Look Into the Future of the WTO: Illuminate and Implement Inclusivity, Diversity and Equality

The most recent WTO Director-General (DG), Roberto Azevêdo, stepped down on August 31, 2020. Consequently, the new – and the first female – WTO DG will be decided in November 2020. On October 8, 2020, the final two candidates were publicized after two rounds of DG selection process. They are two of the three women candidates (Nigeria’s Ngozi Okonjo-Iweala, South Korea’s Yoo Myung-hee and Kenya’s Amina Mohamed) advanced in the selection. Candidates from Nigeria and South Korea remain to contest in the final round scheduled in late October 2020. This future women leadership appointment is believed and moreover expected to reflect and pivot significances in inclusivity, diversity and equality in the WTO. Discussion on the importance of these measures has taken place in intense and meaningful ways since summer. For example, Maria V. Sokolova, Alisa DiCaprio and Nicole Bivens Collinson have already written a piece titled ‘Is it time for women leaders in international organizations?’. They address four main issues concerning trade tensions, sustainability, inclusion and digitalization in international organizations. In their conclusion, they suggest all nations to consider the role of women leaders and their abilities, considering upcoming challenging issues in international trade and women’s proved ability to handle difficult tasks. Building from this compelling work of Sokolova et al, this blog post is focused on illuminating and implementing inclusivity, diversity and equality by ways of adopting women’s leadership and participation in the WTO’s future.

First of all, inclusivity is described as a priority of the WTO. Since 1947 when the General Agreement on Tariffs and Trade (GATT) was established, all DGs of the GATT and its successor, WTO, have been men. During the GATT period, only 5% of the 168 ad hoc panelists were women. Inclusivity of women in the dispute settlement mechanism of the WTO improved – approximately 43% of the total number of panels were women. Moreover, 5 of the total 25 Appellate Body members were women. Nevertheless, only 3 women have chaired the Appellate Body.

While this year, women leaders are found to better deal with pandemic crisis, a female leader of the WTO can bring about resilience, positive changes and problem-solve capability in post-COVID times than previous DG. Looking back at the economic crisis in 2008, some academic commentators articulated that if women were leaders in the financial sectors, the crisis could have been prevented. For example, in 2014, Irene van Staveren published ‘The Lehman Sisters Hypothesis’ on Cambridge Journal of Economics. In particular, various studies indicate that it is reasonable to expect differences made by women leaderships in effective decision-making process and clearer communication in complex international and foreign affairs.

On a further point about women’s inclusivity, this blog post suggests WTO member states, including both developed and developing countries, to include more women to participate in international trade law and policy. A bottom-up approach might be effective. This advised approach entails providing opportunities and training to more girls and women to be trade delegates, negotiators, trade lawyers and scholars. Moreover, it helps to re-design curriculum of international trade law in higher education institutions to highlight gender inclusivity and to deepen cooperation between different gender categories. It is also helpful to appoint more women in leading roles in cross-border firms in international trade and associated non-governmental organizations. Furthermore, in WTO member states’ domestic law and policy implementation, this blog post advocates states to offer specific support, such as assisting women candidates to engage in local politics or to work for governments, to develop a more friendly political environment.

Secondly, ethnic diversity is on the agenda of trade promotion in the WTO. Looking at previous appointments of DG of the GATT and WTO, more than half of the previous 9 male leaders are from developed economies, such as Pascal Lamy (2005-2013) from France, Eric Wyndham-White (1948-1968) from the UK, and Mike Moore (1999-2002) from New Zealand. Whether the Nigerian candidate or the South Korean candidate, the new female DG of the WTO will represent developing economies and project a new voice to open an unprecedented chapter in post-pandemic era. This is particularly inspiring and welcome news, since for many years, the WTO has been criticized for its deficiency in promoting the interests of the least developed countries and developing countries in international trade. Moreover, the impact of COVID-19 trade disruptions on women in least developed countries is negative in significant ways. As a result, it is anticipated that the next DG of the WTO, who is from less advanced economies, will be a champion for diversity, respecting ethnicity and developmental issues.

