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COVID-19 and Conflict | From the Chilean miracle to hunger protests: how COVID-19 and social conflict responses relate

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COVID-19 broke out in Chile last year in the midst of an intensive social conflict rooted in the deep-seated inequalities caused by the free-market reforms in the country. The case of Chile shows how pre-existing conflict dynamics can be strongly intertwined with pandemic responses as earlier protests for greater equality paved the way for a climate facilitating ‘hunger protests’ during the pandemic. In response to growing mistrust in the state, citizens had a strong social mobilization base that drove collective action.

For many decades, Chile’s development trajectory was considered an inspiration due to its positive macroeconomic results achieved following the implementation of neoliberal policies by the dictatorship in the 1980s and supported by democratic governments to present. However, these policies produced deep inequalities among the population (Flores et al. 2019)[1]. With the eruption of protests in 2019 and the COVID-19 outbreak last year, the idea of a ‘Chilean miracle’ started to fade.

The COVID-19 pandemic reached Chile in the middle of the largest social conflict since the end of its dictatorship in 1990. Starting in October 2019, more than a million of people protested each Friday for five months in the center of Santiago, the capital city, to show their discontent and demand improved livelihood conditions. The response of the government to this movement was brutal, leading to high levels of repression, partial curfews, and large, violent clashes that ended in more than 34 casualties and 445 people with eye injuries (from riot guns wielded by the riot police) between October 2019 and February 2020.

As the mass protests proved, the government ignored the socio-economic problems faced by many sectors of the population. A clear expression of the lack of awareness from the government of the conditions experienced in many low-income neighbourhoods was shown in a public statement made by the former health minister of the country, when he stated in an interview that “[t]here is a level of poverty and overcrowding [in Chile] of which I was not aware”[2].

The measures implemented to address the challenges imposed by the COVID-19 were also an expression of this level of ignorance. One of the first measures to address the COVID-19 outbreak was to implement dynamic quarantines[3], which failed to prevent the virus from spreading from less vulnerable to the most vulnerable populations, instead increasing infection levels and mortality rates[4] (Galarce 2020). The failure of this measure is associated with overcrowding in households, the precarity of wages, and the impossibility for people who survive off a daily income to comply with quarantine measures.

In addition to the complete lockdown that followed the dynamic quarantines, another of the early measures was to implement nighttime curfews. This measure was not well received by citizens, nor by the scientific community, which indicated that the quarantine did not have experts’ approval since there was no proof that it reduced the infection rate. They argued that it was intended to reduce civil liberties[5], and, generally, this measure was seen as an expression of the authoritarian nature of the government.

The inability of the measures to counter the effects of COVID-19 led to multiple demonstrations that were known as ‘hunger protests’. This time, people demanded access to food, water, and shelter as many lost their daily incomes due to the lockdown measures. The hunger protests followed the government’s announcement about the distribution of food baskets. People felt that, again, the government did not understand people’s needs—families could not wait to receive food supplies, but urgently required money to obtain (other) basic goods. The government’s response to the protests was highly repressive once more, mirroring its response to the previous protests back in October 2019.

The countrywide social movement leading protests in 2019 and 2020 articulated different demands and had no centralized leadership. It encouraged self-organized local assemblies (asambleas territoriales) composed of young and elderly people and was founded due to mistrust in the existing institutions. These local assemblies embodied collective organization to resist and shape new relationships and solve immediate problems in the neighbourhoods. The movement that led protests months before COVID-19 emerged therefore played an important role during the pandemic, enabling Chileans to solve difficulties the pandemic and the government’s response to it by themselves through collective action.

One of these initiatives is the so-called ‘ollas comunes’ (‘common pots’)[6] through which people helped stave off hunger by cooking for each other. This measure to respond to the COVID-19 disaster is related to previous responses to social conflicts in Chile. As stated by Clarisa Hardy (1986), the ollas comunes initiative is associated with workers’ layoffs and repression suffered after the 1973 coup d’état that brought Augusto Pinochet to power. Therefore it has a strong component of collective memory. This initiative also proved that the self-organization that arose during the protests could solve immediate problems in a context characterized by high levels of mistrust towards the government in a crucial moment for state intervention like a pandemic. It also opened the possibility to act collectively outside of the common frameworks provided by the state and the market.

