The Black and White Campaign in Turkey and its Repercussions Amidst Rising Femicides and an Increasing Hostility Towards the Istanbul Convention

Pinar Gültekin a 27-year-old University student was brutally beaten and burned to a crisp by her ex-boyfriend on 21stJuly 2020 in Turkey adding to the country’s long list of femicides. The victim was reported missing for six days before being found dumped in a bin strangled to death by her former partner for disagreeing to reconcile with him. 

While the news of Gültekin’s death ignited demonstrations all across the country and women and men alike took to the street’s, the death of Pinar and similar atrocities against women in Turkey inevitably raises a few questions. What should happen when a 27-year-old girl is strangled to death and burned to a crisp by her ex-partner? What are the repercussions of a mother being stabbed to death by her husband in a café in front of her child? What happens when a girl is stabbed and burned to her death because she resists rape? What happens when the mysterious death of an eleven-year-old girl is deemed “suicide” by the judiciary. Maybe the answer to the above-mentioned questions lies not in what happens but how it happened or who/what perpetrated the incidents. While the atrocities may be perceived by some as interpersonal their prevalence only against a particular section of the community indicates towards an institutionalisation of violence abetted by a chauvinist patriarchal society. 

Violence against women existed long before the expression “femicide” was devised in 1976 by Diana E. Russell at the first “International Tribunal on Crimes Against Women in Brussels, Belgium”. While the term is defined by the “United Nations Office in Drugs and Crime”as the gender-based homicide of women it not just refers to the killing of women but condones an entire system of Judicial administration that fails to safeguard the women and prosecute the perpetrators. The concept is similar to “rape culture” except applying only in cases of murder concerning a women’s sexual orientation, indigenous identity, dowry-related issues. However, contrary to majority perception the acts under no circumstances are unrelated and spasmodic but is abetted by a chauvinistic society exhibiting unequal power structures and conventionally defined gender roles where women often find themselves pushed to the margins. Encouraged by Right-Wing Populist Parties the above-mentioned manifestations of violence against women in Turkey has increased exponentially over the decades.

The misogynistic heteronormative dogmas embedded in the social fabric of Turkey gets exemplified by the Global Study on Homicide, 2018 conducted by the “United Nations Office on Drugs and Crime” which reportedly delineated the death of 89,000 women in Turkey in 2017. Turkey has been ranked114 of 167 countries in the “Women, Peace and Security Index, 2019” and 130thof 149 countriesin “WEF’s the Global Gender Gap Index, 2020”. The data is at face value enough to glean the status and treatment of women in the country. 

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VP Biden’s Ambitious Agenda for Women

The presumptive U.S. Democratic presidential candidate, former Vice President Joe Biden, has released his “Agenda for Women.”  It’s a tour de force of dozens of key policy priorities, both domestic and international, focused on advancing women’s rights at home and abroad.  Some key takeaways in the national security and human rights space are outlined below along with some areas where additional attention would be welcome:

ERA YesOne Biden’s his core pledges is to advocate for Congress to recognize that the necessary ¾ of the states have ratified the Equal Rights Amendment (the ERA). First introduced in 1923, approved by Congress in 1972, and then sent out to the states for ratification with a deadline of 1979 (later extended to 1982), the ERA received its 38th ratification in January 2020 when Virginia finalized its ratification. Litigation over whether the time limits placed on ratification by Congress are constitutional has been proceeding in several courts (with one suit filed by Equal Means Equal being dismissed  earlier this month for lack of standing). The House passed a resolution that eliminates the putative deadline; so far, there has been no comparable action in the Senate. The Alice Paul Institute—named for the Quaker suffragist who authored the ERA after being instrumental in gaining passage of the 19th Amendment giving women the vote—offers a history of the amendment here. Prof. Julie Suk’s take on why it failed before and how it can succeed is here. Biden co-sponsored the ERA nine times while in Congress. President Donald J. Trump, on the other hand, has opposed the lawsuits, including one  brought by three states attorneys general (Virginia, Nevada, and Illinois) to add the ERA to the U.S. Constitution.

On the multilateral plane, Biden will seek ratification of the Convention on the Elimination of Discrimination Against Women (CEDAW), a treaty dedicated to global women’s rights. Nearly all U.N members have ratified this treaty (in holding out, the United States enjoys the company of Iran, Somalia, and Sudan and a couple of small island nations—see map below). The Senate Foreign Relations Committee has debated the treaty several times, but so far the full Senate has refused to give its advice and consent to ratification, in part due to unfounded fears the treaty will be cited to promote abortions and prostitution and will undermine U.S. sovereignty. Several U.S. cities and municipalities, including San Francisco, have adopted ordinances and policies in keeping with the treaty and the “human rights cities” movement. 1200px-CEDAW_Participation.svg

When it comes to reproductive rights, Biden calls for the repeal of the 1976 Hyde Amendment, which bans U.S. federal funds (mainly Medicaid) from paying for abortions (except in cases in which the pregnancy results from rape or incest or if the woman’s life is endangered by the pregnancy). The Amendment disproportionately impacts low-income women and women of color. This marks a welcome reversal from Biden’s stance at an early Democratic debate during the primary race.  A bill to repeal the Amendment, known as the EACH Woman Act, is working its way through Congress.

