Month: November 2015

Launch of the Nordic Women Mediators’ Network

/ Cecilia Marcela Bailliet / Leave a comment

On November 27th 2015, representatives of the Ministries of Foreign Affairs of Norway, Sweden, Finland and Iceland gathered at the Nobel Peace Centre in Oslo, Norway to launch the Nordic Women Mediators Network.  State Secretary, Tore Hattrem, of MFA Norway explained that this initiative was inspired by a South African network of women mediators.   He expressed the belief that the implemenation of sustainable peace could only be achieved by including meaningful participation of women in peace negotiations.  The persistent lack of women peace negotiators in spite of UN Security Council Resolution 1325 was recognized, between 1992 and 2011, only 9% of peace negotiators and 2% of lead mediators were women.  Hattrem noted that it was important for the Nordics to lead by example, hence they should ensure that their own delegations and negotiation teams are gender balances and address gender issues, as well as support the appointment of women as UN Special Envoys, Special Representatives, Ambassadors, and other Offices.  He concluded by stating “It is not about counting women, it is about making women count.”  Ambassador Ann Bernes (MFA Sweden) underscored how this network fit in within Sweden’s Action Plan for a Feminist Foreign Policy.  Stefan Haukur Johannesson (MFA Iceland) suggested that it was essential to engage men in supporting gender awareness, encouraging them to become agents of change to support gender empowerment.

There was discussion about the common heritage of the Nordic countries in implementing gender equality through public education, health care, child care, social safety nets, etc. In addition “Nordic” was considered to be a good brand name in international affairs that could help push the aspiration of promoting gender empowerment throughout the world.

The launch included a high-level panel of women mediators and negotiators who provided vivid reflections on their experiences in the field.  Hilde Frafjord Johnson, former Special Representative of the Secretary General (SRSG) and Head of the UN Mission in South Sudan (2011- 2014), observed that since women are more seldom belligerents they are more often excluded from cease fire negotiations.  She indicated that peace negotiations should ideally be divided into different stages, separating the cease fire stage from the state building/peace building stage which would address political and social issues relating to marginalization and exclusion that should include women.

Greta Gunnarsdottir (Ambassador of Iceland) commented that women always face the challenge of having to prove that they are competent and that they have something to bring to the table, whereas in the case of men this is never questioned, rather it is taken for granted.  She pointed out a climate of indifference or irritation regarding gender issues among many actors.  The lack of a woman UN Secretary General and the presence of only token women representatives within the UN General Assembly were noted as giving evidence of the poor status of women around the world.

Karin Landgren ,former Special Representative of the UN Secretary-General who led the UN Missions in Liberia, Nepal, and Burundi, called for increased support of conflict prevention and mediation efforts, in spite of the fact that these approaches are not easily marketed to donors who may not be oriented towards long term perspectives.

The objectives of this network are:

  • To increase the number of Nordic women that are actively involved in international peace mediation efforts.
  • To connect with and promote networks of women mediators in the South, both at country level and in regional organizations.
  • To serve as a pilot for similar initiatives in other regions or at the international level, through close coordination with the UN.

 

One member of the audience recounted  the Nordic Women’s Peace Marches against nuclear weapons in Europe (1981), in the USSR (1982), and USA, suggesting that Nordic women have a long history of cooperation for peace and that this initiative had good prospects for success.

This event was co-hosted by PRIO and NOREF.

Litigating for Compensation for the Acquitted

/ Beth S. Lyons / 1 Comment

When Major F. X. Nzuwonemeye, one of the Co-Accused in the “Military II” case at the ICTR, was acquitted by the Appeals Chamber in February 2014, he had already served 2/3rds of the 20-year sentence which had been imposed by the Trial Chamber. [1]  In most jurisdictions, the completion of 2/3rds of the sentence makes the person eligible for release. The legal grounds for acquittal included a fair trial violation of notice, as well as evidentiary errors by the Trial Chamber. Major Nzuwonemeye is now living in a “safe house” in Arusha, Tanzania, because no country where he can safely live has accepted him. See my posting at https://ilg2.org/2014/05/19/acquitted-but-still-not-free/ .