References

Hardy, C. 1986. ‘Hambre + Dignidad = Ollas Comunes.’ Accessed August 11, 2020 http://www.memoriachilena.gob.cl/archivos2/pdfs/MC0033331.pdf

Flores, I.; Sanhueza, C.; Atria, J. 2019. ‘Top incomes in Chile: a historical perspective on income inequality, 1964-2017’, Review of Income and Wealth, pp. 1-25.

Tinsman, H. 2006. ‘Reviving Feminist Materialism: Gender and Neoliberalism in Pinochet’s Chile,’ The University of Chicago Press  26(1): 145-188.

Foot Notes

[1] Many estimations had been made using different methodologies. All of them are relatively consistent in suggesting that the richest 1% hold between 25%-33% of the national income. For an in-depth discussion, see the following analysis (in Spanish): https://www.ciperchile.cl/2019/12/10/parte-ii-la-desigualdad-es-una-decision-politica/

[2] For the complete declarations, see the following interview (in Spanish): https://www.latercera.com/politica/noticia/manalich-reconoce-que-en-un-sector-de-santiago-hay-un-nivel-de-pobreza-y-hacinamiento-del-cual-yo-no-tenia-conciencia-de-la-magnitud-que-tenia/5BQZLGLOPVDDPKQ2SNSSSWRGYU/

[3] Dynamic quarantines are those applied to a specific place in a territory (a municipality, for example), and that can be lifted or imposed based on the regular analysis of certain patterns, particularly the number of COVID-19 cases in each place under quarantine.

[4] Galarce, A. (2020, May 19). Experto en salud pública USACH: “Las cuarentenas dinámicas hicieron que el virus migrara hacia una población más vulnerable”. Radiousach.cl.  Accessed August 10, 2020 https://www.radiousach.cl/experto-en-salud-publica-usach-las-cuarentenas-dinamicas-hicieron-que

[5] At the time of publication, the curfews were still imposed, even though the partial lockdowns were lifted and the COVID-19 infection rate diminishing.

[6] “Common pots involve women pooling the food rations of individual families to collectively provide more substantial meals to entire groups of families, workers and neighborhoods” (Tinsman 2006).

This research was part of the “When Disaster Meets Conflict” project. It was undertaken between July and September 2020 and comprised the analysis of secondary sources (news and articles related to the Chilean protests of 2019-2020 and the government’s responses to the COVID-19 crisis). Additionally, five semi-structured interviews were carried out. The interviews included key actors from the Chilean private sector, government, and civil society.  The purpose of these interviews was to know these actors’ points of view on the impact and the government’s response to the sanitary crisis

About the authors:

Ana Isabel Alduenda studied International Relations at the National Autonomous University of Mexico and is a current student of the MA in Development Studies at ISS, major Governance and Development Policy. She has worked in the public sector and as a consultant in topics related to government accountability and human rights. Her research interests focus on anti-corruption policies, open data, and gender violence. In addition, she has developed a genuine interest in the social phenomena surrounding pandemics.

Camila Ramos Vilches studied Social Work at Pontifical Catholic University of Chile and is a current student of the MA in Development Studies at ISS, major Human Rights, Gender and Conflict Studies: Social Justice Perspectives. She has worked in local NGOs related to grassroots development, and international NGOs related to sustainable development in the private sector. Her research interests focus on gendered analysis within organizations, diversity and inclusion management and sustainable development.

 

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Legal mobilisation in the court of public opinion by Lotte Houwing and Jeff Handmaker

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The idea of a dystopian government that is all-powerful, unrestrained and especially all-seeing is centuries-old. Machiavelli, Orwell and many others have pondered the opportunities and challenges of allowing a government, particularly an authoritarian one, to have access to a system of surveillance that provides every detail of people’s lives. But few could have imagined the implications of modern technologies, such as DNA testing and facial recognition software. What can be done by way of legal mobilisation, beyond the courtroom, to restrain the government when threats to human rights by surveillance agencies are regarded as unacceptable?

