Month: July 2018

‘Oslo Recommendations for Enhancing the Legitimacy of International Courts’: international judges take a stand on current challenges facing the international justice system

/ Leigh Swigart / 1 Comment

In collaboration with Andreas Føllesdal and Geir Ulfstein of PluriCourts

Fifteen judges from thirteen international courts recently drafted and finalized a set of recommendations aimed at reinforcing the legitimacy of institutions of international justice. These were the participants of the 2018 session of the Brandeis Institute for International Judges (BIIJ), organized collaboratively in June 2018 by the International Center for Ethics, Justice and Public Life, of Brandeis University, and the PluriCourts Center for the Study of the Legitimate Roles of the Judiciary in the Global Order, a center of excellence of the University of Oslo Faculty of Law.

OLYMPUS DIGITAL CAMERA

BIIJ 2018 participants

Over the course of the BIIJ, participants examined carefully how some international courts are currently experiencing ‘pushback’, be it from member states, civil society groups, or even their own parent bodies. The World Trade Organization (WTO) Appellate Body, for example, finds itself at a critical juncture. The United States has recently blocked all new appointments to its seven-member bench, which will soon bring its important trade dispute resolution work to a standstill. The International Criminal Court (ICC) has heard noise about withdrawal by some member states in response to action by its Prosecutor to examine crimes upon their territories.  More generally, international courts and tribunals feel a waning of the late 20th century enthusiasm and support for international justice institutions. BIIJ judges clearly realize that a proactive response on the part of institutions may help them to negotiate current conditions.

The Recommendations, which BIIJ participants drafted and endorsed in their personal capacities, articulate relevant policies and activities in five arenas: nomination and selection of international judges; ethics and judicial integrity; efficiency of proceedings; transparency of proceedings and access to judicial output; and role of judges in outreach and interactions with the public.

We find it first of all important that the fifteen international judges acknowledge the legitimacy challenges facing international courts. It is also significant that the judges believe that both courts and members of their benches have a responsibility to address these issues, and that such responsibility goes beyond what is the ‘primary work of international judges’, i.e. to ‘produce well-reasoned and timely judgments’.

In the section devoted to the nomination and selection of international judges, the Recommendations emphasize the importance of having multiple candidates for judicial vacancies and the need to consider diverse candidates. The document also broaches the question, perhaps publicly for the first time, of establishing age limits for judicial nominees to ensure the ongoing fitness of international judges over the length of their terms. A final provision in this section addresses the need for nomination and selection authorities to ensure that international judges may carry out their work with independence and in security.

The section on ethics and judicial integrity deals with judicial culture in the court as well as ethical issues. It is notable that the judges felt a need to emphasize that dissenting and separate opinions should ‘be delivered with restraint and formulated in respectful language so as not to undermine the authority of the court’.

The provision that ‘[e]ach international court should have a code of judicial ethics whose provisions are well known to judges’ would seem obvious and unnecessary to mention. Nevertheless, some BIIJ 2018 participants reported that while their institutions may have already formalized a set of ethical guidelines, new members of the bench may not be introduced to them nor even be aware of their existence. The guidelines then lose their positive potential.

OLYMPUS DIGITAL CAMERA

International judges drafting the Oslo Recommendations at BIIJ 2018

It is also unusual for international courts, faced with alleged ethical violations by a judge, to appoint ‘an external committee… composed of individuals with relevant knowledge and experience to conduct the investigation and make recommendations’. Some newer institutions have instituted such measures, and this inspired BIIJ 2018 participants to examine the benefits of such an approach. This provision of the Oslo Recommendations thus underscores the wisdom of not confining consideration of potentially serious ethical breaches to internal procedures behind closed doors.

Other provisions of the Recommendations address issues that not infrequently lead to public criticism of international courts. International judicial proceedings may be inefficient and overly lengthy; their judges may take on too much outside work to the detriment of their judicial responsibilities; proceedings cannot always be followed remotely by interested parties; judgments and other judicial output may not be posted or archived in such a manner as to be easily accessible by scholars, other courts, and the larger public; and messaging and outreach by international courts sometimes suffer from inaccuracy and inconsistency.