At the time of his acquittal, the client had already served the punishment for the crimes for which he was acquitted. On its face, this is a grave and manifest miscarriage of justice. It should be a given that an international tribunal would remedy this violation of human rights.

 But this did not happen. In August 2015, the MICT (which replaced the ICTR and ICTY) dismissed our Motion for Compensation and Damages for lack of jurisdiction. The complete pleadings are available on the MICT website at www.unmict.org.  They include the Defence Motion and Additional Submissions, the Prosecution’s Response and Additional Submissions and Decisions, between February and August 2015.

Unfortunately, the denial of compensation to Major Nzuwonemeye and other acquitted persons was not unexpected. No compensation has been granted except in one ICTR case: Rwamakuba was awarded $2000 for a breach of his right to counsel. This pittance effectively ridicules the violation of his rights.

Although there is no legal right to compensation in the Tribunal’s Statute, appellate jurisprudence unequivocally holds that there is an obligation to provide effective remedies for human rights violations. Therefore, if the Tribunal decided to provide compensation as a remedy to those who were acquitted, it would figure out a way.

In fact, in 2000, the Presidents of the ICTY and ICTR, Judge Jorda and Judge Pillay, requested that the Statutes for the ad hoc tribunals be amended to include the competency for compensation in three situations: a) when a person has been acquitted; b) when there has been a violation resulting from wrongful arrest, prosecution or conviction; c) unlawful detention. This never happened.

The failure to provide a financial remedy to the acquitted cements the well-known notion that the possibility of acquittal was never envisioned by the Tribunal. A spokesman for the ICTR, then ICTR Deputy Registrar Everard O’Donnell explained:

The simple fact is—and there is some truth in this particular fact—that no proper provision was made for acquittal at the beginning of the setting up of the Tribunal. That much is a fact, and it’s one that we have been struggling with in the registry ever since. There was no budget for dealing with acquitted persons.[2]

I do not think that the absence of compensation in the ICTR or ICTY Statutes was an oversight, or an act of negligence. Rather, it objectively illustrates that the presumption of guilt is alive and well in international justice.

Will the presumption of guilt be allowed to continue to smother the right to be presumed innocent?   Will violations of human rights principles of fair trial be remedied?   The successful survival of international justice depends on the answers.

[1] Major Nzuwonemeye was represented at trial and on appeal by Lead Counsel Chief Charles A. Taku and Co-Counsel Beth S. Lyons.

[2] International Symposium, Geneva, ‘International Criminal Tribunal for Rwanda: Model or Counter Model for International Criminal Justice? The Perspectives of the Stakeholders’, Session 4, Geneva, 10 July 2009, p 12. Available at www.ictr.org.

 

On the way to Paris – what to expect of a global climate agreement?

/ Christina Voigt / Leave a comment

Two weeks from today, on Monday 30 November 2015, the Conference of the Parties to the United Nations Framework Convention on Climate Change will open in Paris. The Conference will last for 2 weeks and is mandated to adopt a legally binding agreement. Despite the horrible attacks in Paris, the French presidency – and the world – is determined to work constructively towards reaching an agreement.

Perhaps never before has there been such a strong political resolve for global action on climate change. Certainly, never before has the scientific basis (and warning) been so strong. Yet, never had State Parties to negotiate an issue so complex, challenging and global both in its political, social and economic nature and its factual and moral inter-linkages. At the same time, never was the need for effective solutions so urgent. Finding consensus, compromises and landing zones will, therefore, be a difficult task given the current status of the negotiation draft, but not impossible.

But what can the Paris agreement deliver?

