from its monitoring role. The group’s power in relation to the state, which led the state to grant the group an autonomous education system, also shaped the state’s willingness to monitor violations of the rights of weaker group members (which were a direct product of the group’s autonomy). In other words, my rule-of-conservation-of-power theory correctly predicts that the same power relations that led the state to grant the group autonomy in the first place will prevent the state from interfering in this autonomy on behalf of weaker group members whose rights have been infringed upon by the group.

The buduburam refugee camp (weak community)

I will now illustrate my claim regarding the rule of preservation of power with a case in which the group’s powerlessness in relation to the relevant authorities led the latter to grant the group legal autonomy. This is the case of the Buduburam refugee camp in Ghana, where I did field work between, 2005 and 2007. This case demonstrates that sometimes autonomy is granted to the group as a result of the state’s ambition to avoid responsibility for the group. In these cases, the same interest will also lead the state to disregard requests of weaker group members for protection of their rights when the group infringes upon these rights. Put differently, when it comes to weak communities, the state’s interest in avoiding the high costs of regulating the group will lead the state to push the group to privately order itself. That same interest will also lead the state to disregard requests to reassume its role as protector of individual rights.

First, some background on the Buduburam refugee camp and my research methodology is in order. Liberian refugees began to arrive in Ghana in May 1990, shortly after Charles Taylor took control of Liberia. The Ghanaian government chose to contend with the increasing numbers of incoming Liberians by establishing a refugee camp in Buduburam. Ghana, however, was poorly equipped to handle the influx and, thus, appealed to the international community for aid. The UN High Commissioner for Refugees (UNHCR) soon became involved. When I started my field work in the Buduburam camp, 15 years after its establishment, there were 45,000 refugees residing there.

Preliminary research was conducted in the winter of 2005, and the main body of the field work between, 2005 and 2007. In the summer of 2005, I volunteered with the Ghanaian NGO ‘Women’s Initiative for Self-Empowerment’ (WISE). At the time, WISE was one of the UNHCR’s implementing partners in the camp. I observed peace education workshops carried out in the camp by WISE on behalf of the UNHCR (which produced the manuals used to structure the workshops) and wrote reports on the efficacy of these workshops for WISE. In, 2006 and 2007, I visited Buduburam three times (summer of 2006, winter of 2007, and summer of 2007) and conducted independent field research while building on relations of trust that were forged during previous visits.

The methodology I used was ethnographic in nature. The research focused on the camp’s four agents of dispute processing: the UNHCR, the Ghanaian police station in the camp, the Neighborhood Watch Team (NWT), and the Arbitration and Discipline Committee (ADC). The data for the study were collected through: (1) interviews with community leaders about the manner in which they resolve disputes brought before them; (2) approximately, 1200 hours of direct and participant observations in the camp (including participation in training sessions, information meetings held for refugees, and coordination meetings among the camp’s governing authorities), at UNHCR headquarters in Accra and the Buduburam police station and of the NWT and ADC; (3) roughly 200 hours of structured, semi-structured and open-ended interviews with UNHCR personnel (particularly protection officers), psychologists, and social workers who work with survivors of domestic violence in the camp, as well as camp doctors who treat these survivors, members of local NGOs and representatives of the Ghanaian government both in the camp and in relevant government offices; and (4) analysis of camp-related projects, files, records and documents.

Due to their powerlessness, refugees are encouraged to assume legal autonomy. Why is this so? In the aftermath of the Second World War, states had a benevolent urge to protect the rights of refugees. At the same time, states were also interested in limiting the burdens that they might be compelled to bear in so doing. These conflicting inclinations resulted in what has been aptly described as the ‘grand compromise of refugee protection’, which is manifested in the obscurity of international law regarding the duty to guarantee the physical security of the inhabitants of refugee camps (Cuéllar, 2006). The result is that the relevant authorities – i.e. the host state and UNHCR – push the inhabitants of refugee camps to solve their legal problems privately, without resorting to state courts. I will describe two examples of the ways in which the authorities channel refugees into private ordering.

