CCIL 2018: “The Role of International Criminal Law and the ICC in Responding to the Alleged Crimes Perpetrated Against the Rohingya”

On November 1 and 2, 2018, the Canadian Council on International Law (CCIL) held its annual conference in Ottawa, Canada. This conference is touted as one of the premier international law conferences in the world, bringing together scholars and practitioners from across Canada, the United States and Europe. This year’s topic was “International Law at the Boundaries,” which recognized the role of non-state actors and ideas that seek to push international law to its limits.

One particular panel discussed three important, and even novel, issues within international criminal law: (1) jurisdiction over crimes committed by a non-state party; (2) sexual and gender-based violence; and (3) the role of social media in contributing to these crimes. “The Role of International Criminal Law and the International Criminal Court (ICC) in Responding to the Alleged Crimes Perpetrated against the Rohingya,” examined the ongoing situation in Myanmar and the ICC’s role in holding perpetrators of international crimes accountable. Fannie Lafontaine of Laval University’s Faculty of Law and the Canadian Partnership for International Justice chaired the panel of three speakers: Payam Akhavan of McGill University’s Faculty of Law, Valerie Oosterveld of Western University’s Faculty of Law, and Kyle Matthews of the Montreal Institute for Genocide and Human Rights Studies.

Akhavan discussed the ICC’s jurisdiction over the crimes committed against the Rohingya. This has been an area that has required some thought because Myanmar is not a party to the Rome Statute of the ICC, and therefore the Court does not have jurisdiction over crimes committed on its territory unless a referral by the United Nations Security Council is made (which has not happened yet and has been suggested to be unlikely). Akhavan highlighted how the ICC’s jurisdiction is currently being established through the crime of forced deportation as an underlying act of the crime against humanity. Forced deportation involves the crossing of international borders, and because the act of deporting the Rohingya ended on the territory of a state that is a party to the Rome Statute—Bangladesh—the Court has jurisdiction to try those responsible for forcing the Rohingya into Bangladesh.

Oosterveld ended the panel with a discussion of sexual and gender-based violence in the context of the Rohingya. She discussed the many ways that Rohingya women and girls are targeted and then humiliated through public gang-rapes to promote terror, and even ‘branded’ by their perpetrators biting them. Men and boys suffered similar treatment in detention from their captors trying to gain information.

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Violent Extremism and Terrorism in the Scope of Women, Peace and Security: an Uncomfortable Relationship

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Credit: UN Photo/DN (http://www.un.org/en/sc/about/)

The most recent and very controversial resolution of the United Nations Security Council(UNSC) Women, Peace and Security (WPS) agenda, Resolution 2242 of 2015, has started to be implemented by the member states: a very recent example is Bosnia and Herzegovina. To date, Bosnia and Herzegovina has adopted three National Action Plans (NAPs) to implement the WPS agenda in its legal, judicial and administrative bodies for the periods of 2010-2013, 2014-2017and 2018-2022. Although the first two NAPs have not engaged with counterterrorism (CT) or countering violent extremism (CVE), the third NAP has a specific section regarding the measures for CT and CVE. In the NAP of 2018-2022, greater involvement of women in the initiatives for CT/CVE is highly encouraged.

The engagement of women with the CT and CVE programmes has developed in a very problematic way. The international framework on CT and CVE was established by UNSC Resolution 1373 (2001), immediately after 9/11. Fionnuala Ní Aoláin’s review of 43 UNSC Resolutions regarding the CT/CVE agenda pointed out that the agenda made only a handful of references to women and/or sexual harms. Thus, the CT and CVE agendas were gender-blind. Whereas the WPS agenda, at least initially, was trying to bring a gender lens to the peace and security concepts, CT/CVE resolutions have remained detached from the UNSC WPS purposes and agenda.

Very recently, this detachment has been terminated, not through the application of a gender-sensitive lens to the CT/CVE, but through the engagement of the WPS agenda with the CT/CVE programmes. With the adoption of UNSC Resolution 2242, CT/CVE discourse has been introduced to the WPS agenda.

