Interview with Professor Mark Drumbl (Part-2)

4. The recent reparations order in the Ntaganda case mentions that collective reparations will be provided through the Trust Fund for Victims. Do you have any suggestions in mind with regard to how the Trust Fund for Victims can deliver reparations efficiently and in a time-bound manner?

One of the major problems is resources. The trust fund is undercapitalized. Now we have Ntaganda, and we had quite a significant amount of reparations awarded in Al- Mahdi. The Trust Fund has made awards in the past, at times unrelated to actual convictions like in Uganda. I remember speaking to a reporter about Ntaganda and it almost seems to me that reparative awards are going in the direction of symbolic justice. This may not intrinsically be a bad thing but then it should be described as such, which it is not. I cannot help but wonder if the entire reparative structure of international criminal justice would be better served by creating an independent commission apart from the ICC.

My other concern with reparative justice at the ICC is that, fundamentally, the ICC is a penal organization and reparative justice has been added on to it in the form of the Trust Fund and proceedings related to reparations. The norm is punitive justice and then you have this add-on. Add-ons are always subjacent and the second priority.

We do not need scattered penal judgments to tell us which societies are in need of reparations to deal with mass victimization.

Another concern that I have is the existence of the Trust Fund which might divert attention from the fact that through other forms of foreign aid which I would prefer to call our cosmopolitan duty we can inject large amounts of funds into places that have witnessed mass atrocities with the view to societal reconstruction. Why does it have to be connected to guilt or innocence of a small number of perpetrators who for reasons of absolute coincidence just happen to fall into the custody of ICC? I worry about that as well. The more we talk about Trust Funds, the less we feel we need to talk about the fact that reparations do not require a courtroom to be given.

5. What are your opinions about considering ecocide as an international crime?

I have written about ecocide in the past. I am skeptical that this is something that should fall within the framework of the ICC. I do not think it has the resources. I am not certain what kind of awards the Court can issue that would actually in this instance be reparative. I think for crimes such as environmental crimes the push should be for greater consciousness at the national level. The total amount of environmental damage worldwide that is created by individuals purposefully acting malevolently is quite small. The greatest challenge that the younger generation faces are things like climate change where the contribution to the problem are not mens rea crimes. They are not intentional acts to deliberately emit greenhouse gases. They are generally ordinary, lifestyle choices that are made every day to commute to work, to cool or heat a home, to develop economically, or general policy of corporate negligence. All of those are very difficult to fit in the mens rea frame and of course, ecocide carries the term genocide which would then rhetorically at least require to have a very high special intent which would capture a tiny fraction of environmental harm. I think we are much better of thinking creatively about how to deal with climate change and that would not be by creating penal institutions that do not do much work in that area because they cannot. Your generations’ challenge also is to deal with public health atrocities. The percentage of people who deliberately spread COVID is diminutive. COVID is spread through carelessness, ignorance, desperation, poverty. I think your generation’s challenge is to develop institutions that focus on harm as opposed to intent.

6. What can be done to include more feminist voices in the international justice arena?

This is an area in which I find there are discursive gaps. I have last month published a piece along with a colleague, Solange Mouthaan, who is a feminist scholar at University of Warwick. In that piece, we looked at the trial of a woman named Ilse Koch who was a concentration camp guard in World War II. She was prosecuted by an American Military Tribunal and then prosecuted by a West German court. Koch was convicted in both trials and sentenced to life for war crimes by the West German Court and then she committed suicide at the age of 60. This trial to me is illustrative as an answer to your question.

One thing that must happen for a discursive equitable playing field level is that the predominance of paternalistic, patriarchal gender-based tropes involving pejorative narratives become removed from public discourse. Koch’s trial brought forth the gender-based stereotype that she was so evil because any woman who would commit this kind of violence would have to be absolutely sadistic as this is not a ‘womanly act.’ I have seen that in discursive frames about women perpetrators — a sensationalism often arises. In this article, Solange and I also observe another equally wincing gender-based stereotype, which is to say that Koch only did it because of her husband or that her husband made her do that. It is portrayed that the act is solely a result of the patriarchal society and her overbearing husband, not an act of her own. She is presented as helpless.

What I think has to emerge for inclusion for a progressive feminist analysis is that neither of those two tropes become the dominant narrative, because what was completely lost in the Ilse Koch trial was her own real story. How did she come to be who she was? What did she do? Why? And also, what do her victims and survivors have to say about her as a perpetrator? All of that becomes marginalized and occluded through the force of these assumptive stereotypes. To me that is very important and I think that means when one rethinks the history of exclusion of women in post-  conflict reconstruction that a full lens needs to be adopted. A vibrant conversation arises about the role that women played in the Nuremburg Trials or in the post- World War II process of justice. Almost all of that conversation focuses on women who helped, assisted, supported or determined the process or defined the law. One of the biggest omissions in a feminist history of Nuremburg is the discussion of women perpetrators. Solange and I argue in this article that promoting true gender equality means fully recognizing the agency of women in the cataclysm of atrocity and the ensuring social repair.

The second crucial move that I really hope happens is a far more active inclusion of feminist voices from the Global South and a recognition that there is not one feminism. There is not ‘a’ feminist perspective. There are feminisms. I think voices from the Global South in feminist theory and justice are under appreciated and under recognized at the moment. This maps onto another broader theme that I think would really suit international criminal law well and add more candor and more honesty. Greater inclusiveness and sharing in context of people that one listens to may mean accepting ideas that are not exactly the same as what the listener hopes to hear. To me, it is the ultimate form of discursive colonialism when those in power seek to include others only on the condition that what they say matches the expectations of those in power about what the disempowered are supposed to say. I worry about that, too. I know I have shared many worries, and really, I am not a chronic worrier, but the point remains that there cannot be any growth without self-reflection.