Biden would also rescind the so-called “Mexico City Policy” (a.k.a. the global gag rule) that President Trump reinstated but in a more far-reaching form. Withdrawing this ruleGlobal Gag Rule would enable the federal government to support civil society organizations engaged in global health efforts around the world, even if recipients provide information on safe and legal abortion services as part of their public health work. Remarkably, as one of his first moves as President, Trump, flanked by a phalanx of beaming white men, dramatically expanded the policy. Heralding the vindictiveness that has so characterized this administration, this move followed on the heels of hundreds of Women’s Marches that drew millions around the world into the streets (my dispatch is here) and a campaign that repeatedly revealed his deep-seated misogyny. Reversing the global gag rule should be an urgent priority: research has shown that the policy dramatically undermines women’s health and, paradoxically, leads to increased abortion rates in developing countries. Although this move can be accomplished by executive action, the Global Health, Empowerment, and Rights (HER) Act (currently in the Committees on Foreign Relations and Affairs) would prevent future Republican presidents from reinstating it again.

Furthermore, as part of his broader immigration platform, Biden promises to dedicate himself to immigration reform and undo the Trump administration’s harshly punitive policies. This includes: reopening the United States to refugee resettlement (raising the admissions cap to 125,000), re-establishing a humane and expeditious asylum process for people fleeing persecution, and reinstating asylum protections for people who are escaping domestic and sexual violence. The latter requires the reversal of a decision by then-Attorney General Jeff Sessions to invoke a rarely used power and overturn a Board of Immigration Appeals decision that had allowed such survivors to demonstrate persecution on the basis of their membership in a “particular social group”—one basis for receiving refugee status. Biden will also increase the number of visas for survivors of domestic violence under the Violence against Women Act (VAWA) and for victims of crime (so-called U-visas), and expedite the process for granting these and related immigration benefits, including T visas for victims of human trafficking. It will not be enough, however, to simply dismantle these cruel Trump policies; rather, Biden should develop ways to repair the harm done, including through providing psycho-social rehabilitation to children and families traumatically torn asunder and placed in inhumane detention conditions. Biden should also explore the implementation of restitutionary immigration benefits, such as expedited pathways to asylum and family reunification.

In addition to issuing a whole plan devoted to ending violence against women, Biden has endorsed passage of the International Violence Against Women Act (IVAWA), which would make ending the epidemic of violence against women worldwide a key foreign policy priority. The proposed legislation recognizes that

“Rape and sexual assault against women and girls are used to torture, intimidate, and terrorize communities. Rape and sexual assault are used as tools of war in conflict zones, including the Democratic Republic of the Congo, Iraq, Syria, Afghanistan, El Salvador, and South Sudan.”

If enacted, the IVAWA would commit the United States to helping women and girls who are victims of violence to gain access to justice. The timing of this will be crucial; women everywhere are experiencing higher levels of domestic violence while suffering from reduced access to protective services due to the Covid-19 pandemic. These commitments reflect the fact that Biden co-authored the U.S. Violence Against Women Act in 1994 (one of the legislative achievements of which he is most proud) and helped pass the William Wilberforce Trafficking Victims Protection Reauthorization Act, which strengthened the United States’ anti-trafficking framework.  Biden released a statement on the World Day against Trafficking in Persons, July 30th, setting forth his anti-trafficking priorities.

This focus on ending VAW globally is part of Biden’s larger Women, Peace & Security (WPS) plank that will focus on supporting women’s leadership globally. This includes full implementation of the Women, Peace, and Security Act, passed by Congress in 2017, which is premised on research that including women in conflict prevention efforts, peace building processes, and post-conflict governance helps to reduce conflict and instantiate stability. The Act mandates a government-wide strategy to increase the participation of women in peace and security operations and to support transitional justice and accountability mechanisms that reflect the experiences of women and girls. 1_Qz_BwcroQlTViHAMkaJswgThe Act responds to a suite of resolutions emanating from the U.N. Security Council to the same end (starting with Resolution 1325) and builds on the United States’ National Action Plan on WPS, which was released in 2011 and then strengthened in 2016. Both plans call for effective measures to investigate sexual and gender-based violence and to bring those responsible to justice. The Trump Administration has only haltingly implemented the WPS Act, while taking a number of concrete steps in the opposite direction, as demonstrated by Ambassador Don Steinberg, who once led USAID.

