This is how we won a historic victory for women’s and LGBTIQ rights in international law 

The final draft of a new international crimes against humanity treaty has dropped an outdated definition of gender, affirming the rights of all people.

Lisa Davis

LGBT rights rally in Quezon City, Philippines, 2018. George Buid/Zuma Press/PA Images. All rights reserved.

When it comes to the letter of the law, a few words can mean the difference between having your rights protected – or not. This is why human rights advocates are celebrating this month: after a worldwide campaign, and many long meetings and legal arguments, the new draft of the international crimes against humanity treaty has lost an outdated definition of gender that could have been used to limit protections for women and LGBTIQ people in war.

On 7 June, the International Law Commission – a body of experts set up by the UN in 1947, to help develop and interpret international law – formally recommended this draft for adoption by states. Finally this treaty, which heads to the UN General Assembly later this year, holds the promise of justice for all victims of the world’s worst atrocities.

Previous drafts of this treaty included a definition of gender borrowed from the Rome Statute (which governs the International Criminal Court (ICC)) that isn’t clear on who is protected. It says: “the term ‘gender’ refers to the two sexes, male and female, within the context of society” – overlooking trans and gender non-conforming identities and leaving it open to dangerous interpretation.

Law scholars and the ICC’s own Chief Prosecutor do understand this definition to include LGBTIQ people, and more broadly, women and men persecuted for not following oppressive dress codes, or ‘traditional’ gendered roles. However, the new draft crimes against humanity treaty doesn’t come with an international court – it’s left up to states to implement. And some consersvative governments may try to take advantage of the definition’s opacity and ignore conflict-related gender-based crimes.

The story of this treaty, and its language, is long – as was the process of removing this controversial gender definition from the text. It took immensely coordinated campaigning from rights advocates and lawyers. This is a significant legal victory for women’s and LGBTIQ rights – and three groups that came together to push for the definition’s removal: MADRE and CUNY Law School, where I work, and OutRight Action International.  

“Finally this treaty holds the promise of justice for all victims of the world’s worst atrocities”

Under international criminal law, you can’t persecute people based on sexual orientation, gender identity or sex characteristics. But fundamentalists around the world are promulgating fear and justifying discrimination with claims that women and LGBTIQ rights advocates want to impose what they call “gender ideology” – a supposed attack on “natural families”, “feminine values” and the male-or-female binary as the will of God.

At the bottom of these movements is a fear that women will break out of their “traditional roles” as mothers and caretakers, and seek education or employment instead. (As if women can’t do both, and while rigid gender roles also have negative consequences for men). Meanwhile, ultra-conservatives are trying to erase LGBTIQ rights altogether, as their very existence challenges their rigid gender narrative.

This is the context in which we mobilised to challenge the opaque gender definition in the crimes against humanity treaty, which the International Law Commission body of experts opened to comments from the UN, national governments and civil society groups last year. At first, our arguments were met with a chilly response from the treaty’s supporters. 

Their pushback was simple: the more changes there were to the treaty’s language, they feared, the more likely it would be that fewer states adopt it. This reasoning was familiar: thinking like this has consistently meant that women’s and LGBTIQ rights are deprioritised in conflicts, including sexual and reproductive healthcare in humanitarian crises. In peace talks, the rush to get warring parties to the table too often leads to women’s exclusion.

Can human rights advocates working together make a difference?

Just ask Ray Acheson, who led a civil society advocacy coalition that secured a legally-binding provision on gender-based violence in the Arms Trade Treaty. Ray recalls: “At the beginning, we were getting questions [from governments] like, ‘What does gender-based violence have to do with the arms trade? I don’t get the connection.’ By the end, we had a hundred states saying that it had to be in the treaty and it had to be legally binding”.

Similarly, we didn’t give up at that initial chilly response. Instead, we organised a worldwide campaign for the outdated gender definition to be removed or revised. Time was against us: we had to rally states, UN agencies and civil society groups to make submissions supporting these arguments, and the treaty was only open for comments for one year. 

