Moving from Rights Eroded to Rights Realized

In 2017, a women’s rights watchdog group reported that 25 women were killed for their human rights work, a decrease from the 37 women human rights defenders (WHRDs) killed in 2016. These deaths are an outrage, but represent only the most extreme form of violence and repression that human rights defenders around the world are confronting.

We are witnessing a growing trend of “closing space” for civil society actors – a term which refers to restrictions that authoritarian and right-wing governments are imposing to obstruct and limit oppositional voices. The UN Special Rapporteur on the Situation of Human Rights Defenders receives complaints from activists world-wide about closing space, and reports that one-third to nearly one-half of which concerned WHRDs in the years from 2004 to 2014.

Women and lesbian, gay, bisexual, transgender, queer, and intersex (LGBTQI*) human rights defenders the world over are targeted in the closing space phenomenon both for who they are as well as for the work they do. These defenders are targeted because they are often “perceived as challenging accepted sociocultural norms, traditions, perceptions, and stereotypes about femininity, sexual orientation, and the role and status of women in society.” Yet, only limited analysis has been made of their experiences of closing space.

Rights Eroded Blog Photo

In response, the International Human Rights Law Clinic (IHRLC) of Berkeley Law and the Urgent Action Funds for Women’s Human Rights (UAF) conducted a review of the laws and their impacts on WHRDs in 16 countries. Our report Rights Eroded: A Briefing Report on the Effects of Closing Space on Women Human Rights Defenders offers a window on the challenges women and LGBTQI* human rights defenders face as well as their resistance strategies and recommends action international and state authorities as well as donors should take to protect these front-line activists.

Women and LGBTQI* human rights defenders interviewed for the report spoke of their experiences of structural and social discrimination, targeted efforts by the State to hinder their work, gendered forms of harassment, and criminalization of their activities. They described a climate in which States have moved to restrict their access to the funds essential to their work. Governments have applied a complex web of rules including anti-money laundering and national security legislation to ensnare organizations engaged in legitimate human rights work. They emphasized how social stigma and targeted campaigns by the State to delegitimize their work undermine public support for their activities and limit the resources available to them. Activists revealed the ways in which they self-censor to avoid confrontation and abuse from State actors. And, importantly, they cataloged the strategies that they employ to resist closing space through alliance building with other human rights activists, leveraging media attention, and adopting new funding strategies. Continue reading

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Prosecuting Sexual Violence at the Special Court for Sierra Leone

On 13 December, I organized a side-event at the International Criminal Court Assembly of States Parties titled “Prosecuting Sexual and Gender-Based Violence at the Special Court for Sierra Leone”. The event was co-sponsored by the Permanent Missions of Sierra Leone and Canada, UN Women, the Canadian Partnership for International Justice and Western University (Canada).

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Valerie Oosterveld & Sharanjeet Parmar, Photo Credit: CPIJ

At the event, Sharanjeet Parmar discussed her experience as a prosecutor at the Special Court for Sierra Leone (SCSL) in the prosecution of sexual and gender-based violence (SGBV). I presented conclusions from a UN Women-funded project to gather best practices and lessons learned from the SCSL in its investigations and prosecutions of sexual and gender-based violence (SGBV). Fannie Lafontaine, Canada Research Chair on International Justice and Human Rights, moderated the event, which was opened by Ambassador Amadu Koroma, Deputy Permanent Representative (Political),  Permanent Mission of the Republic of Sierra Leone to the UN, and Catherine Boucher, Counsellor, Permanent Mission of Canada to the UN.

In this blog post, I will briefly explain the UN Women-funded project and some of the best practices that emerged. Over the past year, I, along with a small team consisting of Wayne Jordash, former SCSL defence counsel, Maxine Marcus, former SCSL prosecutor, and Fannie Leveau, gender issues consultant, interviewed over 30 individuals who had worked with the SCSL during that court’s 2002-2013 lifespan.