Interview with Professor Mark Drumbl (Part-1)

Professor Mark Drumbl serves as Director of the Transnational Law Institute of Washington and Lee University, USA. He has held visiting appointments and has taught at Queen’s University Belfast, Oxford University (University College), Université de Paris (Panthéon- Assas), VU Amsterdam, and various other prestigious universities throughout the globe. His research and teaching interests include public international law, global environmental governance, international criminal law, post-conflict justice, and transnational legal process. Professor Drumbl’s articles have appeared in the NYU, Michigan, Northwestern, George Washington, Tulane, and North Carolina law reviews, many peer-review journals, including Human Rights Quarterly, with shorter pieces in the American Journal of International Law and numerous other periodicals.

Professor Drumbl’s first book, Atrocity, Punishment, and International Law, which was published by Cambridge University Press, has received critical acclaim. Later on, he went on to write or edit two more books titled Reimagining Child Soldiers in International Law and Policy (OUP) and Research Handbook on Child Soldiers (Edward Elgar Press) in 2012 and 2019 respectively. He is co-authoring a book on informers and transitional justice to be published by Oxford University Press in 2022. His work on Rwanda has been reviewed as “exemplary” in its treatment of “the possibilities of the coexistence of victims and survivors within the same society after the event” by the Times Literary Supplement in its Learned Journals review.

I had the honor of interviewing him. I thank him for the interesting conversation that touched upon various topics from child soldiers to ecocide. The transcribed version of the interview is available below.

1.What interested you to take up international law as your study in college times?

When I was an undergraduate student, I studied political science and philosophy. Then, I did some graduate work in comparative politics; and, from then, I went on to law school. Actually, when I was in law school, I did not take many public international law classes. I took corporate and business law classes. Then I worked for a number of years at large law firms doing arbitration and corporate law work in New York and Toronto. In that context, I specifically developed an interest in transnational and international disputes and arrangements. One coincidence that occurred – I had an opportunity to work on a pro bono file that involved investigations of wrongdoing by the Canadian Army and peacekeepers. In peacekeeping work, the Canadians were implicated in the United Nations’ mission in Somalia, which led to a major public enquiry and I along with the senior partner of the firm I was working at became involved with that. It related to questions of war crimes and peacekeepers. At that point, I became quite interested in the role of law and public enquiries as a deterrent to human rights abuses.

During my work as a practitioner, I decided to pursue the goal of becoming a professor. When I started my doctoral work at Columbia University, I was interested in international economic law. I actually started off on that note. By absolute coincidence and serendipity, I unexpectedly had a last second opportunity to go to Rwanda and do defense work in genocide trials several years after the genocide against the Tutsi. I jumped at the opportunity at the last second, took time off from my graduate work and went to Rwanda. When I arrived there, I was so excited about how proper criminal trials could encourage processes of national reconciliation. I had about 250 clients while working in Rwanda, and I left with a much deeper sense of skepticism about the potential and possibility of international criminal law. I came back to New York and wrote an article based on my experience. I found it so gripping to write that piece that I changed the entire focus of my doctoral programme to international criminal law. Two decades later, I work and teach in the same field. That interest stuck for me. The bottom line is that a completely serendipitous opportunity presented and re-routed all my interest. Hence, I highly recommend younger folks to be very open to coincidences and randomness because sometimes things ‘just happen.’

2. What were your thoughts after reading the Ongwen judgment? Were there instances in the judgment that could have been reconsidered in terms of the sentencing or any other aspect?

One of my major academic interests for many years has been to think about the role of ordinary people, compromised people, and victims who despite their victim status – their meekness and weakness – in turn may come to victimize others. In other words: how to speak of ordinary people who inflict tremendous pain on others? That has led me to a sustained academic interest to these kinds of characters such as very low-level perpetrators in Rwanda, child soldiers, collaborators and informers to name a few. All this brings me to Ongwen and my interest in that trial. For me, Ongwen comes under the category of victims who victimize. Ongwen was probably nine years old, kidnapped on his way from school into the LRA, brutalized and beaten. He was socialized into one of the most violent organizations and it is heartbreaking to say that his deployment of violence was a skill that he developed so as to not only survive in the LRA but also thrive as he rose to a high-level position of Brigadier Commander. Throughout his journey in the LRA, he moved from a powerless victim to a powerful victimizer. Just the other day, the ICC sentenced him to twenty-five years’ imprisonment.

When I think about the criminal process against him, what I see and think to some extent is an individual scarred by his socialization into violence as a young boy — how does that figure or compute in conversations about this criminal responsibility? My main reaction after the Ongwen trial is that the criminal process does not deal well with these tragic, imperfect victims. The prosecution vastly overstates his free will, his intentionality and tends to downplay his socialization. The defense overstates his infirmity, weakness and malleability. In the Ongwen trial, the prosecutorial narrative dominated and he was presented as one of the most serious persons responsible for tremendous violence. My major concern is if law is going to deal with an enormous condition precedent to mass atrocity, namely the involvement of tragic figures such as Ongwen, I think we have to have a more candid conversation about the actuality of the perpetrator. I also think we need to have a more candid conversation about the imperfect nature of the ICC and the act of prosecuting. Ongwen would never have been prosecuted unless the prosecution skirted the violence of the Ugandan Government. The ICC has seemed to develop a specialty of prosecuting mid-level rebel leaders whose rebellions fail against governments. I cannot help but wonder whether international criminal law would do better and be more inclusive and effective if we recognized all around that those who deliver justice sometimes have to compromise and those who inflict tremendous pain may themselves be compromised souls.

3. Do you think transitional justice should be considered as important as prosecuting and imprisoning the accused in the international justice system? How much progress have we made towards the same?

I have long believed that mechanisms other than criminal trials are crucial. Truth commissions, commemorations, local ceremonies, education, constitutional reforms and so on. I think all of those can serve transformative goals. Unfortunately, I think the dominating narrative of international criminal justice and accountability has actually    become colonized by the courtroom and adversarialism. I think that process needs to become more inclusive of alternate mechanisms. While working on issues of abuse and gender, one thing that I have noticed is that societies in which international criminal trials have been brought as methods of post-conflict reconstruction are not necessarily more equitable, more inclusive, more embracing of cultures, juvenile rights, gender equality and equality such as that based on such as physical or perceived physical ability, identity, and I am left with a lingering sense that perhaps alternate justice mechanisms may not only deliver accountability for the past but may actually embed a more just society in the future. That is a very important goal to me.