“History will remember that all of us working together can make a difference”

We spent the first six months organising meetings with experts to work out our legal arguments and reasoning. We held seven briefings to receive feedback from representatives of the International Law Commission, governments, and civil society from around the world. We also distributed a toolkit in four languages to support broad civil society input on the treaty’s gender language and other key provisions.

CUNY Law School compiled feedback from these workshops, briefings and consultations, for a submission to the commission that offered a holistic legal analysis and recommendations to either remove or revise the gender definition. We also circulated our arguments and recommendations in five languages for other groups to sign on to. 

Ultimately, nearly 600 organisations and academics from more than 100 countries signed our open letter. At least nine other civil society submissions echoed our demands, including from 60 African human rights groups, led by the Southern Africa Litigation Center; 12 transgender rights groups; two intersex rights groups; and Human Rights Watch. 

Moreover, 19 governments affirmed that the rights of women and LGBTIQ people are protected under international criminal law and said this treaty must reflect that. No state spoke against gender rights in the treaty process. An astounding 24 UN special rapporteurs and other experts signed another submission echoing our legal reasoning. 

The result, this month, was a final draft of the crimes against humanity treaty from the International Law Commission that removes the outdated gender definition, citing our arguments. Though our campaign isn’t over. Next, the treaty goes to the UN General Assembly this autumn, where states will again debate its language and decide its fate. 

Whether it becomes law or not, this is clear: history will remember that all of us working together can make a difference, because all of us have rights that must be protected.

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The Failure to Protect International Law & Human Rights in the U.S.-China Trade Talks

Recent weeks have featured developments in yet another high-profile international crisis in the White House.  The Trump Administration has continued its negotiations with China in an effort to reach a long-awaited trade deal.  Yet, during round table discussions in May, White House officials willfully ignored the elephant in the room: China’s ongoing mass human rights violations and persecution of minorities.  Despite growing media coverage depicting China’s inhumane treatment of its minority Uighur Muslim population, the U.S. has steadfastly refused to take effective action to leverage its trade position to combat China’s violations of international law.  This simply marks the latest in the U.S.’s retreat from international law, closely following its bullying of the ICC into closing its investigation into Afghanistan.

Recent years have sparked increased persecution of the Uighurs, a largely Turkic-speaking Muslim minority based in Xinjiang, an autonomous region within China. China has targeted the Uighurs through its “Strike Hard Campaign against Violent Terrorism.”  Under the auspices of national security and counter-terrorism, the Chinese government has arbitrarily arrested large numbers of Uighur Muslims throughout Xinjiang, placing many in detention centers and prisons, and forcing others into hundreds of political “re-education” camps.  Many of the detainees are not charged with crimes and have been deprived of due process rights to challenge their detentions.  Pursuant to research by the Council on Foreign Relations, Uighurs detained in the re-education camps are forced to renounce Islam, learn Mandarin, and praise communism. Reports of forced self-criticism, psychological and physical beatings, and torture have also emerged from the camps.

To easily identify and monitor Uighurs, the Chinese government has implemented a mass surveillance system throughout Xinjiang and other Chinese provinces. China’s use of facial recognition software, police checkpoints, and cell phone monitoring has effectively turned Xinjiang into a surveillance state. China uses this surveillance to identify those in violation of restrictive laws against Uighur Muslims, including the banning of long beards and the use of Muslim names for newborn children.

While the exact number of Uighurs detained is unknown, officials within the Trump Administration have estimated that the figure falls between one and three million.  These conditions, disturbingly reminiscent of the concentration camps employed by Nazi Germany, have prompted widespread charges that China is actively engaging in ethnic cleansing.  In fact, China’s targeted attack on the Uighurs encompasses violations of various international human rights treaties to which China is a party, including the International Convention on the Elimination of All Forms of Racial Discrimination, the International Covenant on Economic, Social and Cultural Rights, and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Moreover, China’s mass detention, torture, and enforced disappearances of Uighurs could constitute crimes against humanity or even genocide under international criminal law.