Biden’s Agenda for Woman contains a whole slate of economic pledges, underscoring a recognition that economic security is a women’s issue just as much as reproductive rights or the imperative to end gender discrimination. These include support for a number of pieces of draft legislation, including:

Biden has also drawn attention to the need to better support caregivers, particularly in the Covid-19 era. The Agenda announces a whole array of measures in the health, education, and economic sectors for LGBTQI+ individuals (indeed, the list of policies to be reversed vis-à-vis this community is regrettably a long one), as well as disabled, incarcerated, native, immigrant, and veteran women and women of color.

Finally, consistent with an Obama-era Executive Order, Biden has also pledged to ensure his political appointees, and the entire federal workforce, reflect the diversity that is America. Besides his intention to choose a woman Vice President and an African American women for the Supreme Court, he also committed to work for gender parity as he builds his foreign policy and national security teams, a campaign launched by the Leadership Council for Women in National Security (LCWINS) at the start of the election season. The commitment—which other Democratic candidates also adopted—is based not only on legitimate concerns for gender equity but also on consistent research that diverse teams are stronger, more effective, and more creative. This imperative is echoed by organizations such as Women of Color Advancing Peace, Security & Conflict Transformation (WCAPS), the Athena Leadership Project, and Women in Defense (WID).

All this may explain why polls have VP Biden up 25 points over Donald Trump with women as a whole—an historic margin. This is notwithstanding Trump’s pandering to “The Suburban Housewives of America,” perhaps because Biden’s numbers are also higher in suburban polls. To be sure, gender has always been—and likely will be—an issue on the campaign trail, but the disparity between the two candidates could not be more stark.

 

PART I: INDIA’S POLICY CHANGES TO CITIZENSHIP AND ITS IMPLICATIONS

In the present climate of xenophobic impulses and right-wing nationalism, coupled with escalating allegations of terrorism and state security, establishing host state’s obligations to protect refugees is a painstaking challenge. It is generally claimed that non-refoulement (ban on forcing refugees to return to countries where they are likely to face persecution) has achieved the status of customary international law. Nevertheless, states often find justifications to defy its implementation. Refugees are commonly portrayed as a threat to the security of the host country, and this justification is suitably invoked to close their borders or deporting refugees to their country of origin. Further, there is a growing tendency to label them as ‘economic migrants’/‘illegal immigrants’. These restrictive policies have facilitated the erosion of non-refoulement in a functional sense.

There have been consistent efforts by states at implementing non-entrée policies to stop refugees (particularly those who do not possess political and ideological value) from reaching their international border. There are differential policies for different sects of people, which conveniently facilitate states in choosing the kind of others they prefer to welcome. These policies have taken the shape of a civilizing mission where the central idea is to ‘exclude’ the ‘un-civilized’ on the grounds of the state’s interest. It is pursued with the goal of securing electoral gains, demonstrating cultural superiority or establishing brute majoritarianism.

The rampant oppressive practice of the Indian government towards refugees is a textbook instance. India not being a signatory to the Refugee Convention and, in the absence of any defined statutory framework on refugees, has only ad-hoc mechanisms in place for refugees. As per the Foreigners Act, 1946, every foreigner, unless exempted, should be in possession of a valid passport or visa to enter India. Hence, if a refugee contravenes these provisions, she is likely to be indicted just like any other foreigner. Inconsistencies and arbitrariness rule in the absence of any clearly defined statutory standards. Thus, while we witness a generous behaviour being meted out to some categories of refugees, others are alleged to be ‘economic migrants’/‘illegal migrants’ and consequently detained, penalized and deported.

The recently-conducted process in Assam (a state in northeastern India) to update the National Register of Citizens (NRC) is a manifestation of India’s intensifying tyrannical inclinations. Historically, in the nineteenth and twentieth centuries, due to the development of railways, tea, and coal and oil industries, colonial Assam witnessed heavy migration from other provinces of British India. The colonial authorities also encouraged educated Bengalis to take up jobs as teachers and other such professions in Assam. These movements resulted in a change in the demographic profile of Assam.

Further, the Partition of India in 1947 and ensuing communal riots on the subcontinent gave rise to the influx of refugees from East Pakistan (present-day Bangladesh) in Assam chiefly due to its geographical proximity. Similarly, in 1971, during the Bangladesh Liberation War, Assam witnessed heavy migration from Bangladesh. Ever since, Assam has been experiencing a continuous migration flow from Bangladesh for various reasons, including climate change. Serious objections against this migration trend have been mounting in the ‘indigenous’ Assamese community. Allegations of depleting natural resources, increasing violence, marginalization and threat to their ‘Assamese identity’ began to amplify in the late ’70s, which gradually led to the Assam Agitation (1979-1985). The Movement, many claims, was triggered after the death of Hiralal Patwari, sitting Member of Parliament from Lok Sabha (House of the People) representing the Mangaldai (Assam) Constituency, which necessitated holding of by-elections. During the process of the election an abrupt and dramatic increase was witnessed in the number of registered voters and it was alleged that a large number of these voters were illegal settlers from Bangladesh.