In Resolution 2242, the SC

“(…) expresses deep concern that acts of sexual and gender-based violence are known to be part of the strategic objectives and ideology of certain terrorist groups, used as a tactic of terrorism, and an instrument to increase their power through supporting financing, recruitment, and the destruction of communities (…)”

To tackle this, the SC

“(…) urges Member States and the United Nations system to ensure the participation and leadership of women and women’s organizations in developing strategies to counter terrorism and violent extremism which can be conducive to terrorism(…)”

Integration of CT/CVE with the WPS agenda through “strategic essentialism” presented women as “an untapped resource for countering violent extremism” (page 31). Feminist scholars have been concerned with the language in the resolution which essentializes women “as wicked purveyors of extremist violence or virtuous saviours of sons, husbands and communities” (page 282).

Bosnia and Herzegovina’s latest NAP echoes this language of Resolution 2242. “Women and children” are depicted as the main victims of violent extremism and terrorism.  The NAP acknowledges the presence of “radical communities” in Bosnia and Herzegovina and encourages international partners, the non-governmental sector, academia and religious communities to cooperate in order to “protect” the main victims of violent extremism and terrorism: “women and children”.

A major problem with both Resolution 2242 and the Bosnian NAP of 2018-2022 is the “over-simplistic understanding of the causes of extremism, and the solutions”(page 108). Such an approach seems palliative; the reasons for the emergence of violent extremism and terrorism in societies are simply ignored and instead the aim is onlyto treat the symptoms.

In addition, Resolution 2242 leaves the meanings of “violent extremism” and “terrorism” open. Similarly, Bosnia and Herzegovina barely specifies the measures for tackling violent extremism and terrorism. This prevents us from gaining any insight into the meaning and scope of “violent extremism” and “terrorism” in the Bosnian context. Expansion of the WPS agenda and alignment of the CT/CVE  and WPS agendas “does not mean that women will be included in defining what constitutes terrorism” and violent extremism. This very point creates concerns for feminist scholarship since the ambiguous and “customizable” scope of violent extremism and terrorism might lead to the securitization and instrumentalization of the WPS agenda, and to the legitimization of the SC.

This is not the first time that international security has intervened in the WPS agenda. In an earlier resolution, Resolution 1960 of 2010, the SC brought forward “targeted sanctions” against perpetrators of sexual violence in armed conflict, which was a “counterproductive development in the contemporary collective security approach to women, peace and security”. Such security-oriented interventions sideline gender equality and aim to “empower” women with the only purpose of providing security in the affected societies.

As Diane Otto has pointed out, any so-called successes in the feminist theory and practice should always be weighed against their consequences. Integration of the CT/CVE into the WPS agenda is presented as a success by the UNSC since this integration could reduce the impacts of terrorism and violence extremism on women. However, as WILPF reminds us, “inclusive” strategies are more often than not used to justify the use of force.

Although Resolution 2242 has already been adopted in Bosnia and Herzegovina and many other countries through NAPs, legal, judicial, and administrative bodies and women’s rights NGOs should cautiously put the NAPs into practice by constantly examining the potential impacts of CT and CVE programmes on women.

Call for abstracts

STUDYING WAR CRIMES:

The ethics of re-presenting mass violence in research

When do descriptions of harm become academic sensationalism rather than re-presentations of violent materialities? Can academic interest and engagement in mass harm ever avoid voyeurism? How can sensational violence be ethically re-presented in research? Across disciplines theorizing mass harm, a consensus is emerging cautioning against sensationalism in re-presentations of perpetrators, victims, crimes, and sufferings, seeing detailed descriptions of violence as academic voyeurism. Yet, how comfortable a read can research that has violent profusion at its core become, before the distance created by language becomes an ethical – and analytical – challenge in its own right?

This edited volume invites experienced scholars to address thoroughly the ethics of doing research on mass harm in general, and of re-presenting and describing mass violence, harmdoing, trauma, and suffering in their own research in particular. Drawing on a range of methodological approaches and empirical cases, the book will address how mass violence and war crimes are brought into research – both as an ethical, a sensational, and an analytical matter.

We ask contributors to reflect on their re-presentations of mass crimes, violence and justice, seeing re-presentations both as an issue to do with individual and disciplinary research ethics but also as a matter to do with power and material structures of academic knowledge production. The purpose is to encourage active engagement with a research ethics that goes beyond ‘procedural ethic;’ to expand the discussion on responsibility for the stories we hear, read, analyze, and re-tell; and to address in-depth the ethics of listening, seeing, and telling in research on mass violence and war crimes.

The book will be relevant for all researchers who wish to engage ethically with the study of mass violence and war crimes.

We invite abstracts that explore the ethics of re-presenting mass violence in research.