The backbone of the agreement will be nationally determined contributions – climate change mitigation action plans which Parties develop based on their national circumstances and capabilities. So far, 161 states have submitted their intended nationally determined contributions. Though those states collectively stand for about 93 per cent of global greenhouse gas emissions, the current plans are not enough. They still set the world on a path towards 2.7 to 3 degree Celsius warming, as a recent UNFCCC synthesis report indicated.

The significance of the agreement will therefore lie in complementing a bottom-up, sovereign approach to climate action with a durable, dynamic and flexible process to enhance the individual and collective level of ambition over time. In doing so, a careful and difficult balance needs to be struck between effectiveness and equity.

While states’ sovereign circumstances determine much of the initial actions, the agreement is expected to comprise of dynamic elements that aim at ramping up the aggregate level of action. These elements include, inter alia:

  1. Up-dating of nationally determined mitigation contributions in regular intervals, most likely every 5 years. In up-dating their contributions, Parties should progress, meaning that each up-date should go beyond previous undertakings. Furthermore, it is expected that Parties’ actions constitute each Party’s best efforts.
  2. A global stock-take of aggregate progression towards halting the increase of global temperatures to well below 2 degrees Celsius should be conducted every 5th year – where the outcome of the stock-take will inform and guide Parties up-dates on their national determined contributions.
  3. The agreement must also include a credible single framework for transparency of action and support, comprising of measuring, monitoring, reporting and reviewing progress. Transparency is an important pull-factor, enabling peer-pressure, as well as criticism and pressure from domestic constituencies and civil society worldwide.
  4. Collaborative and cooperative approaches among Parties, for example through the use of market-mechanisms, which aim at enhanced levels of ambition.
  5. A mechanism to promote compliance and facilitate implementation of the provisions of the agreement in order to avoid  that Parties fall behind their international Commitments.

In practical terms, the Paris conference will unfold in an unprecedented manner:  Day one of is reserved for Heads of State and Government. Several of the most controversial issues, such as differentiation and finance have proven to be too difficult for negotiators to resolve. Clear guidance is therefore needed from the highest political level, which will inform the negotiations both on expert level and – for the final days – on ministerial level.

In a recent statement, the UN Secretary-General addressed G20 Heads of State and Government by stating: “The time to make the right choice is now. In Paris, let us choose not only to survive, but to thrive.”

The expectation of the Paris agreement is that it provides the international legal tools to set the world on such a path. If done rightly, it will emerge as a new type of an international legally-binding instrument, which sets in motion global, dynamic and iterative processes which over time will bring about effective collective action while respecting differences.

Professor Dr. Christina Voigt

University of Oslo, Department of Public and International Law

Legal Advisor to the Government of Norway at the UN climate negotiations

Converging law, Security Council resolutions and (un)intended international legal effects

/ Sarah M. Field / 1 Comment

As opined elsewhere,* international human rights law may be viewed as the juristic holder of our ‘embodied vulnerability’ to hurt and harm. And, as such, it transcends time and space; it continues to be seized, shaped and expressed by those made vulnerable. However it is also in flux: its legal expression is partial and ‘embodied vulnerability’ itself is fluid. Consider treaty law: layered beneath the content and framing of substantive treaty provisions is the treaty making process; constructive ambiguity may be co-opted as a tool to promote agreement; notable absences may signify an agreement shortfall—or alternatively unexpressed or as yet unfelt/imagined vulnerability. Viewed in this way, the imperative of deepening the connection between ‘embodied vulnerability’ and its legal expression is ongoing. And this is evidenced by the adoption of multiple thematic human rights treaties in the past quarter of a century. However, two conflicting dynamics undergird the prima facie certainty of the law: the ever present forces of progression and regression. The Security Council is an extraordinary source of those forces; and the thematic resolutions on children a particular expression of their sometimes progressive, other times regressive effects.