One technique used by the UNHCR is to educate the refugees to refrain from turning to the state’s police. This can be understood as an attempt to privatize the categorization of disputes in the camp. Legal systems designate agents such as court clerks, prosecutors, and the police to ‘patrol the boundaries of the law’ and serve as gatekeepers standing between the legal system and the everyday sphere by categorizing complaints as either ‘private’ or ‘public’ and keeping the former out of the courts. As part of the legal privatization of Buduburam, the camp’s authorities try to spare themselves the costs associated with designating categorization agents by having the refugees internalize this function. The privatization technologies are accordingly designed to categorically keep refugees away from public sorters such as the police and lower courts.

Since 1997, the UNHCR has been operating Peace Education Programs (PEP) in refugee camps in Africa. In the framework of PEP, the UNHCR conducts peace education workshops in schools and at the community level. WISE carried out five peace education workshops in Buduburam, using the UNHCR format and instructors’ manual. PEP discourages refugees from approaching the host state’s police. At the end of Unit Six of the instructors’ manual, there is a chart that analyses different controller-selecting norms. Two options for responding to a dispute are listed under the ‘dysfunctional behavior’ column: the one, aggression, and the other, submission. The elements of submissive behavior, according to the chart, are crying and ‘going to a higher authority’. The possible potential positive effects of such behavior, states the manual, are ‘justice’ and ‘release of emotions’. The negative effects listed are that the actor serves as a ‘poor role model’ who will be ‘perceived as weak by [the] community’ and a ‘nuisance to the police’.

PEP’s theme of refraining from turning to the police was effectively communicated to program participants in Kenya. In 2002, Anna Obura conducted an evaluation of the program for the UNHCR. Obura noted that ‘[n]ot one respondent said they would report the offender to external agencies such as the police or NGO/UNHCR officials. Over 10% would have done this three years before. This must be counted,’ wrote Obura, ‘as a great step forward’ (2002).

It emerged in my interviews with Buduburam refugees who participated in PEP workshops that a clear message to avoid the police was conveyed to them too. A ‘zonal head’ (the camp is divided into zones, and each zone has a refugee in charge of it) told me, ‘In my neighborhood I am the co-chairlady [zonal head], and we take care of problems in the family like a man who abandons his wife and children; we try to prevent people from going to the police.’ She explained further, ‘In Liberia before the war, people used the police a lot. In the camp I will never send people who are quarrelling to the police’ (Interview, Buduburam, June 2005). Similarly, a pastor I interviewed described the fears instilled in the refugees regarding police use:

Liberians go to the police a lot … [But w]e are in exile here and if you go to the police there will be a record against you. We don’t want refugees to have a record against them. One bad apple spoils the barrel. Immediately there is a stigma against refugees. (Interview, Buduburam, July 2005)

The concept of ‘collective fate’ was used in the peace education training to enhance the desirability of assuming ‘personal responsibility for peace’. It is used by PEP to move the refugees from a legal culture that tends to use public institutions for handling disputes towards a pattern of extra-legal handling of crime.

A second strategy used by camp authorities to privatize law in the camp was the establishment of a NWT. The UNHCR is reluctant to take on responsibility for implementing refugees’ right to physical security and generally seeks to delegate this responsibility to other agents (Cuéllar, 2006: 676–678). For the most part, the UNHCR has affirmed the host state’s duties in this regard, though it also delegates responsibilities to refugees by promoting self-administration of security.

Buduburam’s NWT is an element of the camp’s security package, entrusted with the mission to minimize ‘the reoccurrence of crimes like burglary, rape, [and] armed robbery’ (NWT Statute). A UNHCR report from 2006 likewise states that to improve the protection of refugees, it provided ‘support to the police in the settlement [and] a neighbourhood watch team’. In interviews I conducted with UNHCR personnel, they claimed authorship of the initiative to establish the camp’s NWT (Interviews UNHCR Headquarters, Accra, May 2007, July 2007).