The societal debate in The Netherlands regarding privacy and surveillance has been accelerated by the process of reform of the Dutch Intelligence and Security Services Act (in Dutch, the WIV). The Bill was met by an unprecedented level of reaction from the public in a consultation round that took place over the Internet (reference in Dutch). Shortly thereafter, five students from the city of Amsterdam took the initiative to petition for a referendum on the Bill, which was accompanied by a public campaign wherein the students succeeded in collecting even 344,126 more than the required 40,000 signatures. After the students succeeded, several organisations joined in campaigning, highlighting a variety of human rights concerns. Subsequently, the Public Interest Litigation Project (PILP) announced that it would explore the possibilities to start strategic litigation concerning a number of human rights violations that they alleged would be a direct consequence of proposed amendments to the Act.

The outcome of the referendum confirmed that the majority of Dutch citizens were against the Act as it was drafted by the government. This was a huge victory for the students, organisations and other privacy advocates. In response, the government formulated a proposal to make certain changes to the Act. Unfortunately, these changes were not much more than cosmetic. However, since the proposal entails a new legislative process, there is a fresh opportunity to lobby Parliament to introduce more far-reaching amendments.

These forms of legal mobilisation—petitioning for a national referendum, law-based campaigns, (the threat of) strategic litigation—and now a renewed opportunity to lobby Parliament on the revised Bill, reveal the power of public pressure to restrain government over-reach and leverage possibilities for rights-based advocacy and reform.

Where does it hurt?

One of the guiding questions of the PILP in assessing the challenges and potential for launching strategic litigation is: “where does it hurt”? The general problem of the Act is that it contains several capabilities that allow for data collection of people that are not targets of the intelligence and security services. Bulk interception, for example, entails the automatic collection of incredibly large amounts of data before the data even gets analysed by anyone.

The problem with this capability is that the (communications) data of anyone can be gathered, without having taken into account whether individuals form any risk at all from a national security standpoint. It is this specific capability that led to the name “sleepwet”, a portmanteau word of the Dutch word for dragnet (“sleepnet”) and law (“wet”). Besides bulk interception, the Act includes other capabilities with untargeted effects: the capability to hack third parties; to gain real time access to databases; to acquire bulk (personal) datasets; and to exchange (unevaluated) data with foreign intelligence agencies.

Apart from the direct consequences of exercising these capabilities to obtain and share large amounts of data of innocent people, there is the chilling effect. This effect refers to the inhibition or discouragement of the legitimate exercise of certain fundamental rights caused by surveillance measures. For example, in an age of social media, most people recognise the situation of typing something, and then removing the social media post before sending it, because they do not have control over who will read it. Sometimes, such restraint can be a good thing. However, it is harmful for a democracy when political dissidents or whistleblowers begin censuring themselves and are discouraged from making political statements or revealing something bad that is happening.

A broader campaign on privacy

The controversial law reform process of the Act fired up a broader public debate, and, especially in the run up to the referendum, led to accompanying campaigns on privacy in The Netherlands. The most common reaction has been: “but I do not have anything to hide”. However, the campaign waged against specific parts of the Act succeeded in planting seeds of doubt and criticism against this popular, though indifferent attitude. Also, it was the first time that the secrecy of the Dutch surveillance regime was brought into question.

Beyond the Netherlands, the debate has international ramifications. The Netherlands is not the only country that is in the midst of an overarching law reform regarding its intelligence and security services. France, Germany, the U.K. and Finland, among others, are in the midst of comparable processes. The debate in the Netherlands is of international relevance because the Dutch law reform fits in an international trend wherein untargeted surveillance measures are introduced, Internet service providers are more involved in the application of the capabilities, and the focus shifts from content to metadata. Nevertheless, there is a sufficient extent of transparency and free speech in The Netherlands to have an open debate—circumstances which enable legal mobilisation to play a crucial role in bringing issues to the public’s attention, i.e. beyond the courtroom. The broader debate and campaign over privacy is therefore still highly valid.

 What is the role for strategic litigation?

The PILP coalition, which has been discussed in an earlier blogpost, focuses on strategic litigation for human rights. Strategic litigation, a specific form of legal mobilisation, involves the strategic use of legal procedures to bring about certain social, political or legal changes. Strategic litigation often accompanies campaigns or other means to amplify the voice of people and/or organisations fighting for this change.