The Oslo Recommendations for Enhancing the Legitimacy of International Courts represent a first step toward initiating reforms in institutions of international justice that might help them to secure their standing on the world stage. Significantly, this first step has been made collectively by individuals whose positions serve as the fulcrum upon which the entire international justice system balances.

You may read the full text of the Oslo Recommendations here.

 

Introducing our new student editors: Tamiris Askarova, Miriam Azizi, and Khadija Foda

/ Carla Cortavarría / Leave a comment

The IntLawGrrls editorial team is delighted to welcome three new student editors to the blog: Tamiris Askarova, Miriam Azizi, and Khadija Foda.

Picture1.pngTamiris Askarova is a second-year law student at the Benjamin N. Cardozo School of Law. She serves as student editor for the Cardozo Journal of Conflict Resolution. From a young age, Tamiris became involved in fundraising activities at the United Nations, which sparked her interest in international studies. Tamiris then studied political science and journalism at Fordham University, focusing on international relations and levels of democracy throughout the world, studying Latin American politics and gender relations in the political sphere. She speaks fluent Russian and intermediate Italian, is passionate about music and plays guitar.

This past summer, Tamiris interned with both an estate planning law firm helping families secure future interests and a record company to learn about the legal aspect of the entertainment industry. Tamiris enjoys traveling abroad and learning about various cultures and traditions. She is excited to continue studying international relations and human rights in efforts to promote equality.

Picture2Miriam Azizi is a Los Angeles native who recently became a New Yorker. Miriam is currently a second-year law student at the Benjamin N. Cardozo School of Law where she serves as Fellow for the Cardozo Law Institute in Holocaust and Human Rights (CLIHHR). Prior to law school, she majored in sociology at UCLA. There, she developed a deep appreciation for the study of power and inequality in society. Through her legal studies, Miriam hopes to utilize her background in sociology and law to advance international human rights.

Picture3.pngKhadija Foda is a third-year law student at the Benjamin N. Cardozo School of Law. She is interested in human rights law, specifically, corporate accountability for human rights violations. Khadija served as a student intern in the Benjamin C. Ferencz Human Rights and Atrocity Prevention Clinic during her 2L year, working on a corporate accountability project with an indigenous community in Brazil. She also worked for Corporate Accountability Lab (“CAL”) – an organization based in Chicago. As part of her work with CAL, Khadija researched innovative ways to make U.S. statutes work to further human rights.

This past summer Khadija interned at Skadden, Arps, Slate, Meagher & Flom, LLP – a law firm based in New York. She has focused primarily on antitrust work. Her pro bono work during the summer has included an immigration self-petition under the Violence Against Women Act. The previous summer, Khadija worked for Judge Morgan in the Eastern District of Louisiana.

Heartfelt welcome!

We would also like to say farewell and thank you to student editors Osazenoriuwa Ebose and Maria Solomidou who worked with us over the past year. Best of luck in your future endeavors!

The Outrage of Family Separation

/ Shana Tabak / Leave a comment

When I wrote about the Artesia Family Detention Center in this space in 2014, I was convinced that I had seen the worst of the worst.   At that time, the government detained immigrant moms and children together.  While providing pro bono legal assistance there, I was outraged as I witnessed rampant violations of due process, failures to provide kids with education while they languished in detention, disregard for the mental and physical well-being of children, and overall disregard for the rights of asylum-seekers under international human rights law.

Families_Belong_Together_March_Penn_Ave

But, as we all know by now, I hadn’t seen the worst.  What I’ve witnessed this past week providing legal counsel in a South Texas detention center to immigrant parents forcibly separated from their children, goes beyond the pale.  Some aspects of the administration’s zero tolerance policy have been experimented with before, such as criminal prosecution of asylum seekers for the misdemeanor of unauthorized entry, and coercive techniques to break the will of refugees so that they will give up their asylum claims.  But the unprecedented separation of families has led to a palpable sense of desperation among parents who have not seen their kids in weeks, and who were taken away from them in some of the most cruel circumstances one can imagine.