To be continued…

Interview with Susan Benesch (Part- 2)

Question: Do you think a permanent suspension of any influential person’s social media account is the ultimate solution for tackling online hate speech?

Answer: I’ll reply as if you’d asked about dangerous speech, since hate speech is a vague and contested term, and some hate speech isn’t dangerous. The only ultimate solution for tackling online dangerous speech, or offline dangerous speech for that matter, is to convince people not to be interested in it. If people lose interest, the speech loses its power.  

Here it’s important to realize that when we refer to “freedom of speech” or expression, what we really mean isn’t the freedom merely to speak, say in the shower or in the woods. It’s the opportunity to get someone else to hear or read you. I use the term “freedom of reach.”

It’s hard to persuade people to lose interest in what an influential person has to say even when that person is spreading harmful lies, but it’s not impossible especially if other influential people work at it. We need much more of that, as I argued in a recent oped. Meanwhile, an interim solution is to limit the freedom of reach of influential people by suspending their accounts. There are many other possibilities, such as downranking their content which would limit their reach without taking down their accounts.

Question: What kind of measures can social media platforms take in order to tackle the menace of hate speech in today’s volatile world?

Answer: The most obvious and most-discussed response is to attempt to detect hate speech and take it down. To do this at scale, you’ve got to detect hate speech automatically, with software, and that’s very difficult since hate speech is hard to define consistently as I mentioned above. Even content that is clearly hateful is often expressed in idiosyncratic, subtle ways (like mocking the way another group of people talk), and it’s highly context-dependent. For example it can be difficult to distinguish someone expressing racism, from someone calling out someone else’s racism. Also platforms operate in dozens of languages. All this makes me worry that detecting and taking down hate speech automatically would lead to overbroad censorship, so takedown decisions should be made or at least reviewed by people, and there should be some form of oversight of the platforms’ enforcement of their own rules, at scale. (This is not at all what Facebook’s new Oversight Board is doing. It is reviewing only a few dozen cases a year; Facebook implements millions of decisions every week).

Platforms can take many other measures, such as detecting and removing bots that produce hate speech, banning accounts that persistently spread hate speech, requiring users to verify their identities, attempting to reform users who post hate speech (with a variety of behavioral interventions), providing users with blocking and filtering tools so they don’t see hate speech or other objectionable content, limiting the reach of hate speech that the platform chooses not to take down entirely, prioritizing hate speech that seems to bring about specific kinds of harm that the platforms (and especially relevant groups of its users!) decide to prevent, making it easier for users to understand platform rules and to report hate speech, and many more.

Question: The Internet has also turned into an unsafe place for women. What kind of steps should social media companies take to address the issue?” 

Answer: Yes, the Internet is unsafe for many women in different ways, and responses must be tailored for each of those. For this large topic I’ll first point you to a brilliant book filled with important ideas: Danielle Citron’s Hate Crimes in Cyberspace. Danielle describes a variety of attacks on women and argues for better laws to protect women, including civil rights laws, since as she argues persuasively, online attacks often violate civil rights.

It’s useful to distinguish between attacks on women as individuals, (like nonconsensual publication of intimate images by their former partners) and attacks on women as members of groups (such as women journalists, who often face relentless harassment and threats because they dare, as women, to do certain kinds of work.

Regarding attacks on women as individuals, almost every U.S. state now has laws against cyberbullying and cyberstalking. Platforms should work with government to enforce such laws, and to crack down on perpetrators where laws or law enforcement are absent. This is bound to be inadequate, but it’s better than nothing. Regarding attacks on women as a group, platforms should count gender as a protected group when it’s the basis for attacks on them, and pay special attention to groups of women who are frequently attacked, like political candidates, journalists, women of color, and overlapping categories of those.

There are also some civil society efforts that can’t take the place of law enforcement, but that can help to make some progress toward preventing harassment, by raising awareness. An interesting one is a video about harassment of women journalists who write about sports, called More Than Mean. In the video, women sportswriters sit and listen while men who volunteered for the project read aloud harassing messages that the women have already received online. The male volunteers have not seen the messages before, and they become increasingly uncomfortable at the profanity and viciousness of them, while the women nod knowingly.

Interview with Susan Benesch (Part-1)

Susan Benesch is an American journalist and scholar of speech who is known for founding the Dangerous Speech Project. She is a free speech advocate, recommending the use of counter speech rather than censorship to delegitimize harmful speech. She earned a JD at Yale in 2001 and a LLM from Georgetown University Law Center in 2008. She also worked for Amnesty International and Human Rights First, and is currently faculty associate of Berkman Klein Center for Internet and Society at Harvard University. I thank her for providing her valuable insight into my questions. 

Question: What interested you to study speech that inspires violence among people? Any personal experience that you would like to share?

Answer: I started out as a journalist, and worked in Latin America and Haiti when many thousands of people were murdered there for their beliefs or identities. Hoping to prevent other killings I wrote about them, but came to believe that as a journalist I was mainly a spectator. So, I became a human rights lawyer.  Working at the International Criminal Tribunal for the Former Yugoslavia (ICTY) while still a law student, I read witness statements describing brutality so awful that it stunned me in spite of what I had seen as a journalist, and although many of my relatives, including my father’s parents and his brother and nearly all my mother’s family, were murdered in an attempt at genocide. I have never stopped wondering how and why humans can do such things to each other, nor wanting to prevent it.

It isn’t normal; something must change people’s minds and behavior so that they’re able or even eager to embrace terrible violence. I became interested in speech as a catalyst for intergroup violence while in law school, and wrote a paper on incitement to genocide. Later during a fellowship at Georgetown University’s law school, I did more research and hatched the idea that certain kinds of rhetoric have special power to convince people to condone or commit violence against members of another group. If that kind of speech is a precursor to intergroup violence, or even a prerequisite, this offers new possibilities for preventing violence. I have been working on that idea for nearly a decade.

Question: What are the key parameters to adjudge that a certain speech is a hate speech or a dangerous speech?

Answer: Those are overlapping categories.