International human rights organizations, legal scholars, and state governments have vocally condemned China’s international crimes and human rights violations, yet minimal practical action has been taken against the Chinese government.  While calls have been made for the U.N. to commence an investigation into China’s treatment of the Uighurs, at this point, none has been ordered.  In fact, the practical impact of any potential investigation is uncertain.  In its role as a permanent member of the U.N. Security Council and a non-party to the Rome Statute, China enjoys a substantial level of protection against sanctions and ICC prosecution.  

The U.S. has been aware of China’s ongoing human rights violations for years.  Members of Congress have repeatedly requested that the Trump administration impose sanctions on high-ranking Chinese officials in response to growing evidence of Uighur mistreatment.  In a July 2018 op-ed, Secretary of State Mike Pompeo recognized China’s mass detention of Uighurs, while applauding the “Trump administration’s [passion for] promoting and defending international religious freedom.” Yet, while the U.S. government apparently considered issuing sanctions, it has failed to effectively act to halt China’s persecution of the Uighurs.

In early April, a group of 43 bipartisan member of Congress wrote to Secretary of State Mike Pompeo, Secretary of the Treasury Steven Mnuchin, and Secretary of Commerce Wilbur Ross, again formally requesting economic sanctions be imposed against China for its gross human rights violations against the Uighurs. Yet, despite growing publicized condemnation and concern, the current administration’s conduct indicates it will do little to bring China into compliance with international law.  The ongoing trade talks with China present the perfect opportunity for the current administration to call for China to end its persecution of the Uighurs under threat of sanctions.  Yet, as the New York Times reports, the U.S. has not raised the issue of China’s international crimes at any time during the trade talks, viewing it as a potential impediment to negotiations.  Instead, in mid-May, following failed U.S.-China round table trade talks, President Trump issued an executive order declaring a national economic emergency and empowering the U.S. government to ban the use of technology of “foreign adversaries” deemed to pose a risk to national security. Nearly immediately thereafter, the U.S. Department of Commerce placed Huawei Technologies, the company responsible for creating many of the surveillance tools used to monitor the Uighurs, on a “trade blacklist,” thereby greatly obstructing its ability to conduct business with U.S. companies.  Yet, in failing to publicly address China’s mistreatment of the Uighurs and Huawei’s complicity in the Uighur surveillance while taking such action, the Trump administration fell significantly short in defending international law and human rights.

As a world power and a permanent member of the U.N. Security Council, the U.S. bears responsibility to bring an end to China’s ongoing international crimes.  The Trump administration’s failure to effectively leverage its trade position to bring China into line with international law not only undermines the U.S. policy of promoting global freedom of race and religion, but also prioritizes its commitment to capitalism and financial profit at the expense of human rights. 

Introducing Sara Ochs

It is our great pleasure to introduce our new IntLawGrrls contributor Sara Ochs.

Sara Ochs is a teaching fellow at Elon University School of Law in Greensboro, North Carolina, where she teaches Introduction to Legal Studies, Legal Method and Communication, and International Criminal Law. She earned her juris doctor from Loyola University New Orleans College of Law, and her bachelor’s degree in business administration from Loyola University Maryland. Prior to entering academia, Sara clerked for the Honorable Carl J. Barbier on the United States District Court for the Eastern District of Louisiana and practiced law in New Orleans.

Sara’s scholarship examines the role of international and hybrid courts in prosecuting mass atrocities and the use of transitional justice mechanisms in post-conflict societies. She currently serves as a vice chair of the American Bar Association’s International Courts and Judicial Affairs Committee and the editor of the Committee’s Year in Review publication, as well as a researcher for Lawyers, Conflict & Transition’s Cambodia project.

Heartfelt welcome!

Prioritising Reparations for Conflict-Related Sexual Violence over Prosecution and Prevention

Today the 19th of June marks the International Day for the Elimination of Sexual Violence in Conflict, intended to raise awareness of the need to put an end to conflict-related sexual violence. 2019 also marks the 10 year anniversary of the creation of the mandate of the Office of the Special Representative on Sexual Violence in Conflict. While the past decade has seen initiatives such as the UK’s Preventing Sexual Violence Initiative (PSVI), sexual violence remains prevalent. Moreover, international action has become a shrinking space for adequately responding to victims and survivors’ needs, such as the recently regressive 2019 Women, Peace and Security Resolution 2467 that removed all reference to sexual and reproductive services.