Finally and more importantly, gender equality as enshrined in UN Sustainable Development Goals (SDGs) still has to be implemented after strengthening women’s inclusivity and diversity in the WTO and other international organizations. Recently, World Bank and the WTO co-published a report, which assesses the role of international trade to promote gender equality. This blog post emphasizes key and valuable points in this publication. Firstly, the evolving nature of trade produces opportunities for women, and we should create accessible channels for women to make most of these opportunities. The digital economy and the service economy are both remarkable examples since they provide an inclusive growth and gender friendly employment. Secondly, better trade policies will benefit women. We should continue working on breaking down women’s barriers to trade, especially vulnerable women and/or women in least developed countries and developing countries.

To conclude, having an increased number of women to take part in leading and/or participating in international trade is undeniably significant. Appointment of a new female DG of the WTO is a good start and enables us to establish and look into a more inclusive, diverse and equal future.

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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Autonomous Weapons Systems: Perpetuating the Gender Bias in Armed Conflict?

“To fight has always been the man’s habit, not the woman’s. Law and practice have developed that difference, whether innate or accidental”

– Virginia Woolf, Three Guineas,1938.

International law has developed on the basis of patriarchal structures. Indeed, this can be clearly seen within International Humanitarian Law (IHL), which can be understood as a “masculine form of domination”. IHL is used to regulate armed conflicts which have, for centuries, been fought by men. As a result, a gender bias has developed, in which masculinity is equated with the status of a warrior and femininity with innocence. This bias is specifically contained within the principle of distinction in IHL, under the Geneva Conventions Protocol I, Article 48. This states that parties to the armed conflict must distinguish between combatants and civilians, and only attack the former.

The question is whether the future use of Autonomous Weapons Systems (AWS) will serve to perpetuate this bias or whether they will disrupt the patriarchal military structure. AWS are defined as any weapon system with autonomy in its critical functions. These weapons are yet to be developed, but pre-cursors are seen in weapons such as South Korea’s semi-autonomous SGR-A1. The use of AWS has the potential to change gender dynamics upon the battlefield.

Gender as a social construct and the binary of sex difference embedded within gender identity has been translated into many areas of international law and IHL is not exempt from this critique. It is a regime that predominantly prioritises men, relegating women to the status of victims and child-bearers. This discrimination and bias can be seen especially in the principle of distinction.

Masculinity in war is associated with a natural ‘protector’ dynamic; the combatants embodying the image of chivalric, just warriors as a direct result of patriarchal norms within society. Women are regularly placed in the same group as children when their experiences within war is considered. In turn, this analogises women with the perceived vulnerability and innocence that children bear in society. It is therefore expected from men’s gendered roles that their duty is to fight in wars to protect women and children. This hegemonic masculinity sustains the patriarchal military structure.

The reality is that many women do act as combatants in armed conflicts, defying the gendered narratives of war. However, their role as combatants is often over-looked by many participants. The generalisation of women as civilians also serves to ignore their unique experiences of war as victims of gender-based violence, perpetrated in armed conflict to ensure maintenance of the subordination of women.

The use of AWS may present an opportunity to rid the gender bias embedded within the principle of distinction; the phrase “robots do not rape” is one that has been used in arguments that propose the use of AWS. Their use presents an opportunity to eliminate gender-based violence as a way of upholding the patriarchal military structure. Rather than viewing women as innocent subordinates, AWS warfare could result in the emancipation of the traditional gender roles prescribed to men and women during wartime. The protector and protected dyad would cease to continue, as all genders would be protected during war by AWS.

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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.

The Quest For Gender Based Asylum: Exploring ‘Women’ as a Particular Social Group

The United Nations Convention Concerning the Status of Refugees, 1951(‘Convention’) is the centerpiece of international refugee protection that provides protection to individuals who are forced to flee their homes due to a well-founded fear of persecution. The United States of America (‘US’), one of the treaty’s signatories, has adopted Article 1(A) of the Convention without any substantial reservation, understanding or declaration (‘RUDs’). Section 101(a)(42) of the Immigration and Nationality Act, 1952(‘INA’) grants asylum if an alien is unable or unwilling to return to his/her country of origin because s/he has suffered past persecution or has a well-founded fear of future persecution on account of ‘race, religion, nationality, membership in a particular social group, or political opinion.’ 