We spoke with individuals with a wide range of experiences – as investigators and prosecutors within the Office of the Prosecutor, as outreach workers, psycho-social support staff, and victim/witness protection staff in the Registry, defence counsel, judges and Chambers staff, and civil society members who worked closely with the SCSL. All had been involved in some way in investigating, prosecuting, defending or considering crimes of SGBV, or in supporting victims and witnesses who had experiences of SGBV.

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Fannie Lafontaine, Photo Credit: CPIJ

Those interviews revealed a number of best practices. First, the investigation and prosecution of SGBV was a key priority of all of the chief Prosecutors. This priority was originally set by the first Prosecutor, David Crane, at the outset of his mandate. Among his earliest hires were two investigators trained in SGBV and human rights, both experienced in gender analysis and both of whom had deep knowledge of the Sierra Leone conflict and familiarity with Sierra Leonean culture. They entered the Office with existing links to Sierra Leonean civil society (including women’s groups). Later, another gender advisor was added. These experts were integrated into multi-disciplinary investigation teams comprised of male and female international and local staff, with a combination of security, country, child rights and financial crimes experts. This meant that, from the beginning, the investigations were multifaceted and contextualized, with an understanding of how SGBV fit into the larger crime pattern. This translated into the collection of strong evidence on SGBV – in the context of all of the other crimes – for the prosecutors to use and apply in the indictments and trials.

Second, the large number of Sierra Leoneans in the SCSL – a proportion which increased over time to become a majority – meant that there was a deeper understanding of customary and traditional practices than there would be if the staff was mostly or entirely international. This strengthened the ability of those participating in the judicial process to understand witness narratives, including on SGBV, and the context within which the crimes were alleged. This was particularly important with respect to the forced marriage, rape and sexual slavery charges.

Third, the Registry contained an expert psychologist, whose work was directly linked to the SGBV and child soldier charges. The psycho-social support staff were Sierra Leonean. Together, the psychologist and her staff provided psychosocial support to SGBV survivors, among others, and adapted that support to fit the realities of the types of trauma experienced in Sierra Leone. This support helped to make victims feel comfortable enough to participate in the court process. Staff working with witnesses were provided with additional training on psycho-social support. However, it is important to note that the protection of, and support and outreach to, SGBV victims was limited by the lean budget of the court.

Fourth, outreach to the community throughout Sierra Leone was a priority within the court from the very beginning, despite the lack of budgetary support for this activity from the SCSL’s Management Committee. Outreach – including on SGBV crimes – commenced before the formal investigations began, first carried out by NGOs and thereafter directly by the SCSL. Staff were dedicated to outreach, making it happen despite the lack of budget. Eventually, the European Union agreed to fund the outreach.

The OTP was the first organ of the court to engage in outreach to women and girls in the field, with direct involvement of the Prosecutor. Responsibility was later shifted to the Registry, with the outreach program involving gender-sensitive Sierra Leoneans with connections to affected communities, including SGBV survivors. Outreach was organized and largely conducted by nationals, and that outreach included women’s groups, as well as organizations representing victims.

Principals of the SCSL travelled regularly to locations throughout the country to answer questions, explain the mandate, receive feedback and respond to concerns. They answered questions about SGBV crimes directly and openly, encouraging discussion of the issue. The outreach continued throughout the mandate of the court, and included updates on trials involving SGBV charges. That said, and in spite of the relative success of the SCSL’s outreach in comparison with other international tribunals, our interviewees indicated that more could have been done on SGBV outreach. For example, more confidence-building could have been done with those subjected to forced marriage, who were worried that they would be prosecuted by the SCSL because of their simultaneous victim-perpetrator status (as many of them were also forced to support or fight with the rebels).

Fifth, the fact that SCSL was based in Sierra Leone was a key factor in the court’s ability to successfully investigate and prosecute SGBV crimes. Interviewees indicated that localizing the court in-country facilitated access to SGBV evidence in a manner sensitive to the communal context. It also led to greater understanding of the links between SGBV and customary/traditional belief systems, as well as increased the understanding within the court of the context of the SGBV crimes. Location in-country also strengthened engagement with Sierra Leonean police services and organizations in witness protection activities and allowed for more effective risk assessments. Finally, being located in Sierra Leone allowed the court to more easily consult with community members, including consultations by the Office of the Prosecutor with a wide variety of women’s groups on the forced marriage charges.