Moreover, the NWT Statute bears the UNHCR’s unmistakable fingerprint. The introduction to the Statute declares:

While acknowledging the ultimate responsibility of the host government to provide security in our camp, we hereby resolved to organize ourselves as a non-governmental, non-political, and non-profit [organization … [seeking] to voluntarily assist the host government to look after the security in our camp and of our community.

Buduburam residents tend to view the UNHCR as responsible for their security (see also Rumbach, 2006: 56). Thus, the fact that the UNHCR is barely mentioned in the Statute and that the Statute does not attribute any responsibility for refugee security to the UNHCR stands as strong evidence that the UNHCR participated in its drafting. In fact, the above introductory clause reflects the UNHCR’s official position, that refugees should assume responsibility for their safety within camps.

Group’s power in relation to the relevant authority shapes authority’s monitoring of human rights violations

The refugees’ powerlessness not only led the authorities to push them into private ordering, but also shaped the latter’s willingness to monitor violations of refugees’ human rights by the private ordering mechanisms. I submit that the NWT’s unofficial, but chief, role is to prevent refugees from contacting the police. Officially, the NWT is supposed to act as a substitute for the police in its categorizing function: refer criminal cases to the police and handle minor cases on its own. In practice, however, this institution, which (as claimed earlier) was founded by the UNHCR and is supported by the Ghanaian government, blocks refugees’ access to the state criminal justice system.

The public authorities’ abstention from monitoring the NWT constructs the latter as a gatekeeper of Buduburam’s police. One UNHCR protection officer explained that it is difficult to monitor the NWT because they have 100 volunteers. It is therefore ‘mainly monitored by the Camp Manager and the police’ (Interview, UNHCR headquarters, Accra, July 2007). She added that, ‘[s]ometimes [the NWT] might stop the complaint [from reaching the police]. I don't know – I suspect it might happen because I hear [from refugees] but I don't have evidence.’ Later in the interview, the officer stated:

My impression is that the community has the power to prevent people from going to the police. NWT is part of it. The most difficult issue is where [the NWT] won't see a problem: a wife is being raped and they don't think it's a cause for complaint.

Though the officer suggested that the police are monitoring the NWT, the camp’s meagre police force – totalling seven personnel (serving a population of 45,000) at the time this research was conducted – does not, and cannot, engage in supervision. Moreover, the police turn a blind eye to instances of abuse of power by the NWT (Sagy, 2009). This ‘non-intervention policy’ adopted by the police facilitates the NWT’s role as the police’s gatekeeper.

Similarly, a WISE counsellor I interviewed recounted that refugees complain that ‘when they go to the NWT you need to pay them [NWT] before they go and arrest. Even if the police give them a note [an arrest slip] they still ask for money’ (Interview, WISE offices, Accra 2007). But, rather than having the UNHCR investigate these complaints, the counsellor’s reaction was to transfer the responsibility for protecting the refugees’ right to access to justice right back to the refugees: he advised them to ‘stand up and say “we are not paying! This is supposed to be free. UNHCR told us that [it] is free. So why do we pay?”’

Another ‘private’ institution in the camp is the ADC, a mediation forum manned by refugees that handles civil cases. The UNHCR systematically overlooks ADC deviations from its mandate even when they involve violations of the refugees’ human rights. Consider, for example, the ADC’s ‘divorce procedure’, which has severe consequences for children in the camp. The problem was discussed at a coordination meeting held on 15 May 2007:

Some members at the meeting pointed out that there have been occasions where A[D]C handled ‘divorce’ and separation of couples without any consideration for the children of the couple … The [Social Welfare Office] explained that the children of the union suffer as a result, as their best interest is never considered. [The social worker] also asked the A[D]C chair[man] to explain the basis for issuing the divorce decrees, which should be the preserve of the law courts. (Meeting minutes, on file with author)

According to the meeting minutes, the ADC Chairman responded with:

[S]ince 2005 the A[D]C had been issuing these separation letters to couples who were ‘loving’ and the relationship gone sour … [I]t was a way to curb domestic violence as sometimes one party to the relationship could keep harassing the other until it resulted in violence. [The Chairman] however admitted that consideration had not been given to children and had no idea that men were using ‘separation’ letters as a means to avoid their responsibilities. (Meeting minutes)

This apparent failure to monitor the ADC’s conduct is surprising given the close working relationship between the UNHCR and Ghanaian Social Welfare Office, whose representative in fact raised the issue at the coordination meeting. The UNHCR’s response to the exposure of the problem was extremely casual. The ADC Chairman ‘was advised to liaise with [the social worker] on any case that had children involved. He was further asked to give UNHCR and WISE a copy of the separation letter for our study and advice’ (Meeting minutes). The office of the UNHCR’s protection officers in the camp is adjacent to the ADC offices. Despite this geographical proximity, during the month that passed between the first and second coordination meetings, the ADC failed to provide a sample ‘separation letter’ to the UNHCR and was not pressed to do so.

At the next meeting (June 2007), Jemma, a Ghanaian UNHCR protection officer, introduced the meeting’s agenda, which included the ADC’s deviation from its formal mandate. When Jemma finished the introduction, the ADC Chairman, who was present, left the room. Jemma stated, ‘We never saw a copy of the divorce documents used by ADC.’ The Chairman of the Liberian Refugees Welfare Council replied, ‘The ADC Chairman is not here.’ Although the ADC Chairman returned to the room a few minutes later, he was not subsequently queried on this matter. The next coordination meeting was scheduled for two months later. During the interim period, the UNHCR left untouched a procedure that compromised the physical security of children in the Buduburam camp.

The UNHCR refrains from monitoring the NWT and ADC. It thereby creates a space of non-intervention, signalling to both ‘private’ institutions and refugees that these institutions have free rein to block refugees’ access to the justice system. In abstaining from monitoring the NWT and ADC, the UNCHR links its official power with the unofficial power of the ‘private’ institutions. The integration of these forms of power produces a double reality whereby the visible unofficial power of the ‘private’ institutions is backed by the invisible, but official, power of the UNHCR.

It may appear at first blush that blocking refugee access to the Ghanaian justice system is a spontaneous result of Buduburam’s ‘private’ institutions’ ordering practices. However, in fact, these institutions were created by the authorities to replace the Ghanaian justice system. Moreover, as noted, the NWT and ADC are constructed as gatekeepers of the Ghanaian justice system through the UNHCR’s refusal to monitor them.

The significance of the refugees’ powerlessness in the construction of the UNHCR’s practices in relation to them – specifically, the reluctance to monitor violations of their rights – can be understood in light of UN practices vis-a-vis other disenfranchised and disempowered populations. Since 2005, the UN has been developing a human-rights-based approach to development. According to the Office of the United Nations High Commissioner for Human Rights, ‘[a] human rights-based approach is a conceptual framework for the process of human development that is normatively based on international human rights standards and operationally directed to promoting and protecting human rights’ (United Nations Office of the High Commissioner for Human Rights, 2005: 22). This approach seeks to empower persons, ‘especially the most marginalized – to participate in policy formulation and hold accountable those who have a duty to act’. One essential attribute of the human rights-based approach, which UN agencies agree upon, is that it ‘identifies rights-holders and their entitlements and corresponding duty-bearers and their obligations, and works towards strengthening the capacities of rights-holders to make their claims and of duty-bearers to meet their obligations’ (United Nations Office of the High Commissioner for Human Rights, 2005: 22).

Because of its commitment to the human-rights-based approach, the UN works globally to sensitize disempowered populations to their human rights for the purpose of creating ‘the mental structure necessary for liberation by educating the oppressed to be aware of human rights and to use the language of law and rights to make claims against their government’ (Massoud, 2011: 9, emphasis mine). However, the UNHCR Peace Education Programs and UNHCR practice in the Buduburam refugee camp are at odds with other rights-based development and education projects. Refugees, unlike other disempowered populations, are encouraged to take responsibility for their human rights by not claiming them from the government and by solving problems on their own, whereas other disempowered populations are encouraged to demand rights from the state.