Notably, both the Convention and the INA leave out ‘gender’ as a ground for persecution. However, this has not stopped women from making claims of asylum on the basis of their gender. In fact, the US records a 30-year-long quest in establishing gender as a protected category in asylum law. In the recent decision of Jaceyls Miguelina de Pena-Paniagua v. William P. Barr (‘De Pena’) the US Court of Appeals for the First Circuit recognized gender as a legal basis for granting asylum, allowing the US to finally become a safe haven for women fleeing domestic violence. The Harvard Immigration and Refugee clinic that represented the asylee, a Dominican woman escaping domestic and sexual violence, expressed that the Judge saw domestic violence for what it was–persecution for her gender, and that the decision has finally put gender on par with other grounds for asylum. 

Persecution of Women 

In order to obtain asylum, an asylum-seeker must prove past persecution or a well-founded fear of future persecution. The term ‘persecution’ has not been defined in the INA or Convention. There is no universally accepted definition of persecution, however most acts of bodily violence have been recognised as such. The Board of Immigration Appeals (‘BIA’) has defined persecution as a ‘threat to the life or freedom of, or the infliction of suffering or harm upon, those who differ in a way regarded as offensive.’[i]

While considering the case for women, instances of persecution can be split into two categories:

  1. The firstkind occurs within private spheres, where the persecutor is generally an individual who shares an intimate relationship with the woman, such as a romantic partner or relative. This include acts of sexual/domestic violence, economic/emotional abuse, or regressive cultural practices such as female genital mutilation, honour killings, etc. 
  2. The secondkind is where the persecution is carried out or condoned by a public or private, non-state actor, such as Governments, or militant groupswho specifically subject women of an  ethnicity to sexual violence or subjugation. This category encompasses forced population control strategies, penalties that restrict women’s reproductive freedoms, sexual assault, rape, trafficking, forced marriages, etc. 

Evidently, in both categories, women are persecuted because of their gender and their particular societal status as women.  If persecution is studied as a means of exerting control over a race, religion or particular social group, it is clear that women fit this bill.

Additionally, the asylum-seeker must also prove that she is unable or unwilling to return to, or is unable to avail protection from persecution in, her home country. Interestingly, in most cases of persecution of women, the government and the law enforcement are unresponsive to domestic violence or sexual violence, and in some cases, are even responsible for it. 

Women as a Particular Social Group 

Defining a PSG is extremely important because, depending on how narrowly or broadly it is construed, it can result in vast differences in who is granted asylum. The UNHCR Executive Committee in 1985 recognised that women asylum-seekers who face harsh or inhuman treatment due to their having transgressed the social mores of the society may be considered as a PSG. In 1991, the UNHCR issued guidelines on the protection of refugee women in which it reiterated the same principle. The US BIA also has provided some guidance on the matter. In the Matter of Acosta, the BIA recognised that a PSG should share a common, immutable characteristic, such as sex. It is relevant to note that sex and gender are conflated in refugee law. However one can argue that gender is also an ‘immutable characteristic’, as it fundamental to an individual’s identity or conscience. Later, ‘social visibility’ and ‘particularity’ were identified as additional factors for PSGs. 

The issue that women face while claiming membership to a PSG is that they have to prove the group’s constitution, characteristics and then establish that they fit the set criteria. This double liability makes it harder for women to seek asylum. While certain women have been successful in making a claim for asylum in the US – women who refuse to undergo the process of female genital mutilation, and victims of domestic violence, there are still gaps that can only be filled by classifying ‘women’ as an independent PSG. 

Case for the wider group of ‘women’

The decision of the First Circuit in De Pena makes an effort to classify women as a PSG. While the asylee only made a case of belonging to the PSG of Dominican women who were unable to leave or escape a domestic relationship, the court positively considered and advocated for the wider category of ‘women’ to be classified as a PSG.