There are many other best practices, as well as lessons learned, identified by our interviewees, which will be included in our final report, which is in the process of being drafted. If any IntLawGrrls readers have experience in the consideration of SGBV in the SCSL and wish to be interviewed for this study, please feel free to contact me at vooster@uwo.ca.

Thanks are extended to UN Women and the European Commission for funding Phase 1 of this study.

The difficult achievement of the fight against impunity in Mali

As part of the 16th ASP of the ICC, the side-event entitled Cinq ans après la crise de 2012: quelles avancées dans la lutte contre l’impunité au Mali? (Five years after the 2012 crisis: what are the developments in regard to the fight against impunity in Mali?) took place on 11 December 2017. This side-event was organised by Canada, Association malienne des droits de l’Homme (AMDH), Coalition malienne pour la Cour pénale internationale (CMCPI), Fédération internationale des droits de l’Homme (FIDH) and Lawyers Without Borders Canada (LWBC).

Two major events led to the 2012 crisis in Mali. Firstly, a rebellion took place in North Mali and, consequently, armed groups seized power. Secondly, former President Touré was ousted as a result of a coup d’État organized by a military junta on 22 March 2012. Following those events, the situation in Mali deteriorated, resulting in serious crimes and violations of human rights (FIDH, Crimes de guerre au Nord-Mali). Peace and security in the country were profoundly affected. Civilians – especially women and children – bore the brunt of the unrest.

Mali, as a State Party of the International Criminal Court, referred the situation to the Prosecutor, in accordance with article 13(a) of the Rome Statute of the International Criminal Court. The referral focused on “alleged war crimes committed since January 2012 mainly in three northern regions of Gao, Kidal and Timbuktu, with incidents also occurring in the south in Bamako and Sévaré” (Situation in the Republic of Mali, ICC-01/12). Among others, incidents of rape, torture and enforced disappearances, as war crimes, were reported.

At the moment, the Al Mahdi case is the sole ICC trial that has been held relating to this situation. On 27 September 2016, Al Mahdi was found guilty of war crimes for intentionally directing attacks in 2012 against historic monuments and buildings dedicated to religion (The Prosecutor v. Ahmad Al Faqi Al Mahdi, ICC-01/12-01/15).

Despite the fact that the conviction of Al Mahdi represents a success, many activists, organisations and scholars underlined the absence of representation and consideration of the harms suffered by the civilian population, in particular harms directed against women and girls who experienced sexual and gender based violence (SGBV). They are calling on the ICC to increase its investigative scope in Mali to give access to justice for victims of these crimes. Indeed, pursuant to the Policy Paper on Sexual and Gender-Based Crimes, the Office of the Prosecutor should integrate SGBV crimes in both preliminary investigations and prosecutions. Moreover, according to the complementarity principle, Malian institutions should address these issues as well.

In 2013, the United Nations Security Council (UNSC) created the United Nations Multidimensional Integrated Stabilization Mission in Mali (MINUSMA), pursuant to UNSC Resolution 2100. On 29 June 2017, its mandate was extended under UNSC Resolution 2364. The principal function of MINUSMA is to support the political process in Mali and the implementation of the Peace and National Reconciliation Agreement. According to this agreement, Parties reiterated their attachment, in particular, to national unity, rejection of violence as a political tool, respect of human rights, human dignity and fundamental freedoms and fight against impunity.

The UNSC intervention in Mali must be accompanied by humanitarian and development measures. Organisations such as AMDH, CMCPI, FIDH and LWBC, are currently working in Mali. They aim to reinforce capacities of civil society in regard to the fight against impunity and the quest for peace and justice for the victims. Prevention of the upsurge of violence, reconciliation of communities and reinforcement of the dialogue between communities and political leaders are also issues which preoccupy those organisations. They also give priority to implementing access to justice for victims, which is inherent to the success of the fight against impunity. In this regard, justice is essential to the achievement of the peace process.