As a registrar doctor in obstetrics and gynaecology conducting a PhD on reparations for conflict-related sexual violence I have interviews dozens of victims of CRSV and come across many in my own practice, which continue to evidence inadequate reparations to remedy their harm. My research has also highlighted the value of an interdisciplinary approach to such complex topics, rather than remaining in our own professional or disciplinary silos, there needs to be a more coordinated response to victims’ needs. As such with victims, healthcare practitioners and transitional justice actors in Peru, Colombia and Uganda I have been exploring a medico-legal approach to reparations for CRSV to better appreciate the harm and stigma of victims and their families, how to more appropriately respond to the harm, but also the role and responsibility healthcare professionals play, such as in forced sterilisation in Peru.

This blog hopes to highlight some of my preliminary findings, in that while there has been increasing attention to reparations for CRSV, it has seen a blurring between charity/ assistance and a rights based approach to reparations that degrades remedying victims’ harm. These questions are not just academic, but also reflect victims’ experience, such as the comfort women’s rejection of funding without acknowledgement of responsibility or apology from the Japanese government. Moreover, reparations are more about providing victims with just compensation, but recognising their harm and ensuring their rights to also medical, legal and social rehabilitation along with other remedial measures (satisfaction, restitution and guarantees of non-repetition). As such this post outlines the key principles for guiding reparations for CRSV that go beyond prosecution and prevention that continue to dominate the international community’s response to such violence. There principles highlight that reparations can more appropriately respond to victims’ harm and experience, while complementing the broader goals of accountability and prevention of recurrence.

Principles

There are a number of principles on reparations for gross violations of human rights or grave breaches of international humanitarian law. Pablo de Greiff, former UN Special Rapporteur on truth, justice, reparations and guarantees of non-recurrence, suggests a number of principles to assess the effectiveness of reparation programmes of completeness; comprehensiveness and complexity; integrity or coherence; finality; and munificence.

Completeness involves the coverage of the ‘whole universe of potential beneficiaries’. Comprehensiveness covers the distinct types of violations or harm, with complexity concerning the variety of measures, such as going beyond just compensation. Integrity involves internal and external coherence, which refers to the relationship between different types of reparations and other transitional justice mechanisms respectively. Finality pertains to whether a reparation programme closes other avenues for victims to bring redress. Lastly, munificence relates to the scope of a reparation programme’s benefits. The Colombian reparation programmes aims to meet these principles, but faces problems of scale and deliverability.

However there is little guidance on conflict-related sexual violence. The 2005 UN Basic Principles on the Right to Remedy and Reparations is gender neutral, even blind, just providing a principle of non-discrimination. The civil society driven 2007 Nairobi Declaration on Women’s and Girls’ Right to a Remedy and Reparations also outlines the importance of transforming the structures of violence which give rise to sexual violence such as CRSV, but it is not binding on states.

Ruth Rubio Marin adds two further categories from a gender perspective on implementing reparations, in particular for sexual violence: openness; and transformative potential. Openness refers to the ‘level of participation of victims, victims’ groups, and other relevant actors in civil society in the design of a reparations program’. This openness not only improves the transparency and effectiveness of such reparation programs and outcomes, but Rubio-Marin suggests it can also have a ‘reparative effective by affirming the victims’ status as active citizens’ recognised and respected by the state. Rubio-Marin indicates that the transformative potential is the extent to which a reparations program has the ‘capacity to subvert, instead of reinforce, pre-existing structural inequalities’, not limited to gender hierarchies. Victims of sexual violence often face stigma from their family, community and society that disincentives them from speaking out or punishes those who do so.