To many Assamese it appeared as if the Bengali Hindus and Bengali Muslims together were now in a position to undermine Assamese rule. It was feared that the census would show a sharp decline in the number of Assamese speakers as Bengalis who had previously declared their language Assamese would now officially revert to Bengali. (Weiner 1983)

On the other hand, it was claimed that the movement involved careful planning by a few in order to retain the Assamese Hindu majority in the state assembly election, so that other communities, specially Muslims, could not reduce the Assamese Hindus to minority in the elections.

The movement further witnessed the horrific Nelli Massacre of 1983 which allegedly claimed the lives of almost 3000 Muslims in Assam. Two years after the massacre in 1985, the Assam Accord was signed which fixed 24 March 1971 as the cut-off date (as the Bangladesh Liberation War began on 25 March 1971). The Accord envisaged that all foreign nationals who entered Assam ‘illegally’ on or after 25th March 1971 were to be detected, their names deleted from the electoral rolls and subsequently deported under the Foreigners Act, 1946. Section 2(1)(b) of the Citizenship Act of 1955 defines an “illegal migrant” as a foreigner who entered India, (a) without a valid passport or prescribed travel documents or, (b) with a valid passport or other prescribed travel documents but remained in India beyond the permitted period of time.

High Court of Australia dismisses private prosecution of Aung San Suu Kyi for alleged crimes against humanity

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Source: By Alex Proimos from Sydney, Australia – High Court of Australia, CC BY 2.0, https://commons.wikimedia.org/w/index.php?curid=25649423

The High Court of Australia (HCA) recently dismissed a private prosecution of Aung San Suu Kyi – the State Counsellor of Myanmar – for alleged crimes against humanity against Rohingya people in contravention of the Australian Criminal Code. The judgment sheds light on the shortcomings of Australia’s domestic implementation of the Rome Statute of the International Criminal Court (Rome Statute) and raises important questions about the future of prosecutions of international crimes under Australian law.

Background

On 16 March 2018, Mr Taylor, a private citizen of Australia, lodged an application in the Registry of the Melbourne Magistrate’s Court alleging that Aung San Suu Kyi had committed the crime against humanity of the forcible transfer of population in contravention of section 268.11 of the Australian Criminal Code. Under section 268.121, the prosecution of these types of international crimes may only proceed with the consent of the Australian Attorney-General. Section 268.121 provides that:

(1) Proceedings for an offence under this Division must not be commenced without the Attorney-General’s written consent.

(2) An offence against this Division may only be prosecuted in the name of the Attorney-General.

Accordingly, Mr Taylor requested the consent of the Australian Attorney-General to commence the prosecution. The Attorney-General refused consent based on Australia’s observation of the principle of head of state immunity, which renders Aung San Suu Kyi “inviolable and immune from arrest, detention or being served with court proceedings”.

On 23 March 2018, Mr Taylor brought an application in the original jurisdiction of the HCA arguing that the Attorney-General erred in refusing to provide consent to the prosecution and requested the HCA to quash the Attorney-General’s decision. Specifically, the plaintiff submitted that, by ratifying the Rome Statute, “Australia took upon itself, as a matter of international obligation, not to recognise immunity based on official capacity for Rome Statute crimes in domestic criminal proceedings”. This is because article 27 of the Rome Statute removes immunity based on a person’s official capacity (e.g. Head of State).

The parties agreed to a set of special questions to be determined by the HCA, including whether the Attorney-General’s decision to refuse consent was erroneous by virtue of Australia’s ratification of the Rome Statute. However, the plaintiff failed to overcome the threshold issue of whether a private prosecution may be brought without the consent of the Attorney-General. The HCA, by a narrow four to three majority, therefore found it unnecessary to answer the remaining special questions regarding the current status of the principle of head of state immunity for international crimes before domestic courts and under principles of customary international law.

The HCA judgment Continue reading

Webinar on Wed. 25 March: Human Rights and Public Policy Implications of the COVID-19 Pandemic

The Roosevelt House Public Policy Institute of Hunter College in New York City is holding a panel discussion via Zoom on Wednesday 25 March.  RSVP here so you can join the session when it starts.

 Responding to COVID-19: The Human Rights and Public Policy Implications of the Pandemic

Wednesday 25 March, 1:00-2:30 pm EDT (17:00 GMT – 18:30 GMT)

 With the increasing numbers of confirmed new cases of COVID-19, countries face tremendous challenges and very difficult decisions. Restrictions on freedom of movement and association in the interest of health security have been addressed differently in different countries, with differing results. Join us online for a timely virtual discussion addressing the urgent human rights and public policy implications of the global public health crisis.

Panelists:
Jamil Dakwar, Director of the Human Rights Program at the ACLU
Phelim Kine, Director of Research and Investigations at Physicians for Human Rights
Ram Raju, MD, Senior Vice President and Community Health Investment Officer, Northwell Health
Moderators:
Jessica Neuwirth, Rita E. Hauser Director of the Human Rights Program, Roosevelt House
Shyama Venkateswar, Director of the Public Policy Program, Roosevelt House

Click here to RSVP to this Zoom panel discussion.