As previously mentioned, women had been particularly victims of SGBV during the Malian conflict. In Gao, Tombouctou and other remote areas, rapes, collective rapes and acts of sexual violence were committed in particular by combatants of armed groups, including the Movement for the Liberation of Azawad (MNLA). Among others, Human Rights Watch (HRW) reported the testimony of a fourteen-year-old girl who was raped repeatedly by six rebels over four days (HRW, Mali: War Crimes by Northern Rebels). The fight against impunity in regard to the perpetrators of SGBV in Mali is crucial in the search for justice by these women and girls, as well as their family and community.

Access to justice for victims of SGBV is an important, but challenging, issue. SGBV crimes have occurred in remote areas, making the collection of evidence and witness statements difficult. Moreover, crimes of SGBV are more generally underreported and testimonies of these crimes are sometimes difficult to collect. In this regard fear, shame, public exposure and the social and cultural context are among the challenges faced by victims of SGBV.

Mali is still an insecure country facing security problems and crisis, and thus transitional justice – through the ICC – is taking place in an unstable context. It is therefore relevant to support the implementation of a sustainable reconciliation in regard to the situation in Mali and the pursuit of the fight against impunity, which includes criminal prosecutions against the perpetrators of the most serious crimes, as SGBV crimes. Victims and survivors deserve and need access to justice and reparations, including through the work of AMDH, CMCPI, FIDH and LWBC. It is also relevant in regard to post-conflict reconstruction, reconciliation and the peace process. However, the absence of political will of the Malian institutions constitutes a major barrier in regard to implementation and achievement of the fight against impunity in Mali.

This blog post and Geneviève’s attendance to the 16th Assembly of States Parties in the framework of the Canadian Partnership for International Justice was supported by the Social Sciences and Humanities Research Council of Canada.

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ICC Assembly of States Parties Symposium: Day 4

The General Debate continued on Day 4 of the ICC Assembly of States Parties (ASP). Many countries made statements, including France and Switzerland. France condemned the mistreatment of migrants in Libya as conduct that could amount to crimes against humanity. Switzerland responded: “We find it inconsistent to ask the Court to investigate crimes against migrants in one room of this building [i.e. the UN Security Council], only to propose cuts to the budget of that very same Court in another room [i.e. at the ASP]”.

Other speakers today included Canada, which, like many states, expressed disappointment with Burundi’s withdrawal from the ICC, and Botswana, which called on the permanent members of the Security Council to refrain from the use of the veto in the referral of atrocity situations to the ICC.

The General Debate was followed by a closed door meeting on the activation of the crime of aggression.

Among the many side-events taking place on Day 4 was the global launch of the Gender Justice Legacy Wall, a project designed by the Women’s Initiatives for Gender Justice to celebrate 15 years since the establishment of the ICC and the approach of the 20thGender Justice Wall anniversary of the adoption of the Rome Statute. The Legacy Wall honours and celebrates groups and individuals who have contributed to the field of international gender justice as practitioners, advocates, judges, prosecutors, grassroots and other organisations, survivors, witnesses (by number for anonymity), academics, diplomats and others. The Legacy Wall is intended to be a living legacy with more names to be added at future significant anniversaries of the Rome Statute, as the gender justice field continues to evolve, as others are recognised and as future generations join and contribute to this endeavour. The launch was co-sponsored by the Women’s Initiatives, New Zealand, Switzerland, and the UK.

Silviana Cocan joins the IntLawGrrls ICC Assembly of States Parties Symposium with a post on another side-event which took place on Day 4 – in this case, on a new proposed treaty on Mutual Legal Assistance concerning genocide, crimes against humanity and war crimes.