“They lied to you”

One father I spoke with, Eduardo, didn’t realize that, when he went to court, he was saying goodbye to his 5-year-old daughter for much, much longer than just a few hours.

shackles mcallan

“The last time I saw my daughter, I thought we were only going to be apart for 2 hours. The agents said we were going to court and then I’d be back with her.” Eduardo and his daughter crossed the border on June 11. He was proud as he explained to me that he had made a good living in Honduras, and had no desire to leave, until gangs started extorting him for money because of his successful small business.  When the death threats targeted his daughter, he left.  After crossing the border on June 11, the next day, the father was taken to the federal courthouse in McAllen, TX.  There — wearing leg irons, handcuffs, and waist chains — he was criminally prosecuted for the misdemeanor of illegal entry.  After being sentenced to time served, he and dozens of other immigrants were driven back to DHS’s Central Processing Station, a building also known as the “perrera” or the dog kennel, because inside, migrants sleep on the floor and are surrounded by chain fences.

Eduardo explained to me how he realized his daughter was gone. “The agents instructed some of us to remain on the bus.  But, slowly, we noticed that everyone staying on the bus had children.”  As the bus began pulling away from the compound where they had last seen their children, chaos ensued.  Parents started screaming, banging on the windows, crying as they realized they had been separated from their children.  Eduardo asked the bus driver what was happening. “Te mentieron – they lied to you,” was all the driver would say, over and over.

Desperate to Reunify with Children, Parents give up Asylum Claims

Not only are parents and kids being separated from each other, but parents are being forced to give up asylum claims in clear violation of international law.  While working at the Port Isabel Detention Center, near Brownsville, Texas, I met several parents who had signed orders of removal, upon the understanding that doing so and thereby foregoing an asylum claim would expedite reunion with their children.

Some parents clearly felt that they had been coerced to sign orders of removal. Other parents simply shrugged their shoulders and said that no one had told them they had to sign their removal; they just understood, or just hoped, that it would result in seeing their children sooner.

One mom, Alicia, had tried to proceed with the Credible Fear Interview, the threshold conversation with an asylum officer that gives an immigrant in expedited removal the right to have an immigration judge evaluate her asylum case.  Through her tears, she told me that the interview had occurred the day after she’d been separated from her girls.  She couldn’t concentrate. She couldn’t focus. She could barely breathe. She just wanted to get through the conversation as quickly as she could – it felt like a betrayal to her daughters to spend even 30 minutes talking about her fear, rather than being laser-focused on reuniting with her daughters.  Despite what I later learned was a strong claim for political asylum, she received a negative finding of credible fear.

please help me

Clearly, U.S. and international law protecting the right to claim asylum are being patently disregarded in circumstances that involve indefinite detention of asylum seekers, punitive measures for seeking asylum, or subjecting asylum seekers to expedited removal processes.

 

Scrambling to Reunify Parents and Children, Leaving them in Legal Limbo

As I write this, the U.S. government is scrambling to comply with a court-imposed deadline requiring family reunification by July 26.  Yet, based on the numbers, it seems highly unlikely that the government will be able to realize the court’s mandate to reunify families. This crisis was manufactured by the government, as it separated parents from children with no tracking system in place, nor any clear plan for how – or if – to reunite them.  Non-profit legal and social services organizations are picking up the pieces of the puzzle, locating and matching children and their parents, and providing the legal services that they will need to navigate their complex legal statuses.

This week, at the Port Isabel Detention Center, attorneys from around the country worked to locate their clients who had gone missing in ICE’s Online Detainee Locator.  One attorney there met with her client in the detention center on Monday, prepared for a hearing before an Immigration Judge on Tuesday, only to arrive to court on Tuesday to find that her client was no longer at the center.  No more information was offered.  Some of those immigrant parents, we later learned, were released to be reunited with their children, who were simultaneously being flown to Port Isabel from children’s shelters across the country.  Parents were suddenly given their civilian clothes, and ushered out to the detention center parking lot, where their children waited for them in large white ICE buses. Reunions were ecstatic, but tempered by the sense of complete and utter uncertainty as to what happens next.