Colombia’s Constitutional Court issues landmark decision recognising victims of reproductive violence in conflict

A month ago, on 11 December 2019, the Colombian Constitutional Court issued an important decision recognising that women and girls who suffered forced contraception and forced abortion by their own armed groups should be recognized as ‘victims of armed conflict’. The decision is one of very few in the world to specifically recognise reproductive violence as a form of harm committed against women and girls in times of conflict. It thus sets important legal precedent in recognising a form of gender-based violence that has long remained invisible. Although the full written decision has not yet been made available, a summary of the decision has been published. In what follows, I analyse this summary.

Helena’s case

The case was brought by Women’s Link Worldwide on behalf of Helena (pseudonym), a young woman who had been forcibly recruited into the FARC at the age of 14. While with the FARC, she was forced to take contraceptives (injections) and forced to undergo an abortion when she became pregnant. She suffered significant and long-lasting health consequences as a result of the unsafe conditions in which these procedures were forcibly carried out. Continuing to suffer negative health consequences, Helena fled and was in hiding for many years until the peace deal with the government was signed. In 2017, she submitted an application to be recognised as a victim and to seek reparations under Colombia’s Law on Victims and Land Restitution (Law 1448). This law, adopted in 2011, recognizes victims of the armed conflict and confirms their rights to truth, justice and reparations. It includes provisions on the restitution of land and other reparations, and requires that special attention be paid to the needs of specific groups and communities, such as women, survivors of sexual violence, trade unionists, victims of forced displacement, and human rights defenders.

The agency charged with the registration of victims under this reparations framework (UARIV), however, subsequently denied Helena’s claim for victim status. In doing so, UARIV had relied upon an article in Law 1448 that denied victim status to members of illegal armed groups (Article 2(3)), and held that, in any case, Helena’s claim was submitted outside of applicable timelines set out in Law 1448. Helena fought this decision; while the first instance court did grant her access to government-provided medical support, her claims for recognition as a victim and for reparations under Law 1448 were dismissed in both first and second instance. She thus appealed her case to the Constitutional Court, who heard the matter in 2019, and issued this landmark decision at the end of last year. Importantly, Helena’s case was selected for review by the full panel of nine judges, rather than being decided upon by a panel of three judges. This illustrates the importance the Constitutional Court attached to the issues.

Constitutional Court’s decision

In its December 2019 decision, the Constitutional Court firstly found established that Helena was the victim of grave violations of her fundamental rights. The Court subsequently held that in dismissing her application to be registered as a victim of the armed conflict, UARIV violated Helena’s fundamental rights on two grounds. Firstly, UARIV had violated Helena’s rights as a victim by failing to interpret the applicable rules in accordance with established constitutional principles of most favourable interpretation, good faith, pro personae, and the primacy of substantive law. Secondly, UARIV failed to properly substantiate its decision by neither acknowledging the acts of forced abortion and forced displacement Helena suffered, nor by recognising that Helena’s specific circumstances constituted force majeure, preventing her from submitting an application within designated timelines.

The Court acknowledged that, on its face, Article 2(3) of Law 1448 allowed for the denial of victim status to ex-combatants who demobilised as an adult, and that, under this interpretation, Helena would have to seek reparations through other mechanisms, not including Law 1448 (as Helena fled the FARC after she turned 18). However, the Court also questioned whether this exclusion in Article 2(3) was consistent with Colombia’s obligations towards victims of the armed conflict, noting in particular the coercive nature of the practice of forced contraception and abortion within the FARC and that these acts were often perpetrated upon girls under 18, or upon young women who had only just reached the age of maturity.

According to the Court, denying Helena the right to be recognised as a victim under Law 1448, therefore, would violate her rights to access justice and to timely and adequate protection measures. Noting the principal obligation on the state to recognise victims of sexual violence as victims in such a way as to guarantee their rights to integral reparations, the Court also held that as a victim of sexual violence committed within an armed group, Helena would not have access to other avenues of reparations beyond Law 1448. As such, for the Court, registration in the Register of Victims constituted her only available avenue to adequately repair her fundamental rights.

Importantly, the Court held that the exclusion stipulated in Article 2(3) could not become an obstacle to reparations for victims of sexual violence who, as ex-combatants, were forcibly recruited into those illegal armed groups at a young age. Such a rigid interpretation of Article 2(3), according to the Court, would thus create an unconstitutional lack of protection and vulnerability. The Court also reiterated the state’s obligation to provide immediate, comprehensive, gender-sensitive and specialised health care to all victims of sexual violence by armed actors for such time as deemed necessary to overcome the physical and psychological health consequences of such violence.