 What is PILP doing in this specific case?

Regarding the Intelligence and Security Services Act of 2017, PILP is coordinating the legal procedures of a broad coalition of lawyers, journalists, NGOs, and IT/tech companies. This coalition is legally represented by the renowned law firm Boekx Advocaten. Within this file, two separate procedures are underway. First, PILP petitioned for an urgent procedure to force the postponement of the entry into force of the Act until the proposed changes had been passed by the Dutch Parliament. Unfortunately, the judge declined to answer this claim.

Secondly, the coalition is assessing the possibility of starting strategic litigation to challenge the untargeted effects of aforementioned capabilities provided for in the Act itself against the framework of the European human rights treaties. This procedure will be conducted if the changes made by parliament will be insufficient to address the fundamental human rights problems of the Act.

Given the unpredictability of the judicial system, it is difficult to predict the outcome of the lawsuit. However, it is very clear that the other forms of legal mobilisation—a law-based referendum and campaign—have not only underscored the value of taking matters to the formal courts. They have been doing well in their own right; restraining government through the Court of Public Opinion.

Picture credit: Magic Madzik

Lotte-zwart-wit-1-e1493911446330About the authors: 

JeffHandmakerISS_smallLotte Houwing is File Coordinator at the PILP concerning the WIV. Her views do not necessarily represent those of the organisation.

Jeff Handmaker is a senior researcher at the International Institute of Social Studies (ISS) and focuses on legal mobilisation.

Toward greater tolerance? Ethno-nationalist lawfare and resistance through legal mobilisation by Jeff Handmaker

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JeffHandmakerISS_smallAbout the author:

Jeff Handmaker teaches law, human rights, development and governance and conducts research on legal mobilisation at the ISS. He is also an associate member of the Faculty of Law at the University of the Witwatersrand in Johannesburg, Editor-in-Chief of the South African Journal on Human Rights and a member of the EUR INFAR Project.

In September 2014 Henk van Oss, a caravan dweller and member of the Dutch traveler community, received a letter from the Dutch municipality of Oss. Condolences were expressed for the recent death of his mother. And, in accordance with the Dutch “extinction policy”, he was informed that the permit for his mother’s caravan had been withdrawn and that he had to leave. His story of ethno-nationalist lawfare and the struggle for citizens to defend themselves reveals the importance of research on the contested terrain of legal mobilisation.

Victory for van Oss

Mr. van Oss, who had cared for his mother until her death, did not accept the municipality’s demands. He came in contact with the Dutch organisation Public Interest Litigation Project, who took his case to the Netherlands Human Rights Institute and brought a legal claim against the municipality of Oss. While the legal battle continued for some years, it was ultimately successful. The Human Rights Institute declared that the actions of Oss Municipality were unlawful. The courts (on appeal) declared that the municipality had acted illegally by withdrawing their permission for the caravan stand.

It was in some respects a legal tale of David and Goliath.  From an analytical standpoint it was a classic case study of how ethno-nationalist lawfare to end what the Dutch government regards as an undesirable cultural practice met the counterpower of the Sinti, Roma and Traveler community, who used strategic litigation, a form of legal mobilisation, to claim their rights.

The traveler community: A precarious existence

The history of the Sinti, Roma and Traveler community in Europe is not an altogether happy one. Historicially, the community travelled for economic opportunities or to escape persecution. But this wasn’t always enough. During the Second World War, several hundred members of the community were arrested and deported from the Netherlands by the Nazi occupation authorities. They were sent to concentration camps; most died. While the number of persecuted travelers in the Netherlands was relatively small, they met a similar fate as several hundred thousand other travelers did across Europe.

Ander-kamp-Oss-in-2013-grotendeels-ontruimd-3
A modern-day caravan in the Netherlands.

Over the course of the past few decades, a range of restrictive legal measures have been taken against Sinti, Roma and Travelers by both national and municipal governments across Europe. These measures frequently reflect ethno-nationalist, autocratic tendencies rather than the values expected of liberal democratic states. Such measures are also rooted in populism. They are framed by over-exaggerated perceptions of criminality and sometimes invoke the mantra of integration or even emancipation as a thin, and disingenuous form of justification.