The main objection in construing ‘women’ as a PSG, is that it encompasses a large number of people and this will open floodgates to a large number of women seeking asylum.[ii]But in De Pena, the court acknowledged the view of Perdomo v. Holder that if race, religion and nationality refer to large classes of persons, PSGs may do as well as they are equally based on innate characteristics. Therefore a PSG cannot be rejected because it represents too large a portion of the population as this would misunderstand the function of the protected categories. Gender, like all other grounds, only functions to recognise the reason an individual is persecuted and does not imply anything larger.[iii]

While US asylum law only recently has recognized gender as a protected status, other countries set a good example for the way forward. In 1993, the Immigration and Refugee board of Canada released guidelines for gender-related persecution. Interestingly, this has not led to an explosion of claims. Further, in 2006, the House of Lords recognized that gender alone may fall within the definition of a PSG. Such definitive cases and specific guidelines aid the cause of women asylum seekers, and go a long way in recognizing the case for women as a particular social group. 


[i]Hernandez- Ortiz v. INS, 777 F.2d 509, 516 (9th Cir. 1985); Guevara-Flores v. INS, 786 F.2d 1242 (5th Cir. 1986).

[ii]Andrea Binder, Gender and the Membership in a Particular Social Group Category of the 1951 Refugee Convention, 10 Colum. J. Gender & L. 167 (2001), p 191.

[iii]Andrea Binder, Gender and the Membership in a Particular Social Group Category of the 1951 Refugee Convention, 10 Colum. J. Gender & L. 167 (2001), p 191.

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.

 

Horrors of a Rape Trial in India: A Saga of threat for masturbation or delivery of Justice?

Introduction

About 50% of the Indian male population is positively traced with a sexual dysfunction which creates hindrances in basic human instincts, leaving one crippled with ignominy. Impotence is the inability in developing or maintaining a penile erection sufficient to conclude the act of intercourse to orgasm and/or ejaculation occurring biologically which is mainly of two types-physical and psychological. Unlike sterility, potency is transitorily dependent on various factors. Untreated Impotence results in sexual sadism. The Mental Healthcare Act 2017, disregards sadism or psychologically generated impotence, indirectly making India the “impotence capital of the world.”

Secondly, the atrocious Impotence Test prevailing chiefly is considered a decisive piece of evidence in cases of rape. This embarks the beginning of torture in the Indian Criminal Justice System. The inhumane approach adopted by the Indian Penal Code in giving discretionary powers to the police officers attacks the scheme of the Indian Constitution. Despite the generic relevance of the test in most cases, routine practice violates Article 21 (Right to Life) of the Indian Constitution. In this article, we highlight the extraneous essence of the impotence test in light of the Indian Criminal justice system and the Indian Constitution.

The terror of the Impotence Test

Traditional female-centric laws pertaining to sexual offences in India butcher male integrity and violate their basic human rights. Checking the potency in rape cases remains a significant practice of law. The relevance of potency extends to adoption, nullity of marriage and divorce along with sexual offences.

Section 53 of the Criminal Procedure Code (Cr.P.C.) showers “unfettered discretionary power” on police to believe that an examination will afford evidence for the case and wistfully magistrates are ousted of such powers. The lacunae in the provision can be identified as:

Firstly, according to acclaimed Modi’s Indian Medical Jurisprudence, the potency test establishes the capability of committing the alleged sexual acts but the hamartia is the laxity of courts in considering situational and psychological factors, resulting in varying opinion of courts on similar matters.

Secondly, force may be used by the police authorities on the unwilling person to collect samples, otherwise threat of masturbation performed on him is invited caused by wrongful interpretation. Religious seers,like Raghaveshwara Bharathi and Asaram accused of rape faced a similar threat. The DNA Technology (Use and Application) Regulation Bill, 2018, bifurcates consent required in taking bodily fluid into two instances, written Consent  in crimes with less than 7 years of punishment and no consent for crimes with punishment of more than 7 years. The clear legislative intent is to differentiate between the two which gets contradicted by the unchecked power given to police authorities in deciding the necessity of performing the examination. Thus, the Indian Penal Code violates the ‘due process of law’ of the Indian Constitution.

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State Sponsored Persecution of Uighur Muslims in China

It is a well known fact that the People’s Republic of China is infamous for carrying out human rights violations on a large scale. Right now, an organized state sponsored reign of terror is being perpetuated by the authoritarian regime against the Uighur Muslims  of the country. The Uighur Muslims are an ethic Turkish minority group residing in the northwestern region of Xinjiang province of China. This region is known as Xinjiang Uighur Autonomous Region (XUAR). 