This, the Council’s law effecting potentiality, is heightened by a confluence of legal dynamics flowing from its primary responsibility. These flow principally from the depths of the relations between that responsibility and egregious violations of international human rights and humanitarian law: the latter may, after all, if not provoke, exacerbate, threats to international peace and security. Thus the Council increasingly, if non-consistently, seizes its discretion to escalate conduced compliance with applicable international legal obligations, as exemplified by the aforementioned thematic resolutions. In so engaging, the Council necessarily interprets and expresses applicable international law ‘in’ and ‘through’ its resolutions including international law relating to children. However international legal equivocation frames the extent to which it is bound within its decision-making processes by broader international law, beyond the Charter of its birth. Yet these resolutions if not legal acts have legal effects: the resolutions (or selected provisions thereof) may inform subsequent practice (by guiding the interpretation and implementation of applicable treaty law) or be cited, themselves, as evidence of subsequent practice.

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Casas de la Memoria to Conviction?

/ Rachel E. Lopez

From “casas de la memoria” in Guatemala, Peru, and El Salvador to an upcoming international colloquium in Spain entitled “From Past to Future: Memory and the Process of Transition,” the development of collective memory – an enduring and shared memory of events – is taking center stage as one path toward healing the wounds of a tattered national conscience and preventing the recurrence of mass atrocities. But to what extent is collective memory compatible with judicial systems, which tend to be very individual-centered?

An annual online symposium co-hosted by Opinio Juris and NYU Journal of International Law and Politics (JILP) that went live this morning is exploring this very question. The focus of the symposium is The (Re)collection of Memory After Mass Atrocity and the Dilemma for Transnational Justice, my article that was recently published in Volume 47, Number 4, of NYU JILP.

The impetus for this article arises from the challenges I encountered in working with survivors of mass atrocity. The indivisibility of their memory struck me, as did the healing and bonds it generated. As I began to examine the literature on collective memory, I realized that I was not alone in this observation. Scholars from disciplines ranging from sociology to clinical psychology have written about and documented collective memory and its cathartic effects.

My article explores the tension between the preservation of collective memory and another impulse that follows mass atrocity: the desire for justice. Because many judicial systems are heavily influenced by notions of individualism, they are by design ill equipped to accommodate collective memory. Traditional rules of evidence and professional conduct often exhibit a single-minded focus on individual representation by replicating models that assume one client who autonomously makes legal decisions without consulting his or her community. Bound by these rules, attorneys must disrupt or even dismantle collective memory, thereby retraumatizing their clients.

In this article, I offer an alternative. I believe that human rights attorneys should instead endeavor to preserve and promote collective memory. For that reason, I urge a fundamental rethinking of the law’s preference for individual memory in the context of transitional justice. I believe that the inclusion of collective memory would better serve the goals of transitional justice by facilitating a more complete understanding of the collective harms of mass atrocity and possibly advancing reconciliation.

Today and tomorrow, Opinio Juris will feature comments on my article from four distinguished scholars:

• Mark A. Drumbl is the Class of 1975 Alumni Professor of Law and Director of the Transnational Law Institute at Washington & Lee University.
• Naomi Roht-Arriaza is Distinguished Professor of Law, University of California, Hastings College of Law (and a fellow IntLawGrrl! –Ed.).
• Ruti Teitel is Ernst C. Stiefel Professor of Comparative Law at New York Law School.
• Johan D. van der Vyver is the I.T. Cohen Professor of International Law and Human Rights, Emory University School of Law.

Tomorrow, I will respond to their comments. I welcome you to join the conversation by posting your thoughts here.

Introducing Rachel López

/ Karen Hoffmann / Leave a comment

lopezIt’s our great pleasure today to introduce Rachel López as an IntLawGrrls contributor. Rachel is an Assistant Professor of Law at the Thomas R. Kline School of Law at Drexel University, where she teaches international human rights law and directs the Community Lawyering Clinic at the Dornsife Center for Neighborhood Partnerships which provides free legal services, mostly to the residents of West Philadelphia.  Her scholarship focuses primarily on methods of accountability for human rights violations and reforms to transitional justice mechanisms.