For this reason, the Court relied upon the principle of declaring a ‘constitutional exception’ (la excepción de inconstitutionalidad) as provided for in Article 4 of Colombia’s Constitution to overrule the applicability of Article 2(3) of Law 1448 to Helena’s case. Pursuant to this principle, when faced with a conflict between an ordinary legal norm and a constitutional norm, the Court may declare a constitutional exception to preserve rights guaranteed by the constitution in a specific case. In this case, the Court held that relying upon this principle was the only way to guarantee Helena’s fundamental rights and to find an adequate balance between Colombian law and Colombia’s international legal obligations under international humanitarian law and international criminal law. Not doing so, the Court stressed, would give rise to consequences that it held to be unconstitutional. As such, the Court rendered Article 2(3) of Law 1448 inapplicable to this specific case.

The Court thus ordered:

  • that the decision by UARIV not to include Helena in the Register of Victims be declared void;
  • that within 10 days of the date of its decision, UARIV admit Helena to the Register of Victims on the basis of her having suffered forced recruitment as a child, sexual violence (including forced use of contraceptives and forced abortion), and forced displacement;
  • that within 15 days of the date of its decision, UARIV reinstate the provision of psychosocial and medical assistance to Helena to address the emotional, mental health and physical effects of having suffered sexual violence;
  • that in the provision of integral reparations to Helena, UARIV take a gender-sensitive approach to ensure her fundamental rights; and
  • that the health services provide and guarantee access to Helena to immediate, comprehensive, gender-sensitive, specialised care for as long as necessary to address the physical and psychological consequences of the violations she suffered.

Significance of the decision

In finding in favour of Helena’s registration as a victim of the armed conflict, this case establishes that ex-combatants who were forcibly recruited into illegal armed groups and suffered sexual violence, as well as reproductive violence, within those armed groups may seek victim status and thus have access to reparations under Law 1448 – a right they did not have before – regardless of the age at which they demobilised or fled. Beyond the significance of this finding for the claimant in this specific case, therefore, this decision also sets important legal precedent in recognising that victims of sexual and reproductive violence within armed groups are victims of armed conflict. This follows earlier jurisprudence by the International Criminal Court in the Ntaganda case (here and here; see also this 2017 post by IntLawGrrl Rosemary Grey). The Colombian decision is also one of very few in the world to specifically recognise reproductive violence as a distinct form of harm committed against women and girls in times of conflict.

As part of the case, the Court received 17 expert briefs from national and international human rights organisations, women’s rights organisations, academics and international experts, including one from the author of this blog post (written jointly with Ciara Laverty). In our amicus request filing, we offered the Court a comprehensive overview of the way in which reproductive violence long remained invisible in international law, how it is increasingly being recognised, and why it should be recognised as a specific and distinct form of harm, including when committed within armed groups.

Reproductive violence is a widespread yet understudied phenomenon that occurs in times of both conflict and of peace. It can have serious physical, mental, emotional and other consequences that persist long after the violence has occurred. It is a form of victimisation connected to but also different from sexual and other violence, due to the distinct harm it inflicts and the underlying value it is said to violate, i.e. reproductive autonomy. Although reproductive violence affects individuals of all genders, there are distinct forms of harm and violence that are inflicted only upon women and girls because of and directly targeting their sex-specific biological reproductive capacities, such as forced contraception, forced abortion and forced pregnancy.

Historically, however, there have only been few instances where such violence has been independently recognised and considered. This left reproductive violence relatively invisibilised in international law. Nonetheless, current developments reflect a growing recognition that reproductive violence constitutes a distinct form of violence that should be independently recognised as violating specific, individual rights and may also constitute (international) crimes in certain circumstances. This decision by the Colombian Constitutional Court recognising the specific victimisation of female ex-combatants through forced contraception and forced abortion thus contributes to providing greater legal recognition to a form of gender-based violence that has long remained invisible in international law.

Importantly, in addition to claiming her rights as a victim through the constitutional action that was the subject of this decision, Helena has also requested participation as a victim in case 007 before the Special Jurisdiction for Peace. As such, further jurisprudence, including on individual criminal responsibility for acts of reproductive violence such forced contraception and forced abortion, may be forthcoming in Colombia.

Stay tuned!

Un símbolo para el futuro venezolano

Cada lugar tiene símbolos e iconos que lo identifican. En algunos casos son grandes obras arquitectónicas, como el caso de la torre Eiffel, o maravillas naturales, como las cataratas del Niágara, pero independientemente de cuál sea el símbolo, todos sirven para identificar ese lugar. Todos utilizamos esas imágenes para describir no sólo las bondades del sitio al que nos referimos, sino también de los problemas que existen en el entorno.

En Venezuela la simbología ha sido utilizada ampliamente por los políticos para crear vínculos entre ellos y sus seguidores, particularmente por el gobierno, y en el 2018 hay un nuevo símbolo que todos ven, pero del que pocos hablan: el bolso escolar.