Judging that a particular speech act is hate speech is more difficult, since there’s no consensus definition of hate speech, either in law or in colloquial use. (Most bodies of law, including international law, do not codify hate speech at all.)

There is one common thread among definitions of hate speech: that it demeans or attacks people based on a shared identity of some kind, so “I hate you” isn’t hate speech. Definitions vary by including different types of  groups. Most list familiar protected categories from international human rights law like religion, ethnicity, and nationality, but others like age, caste, immigration status, sexual orientation, disability, and gender are in some definitions but not others. The United Nations has recently produced a new definition of hate speech that wisely uses a non-inclusive list of group identities, but it sets a very low and perhaps subjective bar for what counts as hate speech, by using the word “pejorative.” Here’s the definition: “any kind of communication in speech, writing or behaviour, that attacks or uses pejorative or discriminatory language with reference to a person or a group on the basis of who they are, in other words, based on their religion, ethnicity, nationality, race, colour, descent, gender or other identity factor.”

In sum, in all too many cases hate speech is explicit, vicious, and obvious, but the category’s boundaries are hard to define and are often subjective.

Dangerous speech (as I have defined it) is a smaller, more clearly bounded category. it is any kind of human expression that can make intergroup violence more likely by lowering normal social barriers against it. The most useful emotion for making people condone or commit violence against other people isn’t hate, it’s fear. (This has been amply demonstrated by neurobiology. For more on this, see Robert Sapolsky’s invaluable and very readable book Behave: The Biology of Humans at our Best and Worst.) Dangerous speech convinces people to fear another group of people intensely.

There are a few specific ways to do this, as it turns out, so the same rhetorical moves recur in the speech of malevolent leaders in the months and years before genocide or other mass violence. Because of these “hallmarks” of dangerous speech, it’s uncanny how similar it is from case to case, across countries, cultures, and historical periods.

The most familiar hallmark is dehumanization. The most destructive one may well be “accusation in a mirror” – telling your own group that another group is planning to attack or even annihilate them, when in fact you as a leader want your group to attack the others. Dehumanization can make killing seem acceptable; accusation in a mirror makes it seem necessary – and even virtuous, as the scholar Jonathan Leader Maynard has described.

A hallmark isn’t enough to identify dangerous speech, though, since I could say something dehumanizing about a group of people to you and it wouldn’t lower the likelihood that you will condone or commit violence against that group – because you’re not at all receptive to the message. Whether speech is dangerous depends on the context in which it is spread: whether the audience is receptive, whether the speaker is influential with that audience, and so on. I’ve identified five elements of context: the speaker, the audience, the message, the means of dissemination, and the social and historical context. To judge whether a particular act of speech is dangerous you ask questions regarding those elements. Then, based on your answers, you predict whether the speech will make other people more likely to condone or commit violence.  It’s a guess, but a systematic, educated one.

Question: Are there any legal statutes or guidelines regarding hate speech in International Law? If no, would you suggest that such provisions should be introduced?

Answer: No, international law doesn’t codify hate speech. Two human rights treaties – the ICCPR and the ICERD – have provisions related to hate speech. The ICCPR requires that states prohibit only two kinds of speech. One is propaganda for war and the other is “Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.” (ICCPR. Art 20(2) ) The latter seems to be both broader and narrower than the category “hate speech,” in different respects. In any case it is confusing and has not been adequately interpreted. Not surprisingly, it hasn’t been incorporated into municipal laws.

I would strongly oppose introducing a provision against hate speech in international law, at least until Art 20(2) is clarified, and until the treaty bodies explain how to reconcile the speech provisions of the ICCPR and ICERD in some detail. Until now they have simply declared that the two must not conflict; that’s insufficient for policymaking.

to be continued…

Interview with Jaime Todd-Gher (Part-1)

Jaime Todd-Gher is a human rights lawyer specializing in issues of gender, sexuality, and health. She is working as an Independent Consultant and a Reproductive and Sexual Health Law Fellow with the University of Toronto, International Reproductive and Sexual Health Law Program, Faculty of Law. She recently worked as a Legal Advisor and Strategic Litigation Specialist with Amnesty International. She has also worked as a Human Rights Advisor and Programme Officer with the WHO and UNAIDS, and in the Global Legal Program with the Center for Reproductive Rights. Jaime regularly engages in human rights litigation and advocacy before United Nations and regional human rights bodies. She has also served on the Board of Directors for the AIDS Legal Referral Program and the National LGBT Bar Association and is currently a sitting Board Member for Women Enabled International.

Jaime holds an LL.M. in International law and gender from American University, Washington College of law, a J.D. from the University of San Francisco, School of Law, and a B.A. in sociology from the University of California, Santa Barbara. I had the honor of interviewing her. I thank her for this meaningful conversation. The interview is transcribed below.

Question: As per your observation, do you feel women in today’s time are more aware and vocal about their sexual and reproductive rights? What do you think led to this change?

Answer: Yes, I do think that women in many contexts are more mobilized today. More and more women are completing primary, secondary and collegiate education, which is a significant source of empowerment. We are also seeing a rise in progressive movements. There is a collective energy around making change. However, what I really see as a key factor leading to an increase in mobilization is the retrenchment of women’s rights that we are witnessing around the world. This is compelling women to take to the streets, to file lawsuits, to go to the media, and to demand their rights. So, in essence, a lot of our mobilization is reactionary, which of course is necessary.

We are also seeing a rise in nationalism and anti-gender movements that ascribe to the notion that gender diverse individuals are destroying the nuclear, heteronormative family, a re-assertion of women’s purported “rightful role” as mothers and caretakers, and law and policy reform explicitly aimed at restricting access to contraception, abortion, and comprehensive sexuality education. All of this leads to a collective feeling of women’s rights being under attack. I really think that this has given women, especially younger women, a motivation to push back because this is not happening in just one country or one region, but worldwide. So, despite all the positive developments we have seen over the years, I do think there is a retrenchment of women’s rights which is significant, so we must stand up!

Question: Do you think the international norms and standards around sexual and reproductive health and rights are up to mark?