Silviana is a Ph.D student in international law at Laval University (Canada) under joint Silviana Cocan - photosupervision at Bordeaux University (France). She is currently writing a thesis on the dialogue between jurisdictions and quasi-jurisdictions protecting human rights. More specifically, she is studying judicial dialogue in direct relation with the prohibition of torture and other cruel, inhuman or degrading treatment and punishment. Her research fields are public international law, human rights law, international humanitarian law and international criminal law. Silviana is also participating as a student at Laval’s University’s International Criminal and Humanitarian Law Clinic.

Heartfelt welcome to the IntLawGrrls ICC ASP Symposium, Silviana!

Conservative mobilization and adolescent pregnancy in Latin America

On September 27, 2017, the Brazilian Supreme Court – in a 6 to 5 judgmentdecided that public schools can have “confessional” (Catholic) religious teaching in their curriculum. The constitutional case had been proposed by the Attorney General, who argued that current practice – that privileges Roman Catholic indoctrination – would violate the separation between Church and State as well as religious freedom. Although the judgment brings severe consequences to education rights in Brazil, it is only one example of the recent battles by conservative religious groups to influence Brazilian public education. The Catholic church has a long history of interference in Roman Catholic countries, aiming to block comprehensive sex education in schools. More recently, other churches and conservative groups have adopted similar strategies to influence educational policies in Brazil and elsewhere in Latin America.

In 2011, a school booklet advocating “Schools without Homophobia,” prepared by the Brazilian Ministry of Education, was recalled after strong pressure from conservative movements, evangelical and Catholic leaders. It was denounced as an instrument to promote homosexuality among children and to destroy families. In 2014, the debate over Brazil’s National Education Plan was the battlefield of conservative and religious groups against what they called “gender ideology”. Supported by civil society mobilization, including a organization (ironically) called Escola sem Partido [Schools without Politics] conservative members of congress overruled a clause in the Brazilian National Education Plan that stated, among the goals of the public educational system, overcoming educational inequalities, with emphasis in the promotion of equality among races, regions, genders and sexual orientations. Vocal critics of anti-discriminatory public policies in education also applied political pressure during the discussion and passing of state and municipal education plans.

Brazil is only one example of a new wave of conservative mobilization that is sweeping Latin America, characterized by the gathering of powerful old economic elites and religious conservative groups. Among its central political strategies, this new wave fights against the inclusion of a gender equality approach in public policies, including school curricula among their principal battlegrounds. Across the region, this movement has won many major disputes with significant impact. They have succeeded on blocking gender approaches and comprehensive sexual education not only in Brazil, but in the Argentinian provinces of Mendoza and Entre Rios, in Monterrey (Mexico), Panama, Paraguay, Peru, and even in the most secular country in the region, Uruguay.
As our forthcoming letter to the Editor of The Lancet (2017) explains, this new wave of conservative mobilization has tangible health effects. By opposing sexual education in the schools as well as the introduction of a gender equality approach within the school curricula, they hinder a core element of public health strategies to empower girls and adolescents, and consequently to prevent teenage pregnancies, which have a devastating negative impact on women, by, for example, contributing to female poverty.

Latin America is already the only region in the world where adolescent pregnancies are not decreasing. . . . Continue reading

Online harassment of women journalists and international law: not “just” a gender issue, but a threat to democracy

Democracy

Image by ydant (CC BY-NC-ND 2.0)

Online harassment of women journalists hinders the free press from operating as it should, which negatively affects the democratic process. Silencing journalists stifles the free flow of information and our ability to exercise our democratic rights; a pluralistic media landscape needs to include women’s voices. Silencing women journalists therefore constitutes an attack on democracy itself. States should address the issue with the gravity it deserves and live up to their international obligations to put in place domestic legal systems capable of responding adequately to these attacks.