I visited some of these reunified families who are in legal limbo at a Texas shelter run by Catholic Charities, where the scene was joyous and chaotic. Each reunited family had paperwork reminding them to report for ICE check-ins or court dates, but the legal status of these family units remains unclear.  Many parents had forcibly signed removal orders, which were then vacated as families were released.  Many were unclear: Were their removal orders still valid?  Some parents had received negative CFI determinations while separated from their children.  Were those determinations valid, or might attorneys manage to secure another shot at their claim for asylum, free from the mental trauma of family separation?  Will these families be allowed to pursue asylum claims while they are released, or, must they fear the possibility of family detention at every moment?  Clearly, pro bono legal counsel will be critical to supporting these families through their complex engagement with immigration law, whether these families remain in detention, or scatter to cities across the United States.

Basilica familes July 2018

Today’s Human-Rights-at-Home Crisis

As an international human rights lawyer who is immersed in the human-rights-at-home crisis of immigration law in the U.S., my current work with the Tahirih Justice Center inevitably leads to intellectual tensions.  Human rights law and refugee law lay out the contours of the world as we aspire for it to exist.   And yet, as I represent asylum seekers, employing the domestic legal realization of those international law standards, the imperfections of the Refugee Convention and various human rights instruments are profound.  I have watched as our revered international treaties are trampled on all too frequently.

Last week, I sat in federal court in McAllen and watched a U.S. Attorney prosecute 43 immigrants – many of whom may have valid asylum claims — for the section 1325 misdemeanor of “failing to enter with proper inspection.”  And yet, Article 31 of the Refugee Convention prevents a signatory to the Convention from penalizing unauthorized entry for refugees fleeing persecution.  This blatant disregard for the Refugee Convention is just one stark reminder that through zero tolerance, through prosecution of refugees for illegal entry, through separation of parents from children, and through the commodification of large-scale immigration detention, the U.S. government’s immigration policy flaunts international human rights and refugee law on a daily basis.

NB: For a more in-depth legal analysis of the international law implications of family separation, please consider this piece by ILG Jillian Blake.

Trade Watch 2018: UK Brexit Proposal

/ Andrea M. Ewart, Esq. / Leave a comment

The British government’s proposal for the United Kingdom’s post-Brexit relationship with the European Union has pleased neither the Brexiters nor the EU. It is easy to understand why.

The White Paper, The Future Relationship Between the UK and the European Union, boldly proposes that the UK leave the EU while keeping those aspects of EU membership the Theresa May government considers important or necessary. Boris Johnson, leading voice of the Brexiters, has resigned as UK Foreign Secretary in response to the White Paper. So has David Davis from his post as UK Brexit Secretary. The EU has questioned whether the proposals are workable.

The UK has already concluded a Withdrawal Agreement with the EU under the terms of which the UK is scheduled to leave on March 29, 2019. However, the terms of its post-Brexit relationship with the EU must be negotiated in the next few months – by October 2018. How does one unravel a complex trading relationship established over several decades?

Through a proposal to establish a “deep and comprehensive economic partnership,” along with carefully balanced appeals to both the British people and EU regulators, the UK proposal seeks to maintain the benefits of this trading relationship even after leaving the EU. The proposal documents “the unique ties that exist between the UK and the EU economies”. These ties include the “deeply integrated” supply chains and markets, to which the proposal refers, and which have made the EU the UK’s biggest trading partner.

Of course, these unique ties exist because of the UK’s membership in the European Union for the past 40-plus years. These ties and patterns of trade have helped the UK to achieve and maintain its current position as the world’s 5th largest economy. Disrupting these existing patterns of trade threatens the UK’s economic standing, which could take years, if not decades, to rebuild with new trading partners. This is the dilemma the UK government faces. And the need to avoid re-establishment of a border between Northern Ireland as part of the UK and the Republic of Ireland which remains in the EU has emerged as an unanticipated and complex issue of the Brexit process.

The EU is able to operate as a single market for the free movement of goods, people, and capital because of the negotiated rules that govern the economies of EU members –the very rules that Brexiters voted to escape. To maintain its economic relationship with the EU, a core element of the proposal for the new partnership is the establishment of a “common rule book”of only those EU rules the UK considers necessary for friction less trade between the EU and the UK. This approach is the “cherry-picking” the EU has said it will not allow. Appealing to Brexiters, these rules would be implemented autonomously by UK agencies. At the same time, the proposal assures the EU regulators that it knows how to implement EU rules and would also participate, without a vote, on relevant EU technical committees.Not surprisingly,the proposal on the “common rule book” is at the core of Brexiters’ displeasure with the White Paper.