Abstracts may also cater specifically to:

  • The ethics of caring, seeing, listening and re-presenting
  • Selection and exclusion: whose stories are told?
  • Understanding harm/understanding as harm
  • “Thick descriptions” and sensationalism
  • Breaking the silence vs silence as choice
  • Emotions, positionality, and reflexivity

Submission guidelines:

Abstract of no more than 500 words to be submitted by November 30th, 2018 to editors at studyingwarcrimes@gmail.com. We only accept original contributions and the abstract needs to clearly demonstrate the chapter’s contribution to the volume.

Please include a 150-200 word bio highlighting your affiliation, work experience and credentials in the field of war and mass violence research.

Further process:

After an initial screening and by December 15th, 2018, editors will invite 8 contributors to develop their abstract into a full chapter (5-7000 words) to be submitted by April 15th 2019. We will apply for funding for a lunch-to-lunch workshop for contributors in May 2019. The final submission date for full chapters will be in August, 2019.

Routledge (Taylor&Francis Group) initiated our work with this collection, and has expressed a strong interest in publishing the book.

About the editors:

Sladjana Lazic is a post-doctoral researcher at the Center for Peace Studies (CPS) at the Arctic University of Norway (UiT). She holds a PhD in Political Science from the Norwegian University for Science and Technology in Trondheim, Norway, on victims’ perspectives on transitional justice and legitimacy.

Anette Bringedal Houge holds a PhD in Criminology and Sociology of Law from the University of Oslo on conflict-related sexual violence, perpetrator re-presentations, and international criminal justice. She has published her research in e.g., Aggression and Violent Behavior, British Journal of Criminology and Criminology and Criminal Justice. Anette is the Head of Humanitarian Needs and Analysis at the Norwegian Red Cross.

Feminism and the Kenyan TJRC (Part 2)

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Women singing at the launch of the TJRC public hearings in Garissa (April 2011)               (Kenyan TJRC)

Addressing the first feminist critique – the failure to address systemic and structural violence that tends to affect women disproportionately – was easier for us to address compared to other truth commissions given our broad mandate and, in particular, the requirement that we investigate violations of socioeconomic rights. To better analyze systemic and structural issues, including those related to socio-economic rights, we needed to address effectively the second critique – the failure to encourage active participation of women, a failure that had already been experienced by the Mutua Task Force.

 

In addition to dedicating specific parts of our statement-taking form to capturing the experience of women; training our statement takers on gender sensitivity, and ensuring a high percentage of female statement takers (43 percent), we also conducted thirty-nine of what we called women’s hearings in each of the places where we held public hearings. Our challenge was not just to encourage women to participate and speak to the Commission, but also to elicit testimony about violations and related issues experienced by them. The experience of previous truth commissions suggests that women who are willing to speak about past violations tend to speak as witnesses and observers concerning incidents that happened to others, usually the male members of their family. The characterization of such testimony as indirect is itself problematic, as it tends to de-emphasize the secondary effects of violations on family members and community members and more fundamentally emphasize the individualistic, rather than community-oriented, aspect of violations. While women may testify about what happened to others in their family or community because they are reluctant to testify about themselves, they may also focus on violations directly experienced by their family and community members because they see themselves as part of those larger social entities and, thus, are more likely than men to see such violations of “others” as affecting them, their families, and their communities directly. Nevertheless, we were concerned that some women might feel reluctant to share their own direct experiences of violations out of fear rather than because they adopted a more holistic approach to violations and their effects.

In addition to holding women’s hearings in each place where we held public hearings, we often had a prominent woman activist from each community testify about the experience of women generally in that community. We were able to do this in part because of the strong working relationship we had developed with Maendeleo ya Wanawake, the largest women’s membership organization in Kenya. We were thus able to explore at the local level some of the broader systemic, institutional, and cultural issues faced by women. To further broaden this analysis, we devoted one of our national thematic hearings to women. The purpose of the thematic hearing was to supplement the individual stories we had heard in the field – both from witnesses as well as local activists – with a more national and even international perspective on the broader systemic issues facing women in Kenya. Continue reading

Feminism and the Kenyan TJRC (Part 1)

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Commissioners Tecla Namachanja and Margaret Shava at the launch of public hearings in Garissa (April 2011)       (Kenyan TJRC)

In 2004 a task force chaired by Professor Makau Mutua travelled throughout Kenya to determine whether a truth commission should be established to address historical injustices.  In their report, the task force observed that while their provincial hearings were “on the whole” well attended, the number of women participating in the hearings was “low.” The experience of the Mutua task force mirrored that of truth commissions generally. Female participation in truth commission processes worldwide has been low, leading more recent truth commissions to create special units to encourage the participation of more women. Kimberly Theidon discusses attempts to incorporate a greater gender sensitivity to transitional justice processes, focusing in particular on Peru.