In conclusion, the Buduburam case demonstrates that the authorities often have a vested interest in a group’s private forms of ordering and, hence, are reluctant to retake control when asked to do so by the vulnerable. As asserted earlier, according to the rule of conservation of power, the type of interest the state has in a group’s private ordering is a derivative of that group's power in relation to the state. In the case of the Buduburam refugee camp, and unlike the Emmanuel case, the group is weak. Its weakness leads the authorities both to push group members into private ordering as well as to abstain from monitoring violations of the rights of vulnerable group members by the private ordering mechanisms.

The argument against TA2

The Beit Ya’acov Primary School for Girls in Emmanuel

My second argument against TA is that the same social powers that shape group members’ decisions to turn to, or avoid, a private forum for dispute resolution will also shape their ability to take advantage of TA and appeal private fora decisions. The discussion below shows that, when the petitioners in the Emmanuel Primary School case appealed to the Israeli Supreme Court, in accordance with the TA model, those social powers that influenced their initial choice of a private dispute-resolution forum also determined their inability to benefit from TA.

The segregation policy that was the subject of Laloum’s petition to the Supreme Court – i.e. the discrimination of Mizrahi Jews – lies at the heart of the agenda of ‘Shas’, the ultra-Orthodox religious political party that represents primarily the interests of religiously observant Sephardic and Mizrahi Jews.¹⁶ This case consequently provides a precisely dissected picture of the driving forces that detach the essence of the dispute from the forum that was chosen to resolve it.

Shas was founded in 1984 under the leadership of Ovadia Yosef, who remained its spiritual leader until his recent death. Yosef established a seven-member Council of Torah Sages (CTS) to guide the party spiritually. Despite the substantive issue at stake, the CTS defended the norm of resolving disputes in the Ashkenazi private rabbinical courts at the cost of tolerating the segregation. As described, when the Supreme Court ordered the arrest of the Ashkenazi parents who refused to send their daughters to the desegregated school, the ultra-orthodox public organized mass demonstrations in protest. The evening before the planned demonstration, the CTS held a meeting, at the end of which, it issued the following statement:

The Council of Torah Sages is calling to all those who fear the word of God to instruct them that in every dispute you must turn only to the rabbinical courts, which will decide every dispute. The Council of Torah Sages hereby expresses its sorrow over the discrimination in the schools and yeshivas and calls for a resolution of the dispute through dialogue. (Hacohen, Behadrei Hadarim, 17 June 2010)

Two days later, in his weekly sermon, Rabbi Ovadia Yosef attacked Laloum’s petition to the Supreme Court: ‘You know my opinion of the Supreme Court. Anyone who approaches the courts, the secular courts, which do not rule based on the Torah’s code, … will have no place in the hereafter’ (Etinger, Haaretz, 19 June 2010).

Up until that sermon, Ovadia Yosef’s son, Rabbi Yaakov Yosef, had been one of the leaders of the struggle against the segregation in the Emmanuel school. The day after the sermon, Yaakov Yosef announced that he would be withdrawing from the campaign due to threats made on his life. In an interview he later gave, Yaakov Yosef explained that in the two weeks preceding his withdrawal, the violence instigated against him by his opponents in the ultra-orthodox world had reached a peak. Groups of Ashkenazi Haredi men had disrupted his Torah lessons in various synagogues in Jerusalem and confronted his students and followers, some of whom had been injured. In addition, phone threats had been made against him, his daughter, and his granddaughter. Yaakov Yosef made it clear that the only reason he had retreated from the struggle against the segregation was the pressure and threats from the Ashkenazi ultra-orthodox community and that he remained a firm supporter of the struggle against discrimination and of the methods used by Laloum and his organization, Noar Kahalacha. He stated boldly, ‘Laloum is my student and he asked for my advice on every step taken along the way. Everything he did he did with my approval, from the petitioning of religious courts to the eventual petitioning of the Supreme Court’ (Galhar, 2017).