To manage the relationship, the UK also proposes the introduction a new overarching institutional framework.With the aim of keeping the relationship “practical and flexible”, this new framework would include a Governing Body to provide political direction and a Joint Committee to underpin its technical and administrative functions and to address issues of non-compliance. Rights would be enforced in the UK by UK courts and in the EU by EU courts, with each taking into account the other’s rulings in order to get consistent interpretations.

Although the proposed institutional framework is probably not pleasing to Brexiters either, it may be one of the more thoughtful aspects of the proposal. In fact, the EU may wish to incorporate some of them in the future.

With respect to Brexit, however, it is difficult to see why the EU would be willing to add an entire new layer of institutions just to manage its relationship with one country. And there is also the concern that other countries might want to “leave” and negotiate similar arrangements.

Upcoming posts will discuss in greater detail the UK Brexit White Paper, which includes proposals on –

  • Trade in Goods
  • Services and Investment
  • Framework for Mobility
  • Institutional Framework for the new EU-UK Relationship

The UK government plans to use these proposals to engage the EU as they negotiate the EU-UK post-Brexit relationship. We will have to see – is the UK-EU relationship as important to the EU as it is to the UK?

Please like, share, comment on the Post.

Go On! Int’l Nuremberg Principles Academy Call for Papers & Conference

/ Carla Cortavarría / Leave a comment

download.jpeg

Go On! makes note of interesting conferences, lectures, and similar events.

► The International Nuremberg Principles Academy is pleased to announce and invite you to Nuremberg Forum 2018 – 20th Anniversary of the Rome Statute: Law, Justice and Politics, a major annual conference held in Nuremberg, Germany on October 19-20, 2018. The conference will pay tribute to the 20th anniversary of the Rome Statute and will critically evaluate the past 20 years while also looking at the next 20 years in terms of practice and the ever-changing landscape of the International Criminal Court (ICC). Registration is now open. Click here for more details.

 

Write On! Chinese Univ. Hong Kong

/ Carla Cortavarría / Leave a comment

unnamed 3

This installment of Write On!, our periodic compilation of calls for papers, includes calls to submit papers to The Chinese Univ. of Hong Kong, as follows:

► The Chinese University of Hong Kong is calling for paper proposals for its conference on “Gender, Sexuality, and Justice: Resilience in Uncertain Times”, to be held on December 7-8, 2018 at the university in Hong Kong. This conference aims to examine issues of gender, sexuality, and justice as they intersect within social contexts. Individual papers or panel proposals should be sent to genderconference2018@cuhk.edu.hk by August 1, 2018. For more information, click here.

Work On! European Univ. Institute & AU Washington College of Law

/ Carla Cortavarría / Leave a comment

Work On! is an occasional item about workshops, roundtables, and other fora that do not necessarily include publication:

unnamed.png► European University Institute‘s School of Transnational Governance invites you to participate in its seminar: Executive Training on Gender and Media, taking place in Florence, Italy, on September 26-28, 2018. This Executive Training Seminar brings together leading academics and practitioners to provide participants with the latest facts, figures, ideas and analysis about gender-based discrimination in traditional and digital media. Deadline to apply is: August 3, 2018. For more information, click here.

►American University Washington College of Law’sunnamed (1).png Academy on Human Rights and Humanitarian Law is currently accepting applications for the LL.M. in International Human Rights and Humanitarian Law. This master’s program is the only LL.M. program in International Human Rights and Humanitarian Law in the United States to offer a hybrid curriculum of its kind in a U.S. law school. AUWCL has built a significant reputation in this field and it is highly recognized around the world. Its unique location in Washington D.C. offers unparalleled opportunities to legal professionals from the U.S. and around the world. Get more information here. This program is currently accepting applications for the Spring 2019 semester. The deadline to apply is December 1st, 2018.