 

Christine Bell and Catherine O’Rourke pose three sets of questions as part of a feminist critique of transitional justice generally.  First, where are women (both representation and participation in transitional justice design and process)? Second, Where is gender (where are the voices and experiences of women with respect to conflict, human rights violations and justice)? Third, where is feminism (referring to the feminist critique of justice and its applicability to transitional justice)?

Feminist critiques of truth commissions tend to focus on two issues. First, truth commissions ignore or do not devote sufficient attention to systemic, structural, and institutional violence that tends to affect women disproportionately. Second, truth commissions are not designed to encourage the participation of women, and thus perpetuate the silencing of women in those societies.

The drafters of the Kenyan legislation establishing the Truth Justice and Reconciliation Commission were sensitive to these critiques, requiring that there be gender balance among the commissioners (we began with five male and four female commissioners); requiring that the chair and vice chair be of opposite gender; including sexual- and gender-based violence in the violations we were to investigate, and suggesting that we put into place special mechanisms and procedures to address the experiences of women. During most of our operational period, our CEO was a woman; and during the fourteen months when we conducted most of our external activities (statement taking, public hearings, investigations, and other outreach activities), our acting chair was a woman – in fact Tecla Namachanja Wanjala was the first woman to serve as the chair of a truth commission. Continue reading

A Posthuman Feminist Approach to Mars

Grand_star-forming_region_R136_in_NGC_2070_(captured_by_the_Hubble_Space_Telescope)

Captured the Hubble Space Telescope (NASA)

Feminists must found a constitution for Mars, notes Keina Yoshida in her fascinating recent post. If we leave Mars to the founding fathers it will become the domain of the super wealthy elite white men of techno-mediated capitalism––the Musks, the Zuckerbergs and the Trumps. Human space exploration will follow the same, masculine, humanist blueprint of domination on Earth and Mars will be exploited for its natural resources, just like Earth. Yoshida thus asks:

 

… what then would a founding feminist constitution look like? How would it guarantee foundation against what bell hooks has termed the ‘white supremacist capitalist patriarchy’? Is it a democracy to come? Whose work should we draw upon to inform this constitution? … Who will protect their rights in Mars?

Yoshida answers her own question: “The feminists.”

Feminists are indeed ideally positioned to be able to tackle this issue. Environmental protection is core here but the problem does not lie with these founding fathers alone but with the entire foundations of dominant thought. Feminist gender theorists are central to challenging these dominant accounts of knowledge. Feminist posthumanism is one frame through which these challenges can be made.[1]

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A Transformative Approach to Personal Laws

It’s been a busy few weeks for the Indian Supreme Court with both gains and loses. Notably, in the Sabarimala judgement, Justice Chandrachud observed that the rationale used by the Bombay High Court in Narasu Appa Mali v State of Bombay, which held that personal laws should not be subject to fundamental rights, is not sustainable. Chandrachud, however, only overrules Narasu on the point that customs are not subject to fundamental rights.

This exposition in itself is unremarkable since the Supreme Court in Sant Ram v. Labh Singh had already held that customs are subject to a fundamental rights challenge. The ratio of Narasu Appa Mali only extended to uncodified religious law which hasn’t been modified by either custom or usage. Thus, while the outcome remains unchanged, the observation by Chandrachud that the reasoning of Narasu is flawed, segues into the question of whether personal law can be counted as law and thereby lays the groundwork for a challenge to personal laws when it arises.

What are personal laws?

To set some context to the debate, it might be useful to understand what personal laws are. The idea that religious sphere is entirely distinct is of recent vintage it was through a process of construction during the British era that a separate space was carved out for certain religious laws, generally governing family matters like marriage and divorce. Thus, the first point to note is that there is nothing inherently personal about personal laws. The scriptures gained jurisdiction over certain matters because the colonial state said so, and this determination was due to sociopolitical rather than religious reasons.  It is untenable therefore to think that the body of laws referred to as “personal laws” derive their validity from religion, rather than the state. Second, personal laws were shaped by male elites of each religious community using the colonial state. For example, with regard to Hindu personal law, there was a forced homogenization and enforcement of Brahmanical law. Today, many personal laws are alleged to promote the subordination of women and other minorities. However, to have a fundamental rights review, ‘personal laws’ has to fall under the definition of ‘law’ or a ‘law in force’ in Article 13 of the Constitution.