Para el año escolar 2018-2019, el gobierno del Presidente Nicolás Maduro ordenó la entrega de 4 millones de bolsos escolares. La ayuda estuvo dirigida a estudiantes del sector público, que en palabras del Ministro de Educación alcanza el 80% de la población estudiantil activa en Venezuela (aproximadamente 7 millones 200 mil estudiantes). Los bolsos fueron distribuidos a nivel nacional, y aunque no hay cifras oficiales de cuántos fueron entregados en Caracas, es posible verlos en cualquier lugar de la capital ya que la ayuda alcanzó a aproximadamente 55,6% de la población estudiantil.

Los principales receptores de los bolsos han debido ser niños y niñas. Niños como José Liborio, quien utilizaba su bolso mientras se dirigía hacia algún lugar de Caracas en compañía de su abuela. Sin embargo, vemos que quienes los utilizan son las abuelas, los hermanos, tíos primos y demás familiares que se ven en la necesidad de utilizar un bolso para llevar sus objetos personales o las compras del día.

Para algunos esos bolsos se han convertido en el símbolo de la miseria. El símbolo de padres y madres que no tienen los recursos económicos necesarios para comprar los útiles escolares. El símbolo de niños y niñas que por diferentes circunstancias han tenido que abandonar la escuela. El símbolo de familias separadas porque miles de venezolanos han migrado en busca de un mejor futuro. En el símbolo de un pueblo que espera paciente por las dádivas del gobierno para sobrevivir en un país que está cada día más lejos de cumplir con los objetivos del desarrollo sostenible.

Y es que con este panorama cabe preguntarse ¿qué tipo de desarrollo hay en Venezuela? ¿qué tipo de desarrollo podemos tener en Venezuela? Para mí las respuestas son muy simples: en estos momentos no hay desarrollo en Venezuela y por eso tenemos una gran oportunidad para repensar qué tipo de desarrollo debemos tener. En mi opinión, ese desarrollo debe comenzar por el cumplimiento del Objetivo de Desarrollo Sostenible 4: garantizar una educación inclusiva, equitativa y de calidad y promover oportunidades de aprendizaje durante toda la vida para todos y todas. Para lograrlo necesitamos trabajar en pro del cumplimiento de diversos objetivos, incluyendo: garantizar una vida sana (ODS 3), terminar con el hambre y la desnutrición (ODS 2), garantizar que el trabajo del personal docente está bien remunerado (ODS 8).

Pero sobretodo, Venezuela necesita que el gobierno cree alianzas estratégicas para lograr los objetivos, tal y como lo prevé el ODS 17. Estas alianzas deben ser no sólo con instituciones extranjeras sino también con organizaciones nacionales porque los objetivos del desarrollo sostenible solo pueden alcanzarse con la participación de la mayoría.

La población venezolana no puede seguir siendo receptora pasiva de ayudas, porque para alcanzar los ODS necesitamos que quienes residen en el país participen de forma activa en la creación de una sociedad más pacífica e inclusiva (ODS 16), y en el camino convertir esos bolsos escolares en símbolos de esperanza y desarrollo.

A symbol for the Venezuelan Future

Every place has symbols and icons that makes it unique. In some cases, they can be architectural wonders, as the Eiffel tower, or natural beauties, like the Niagara Falls. Independently on which symbol or icon is used, we all refer to them to describe the wonders of that place and to explain some of its problems.

In Venezuela politicians use iconography to create bonds between them and their followers. This practice has been very common in the past 20 years, and the ruling party is its main user. In fact, Venezuelans are used to this practice, and for that reason they are not discussing the newest symbol: the schoolbag.

For the Academic Year 2018-2019, President Nicolas Maduro ordered to deliver 4 million bags to students who attend to public schools. In an official event, the Minister for Education indicated that students in the public sector represented 80% of the active student population (approx. 7.2 million students). Even though there is no official data regarding the exact number of schoolbags distributed per state and that the help did not cover the entirety of the population, at least 55.6% received it; therefore, it is possible to see them in every corner of the capital.

The main beneficiaries of the help were children. Kids like Jose Liborio, who was using his bag in the subway while moving around Caracas accompanied by his grandmother. However, he is an exception to the rule. The main users of the bags are grandparents, siblings, and other relatives who need the bag to carry personal objects or just the food the bough that day. For that reason, for some people the bag is a symbol of misery and poverty. They see it as the symbol of parents who do not have the money needed to buy back to school supplies and books. The symbol of children that for several reasons have abandoned school. The symbol of broken families because thousands of Venezuelans have migrated to pursue a better life. A symbol of a population who patiently waits for the government charity to survive in a country that every day is stepping away from achieving the sustainable development goals.

And with this panorama, one could ask, what is the type of development that Venezuela has? What is the type of development that it should have? For me answers are very simple. In this moment Venezuela has no development, and precisely because of that, we have a great opportunity to discuss the type of development that Venezuelans would need to have.