Rachel received a B.A. from Northwestern University, a J.D. from the University of Texas, School of Law, and an LL.M. from Université Paris 1, Panthéon-Sorbonne.  She has litigated human rights cases before the Inter-American Commission on Human Rights, the International Criminal Tribunal for Rwanda, the African Commission on Human and Peoples’ Rights, and domestic courts in the United States. Her first post will discuss her article, “The (Re)collection of Memory After Mass Atrocity and the Dilemma for Transnational Justice,” the subject of the annual online symposium over at Opinion Juris. Heartfelt welcome!

Write On! Call for Papers: Inequality and Human Rights (deadline 1 December)

/ Karen Hoffmann / 1 Comment

The Bernard and Audre Rapoport Center for Human Rights and Justice at The University of Texas at Austin School of Law has issued a Call for Papers [pdf] for an interdisciplinary conference on the theme “Inequality and Human Rights,” to be held April 7-8, 2016.

Since the current global financial crisis began in 2008, income and wealth inequality both within and between countries has come under attack from multiple perspectives. While there is much methodological debate about how best to measure economic inequality globally, many of the figures are alarming. According to a recent report by Credit Suisse, half the world’s wealth is now owned by just 1% of the population, while the least well-off 50% own just 1% of global wealth.

Poverty, wealth and economic inequality are neither natural nor innate. Processes of impoverishment and uneven accumulation are produced, stabilized and sometimes challenged through legal and institutional arrangements, market competition, and social struggles. To date, human rights approaches to social and economic rights have primarily focused on poverty alleviation and the guarantee of basic rights. While not insignificant, these approaches have rarely attended to issues of extreme wealth or the social distribution of wealth.

We invite papers from any discipline that consider whether international human rights law, movements, and discourses have, could or should engage with the problem of economic inequality nationally or internationally. Are human rights frameworks equipped to address economic inequality? Might their promotion foreclose other, more effective, vocabularies and strategies aimed at economic justice? How might human rights frameworks need to change to contribute to a more egalitarian world?

We particularly encourage papers that consider these questions through contextualized examination of key sites of struggles over the distribution of income, benefits, access, decision-making power, and risk exposure. Such sites might include policies and practices around taxation, money and finance, debt (both sovereign and personal), development, natural resources and the environment, education, intellectual property, criminalization, borders and migration, labor, housing, land ownership, and military intervention. Although our focus is on economic inequality, we also encourage papers that attend to the ways in which it interacts with other forms of inequality, such as those based on gender, race, nationality and physical and mental ability.

Please send an abstract of under 600 words to Julia Dehm (jdehm@law.utexas.edu) by December 1, 2015. A limited number of travel grants are available to support travel costs for selected participants who are unable to receive financial support from their home institutions. If you wish to apply for a travel grant, please complete an application form (available at https://goo.gl/Jk33Ai).

For the life and health of my children: We MUST include Human Rights in the New Climate Accord

/ Astrid Puentes Riaño

We humans have caused climate change, a real threat to humanity thus it requires human solutions.  We also have lost precious time on eternal discussions about the existence of climate change, despite imminent evidence.  Our efforts to deliver solutions must be inclusive and ambitious if they are to ensure that the lives and livelihoods of all people are protected.

If and how to include human rights protections in new climate accord was one of the primary issues discussed during October’s Bonn Climate Conference. These protections were notably left out of the no-text presented by the co-chairs, and then added back in at the insistence of several countries, many from the Global South, and hundreds of civil society organizations.

I could write a long list of legal, political, ethical, and economic arguments as to why human rights must be included in the Paris Agreement. In my opinion, however, they can all be distilled into two primary and powerful arguments: my children!

At 4 and nearly 2 years old, they are already experiencing the realities of a changing climate.  Some days, for example, they cannot go to the park because of increased air and climate pollution levels in Mexico City, be it black carbon or ozone, or both.  Unfortunately, the worst is yet to come, as hurricanes, droughts, floods, glacier loss, and fires are all increasing.