 

The problem

When a 14-year-old girl was raped in Finland, journalist Linda Pelkonen covered the case on the news website Uusi Suomi. In her report, she mentioned that, contrary to regular practice, the police had referred to the suspect’s ethnicity: allegedly a Finnish citizen of immigrant background had been involved. A post smearing Pelkonen appeared on the anti-immigrant MV Lehti website, after which she received a host of rape and death threats. After a reader published Pelkonen’s personal phone number in the website’s comment section, encouraging others to inform the journalist of their discontent, she received threatening text messages from 18 different phone numbers, and a phone call telling her she would be raped. Pelkonen reported the threats to the police, informing them that she was scared. Declining to investigate, the regional prosecutor argued that journalists, due to the public nature of their work, needed “to be able to endure more criticism than others.”

UK think tank Demos estimates that women journalists receive three times as many abusive comments on Twitter as their male counterparts

Sadly, Pelkonen’s case is hardly an exception. No comprehensive study on the pervasiveness of online harassment of women journalists has been conducted yet, but the data available paint a gloomy picture. UK think tank Demos estimates that women journalists receive three times as many abusive comments on Twitter as their male counterparts. A survey conducted by the International Women’s Media Foundation showed that over 25% of “verbal, written and/or physical intimidation including threats, to family or friends” took place online.

This week, the OSCE Representative on Freedom of the Media organised its second workshop this year on the safety of female journalists online. In addition to discussing issues such as digital security and civil society initiatives like HeartMob, the workshop addressed the international legal framework within which the online harassment of women journalists should be placed.

“Online” harassment

What are we talking about when we say “online” harassment of women journalists? It covers a broad range of actions, including threats of (sexual) violence, the spreading of falsehoods about a person asserted as facts, the posting of sensitive information online (home address, personal phone number, social security numbers), technological attacks such as falsely shutting down social media accounts, (sexist, racist) insults, and swatting.

The distinction between the “online” and “offline” world is artificial. That the medium used for the harassment is digital, does not mean that actual fear and anxiety do not follow from it.

The distinction between the “online” and “offline” world is artificial. To the extent that any separation between these dimensions of our lives could still be made today, any “online” harassment will always have a “real world” effect. That the medium used for the harassment is digital, does not mean that actual fear and anxiety do not follow from it.

This is underlined by UN Human Rights Council Resolution L.13  on the promotion, protection and enjoyment of human rights on the Internet, which affirms that “the same rights that people have offline must also be protected online, in particular freedom of expression”. Similarly, the OSCE Representative on Freedom of the Media issued recommendations in 2015, stating that “online abuse must be dealt with in the broader context of gender discrimination and violence against women to ensure that the same rights that people have offline must be protected online.”

International legal standards: at the intersection of freedom of expression and gender

The issue of harassment of women journalists needs to be framed from all relevant perspectives: as a freedom of expression issue and as an issue of gender-based violence against women.

Article 19 of the International Covenant on Civil and Political Rights (ICCPR), which is further elucidated by the UN Human Rights Committee in General Comment 34, makes clear that the right to freedom of expression is a key right that can only be restricted under a limited set of circumstances. It is both an individual right of personal self-fulfilment and a collective right, allowing all members of society to receive information and ideas and inform themselves on matters of public interest. Journalists have a special role to play in this democratic process. As the UN Human Rights Committee, which oversees compliance with the ICCPR, frames it: “A free, uncensored and unhindered press or other media is essential in any society to ensure freedom of opinion and expression … It constitutes one of the cornerstones of a democratic society.”

For the States that are party to the ICCPR (or one of its regional counterparts, the European Convention on Human Rights, American Convention on Human Rights or African Charter on Human and Peoples’ Rights), this also entails an obligation to ensure a diverse media landscape, both online and offline.

Attacks on women journalists are attacks on democracy itself.