A Medico-Legal Approach

A medico-legal approach would add three further principles to provide a more victim-sensitive approach: do no harm; vulnerability; and temporality. Do no harm – ensures that reparations do not compound victims’ harm, and safeguards against uninformed risks of procedures and interventions. Importantly a do no harm approach would stipulate that victims are treated with respect and dignity (both in process and outcomes) so as to guarantee they are not coerced to chose a measure they are not satisfied with nor does it reinforce stigma. For instance, when offering psychological support, victims may also need physical support or vice versus. It is imperative to recognise how one may impact the other at different points in a person’s lifetime, which needs to be reflected in referral pathways for each individual. Alternatively only offering them short term reparation when they need long term support, may cause them further harm and distrust of service providers, especially when their health trajectory is likely to degrade due to age and/or disability.

Any actor involved in reparation can cause deliberate or unintentional harm. In one interview with a local counsellor in Uganda, they told me about a male victim of sexual violence for whom they cared. When this victim went to a doctor in his local hospital he was disbelieved that he was a victim of sexual violence and was rejected from having treatment. Accordingly a component of ‘do no harm’ is recognising and challenging unsafe or unethical practice. Similarly in Colombia the use of purple bracelets helps to identify victims of sexual violence, intended to reduce victimisation by avoiding asking victims about the violation, but as an obvious marker can also cause stigma in itself an unintended harm.

Vulnerability – the situation of vulnerability appreciates how certain groups are impacted more than others, or uniquely harmed, and what type of measures would facilitate redressing intersecting violations. Further still the principle of vulnerability can facilitate a transformative approach and reveal health inequities. The principle requires priority to certain individuals who are vulnerable to access reparation to alleviate their suffering from compounding further. This may include victims of displacement and in displaced persons camps where high rates of sexual violence occurs. For sexual violence being identified as a victim in a reparation programme may cause further social repercussions such as stigma. In Colombia victims in rural areas spoke of insecurity, infiltration of health services by armed groups or social and economic marginalisation that mean they suffered multiple violations and have no service provider to turn to in order to avoid further victimisation.

Temporality – focuses on how the impact of harm can change over time (increase, reduce or resolve). It also requires consideration of the appropriate moment for which reparations to be applied. For example, HIV (human immunodeficiency virus) can develop into AIDS (acquired immunodeficiency syndrome) and conditions to related immunocompromise and late presentation of HIV, such as certain HIV-associated malignancies and opportunistic infections. This underlines the importance of providing humanitarian assistance or interim relief to victims to mitigate their health being worsened or morbidity increasing.  Equally, harm may not manifest until years after registration programme has closed, such as delayed expression of psychological effects or sub-threshold symptoms that do not meet clinical criteria of diagnosis until later in life. For instance in Colombia, medical professionals spoke about victims of CRSV often taking years to come forward, often ten or twenty years later as the consequences of their sexual violence become so acute that they can no longer hide it or cope.

An array of sensory triggers may contribute towards the manifestation of psychological distress that may be linked to sexual violence, like a further traumatic or life event, such as childbirth or a new intimate or sexual relationship. Stigma from sexual violence and the added possibility of a mental health illness functions as a barrier to timely diagnosis (stigma multipliers). Temporality also raises the question of whether reparations are the most suitable intervention given the stage of transition a society may be in (and who they are willing to accept as eligible victims for reparations at a specific time point).

Together these principles indicate that sexual violence in conflict and other situations of mass victimisation raises difficult and complex issues that are perhaps glossed over in the rhetoric of ‘ending rape in war’ or even the notion of ‘conflict-related sexual violence’ as a distinct phenomena for prosecution and reparation. At the same time there is a place for healthcare service provision and reparations to complement each other. As doctors we are not trained or practice in terms of who is a victim and who is not. Nonetheless, social and cultural contexts can shape personal attitudes of healthcare practitioners. In general terms we think of the patient as a person and treating their symptoms and working out the cause or diagnosis and formulating an individualised treatment plan for them that aims to improve outcomes. There is a lot to be learnt in these terms of seeing the person and their suffering. Importantly reparations are victim-centred measures intended to remedy and acknowledge their harm, prevention and prosecution are important, but if we are serious about justice for these types of violations it has to start with it benefiting those most directly affected.