Ever since Chen Quanguo , the Chinese Communist party secretary, has been given the charge of XUAR, the crimes against the Uighur Muslims have considerably increased through their illegal detention in internment camps. Though there is little information about the treatment of detained Uighur Muslims in these camps, some credible sources have reported that detainees are forced to live in prison like conditions in these camps and are subjected to torture on a regular basis. Apart from these, the Uighur Muslims are also subjected to state surveillance so as to ensure that they are prevented from practicing Islam in any form or manner. Furthermore, the Chinese government has also adopted the policy of harvesting human organs from the Uighur Muslim community. 

Beijing has often responded to accusations about illegally detaining Uighur Muslims by terming the detention or internment camps as ‘re-education centres’ for the betterment of the Uighur Muslim Community. However, this is a poor attempt on Beijing’s part to thwart any criticism by the international community.

China’s Violation of International Law

The mass detention of Uighur Muslims, prevalence of torture against detainees, lack of information about the whereabouts of the detainees and the harvesting of their organs constitute crimes against humanity. Article 7 of the Rome statute of the International Criminal court lays down the criteria as to what specifically constitutes Crimes against Humanity and that criterion is being fulfilled by the Chinese government. Crimes against humanity take place when civilians are subjected to continuous human rights violations which are ignored or perpetuated by the governing authorities. According to Article 7(2) (a) of the Rome statute , crimes against humanity are committed in accordance with the state’s formal policy as in the case of China.  Additionally, according to the Rome statute, persecution of a community on the basis of religious or cultural ground also constitutes a crime against humanity.

Application of Human Rights Law

There are four major conventions on human rights and China is a party to all four of them. These are the International Convention on the Elimination of All Forms of Racial Discrimination , the International Covenant on Economic, social and Cultural Rights , Convention against cruel and other, Inhuman or Degrading Treatment or Punishment. Through the unjustified mass detention of the Uighur Muslims, China has been flouting the above mentioned conventions and has drawn widespread criticism from around the world. 

Crimes against Uighur Women 

China is also a signatory to the Convention on the Elimination of All Forms of Discrimination against Women. It is arguably the most widely violated convention by China when it comes to Uighur Muslims. Reports have emerged that Uighur Women are subjected to rape, medical experiments, forced sterilization and their menstrual cycles are often disrupted so as to prevent them from procreating. Apart from that, China is also implementing a ‘ Pair Up and Become a Family’ program under which Uighur women are forced to live in the same household as communist party officials so as to acquaint them with the ethnic Han Chinese culture. All these are indicative of the fact that China has been violating the CEDAW. 

Conclusion

Under the garb of combating religious extremism, China has adopted policies against the Uighur Muslim Community which have resulted in the creating of genocide like situation in the Xinjiang province. The cultural genocide that is being committed by China deserves much more attention from the world. Owing to the country’s global influence, it hasn’t received the kind of backlash that it deserves from the world community.

New Women in International Law Scholarship Prize

The Inaugural Women in International Law Interest Group (WILIG) Scholarship Prize Committee (Lori Damrosch, Adrien Wing, Viviana Krsticevic, Nienke Grossman and Milena Sterio) is excited to create the inaugural WILIG Scholarship Prize.

The WILIG Scholarship Prize aims to highlight and promote excellence in international law scholarship involving women and girls, gender, and feminist approaches. Although scholars have utilized gender and feminist analyses in international law for at least a quarter of a century, such approaches frequently fail to permeate the mainstream of international legal scholarship and practice. This prize, awarded every two years, recognizes innovative contributions to international law scholarship that theorize or utilize a feminist lens or lenses, highlight and seek to address topics disproportionately affecting women and girls, or consider the impact of international law or policy on gender more broadly.

WILIG’s Scholarship Prize Committee invites all ASIL members to submit a single article, chapter, or book published in the last three years, for consideration. Self-nomination is welcome, as is nomination of others. The Committee will consider the following criteria in granting the award, and encourages nominators to include a brief cover letter describing how the submitted work meets these criteria:

(1) Appropriate Substance. The work utilizes a feminist lens or lenses, addresses a topic that disproportionately affects women and girls, or considers the impact of international law or policy on gender more broadly.