Answer: I certainly think that there has been a remarkable evolution of international norms and standards around sexual and reproductive health and rights in the past few decades. We are light years ahead, in terms of seeing an explicit articulation of sexual and reproductive rights as core human rights issues that implicate a wide range of states’ international legal obligations. But, of course, there is always room for improvement. Given that women’s rights were not originally conceived as human rights within the original treaties and instruments of the UN human rights system, it continues to be an uphill battle to convince people that sexual and reproductive rights are human rights. This is just the reality we are working in.

While progress has been made, a lot of gaps remain. For example, we still do not have an explicit recognition of personal, decisional and bodily autonomy in the realms of sexuality and reproduction. Our strongest human rights hooks continue to be the rights to health, life, freedom from torture and other ill-treatment, privacy, and equality and non-discrimination. These are useful and compelling advocacy frames, but women’s rights movements will be stronger and more powerful once we can gain widely accepted recognition that women, girls, and all people who can become pregnant have full autonomy over their bodies, sexualities, and reproduction. Until that time, we still have a lot of work to do.

Question: Unsafe abortions are a public health issue. Why is there a level of insensitivity among policymakers and politicians around this issue?

Answer: Unsafe abortions is a significant health and human rights issue. It is one of the leading causes of maternal mortality and morbidity, as well as preventable infertility. Unsafe abortion leads to significant physical and mental harm. One of the most unjust aspects of unsafe abortion is that pregnant individuals are often compelled to resort to unsafe abortions due to restrictive abortion laws around the world, and in many contexts, they can be thrown in jail for years for having an abortion. The same restrictive abortion laws can even lead to women who have suffered miscarriages and stillbirths to being arrested and prosecuted – based on the presumption that they had an abortion.

It is baffling to me that law and policy makers – many of which are men who have never experienced and will never experience an unwanted pregnancy – continue to address abortion with such great insensitivity. I still try to wrap my head around it, but I tend to believe that it boils down to a complete lack of valuing of women’s lives and bodies. I am also astonished by the mental gymnastics that people undertake to think that a pregnant woman and her fetus are separate entities pitted against each other, when, that is just not the case. Only a pregnant person can know and understand whether they are able to bear, birth and raise a child—something that has lifelong implications for their life, and the lives of their partners and families. It is also a matter of patriarchy, sexism, and a dehumanization of pregnant people, which translates to controlling people who do not want to be pregnant because they are “committing a moral wrong”.

Interview with Jaime Todd-Gher (Part-2)

Question: As per your understanding, what could be done so that national governments take the issue of reproductive rights and sexual health more seriously?

Answer: I think, foremost, we need large-scale law and policy reform to remove the vast number of restrictions imposed on the bodies, sexualities, reproduction and lives of all women, children and people who can become pregnant. If we look at the disproportionate number of restrictive laws and policies that dictate our bodies, health, and reproduction, it is outrageous. There is also a need for structural reforms that work against patriarchy which accords greater value and trust to men and boys. By contrast, women, and girls, and really all people who transgress gender norms, are accorded less value and not trusted. Also, like the structural reform that needs to take place to address systemic and institutionalized racism, sexism must be tackled at all levels.

I further believe that community change initiatives to transform gender norms is essential. We can no longer live with the status quo where women’s bodies and lives continue to be the subject of public debate and law and policy making. We are all humans and as a community, men, women, and any person should not be restricted in terms of how they act, live, work, express themselves, etc. We need to think about how we can flourish as a community where everyone’s strengths, interests, health, and rights are equally valid and valued. Along these lines, I think a lot needs to happen in terms of information and education provision, and sensitization around gender. I really believe that we all are born with different attributes, interests, and skills, and that we cannot be compelled to fit into specific boxes and categories, and that should be okay.

Question: You have a wide experience spanning different geographies. Which countries have the most developed legislation related to sexual and reproductive rights? Which countries need to consider this issue more seriously? (It would not require any specific answer in the form of any country’s name if that is not possible. A mention of certain geographical regions or continents would also be helpful.) 

Answer: Legislation related to sexual and reproductive rights can come in many forms, whether it explicitly focus on sexuality and reproduction or whether it has a direct or indirect impact on one’s sexual and reproductive health and rights. One thing I can say for sure is that no one country has gotten it right. Every country has a legal framework that, to some extent, infringes on sexual and reproductive health and rights. There are some countries that more explicitly recognize the autonomy of women and girls to make decisions about their sexual and reproductive health, including some countries in Europe, Latin America, and parts of North America. However, even in these countries, there are laws, policies and practices that create barriers to individuals exercising their sexual and reproductive rights.

Let us consider, for example, Canada where abortion has been fully decriminalized and removed entirely from the penal code. Even there, women and girls still face obstacles to accessing abortion services due to costs, geographic location, race, ethnicity, age and/or Indigenous identity. It is not enough to simply change one law. You must look at the entire legal and policy framework, and its interplay with social, economic, and cultural factors, to assess actual access to abortion services. There are also countries in Europe that have policies that seem quite liberal and call for subsidizing access to contraception and family planning to promote women’s and girls’ control over their fertility, but when you look closer you see that the policy also includes a provision that excludes migrants and refugees from its protections and support, thus having a discriminatory impact on these populations.

I also wanted to mention that we should not simply think about sexual and reproductive rights. Rather we should frame our advocacy and litigation in terms of reproductive justice – which conceives of enabling and empowering individuals to create and nurture the families that they want in conditions where they can thrive. At present, we have legal and other systems that promote reproduction of certain people (often married, heterosexual couples of a certain socio-economic status), while at the same time these systems dissuade or actively work against other individuals from reproducing and forming families, including the poor, the criminalized, black, brown, and Indigenous people, LGBTQ individuals, and people with disabilities (to name a few). So, I think we can miss a lot of human rights issues when we solely focus on ensuring that people can control their fertility. We also need to look at people who are being oppressed and/or prevented from having children as they are not seen as worthy of reproducing, and the structural conditions that prioritize certain individuals and groups in our societies and devalues others.

Question: Recently, the Duchess of Sussex shared that she suffered the miscarriage of her second pregnancy. It has again brought forth an observation that there are very few public conversations about it. Do you think it is high time we stop considering miscarriage as a taboo?