Narasu Appa Mali v State of Bombay

The petition in Narasu challenged validity of the Bombay Prevention of Bigamous Hindu Marriages Act, 1946 which sought to render bigamous marriages void as well as criminalize the offence of bigamy. What the Court ultimately ended up deciding was the question of whether coming into force of constitution, muslim polygamy is void because it violates Art. 15. This might be explained by the dominant narrative prevailing in the country during the early 1950s. At the time the judgement was pronounced, the Hindu Code Bill was still in deliberation and the general sentiment was that only the Hindus were being ‘punished’. It might be useful to keep this context in mind while evaluating the rationale of the two judge bench.

Prior to determining whether muslim polygamy is unconstitutional, the Court had to answer the question of whether it is law in the first place. To answer this question, the Court looked at Article 13 and applied the principle of ‘Expressio Unius Exclusio Alterius’ i.e. the expression of one excludes the other, and its present application. It characterised customs & usages as deviations from personal laws and relied on Article 112 of the Government of India Act, 1915 which had discussed customs as different from personal laws, to say that personal laws cannot be laws under Article 13. The inclusion of various provisions in the Constitution that relate to state regulation of personal law, such as Article 17 (Abolition of untouchability), Article 25 (Freedom of Religion) would be redundant had the drafters wanted to include personal laws within the definition of law. It further relied on Art. 44, which asks the state to endeavour to build a Uniform Civil Code, to say that there is a presumption by the drafters that different personal laws will exist even after independence. Moreover, Article 44 and Entry V of the Concurrent List seems to suggest that the drafter’s intent was to give this power to the legislature and not the judiciary. It also referred to Article 372 of the Constitution. Pre-constitutional laws continue in force by virtue of this Article, and that they can be amended by the President. The Court reasoned that since the President had no power to modify personal laws, personal laws do not derive their validity from Article 372 of the Constitution.

Re-evaluating Narasu Appa Mali

Narasu has never been challenged in the Supreme Court. Previous decisions such as John Vallamottam v Union of India and C Masilamani Mudaliar v Idol of Sri Swaminathaswamiswaminathaswami which are commonly cited as examples of the Court subjecting personal laws to a fundamental rights review, only dealt with codified personal law.

However, there is some literature offering a contrary view. Krishnan argues that the term ‘includes’ in Article 13 is an inclusive definition. For example, Art. 13(3)(a) does not use the word “common law” and yet we subject that to Part III. There is no evidence to suggest that the drafter were referring to the Government of India Act, 1915 in drafting this section. As Bhatia argues, Article 17 could have just been incorporated by way of abundant caution. The corrosive and pervasive nature of caste discrimination could have made the framers include a specific article prohibiting untouchability as an extra measure to leave nothing to chance.  Moreover, the scope of Article 25 is way broader than personal laws.  It protects an individual’s right to practice her religion rather than protecting religious norms or rules. Article 44 is located in Part 4 of the Constitution (Directive Principles of State Policy) and therefore casts no positive obligation on the State. Many Directive Principles duplicate obligations that would arise from fundamental rights themselves.

However, the question ultimately comes down to how we understand our constitution. Should we read the Constitution textually, debating the technical points of law or should we read it as a transformative document capable of bending the moral arc of the Indian polity towards justice. In the words of Chandrachud-

“Custom, usages and personal law have a significant impact on the civil status of individuals. Those activities that are inherently connected with the civil status of individuals cannot be granted constitutional immunity merely because they may have some associational features which have a religious nature. To immunize them from constitutional scrutiny, is to deny the primacy of the Constitution.”

Not only was the Constitution transformative in the sense that it indicated a break from India’s past, but it also has a transformative potential. At the heart of transformative constitutionalism is vision of change, a redemptive potential. By subjecting personal laws to a fundamental rights challenge would mean acknowledging how some of these laws have becomes sites of hierarchy and subordination, where minorities like women and lower castes are denied equal moral membership of society. A transformative vision places the individual dignity at the forefront of its endeavours and values constitutional morality over societal morality. Here’s hoping that when the challenge to personal laws comes, it is also on these grounds.