UntitledNow the question for my kids is not whether they will suffer from climate change, but to what extent.

Some may say I’m exaggerating, and that my kids aren’t among the most affected. They’re right.

Many others are suffering, and will continue to suffer, far worse consequences, such as: the Kunas in Panama, who are loosing their land due to sea-level rise; the 62 million people living on 52 small island states, including Tuvalu and Barbados; the 70 million people in the Andes, all of whom depend on water from glaciers and paramos, which are expected to dissapear within a few decades.

Despite the evident urgency, official responses have been shamefully slow. The United Nations recently announced that current national commitments aren’t enough to prevent world temperatures from surpassing 2oC by 2100, when my children will be 89 and 87 years old.

How, then, can we speed up agreements, increase ambition, and close the gap between what is needed and what is promised by States?

Human Rights are an important part of this answer. If implemented, they can help to:

  1. Recognize the realities of climate change and its impact on the enjoyment of human rights of all peoples, particularly those in vulnerable situations.
  2. Remind States of their existing obligations to protect and respect human rights, obligations which are fundamentally shared by corporations and other international entities. Incorporating human rights in the climate change agreement will not create new obligations; it will instead allow us to be consistent and comply with preexisting commitments.
  3. Avoid increased threats to world stability that have been linked to climate change due to impacts such as: local resource competition, livelihood insecurity, migration, extreme weather events and disasters, volatile food prices, transboundary water management, sea-level rise, coastal degradation, and the unintended effects of climate policies.
  4. Spur effective solutions, such as the rethinking of energy. These kinds of solutions haven’t yet been achieved due to a lack of ambition and political will.

For my son and daughter, and the millions of children of the world, we must accept that climate change is a human rights issue. For the health of future generations, and that of those already suffering from its impacts, we must do all we can to create effective solutions.

The new climate accord, which will be signed in Paris this December, must include human rights protections in its Preamble, as well as in its operative text. Only then, with an overarching respect for the rights of all people, can begin to see the results we need in the fight against climate change.

We must take the climate crisis seriously.

If not, we will be trapped in short-sighted negotiations that won’t provide my children the hope of a dignified and healthy life. They will be left inside, unable to play in the park, to enjoy the world beyond our doorstep. And those in more vulnerable situations may be left with nowhere at all to find the shelter they seek.

“What’s gender got to do with it?”: Historic diversity in Canada’s new Cabinet

/ Dr. Cassandra Steer / Leave a comment

Yesterday Justin Trudeau was sworn in as the 23rd Prime Minister of Canada and he brought with him gender parity in the Cabinet for the first time in the country’s history. Trudeau is a self-proclaimed feminist, and had made it an election promise to nominate 50% of his minsters as women. Although others have made similar statements in the past, he was the first to fulfill on that promise. Asked after his swearing in ceremony why gender parity is so important to him, his answer was simple: “Because it’s 2015.”

The pool of women in the party from whom he could choose as his minsters was significantly smaller than the pool of men: there are 134 men and 50 women MPs in his Liberal party. And although a record number of women were elected to the House of Commons across all parties, a total of 88, this still only represented 26% of all MPs. Apparently choosing 15 female MPs to be part of his Cabinet has meant that some long-standing male MPs missed out on being picked, and as former Liberal Premier of the province of Quebec, Jean Charest stated: “There are lot of people who legitimately feel they could sit around that table and they won’t be there.”

What an interesting statement. Especially coming from Charest, who himself brought gender parity to the Quebec provincial government in 2007. Charest has made public statements that he supports Trudeau’s appointments, and that it is “a message to Canadian women — and young women in particular — that this world is about you…You have to move beyond the old boy’s network.”

So why is it a problem that there are some people who legitimately feel they could sit around they table and won’t be there? Aren’t there plenty of women who have felt that way for decades?

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