Answer: It is absolutely high time to talk about miscarriage more openly! A vast majority of women around the world experience miscarriages. It is both a common phenomenon and yet a traumatic one. We see people suffering miscarriages alone in silence, not reaching out to their friends or loved ones for support. To make matters worse, as I mentioned before, women and girls can be thrown in jail in some countries for suffering a miscarriage. Its inhumane! I recall facing the tremendous grief of my own miscarriages and then imagining what it would feel like if my life and liberty were also threatened because of my pregnancy loss. I cannot even fathom how difficult that would be.

I also think that there is a fine line between abortion and miscarriage. In essence, they are both a termination of pregnancy. The medication used to induce an abortion is the same medication used to manage a miscarriage in many cases. Abortion and miscarriage are both fraught with sadness, confusion, fear and, in some cases, relief. In both of these closely connected experiences, women and girls continue to suffer alone.

Whether a person is facing an abortion or a miscarriage they deserve to be supported and treated with dignity and respect. We should be talking about these experiences openly so that we can find ways to destigmatize pregnancy loss and termination of pregnancy, to provide better support women and girls and their partners and families, and to ensure that people are no longer facing the pain alone.

Interview with Professor Sital Kalantry

Sital Kalantry is the Clinical Professor of Law at Cornell Law School where she founded the International Human Rights Clinic and co-founded the Avon Global Center for Women & Justice. She writes in the fields of comparative feminist legal theory, international human rights, and empirical studies of courts. Her works have appeared in the Stanford Journal of International Law, Georgetown Journal of International Affairs, Cornell Journal of Public Policy to name a few. Her opinion pieces have been published in the New York Times, Slate, the New York Daily News and various other newspapers. We want to thank Sital for all the work and efforts she has contributed to INTLAWGRRLS over the past several years through this farewell post. I had the honor of interviewing her. The interview is transcribed below.

Question: You have written expansively about Women’s Human Rights. What drives you to focus on issues such as Acid Attack Violence, Domestic Violence, Sex-Selective Abortion Bans etc.?

Answer: I have always been interested in gender inequality since a very young age. One of the biggest influences for me were some feminist classes that I took as an undergraduate student at Cornell University. Taking those classes helped me see the world through a lens where one could identify inequality and problems on gender issues. I also had an interest in these aspects because I was born in India and travelled India significantly as I was growing up. Visiting my relatives gave me a new culture. It helped me observe the different kinds of inequalities that are present. I witnessed that there is a difference in the inequality that takes place in India and the United States. This gave me further interest to seeing ways where I might be able to help by solving and rectifying some inequalities.

Question: Your book “Women’s Human Rights and Migration” mentions about the practice of sex- selective abortion and how it violates women’s human rights. This contradicts with the concept of exercising reproductive rights as guaranteed as mentioned in Roe v. Wade. What do you think about this contradiction?

Answer: My thesis in the book is that we cannot have universal solution to gender rights or inequality. In some cases, we have to contextualize the law. There are a number of feminist scholars/ activists in the United States who oppose restrictions on abortion in any way, shape or form. They particularly oppose it because there is a restriction or ban on abortion. In India, feminists initially thought that they have to restrict it because it is being used in a way that is discriminatory to women when female fetuses are being aborted proactively and disproportionately in comparison to male fetuses. My thesis is that each country has its own understanding and there is a different law to have different reasons, goals and consequences from gender inequality’s perspective. So, we need to emphasis more one the contextualized view. When I observe the laws related to abortion in the United States, I think about the scope of the problem. Do we actually have the same magnitude of a problem in the United States as it is in India? And the answer is that we don’t. What are the obstacles which make it more difficult for the women in India? Do they have to sign papers or are they asked questions? Looking at the US perspective, there is no benefit to having this law in terms of equality purposes. In the Indian perspective, it works as a balancing check. Even when considering reproductive rights, you are balancing the interests of the women and the state interest. There is a valid reason why abortion does not take place a few days before the due date. So, there is a balancing that people have to do in India and they have to do it in a different way. After twenty years of experience of Pre- Conception and Pre- Natal Diagnostic Techniques Act (PCPNDT), we need to think whether the law is actually working or not. We need to see the positive and negative consequences of this law. There are different factors to consider and that is how I understand it completely.

Question: You have voiced your insights regarding the gender parity in Courts. What difference do you see when considering the Indian and US Courts in terms of gender parity?

Answer: When you look at the numbers of the Indian Supreme Court and the US Supreme Court and take the number of women as the percentage of the total number of judges, it is actually very similar which is less than 5 percent in both countries. The only difference is that in India, there are thirty judges with one woman and at times, they have two women. Currently in the US Supreme Court, it looks like the US Supreme Court has more which is 3 out of 9 i.e. 33 percent. But over time, it is the same. I feel that when we look at the lower courts in the US, the number of female judges has increased over time up to 20-25 percent but in India, the Supreme Court doesn’t seem to be focused on the gender issue. India is based on quotas and equalities but as observed in the Indian Supreme Court and High Court, the judges appoint the other judges and they are not subjected to any observation. I think this is the reason why the progress for gender equality in the Courts is stalled in India.

Question: What are some of the most memorable key findings of your scholarship in terms of women human rights till now? It could be related to domestic violence, sexual violence, acid attacks against women, human trafficking or any other issue that you have researched closely on.

Answer: It is a tough and broad question to summarize but I think that in the context of surrogacy which happens in India and the United States, I realized that it is important to look at the problems in each country. Based on these observations, one can solve these problems on the basis of the dynamics between the surrogacy and the intense trials of each country. Legislation should be adopted on the basis of the social or historical context within the country. In terms of the study, we frame it as a gender violence issue and can think of it as pick-pocketing, murder or battery but this crime is motivated towards women because of their gender. Often in India, it is perpetrated by men so we did data collection on who the perpetrators are. So, we often think of it specifically as a gender crime.

Question: Your scholarship provides a lot of fodder for the policy makers concerning the rights of women and girls. There must be instances where your work has made readers think about practically putting your ideas into use. Would you please share any such instances?