In my opinion, Venezuelan development agenda should start with SDG 4: ensure inclusive and equitable quality education and promote lifelong learning opportunities for all. However, to achieve it we need coordinated action to ensure good health and wellbeing (SDG 3), zero hunger (SDG 2), and that teachers are receiving a decent salary for their work (SDG 8). But, above everything, Venezuela needs strategic alliances as indicated in the SDG 17.

The government should promote alliances not only with foreign institutions, but also with domestic organizations. Sustainable development can only be achieved with the participation of the majority of the stakeholders. The inclusion on local institutions will transform the situation from within, and produce bottom-up solutions.

Moreover, as soon as Venezuelans start participating, they will stop being passive receptors of aid. They will be active creators of a more peaceful and inclusive society (SDG 16) and in doing it, Venezuelans will be able to develop and transform those bags in symbols of hope and prosperity.

Syria and Domestic Prosecutions: Upholding hope, one case at a time (Part 2 of 2)

National Prosecutions based on Universal Jurisdiction: the cases of Germany, Sweden, and “France”

Last June, Germany’s chief prosecutor issued an international arrest warrant for Jamil Hassan, head of Syria’s powerful Air Force Intelligence Directorate, and one of Syria’s most senior military officials. This move comes as a 2017 Human Rights Watch report mentioned [p.36] that, so far, very few members of the Assad government had been the subject of judicial proceedings in Europe based on universal jurisdiction.

At the time these charges (based on command responsibility) were filed with Germany’s Federal Court of Justice, Patrick Kroker (European Center for Constitutional and Human Rights, hereinafter “ECCHR”) commented that this moment was“historical”, adding: “That this arrest warrant has been signed off by the highest criminal court in Germany shows that they deem the evidence presented to the prosecutor is strong enough to merit urgent suspicion of his involvement.”

N.N., a Syrian activist present at the side-event held today mentioned in Part 1 of my post, underlined several times the importance of these arrest warrants. Until their issuance, he said, many Syrians never would have thought that high-level representatives of the Syrian regime would have charges laid against them. For many this is a great sign of hope, a demonstration that we are “not only listening to stories but also doing something about it.” He mentioned this point in part as an answer to a participant at the event who wondered what it could mean to the people still in Syria to see prosecutions happening in Europe, but not in Syria or before the ICC.

Mr. Patrick Kroker, Legal Advisor& Project Lead for Syria at the ECCHR (Berlin) explained the work done by his organization to initiate prosecutions in Germany linked to the Syrian conflict. With regard to Germany, the progress over the past few years has been spectacular: 11 cases have been brought to trial. As well, three were brought to trial in Sweden, one in Switzerland, and another in Austria (for an excellent overview of proceedings linked to Syria, see the Amnesty International page “Justice for Syria” here).

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Syria and Domestic Prosecutions: Upholding hope, one case at a time (Part 1 of 2)

Credit: Lynsey Addario

As of July 2018, more than 500 000 people had been killed as a result of the conflict in Syria, according to the British-based Syrian Observatory for Human Rights. With the UN Special Envoy for Syria having recently resigned, signs of hope seem dire for many Syrians and their supporters, there and abroad.

A side-event held today, on Day 3 of the 17th Assembly of State Parties (ASP) to the International Criminal Court, brought distinguished panelists together to discuss the role of prosecutions held in Europe through universal jurisdiction for international crimes, using Syria as an example. More than only about accountability, the resounding message about these prosecutions was that their role was to give out and to inspire the people to be strong, fight for justice and, maybe, eventually, be able to move on.

Earlier this week, during a keynote address at a reception held before the launch of the ASP, Ms.Catherine Marchi-Uhel aptly said that the ICC is the center piece of the international justice system. However, she also reminded the audience that the role of the international jurisdiction as a springboard for national prosecutions is often overlooked.

Yet, despite the hopes, symbolism and assistance to the rebuilding of judicial institutions that national prosecutions can bring (as I mentioned in my previous blog post on Quid Justitiae in the context of the present ASP), the political context may simply not allow it and, in the case of Syria, there is obviously no need to elaborate on why prosecutions at the national level are not possible.

In the case of Syria, one of the worst situations since World War II, as Ms Marchi-Uhel underlined, the pathway to the ICC is blocked, as a UN Security Council (UNSC) resolution to refer the case to the ICC was vetoed in 2014. With the ICC option gridlocked, Marchi-Uhel said that the international community needed to be creative to find new strategies to supplement the Rome Statue system: there was a need to think outside the international justice box. This is why, in 2016, the UNGA decided to create the International, Impartial and Independent Mechanism to assist in the investigation and prosecution of persons responsible for the most serious crimes under international law committed in the Syrian Arab Republic since March 2011 (IIIM) to collect and analyse evidence of international crimes committed in Syria (see the IIIM official website here). Not a court or tribunal, it is “a building block for comprehensive justice” and can “turn limitations into opportunities”. This was definitely a smart move, as the call for Syria to be referred to the International Criminal Court by the United Nations Secretary-General Antonio Guterres did not seem to have resonated any more than previous attempts made through the UNSC.

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