(2) Innovative. The work addresses topics not covered by previous scholars, highlights diverse perspectives on law and policy, uses new theoretical or methodological approaches, or applies theoretical or methodological approaches to topics in new ways.

(3) Learned. The work demonstrates in-depth knowledge and expertise concerning a topic.

(4) Impactful. The work has affected or has the potential to affect the way scholars and policy-makers view or address a particular topic or issue going forward.

Please email your cover letter and scholarly work to lschnitzer@ubalt.edu with subject line “WILIG Scholarship Prize Submission” by June 15, 2020. Questions about the prize can be emailed to wilig@asil.org.

The WILIG Scholarship Prize will be awarded at the WILIG Luncheon at the 2021 ASIL Annual Meeting.

Conflict-related sexual violence: what are we talking about? (Part 1)

In the context of the author’s attendance to the 18th Assembly of State Parties to the International Criminal Court, this blogpost aims at sharing knowledge about conflict-related sexual violence (CRSV) and providing a preliminary understanding of the issue. It first explores the use of CRSV through history. Then, it highlights how it targets both women, girls, men and boys. Last but not least, this blogpost depicts the slow development of international tribunals’ responses to this scourge.

I. Conflict-related sexual violence is an old phenomenon…

According to the United Nations, CRSV refers to rape, sexual slavery, forced prostitution, forced pregnancy, forced abortion, enforced sterilization, forced marriage and any other form of sexual violence of comparable gravity perpetrated against women, men, girls or boys that is directly or indirectly linked to a conflict. The term also encompasses trafficking in persons for the purpose of sexual violence or exploitation, when committed in situations of conflict. 

The French NGO We are NOT Weapons of War stresses that sexual violence used as a weapon of war has always been present in conflict, even though its victims have long seemed invisible. This idea is also supported by Stand Speak Rise Up, a non-profit organization from Luxembourg. In its white book, we can read that sexual violence in conflict is not new and the historical roots of this phenomenon are deep: from the Viking era to the Thirty Years’ War and the Second World War, rape has been part of the “spoils of war” throughout history, a weapon of the victors and conquerors. War rape is rarely the result of uncontrolled sexual desire, but rather a way to exert power and install fear in victims and their community. 

In the 1990s, the conflicts in Bosnia, Rwanda and the Great Lakes Region marked a major turning point in the use of sexual violence as a weapon to weaken and subdue vulnerable populations or to advance a political agenda. The Stand Speak Rise Up white book explains that CRSV was methodically organized and implemented in cold blood on a very large scale. Sexual violence in particular was also a tool of submission and terror at the end of the Cold War. 

Still nowadays, sexual violence can play a vital role in the political economy of terrorism, with physical and online slave markets and human trafficking enabling terrorist groups to generate revenue from the continuous abduction of women and girls. As an example, the Yezidi community in Iraq suffered and still suffers from these crimes, as the so-called Islamic State continues to target women and girls, abducting them and reducing them to sexual slavery and forced marriages. 

Perpetrators of such acts are often affiliated with States or non-State armed groups, including terrorist entities.

II. …that targeted and still targets both men, boys, women and girls…

In September 2019, during the United Nations 74th General Assembly, the Special Representative of the UN Secretary General on Sexual Violence in Conflict recalled that conflicts exacerbates existing gender inequalities, exposing women and girls to various forms of sexual and gendered-based violence. Women and girls, in particular, suffer sexual violence in the course of displacement, navigating their way through checkpoints and across borders without documentation, money or legal status. It is also important to note than men and boys also suffer from conflict-related sexual violence . 

Conflict-related sexual violence refers to incidents including rape, gang rape, forced nudity and other forms of inhumane and degrading treatment in a context of armed conflict. A disturbing trend is that sexual violence is increasingly perpetrated against very young children. The Secretary-General emphasized that during the Colombian civil war, that has lasted for 50 years, rebels systematically used sexual violence against the civilians, targeting women as well as their children. The Colombian Constitutional Court has recognized “a widespread, systematic and invisible practice.” It is also important to keep in mind that both men and women can be perpetrators.