Threats were also made against Laloum and his family. The ultra-orthodox Ashkenazi community distributed street posters – pashkvils – across Jerusalem denouncing him. Thousands of these slandering pashkvils were posted, bearing a photograph of Laloum and such pronouncements as ‘Drinking the blood of the greatest rabbis of Israel’, ‘Go forth thou impure spirit’, and ‘Collaborator with the Supreme Court’. The pashkvils all concluded with the exhortation ‘Let there be no hope for the informers.’ Laloum requested police protection and was instructed to vacate his home to protect his and his family’s lives. He and his attorney, Aviad HaCohen, were also attacked during one of the Supreme Court sessions, and their attackers had to be forcibly removed from the courthouse (Ha-Cohen, 2009).

Following Rabbi Yaakov Yosef’s retreat from the anti-segregation campaign, Laloum turned to Ashkenazi Rabbi Avraham Dov Levine’s private religious court. He proposed that, in exchange for his deference to the private ordering norm (by withdrawing his petition from the Supreme Court), Levine's court would issue two injunctions: The one would forbid Haredi followers of the Admor from Slonim (the Emmanuel parents’ rabbi) from harming him and his family. The second would prohibit segregation in the Emmanuel girls’ school unless such segregation was to be ordered by the religious court.

The fact that Laloum had to approach the rabbinical court to ask for protection from his own community simply because he had sought judicial review by the state’s secular court system to protect the rights of Mizrahi schoolgirls is indicative of the significant power the community wields over its members. When Laloum and Noar Kahalacha petitioned the Supreme Court to appeal the dispute-processing of the community’s private for dispute resolution they inadvertently applied TA. Thus, this case demonstrates the community's power to frustrate the TA model. The case of Emmanuel illustrates my claim regarding the rule of preservation of power. Haredim have sufficient power over their group members, which allows them to direct group members to use the group’s private fora for dispute resolutions (Beit Din). When decisions by these private fora violate the rights of weaker group members and these group members attempt to seek redress from the state (even when third parties pull the fire alarm), the social forces that enabled the private ordering to begin with also prevent such an appeal. In the Emmanuel case the group had no scruples in its efforts to prevent Laloum from inviting the state’s interference and they ultimately prevailed.

A similar dynamic was recorded in the case of Shah Bano in India. There, the Indian Supreme Court ruled in favour of a 73-year-old Indian woman who asked for permanent alimony in contradiction to her group’s law (Muslim), which only entitled her to three months of alimony. Shachar notes that ‘[u]ltimately, under the pressure of charges that she had betrayed the Muslim community, Shah Bano contacted the press and publicly announced her rejection of the Supreme Court's decision on her behalf’ (Shachar, 2001: 83). Shachar brings this case as an example of the ‘your-culture-or-your-rights’ choice women have to face but she does not explain how her model provides for this problem.

The Emmanuel case, like the case of Shah Bano, are cases in which the individuals involved had sufficient resources – and I here refer to psycho-social resources – to approach state courts and ask for judicial review, even if through a third party. The community visibly blocked the Emmanuel girls and Shah Bano from benefiting from their attempt to take advantage of the availability of judicial review. In many other cases, however, the process of blocking judicial review is probably much more opaque.¹⁷ That precise challenge is not addressed by Shachar’s model. Here we have cases where parties asked for judicial review, themselves or with help from an NGO, and the group coerced them to abandon their search for justice. TA, despite Shachars clear awareness of the subtle complexities of choice, lacks a nuanced approach and assumes that vulnerable group members enjoy a measure of agency which Shachar recognized herself they do not. Thus, while judicial review was formally available to Shah Bano and the Mizrahi girls, their encapsulation within the group prevented them from utilizing it. The rule of preservation of power was in force and TA does not offer us a way around it. Possibly because there isn’t one.¹⁸