Answer: Students have been really instrumental in the human rights work that is being done and students have put together research that is done under my direction. This research has been cited at the Indian Supreme Court in the Acid Attack case. The Report on Surrogacy Law has been put forth in the Indian Parliament. It has been cited in many newspapers like The New York Times and various others. I think there has been real policy work related to gender issues with advocacy work. I try to combine data, empirical work and scholarship with activism. I think activists on the ground should open up and engage in certain depth of work and scholars are not speaking policy but are typically writing within their own fields. So, my call is to bridge the scholarship and policy gap.

Question: Lastly, how was your experience working as an Editor for the blog?

Answer: I have been editing the blog for seven years. I have enjoyed getting to know so many inspiring women. I particularly enjoyed it when people thanked me for my editorial comments.

Interview with Professor Mallika Kaur

Mallika Kaur is a lawyer and writer who focuses on gender and minority issues in the United States and South Asia including post 9/11 violence, racial discrimination, farmer suicides, and transitional and transformative justice. She is also a lecturer at the University of California, Berkeley, School of Law.  She writes regularly for online and print media as well as academic publications; her work has been published in Foreign Policy, Washington Post, California Law Review among others. We would also like to take this as an opportunity to thank Mallika for all the work and efforts she has contributed to INTLAWGRRLS over the past several years.

Her book titled “Faith, Gender and Activism in the Punjab Conflict: The Wheat Fields Still Whisper” was published by Palgrave Publishers a few months ago. I had the honor of interviewing her with regards to her new book. The interview is transcribed below.

Question: What was your motivation behind writing this book? Why did you specifically choose to cover Punjab’s human rights movement?

Answer: I did not in fact set out with the motivation of writing a book. It was not a part of any academic project or research agenda. It was something that came out of my own journeying. I grew up in Chandigarh, Punjab, having been a part of a community of folks who read their news in English, discussed it perhaps in Punjabi, and largely did not talk to their kids about the armed conflict at all. A seminal year in the conflict history was the Indian Army’s attack on Punjab, epicentered at Darbar Sahib (akin to Temple of David or Mecca) in June 1984. This provoked a visceral reaction from Sikhs, indeed even many non-Sikhs. Yet, within months—I was a toddler still—the justified necessity of the June massacres had taken hold in the non-Sikh psyche of India. Since then, any demands for truth-telling–about that June or the decade of mass violence that followed—have been considered suspect by the majority community and the successive governments of India.

As an adult, my legal and international human rights interest was around courts and commissions and possibility of a regional mechanism for South Asia. I was initially interested in those questions but eventually what I landed on in my work was how powerful stories are in unwrapping things that have been largely silenced for a very long time.

Punjab has been a laboratory of several nation-building projects in India: the Partition in 1947, the not so revolutionary Green Revolution in the 60s-70s, and various attempts at stifling dissent in the 80s and 90s. But these multiple upheavals that contextualize Punjab’s present have seldom been woven and written together, much less by a Sikh woman.

Through this book, I have tried to fight against this idea that the Punjab conflict was just about violence against violence with men combating on both sides. I tried to find stories of people who were non-combatants but chose the dangerous work of human rights defence. The book is trying to re-shift focus from “leaders,” combatants and an obsession with violence to a more nuanced and inclusive approach. Instead of just Indira Gandhi and other perpetrators, the book hopes the limelight comes to rest on women leaders like Paramjit Kaur Khalra, Kuldeep Kaur, Amar Kaur, unnamed women like the police officer who secretly helped inmates in one of Punjab’s many torture centers, and Baljit Kaur, who you see on the cover of the book. Within this marginalized conflict, I am looking at further neglected gender issues. For the men’s stories, I highlight the dangerous tendencies that were conveniently ascribed to all turbaned and bearded Sikh men, and then the general prohibition society imposes on men that makes it quite impossible for them to admit many emotions, much less speak about sexualized torture.

Question: How did you approach and research this topic?

Answer: The story-collection, writing, having the subjects of the story read it, all happened over many years, which was fine because this writing did not have any specific deadline of restriction. One of the benefits of doing a project entirely on your own time and dime! People were generous once they understood where the questions were coming from. They shared their personal archives including videos, legal files and other documents. The book eventually combines legal cases, scholarly analysis, community memory and personal narrative. The hybrid approach is necessary to tease the nuances lost in a more straightforward memoir, collective biography or academic examination. Further, memoir snapshots provide the reader the needed history of the author narrating the history of the conflict: exposing my vantage point and influences directly.

The book is all and not at all about Punjab. When generations of violence may have made silence more expedient than excavation, how might we learn about conflicts’ complexities of the past and their manipulated shadows in the present? Most linear, neat, cited and chronological tellings of conflicts overlook essential dynamics such as gender and trauma.

Each chapter centers on a key case from the year (or years) of its focus, starting in descending order from 1995, the supposed end of the conflict. Legal case details are available to varying extents, which is instructive: till the mid-90s, legal remedies were de facto suspended in Punjab. Case descriptions thus also draw from non-legal sources. Each case necessarily invokes additional cases. And then advocating for the need to embrace complexity and reject binary understandings, each chapter also contains an interwoven section that quickly traverses the earlier history of Punjab, starting in ascending order from 1839, the transition from Sikh rule to British colonial rule. The two timelines, descending from 1995 and ascending from 1839, converge in the final chapter, on the pivotal year, 1984.

Question: What kind of audience did you have in mind while writing the book?

Answer: The audience of this book is pretty large and varied. It includes scholars, lawyers, policy makers, activists, students, and general readers. By presenting convergences between different forms of violence–current and historical, interpersonal and mass social violence—I believe this book has already engaged a variety of readers. I have received very different reactions and reflections from people of various walks of life over the last months. Women who read between the lines when the women in the book remained silent about certain things. Men who have expressed they never thought of some basic gendered dynamics in how even the more popular stories from the Punjab conflict are spoken about.