It is not surprising, therefore, that the Dutch “extinction policy”1, largely implemented at the municipal government level, and sometimes containing a benevolent, moral message aimed at improving the socio-economic conditions of the community, is met with such revulsion and hostility. Ultimately, the government’s legal measures represent an oppressive use of law, with the overall aim of reducing, if not completely eliminating the community; in other words, these measures are a form of lawfare.

Resistance through legal mobilisation

Meanwhile, civic-led, law-based efforts to protect members of the community facing discrimination and to advocate for more rights-respecting policies make it difficult for such restrictive measures to take hold legally, particularly at the local/municipal level. These efforts serve as a counterpower to the exercise of ethno-nationalist lawfare against these legally-recognised ethnic groups.

As I argued in a paper presented at the Dutch-Flemish Socio-Legal Studies Association (VSR) in January 2018, legal mobilisation as an analytical lens can help to explain the potential for civic-led legal instrumentalism to protect groups against retrogressive measures by the state. According to my colleague Sanne Taekema, Professor of Legal Theory at Erasmus School of Law and leader of the project on Integrating Normative and Functional Approaches to the Rule of Law and Human Rights (INFAR) in which I am also participating,

traditional separation or balance of powers focuses on formal mandates of public actors and their interactions. Given the fact that in many states executive and legislative powers have become strongly intertwined, a veritable trias politica is merely an ideal.

Taekema’s research explores whether a model of balance of powers can be extended to include non-state actors. Together, we are investigating whether it is possible to revise the theory to include counterpowers outside of the state and serve as “direct and indirect checks” on government abuse of power. More broadly, my research explores how an analytical lens of lawfare can explain governmental-led instrumentalisation of law against communities, such as the Sinti, Roma and Travelers community, and how an analytical lens of legal mobilisation can explain the strategic potential of law-based, civic-led social justice claims.

A legal mobilisation lens: Useful in practice

The usefulness of a legal mobilisation lens is is further affirmed by Dutch attorney Jelle Klaas, litigation director of PILP, who led the strategic litigation on behalf of Henk van Oss. The Amsterdam-based organisation pursues what it describes as strategic litigation, a concept that is in fact broader than what most legal advocacy organisations traditionally understand strategic litigation to be, and incorporates various forms of law-based, civic-led advocacy. Klaas has noted that

sometimes, alternative routes to justice are blocked. Sometimes dialogue and lobbying are ineffective on their own. In these cases, legal action may be necessary as a form of counterpower to curb government overreach or harms caused by corporations.

PILP’s work is about using legal action to bring about social, political or legal changes. The goal is not necessarily to win a case for a particular client. Strategic litigation complements other ways of bringing about change: from lobbying and advocacy to community organising and protests. According to this approach, an organisation focused on strategic litigation should act as an ally to activists, NGOs and grassroots organisations. Klaas further explains PILP’s litigation strategies:

Usually, the aim is to go to court for a legal victory, but sometimes you can win by losing a case. Where injustice is exposed and publicity generated, there is often an opportunity for non-state actors to be a form of counterpower, regardless of the outcome of the case.

Conclusion

The case brought by Henk van Oss was “won” by PILP-supported lawyers in 2017, albeit not on the grounds of human rights violations as PILP had hoped and eloquently argued for. However, the case elevated the plight of Sinti, Roma and Travelers to the national spotlight. Furthermore, in laying out a detailed dossier of state-based discrimination, the case produced a vivid portrait of the community, giving the legal issue a human face and according credibility to the Sinti, Roma and Traveler movement’s campaign to end discrimination.

Beyond this particular issue, I feel it is crucial to understand the dynamics of legal mobilisation, both in a specific case and – generally – as a form of counterpower against lawfare exercised by state and indeed corporate actors. In this regard, context always shapes the socio-cultural possibilities for legal mobilisation. Furthermore, it is crucial to understand the structural bias embedded within national and international laws that condition the opportunities for exercising agency. Finally, the existence of structural bias, carefully leveraged, can form a powerful basis for advancing a social justice claim.

1The “extinction policy” is known in Dutch as the “uitsterfbeleid”.