The Convention on the Elimination of Discrimination against Women, often referred to as the “international bill of rights for women” defines discrimination against women and sets up an agenda for national action to end it. The CEDAW Committee, which oversees States’ compliance with the Convention, stated in General Recommendation 19, recently updated by General Recommendation 35, that gender-based violence against women constitutes discrimination against women. The Committee defines it as: “violence that is directed against a woman because she is a woman or that affects women disproportionately. It includes acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty.” Online harassment of women journalists falls squarely within this definition, as is explicitly

6 February 1998 - Committee on the Elimination of Discrimination Against Women, United Nations Headquarters, New York addressing journalists at a press briefing

6 February 1998 – Committee on the Elimination of Discrimination Against Women, United Nations Headquarters, New York addressing journalists at a press briefing.

mentioned in the General Recommendation: “Harmful practices and crimes against women human rights defenders, politicians, activists or journalists are also forms of gender-based violence against women.”

The interlinkage between the right to freedom of expression and women’s right to be free from discrimination is also made explicit: “Women’s right to a life free from gender-based violence is indivisible from and interdependent with other human rights, including the right to … freedom of expression.”

This is where the crux lies: the online harassment of women journalists hinders the free press from operating as it should, which negatively affects the democratic process. Council of Europe Recommendation CM/Rec(2016)4 of the Committee of Ministers on the protection of journalism and safety of journalists and other media actors sums this up succinctly: “[acts of online harassment of women journalists] which in practice are committed by both State and non-State actors, have a grave chilling effect on freedom of expression including on the ability to access information, on the public watchdog role of journalists and other media actors and on open and vigorous public debate, all of which are essential in a democratic society.”

In other words: attacks on women journalists are attacks on democracy itself.

States’ obligations to create conditions for effective investigation, prosecution and protection

When signing on to a human rights treaty, a State takes it upon itself to respect, protect and fulfil its obligations under that treaty. The obligation to respect means that the State must refrain from interfering with or curtailing the enjoyment of the human rights contained in the treaty; the obligation to protect means that the State must protect individuals and groups against human rights abuses; and the obligation to fulfil means that the State must take positive action to facilitate the enjoyment these human rights.

These obligations are applicable to all branches of the State and all public or governmental authorities, at all levels that are in a position to engage the responsibility of the State. They also require the State to ensure that persons are protected from acts by private persons or entities that impair the enjoyment of the relevant human rights.

There is an obligation of the State to put into place a domestic legal system that is capable of responding adequately to threats, ensuring that perpetrators are prosecuted.

Specifically, there is an obligation of the State to put into place a domestic legal system that is capable of responding adequately to threats, ensuring that perpetrators are prosecuted. CEDAW General Recommendation 35 stipulates that “[S]tates parties have to adopt and implement diverse measures to tackle gender-based violence against women committed by non-State actors. They are required to have laws, institutions and a system in place to address such violence.”

Failing to do so constitutes a human rights violation in and of itself: “The failure of a State party to take all appropriate measures to prevent acts of gender-based violence against women when its authorities know or should know of the danger of violence, or a failure to investigate, prosecute and punish, and to provide reparation to victims/survivors of such acts, provides tacit permission or encouragement to acts of gender-based violence against women. These failures or omissions constitute human rights violations.”

National law and online harassment

What recourse can national legal systems offer to those targeted by online harassment? Generally, there are two possible tracks: civil proceedings or the criminal justice system.

Bringing a civil case can be time-consuming, expensive and emotionally draining. It can also have the unwanted effect of drawing additional public attention to the case, which can aggravate the harassment.

Under the civil law system, the target of harassment can initiate legal action against the attacker, suing them for a civil wrong. In some cases, for example if personal photos have been stolen and published, a copyright claim is also an option. The outcome of civil proceedings can be monetary compensation for the claimant and personal vindication for having won (or even pursued) the case. But bringing a civil case can be time-consuming, expensive and emotionally draining. It can also have the unwanted effect of drawing additional public attention to the case, which can aggravate the harassment.

Adequate follow-up by the authorities is not a given. Many legal systems operate with laws that have not been updated to meet the demands of the digital age.