Also, I strongly felt that since the violence was rendered so common in Punjab, I had to figure out a way of telling the story in a way that is not limited to lawyers or one academic discipline. That it could be understood by anybody who cares about human rights defenders who do the work of helping us retain our belief in humanity during the worst of atrocities! And it’s meant for those unnamed activists and defenders who may be feeling alone in the world. Despite the world today feeling ever-growing in its apathy and ever-shrinking in its attention span towards even the worst of crimes, you are not alone. Different points and places in history have felt the same and still there are people, like the protagonists of this book,  who have made choices against the tide. They felt they really got something out of it, out of this unsalaried and uncelebrated work. They regularly gained inspiration from the folks they worked with and defended. They felt a sense of collective as they became part of history. When you consider the tenacity of centennial litigants like Chaman Lal, it’s hard not to be moved!

Question: What was your approach while selecting the three human rights defenders for the book?

Answer: These three were in fact my windows on many other human rights defenders, some I named earlier, who were always at much more risk and suffered much more. The life stories of the three people you see on the cover of the book, Baljit Kaur, Justice Ajit Singh Bains and Inderjit Singh Jaijee, became trusted vehicles for traveling through Punjab’s recent history. Each of them is credited with saving countless lives.

Speaking of the approach while selecting these three, I’m reminded of a video I watched, which Baljit Kaur took in the late 80s. A Sikh man, a former Army officer is narrating how he was himself picked up, tortured and almost killed. He was speaking in perfect English so this was somebody with enough higher education. He had been treated this way as he had spoken against a young boy being killed. He mentioned that these folks fighting for justice, Baljit Kaur and her colleagues, were in fact the ones preserving the nation’s unity and integrity. Contrary to being seditious or dangerous as the politicians would have folks believe, it was human rights defenders who were providing ordinary people some hope that the legal and justice system could be the answer rather than further violence.

Unfortunately, people fighting for justice often fight very lonely battles. These protagonists had one another. And they had faith in a higher power that kept them going. And they had a lot of pride in Sikh history that they had heard of or witnessed when younger, through anti-British struggles, for example. Still, it was not like they were joined by a large number of other folks living in Chandigarh, Punjab who were enjoying the same relative privilege of upper class these three protagonists had during the 80s and 90s. So it was very fascinating to hear their stories as to how they surrounded police stations, how they compiled reports, how they visited Amnesty International and learnt how to make video footage to appropriately document what was happening at a time international human rights groups were not allowed in Punjab by the Indian government.

Question: How was your experience while interviewing people on this difficult past?

Answer: What I find fascinating especially about my three protagonists is that they are buoyant spirits, so young-at-heart in their 80s, 90s, even though they have seen such horrific things in their lifetimes. These protagonists have made more change than most of us will be able to make in our lifetime. I found this very uplifting despite the subject matter being very difficult.

Since I allowed myself a hybrid approach, and use memoir in the book as well, I put myself very explicitly into the discussions around the legal cases and this too helped me make sense of people’s trauma experiences. Some of the irrational reactions of these people started making more sense because they had gone through very unnatural set of circumstances. The whole Sikh community had been demonized for several decades. And now in India of 2020, the issues of creating an ‘enemy within,’ and what that does to social fabric, is again playing out. Where for example students, including pregnant women, who are protesting new discriminatory laws are picked up and booked indefinitely under draconian laws, themselves iterations of laws previously used in Punjab and then finally repealed on the books. How can we say the unlearnt lessons of past conflicts are not relevant to India today? I am not didactic about the parallels in the book. There is space for the reader to draw lessons for themselves.

Question: What do you think of the post-conflict scenario of Punjab in terms of violence against women and gender-based violence?

Answer: So, the first thing is that I don’t describe Punjab as post-conflict anywhere in the book because there has been no catharsis, no reconciliation, no period of transition, or justice, towards sustainable and inclusive peace. The estimates of those killed vary from police estimates of 25,000 to civil society estimates of 250,000. Even this variance speaks volumes about how the conflict has lived on; there is no closure, no semblance of transparency. Nobody was able to document the dead. Those who attempted to document it, like Jaswant Singh Khalra, whose amazing story I detail in Chapter 2, were killed. We went from this period of heightened killing and mayhem to an abrupt and strident “normalcy” in Punjab.

Coming to your question about gender and violence against women, I think the situation for women remains really bad through these subsequent decades, if not worse. Of course, across India we are dealing with shameful realities like marital rape being still legal. Dowry, being a ubiquitous feature of almost all weddings, despite being illegal. Ideas of honor and purity instead of autonomy and rights being tied to women’s bodies. And then some women’s bodies being deemed as not worthy of honor even: the Dalits of India disenfranchised by caste, or the women in conflict zones, who were blatantly immediately excluded from the changes that were proposed after the much publicized and horrific Delhi rape of 2012. Women who suffered in Punjab in the 80s and 90s at the hand of State forces have seen no reparations, not even in the form of recognition, much less apologies or restitution.

Question: What is next on your research agenda? Would you like to interview more female reformists of Punjab or write about some other aspect of Punjab region or the conflict?

Answer: I remain interested broadly in how we can make connections between different forms of violence that our communities negotiate – current and historical, in the U.S. and in home countries, interpersonal and mass social violence. I have also been writing and teaching on how lawyers specifically manage trauma, their clients’ and their own. Though most importantly right now, through COVID, I am focusing on the work that I have been doing since 2002, advocacy and crisis response for victims of gender-based violence. Working on gender-based violence as a practicing lawyer in the U.S., I am also really fascinated by comparatives. Right now in the U.S. there are a lot of discussions about alternatives to how domestic violence/ intimate partner violence response has been closely tied to increased policing, especially since the 70s. This is a complicated discussion here. Then add other contexts where feminists are fighting for the police to take domestic violence seriously. Or, even more complicated, cases in India where domestic violence laws are not protecting those they were meant to but are regularly manipulated by the upper-class litigants looking for an end-run. This is a part of my broader interest and possible future writing. And I dream of the time and headspace to write fiction someday! But really, I am presently quite consumed with working on the increased challenges faced by domestic violence survivors where I currently live. This too is a lesson from the protagonists of the book: make a difference where you can, don’t overlook the obvious local needs.