 

U.N. Sanctions Can Help Stop Rape in War

/ Sophie Huvé / Leave a comment

Sexual violence is clearly prohibited in peacetime and wartime, both by international human rights law and the lex specialis international humanitarian law. Despite these prohibitions, sexual violence remains prevalent in many modern conflicts. Furthermore, it continues to be used intentionally by government forces and militias as a weapon in order to achieve military or political objectives. As seen in Myanmar, South Sudan, Syria and the DCR, sexual violence is used effectively to terrorize, forcibly displace, ethnically cleanse, and control civilian populations seen as the “enemy”- at the cost of women and girls.

In 2008 the United Nations Security Council (UNSC) issued a groundbreaking resolution (1820) that threatened the use of targeted sanctions against individuals ordering, tolerating or engaging in sexual violence as a weapon of war. Sanctions, foreseen in article 41 of the UN Charter, are one of two coercive powers that the Security Council holds under Chapter VII. Through the threat of coercive measures, the UNSC thus affirmed its ability and willingness to place meaningful restraints on sexual violence in conflict.

This was a groundbreaking and welcomed move. Designation criteria relying on international human rights and humanitarian norms have the potential to reinforce legal frameworks on prevention and accountability. Indeed, targeting political and military commanders with sanctions can create an incentive to stop deliberately ordering or implicitly tolerating sexual violence committed by their soldiers. Sanctions can compel commanders to change behavior and exercise better control over troops.

But ten years after the UNSC first threatened sanctions, where are we in practice? This question drove Georgetown University’s Institute for Women, Peace and Security to investigate whether the Security Council actually translated its threat of sanctions into concrete action.

We studied 8 sanctions regimes in countries characterized by continuing armed conflict and massive human-rights violations, including the use of sexual violence as a tactic of war: Central African Republic, the Congo, Libya, Mali, Somalia, South Sudan, Sudan and Yemen. Our report finds that sanctions have great potential, but are largely underutilized and implemented ineffectively.

Unfortunately, the inclusion of sexual violence in sanctions regimes is not consistent, nor is it timely. Some sanctions regimes do not once mention sexual violence as part of the designation criteria – despite evidence of widespread use (such as in Sudan). Some regimes include references to sexual violence, but only decades after the first violations were reported (such as in Somalia). Moreover, follow-up of the threat of sanctions with concrete designations of individuals is often neither timely nor reflective of the main perpetrators. Failure to act on the threat of sanctions actually gives perpetrators permission and incentive for brutality, because it gives them confidence that no meaningful rebuke will follow. Continue reading →

Introducing Sophie Huvé

/ Carla Cortavarría / Leave a comment

sophie_headshotIt is our great pleasure to introduce our new IntLawGrrls contributor Sophie Huvé!

Sophie is the 2017-2018 Hillary Rodham Clinton Law Fellow with the Georgetown Institute for Women, Peace and Security. She received her LLM in international legal studies at Georgetown University Law Center, with a certificate in international human rights. Before coming to Georgetown Law, Sophie interned with the UN Security Council Affairs Division, where she worked on the UN sanctions regimes and published a book on Russia’s foreign policy toward the United Nations. She graduated with a master’s degree in international public law and international organizations from Sorbonne Paris I University.

Heartfelt welcome!

Debating the Istanbul Convention in Lithuania: The Term ‘Gender’ is not Alien

/ Laura Nacyte / Leave a comment
Istanbul Convention_Pixabay.png

(Pixabay)

In June 2018, Lithuanian president Dalia Grybauskaite submitted to the national parliament the Council of Europe Convention on preventing and combating violence against women and domestic violence — known as the Istanbul Convention — for ratification. Entered into force in 2014, the Convention provides a comprehensive set of policy and legal measures to prevent and prosecute violence against women and protect the survivors.

Yet the treaty is bound to face political opposition, as demonstrated by the earlier parliament’s decision to put on hold its ratification. The main reason for the delay was the use of the term ‘gender’ in the Istanbul Convention. In accordance to Article 3c, ‘gender’ means ‘socially constructed roles, behaviours, activities and attributes that a given society considers appropriate for women and men’. The term is central to the Convention since it depicts violence against women as gender-based. In other words, it views gender violence as a consequence of power inequalities between men and women, which are rooted in sociocultural norms. The critics in Lithuania assert that the concept of ‘gender’ is unfamiliar to national law. It is further argued that the treaty challenges binary sex system and paves the way to the recognition of lesbian, gay, bisexual and transgender (LGBT) people.