The buduburam refugee camp

In the case of the Buduburam refugee camp, the community is not hierarchical enough to prevent its members from turning to the authorities to resolve their disputes by simply invoking fear of exclusion. Thus, when the ADC discovers that a case involving refugees has reached a Ghanaian court or police station outside the camp, its Chairman appeals to the relevant authority to allow the ADC to remove the case for private handling (even if the charges have been made by a refugee). The ADC, in fact, submits monthly reports to the Camp Manager and the UNHCR, enumerating the cases it withdraws from Ghanaian courts and police stations in the surrounding area. According to the ADC annual report for the year 2006, for example, 48 cases involving refugees were withdrawn from police stations that year. The following, representative, case was withdrawn from the Awutu court and is detailed in the May 2006 report:

On the 25th of May 2006, a case was withdrawn from the Awutu court involving plaintiff [x] VS. [y] relating to raping of [the plaintiff’s] child. Both parties were cited. From the presentation of both parties, the committee conducted a cross examination. From the cross examination conducted, defendant was brought down guilty and was mendated [sic] to pay back the amount used for the treatment of the child by the family and continue the treatment of the child as of the day of the investigation which was excepted [sic] by him and copy of the rulling [sic] was sent to the shift commander/KASOA.

We see, then, that the rule of preservation of power applies here too: the same forces are at work both with regard to community members' initial willingness to solve disputes privately as well as with regard to their willingness to turn to private fora for dispute resolution. In the Buduburam camp, the community is weak in relation to its members. Consequently, the refugees are not motivated to settle their disputes privately through community-based mediation. The power of private institutions in Buduburam derives from the authorities, not from the community itself. Thus, the authorities, rather than intra-group dynamics, enable private institutions to compel people into private dispute-resolution. Moreover, because the community is weak, its members do manage to appeal unfavourable decisions of private fora to the authorities. However, again, the same forces are in operation, and the authorities reinforce the power of the private institutions by allowing them to withdraw such appeals.

Conclusions

To conclude, the findings and analysis of my case studies of the Beit Ya’acov Primary School for Girls in Emmanuel and the Buduburam refugee camp support my claim that Shachar’s TA model does not successfully resolve the bind of multicultural vulnerability. This is due to the fact that TA is based on two wrong assumptions. The first assumption (TA1) is that, given clearly delineated choice options, group members will be able to reject their nomoi group’s jurisdictional authority. My findings suggest that intra-group power relations which enable private ordering also prevent group members from seeking redress from the state or accepting it when it is offered. Thus, the creation of clearly delineated choice options is insufficient. Haredi, for example, resorted to violence and threats and managed to scare Yaacov Yoseph and Lalum into withdrawing from their attempts to seek state intervention.

Furthermore, TA's second premise, i.e. that a ‘free market’ of jurisdiction will produce healthy competition between the state and the nomoi group is, my findings show, similarly false. The cases I presented illustrate that the public authorities are either reluctant, or simply unable, to intervene in order to protect the rights of the vulnerable within powerful minority groups. The authorities also lack the motivation to protect the disempowered members of marginal, powerless groups.

Thus, despite its theoretical merits, the empirical fact is that the TA model does not seem to work in practice. Contending with the bind of multicultural vulnerability is not a mere intellectual exercise. It is an important first step towards living together in diversity, and it ought to stand at the forefront of the response to the current ‘backlash against diversity’. However, until a better solution is found, a tough choice must be made between multicultural accommodation and protection of the vulnerable within the accommodated groups.

Footnotes

Acknowledgements

The author would like to thank the referees to improved the article with their helpful comments.

Declaration of conflicting interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: The author was grateful for the support of the E David Fischman Scholarship, the John M Olin program in law and economics at Stanford Law School, the Stanford Center on Conflictand Negotiation, Stanford Law School, the Yonatan Shapira Post-Doctoral Fellowship at Tel Aviv University’s Department of Sociology and Anthropology, the Israeli Council for Higher Education, and The Sacher Institute, and the Lady Davis Foundation.

Notes

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