Photo of Nurse Norbert Chambu treats approximately five victims of SGBV a week, by USAID

Go On! Rule of Law for Oceans, 4-5 November 2019

Conference in Oslo, Norway: Is law fit for purpose to protect the oceans against increasing pressures and demands? This two-day conference aims at analyzing new trends in the law of the sea, international environmental law, and related fields of law, and discussions related to the effectiveness of certain tools and mechanisms.

The Research Group on International Law and Governance (University of Oslo, Law Faculty) and the Norwegian Institute for Water Research (NIVA) organize this conference to advance discussions on the gaps and challenges in law related to the protection of oceans, and to bring forward novel legal approaches and solutions.  

The oceans are under increasing pressure from climate change, (micro)plastic pollution, loss of biodiversity, habitat destruction, unsustainable use, to name but a few, which all adversely affect the resilience of our oceans.  UN Sustainable Development Goal 14 specifically requires us to conserve and sustainably use the oceans, seas and marine resources. Key to sustainable ocean governance is the understanding of ecosystem functioning and the appreciation of interactions and interconnections among marine ecosystems, land and sea, oceans and climate, and interactions between marine and other types of ecosystems. Changes in the ecosystem functioning and resilience often have consequences far beyond in time and geographical scope and require robust but flexible and comprehensive regulatory solutions and approaches.

International law, including the UN Convention on the Law of the Sea and the Convention on Biological Diversity, provides for a framework governing States’ rights and obligations with respect to the use of oceans and their resources, protection of the environment and biodiversity as well as responsibility for the damage caused to the oceans arising from unlawful activities of different actors. Regional agreements such as OSPAR and HELCOM have similar purposes for regional seas. National legal systems also play a crucial role in the implementation of international and regional obligations. The legal system is fragmented and comprehensive, but is the law ripe for protecting oceans in the face of increasing environmental challenges and human demands? Are legal frameworks effective, strong, and flexible enough to address new challenges and pressures in light of advanced scientific knowledge and understanding of oceans? This conference aims to discuss and reflect on how we could strengthen the rule of law for Oceans.

Where can existing laws evolve, adapt and improve? And where do we have to think afresh? Which innovative approaches and mechanisms are being adopted or under discussion and what could be their advantages?

Please send your abstract (max 300 words) and a short resume to Professor Alla Pozdnakova no later than 15th August 2019. You will be notified by 1st September 2019. Full link to conference call: here

Please mark your email with “Abstract for the Ocean Conference Oslo”. Abstracts submitted after the deadline will not be considered.

The organizing committee,

Alla Pozdnakova                                Froukje Maria Platjouw

Alla.pozdnakova@jus.uio.no               fmp@niva.no

Faculty of Law, University of Oslo       Faculty of Law, University of Oslo,  Norwegian Institute for Water Research            

Write On! American Society of Int’l Law

This installment of Write On!, our periodic compilation of calls for papers, includes calls for papers to the American Society of International Law’s International Economic Law Interest Group, as follows:

The American Society of International Law’s International Economic Law Interest Group will be holding its Biennial Conference on International Economic Law on February 14-15, 2020 at the University of Miami School of Law in Miami, Florida. The theme of the conference is Designing International Economic Law: Challenges and Opportunities.

The deadline for both unpublished paper and panel proposal submissions is Monday, June 24. Submissions should be sent to 2020IELconference@gmail.com. For more information, click here.

On the Job! Internship at The Int’l Nuremberg Principles Academy

On the Job! compiles interesting vacancy notices, as follows:

The International Nuremberg Principles Academy (Nuremberg Academy) is seeking individuals on an ongoing basis for 3-month internships to support the individual areas of event organization, press, and research. 

They offer interesting and diverse insights into the work of an internationally oriented foundation located in Nuremberg, the birthplace of modern international criminal law

The Nuremberg Academy is a foundation established to promote international criminal law and is based at the site of the Nuremberg Trials, the birthplace of modern international criminal law. It makes it a special priority to work with countries and societies that face challenges in international criminal law. For more information on the requirements to apply and the position, click here.