Remedies in the criminal justice system can be a restraining order against the attacker, a criminal penalty, and in some systems also monetary compensation. Pursuing a case within the criminal justice system entails filing a complaint with the authorities, after which prosecution can follow. In most systems, the prosecutor will have discretionary powers to decide whether or not to pursue a case. As illustrated by the case of Pelkonen described above, adequate follow-up by the authorities is not a given. Many legal systems operate with laws that have not been updated to meet the demands of the digital age. Combined with a lack of understanding of modern technology by both law enforcement and judges, this can lead to a frustrating experience for those wanting to file a complaint about harassment. Journalist Amanda Hess described this aptly in her account of trying to file a report on death threats she received, upon which a police officer asked her “What is Twitter?”. In addition, law enforcement can be too under-educated and under-resourced to properly follow up and investigate even if they are willing to register a complaint.

When the regional prosecutor failed to follow up, Pelkonen did not give up. She filed a complaint at the prosecutor’s office together with the Union of Journalists in Finland, arguing that failing to prosecute her case would set a dangerous precedent. Finland’s Prosecutor General then decided to take up the case, which resulted in three men being charged in May 2017. The first hearing in the case is scheduled to take place in early 2018.

A threat to democracy itself

While the prosecution in Pelkonen’s case is a positive (interim) outcome, this by no means is an example of what should happen in these scenarios. The onus should not be on the targeted person to force the justice system into action: justice should be administered as a rule. States can and should do better in this regard.

The onus should not be on the targeted person to force the justice system into action: justice should be administered as a rule.

There is often a tendency to brush gender issues aside as “niche”. Given that women make up about half of the world’s population, this is a questionable argument as such, but it also simply isn’t true.

Silencing journalists stifles the free flow of information and our ability to exercise our democratic rights. There is a clear obligation of States to protect these rights and guarantee a pluralistic media landscape – a media landscape that includes women’s voices. Silencing women journalists is an attack on democracy itself and it should be dealt with, with the gravity it deserves.

This post has been cross-posted on Medium.

More Than Fair: GQUAL Campaign Mobilizes Law to Change Picture of International Justice

Globally, women occupy only 33% of the 599 seats found on the 91 adjudicatory bodies of international law. But when one excludes the committees and working groups on the rights of women and children, that number drops to 24% of the remaining 533 seats. Only one woman sits on each of the Inter-American Court of Human Rights, the appellate body of the World Trade Organization, and the Committee on the Rights of Persons with Disabilities. The paucity of women on international bodies reveals a gross imbalance of power that tips against a community that makes up roughly half the world’s population.

During the first week of October, ambassadors, legal experts, practitioners, and activists from around the world gathered in The Hague to strategize changing this male-dominated picture of international justice during the GQUAL Campaign’s international conference marking its second anniversary. The Action Plan adopted at the conference begins with an important reminder that achieving gender equality on international bodies is not solely a policy of fairness and institutional legitimacy but an action mandated by law. Together with the International Human Rights Law Clinic at UC Berkeley School of Law, GQUAL released at the conference a working paper that identifies the international legal basis for the Campaign’s aim of realizing gender parity.

States establish the nominating and voting procedures that apply to any particular international body, making them ultimately responsible for this state of affairs. Though political will is needed to remedy the stark and pervasive gender imbalance on international bodies, reform should be guided by international law and State practice, both of which support the fair representation of women in global governance.

The positive obligation to eliminate sex-based discrimination is deeply rooted and widely reflected in international human rights law. Numerous instruments, most notably the Convention on the Elimination of all Forms of Discrimination Against Women, not only prohibit States from adopting discriminatory laws but also require that States work to dismantle obstacles that result in discriminatory outcomes for women. The working paper looks beyond CEDAW for additional support to further strengthen the legal foundation of the GQUAL Campaign.

We identified several human rights treaties and policy statements that embody the non-discrimination principle and which enumerate three international human rights norms that require gender equality within different contexts relevant to the GQUAL Campaign—the right of access to decision-making within public bodies; the right of access to equal opportunity in employment; and the right of access to justice. In short, women on equal terms with men, are entitled to shape our governments, to employment that reflects our capabilities, and to the protection, recognition, and advancement of international law. Continue reading