This post, however, asserts that the concept of ‘gender’ has been long present in national law consequent to the country’s entry into two international treaties, 1979 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the 1998 Rome Statute of the International Criminal Court (ICC). Relatedly, existent gender obligations are highlighted, including those owed to LGBT people.

CEDAW: promoting gender equality

The ruling Lithuanian Farmers and Greens Union party previously suggested that CEDAW, which Lithuania ratified in 1994, provided a sufficient framework to tackle violence against women. As a treaty dedicated to the elimination of discrimination against women, it is absent of the term ‘gender’ and is believed to overlap with the Istanbul Convention.

 Such arguments are defective. CEDAW does not contain a specific provision on violence against women. It is true that CEDAW uses the term ‘sex’, not ‘gender’; in substance, however, CEDAW is in alignment with the Istanbul Convention insofar both treaties require the state parties to undertake measures altering proscribed gender roles. For instance, CEDAW mandates the state parties:

 ‘To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women’ (Article 5a).

 ‘To eliminate ‘any stereotyped concept of the roles of men and women at all levels and in all forms of education by encouraging coeducation and other types of education which will help to achieve this aim’ (Article 10c).

 Appreciation of sociocultural factors is also evident in general recommendations of the Committee on the Elimination of Discrimination against Women, the treaty monitoring body. General Recommendation 28, for example, stipulates that ‘although the Convention only refers to sex-based discrimination . . . [it] covers gender-based discrimination against women. The term ‘gender’ refers to socially constructed identities, attributes and roles for women and men’. The addition of ‘gender’ to the Committee’s documents does not conflict with CEDAW. On the contrary, it provides the name to the addressed social dimension of inequality between women and men. The name, which entered a vocabulary of international law only in 1990s, after CEDAW was made. 

 The genie is out of the bottle: just as resistance to the concept of ‘gender’ due to its newness appears to be ungrounded, so does the belief that Lithuania does not have commitments to LGBT persons seems to be false. As Article 1 of CEDAW demonstrates, the treaty is a non-discrimination instrument targeting ‘any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing . . . of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field’. It may therefore be applicable, for example, to lesbians whose rights to marriage, health care and employment are adversely affected owing to heteronormative impositions.

The Rome Statute and the pioneer legal definition of ‘gender’

The Rome Statute may seem to have little relevance to the debates surrounding the Istanbul Convention and violence against women. It established a permanent international criminal court which has the jurisdiction to prosecute individuals over the crimes of genocide, crimes against humanity, and war crimes. Yet for the purpose of this article, the Rome Statute significant, since it was the first international treaty to define ‘gender’. Its ratification by Lithuania in 2003 demonstrates that the country encountered the term; and was presented the opportunity to engage the concept through its translation.

In accordance to Article 7(3) of the Rome Statute, ‘gender’ refers to the ‘two sexes, male and female, within the context of society’. This rather peculiar conceptualisation has a clear deterministic foundation: it acknowledges only two sexes, male and female. As I contended elsewhere, it may consequently exclude intersex individuals who are neither female nor male: they possess a combination of male and female genitalia, or have ambiguous genitalia.

The phrase ‘within the context of society’, meanwhile, enables the ICC to consider contextual factors, including gender roles, social attitudes, and sexual orientation. Article 7(3) has the scope of accommodating LGBT persons since most of them identify themselves as either male or female, yet they tend to experience discrimination due to non-adherence to heterosexual norms. The social construction of gender has also been highlighted by the ICC Office of the Prosecutor. Its 2014 Policy Paper on Sexual and Gender-Based Crimes explains that the definition of ‘gender’ ‘acknowledges the social construction of gender, and the accompanying roles, behaviours, activities, and attributes assigned to women and men, and to girls and boys’. Alas, the sociological component is lost in the Lithuanian translation of Article 7(3); in effect, it conflates ‘gender’ with ‘sex’.

So the Istanbul Convention would neither introduce the term ‘gender’ nor impose the requirement of LGBT-inclusive gender equality — both have been part of Lithuanian international responsibilities. It would, however, assist the country in addressing the root causes of gender-based violence, criminalise the latter adequately, and implement victim-centred protection and support measures.