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.

Will the new crimes against humanity treaty protect women and LGBTI persons?

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               Photo courtesy of Groundswell.

If you haven’t heard about the new treaty on crimes against humanity that the United Nations has in the works, you’re not alone. Most haven’t.

What you should know is if this treaty goes forward for adoption in its current draft form, only some—not all—people will be protected from crimes against humanity like massacres, rape, torture and persecution. This is because the treaty adopts an outdated definition of gender that some states will inevitably use to shirk their responsibility for addressing gender-based crimes.

We need this treaty, first of all, because it could help bring such atrocities to light and perpetrators to justice. The only permanent court in existence for prosecuting such crimes, the International Criminal Court (ICC), doesn’t have a mechanism for interstate cooperation, and few states have crimes against humanity incorporated into their domestic legislation.

The problem is that the draft treaty adopts the definition of gender from the Rome Statute, which established the ICC, stating: “it is understood that the term ‘gender’ refers to the two sexes, male and female, within the context of society.” On its own, the definition does not make clear who is protected. While it’s understood to be inclusive of all gendered crimes that meet the threshold of persecution, there has never been a successful prosecution at the ICC. Not surprisingly, since the Rome Statute’s codification, such a definition has never been used again.

To understand how this definition of gender came about we have to go back about twenty years. During the 1990s in Rome, women’s rights advocates rallied for the term “gender” instead of “sex” to be listed alongside race, ethnicity, religion and the other the protected groups from persecution. A small, socially conservative opposition objected, fearing the term “gender” would more broadly affirm LGBTI rights as human rights. They also wanted to limit the scope of women’s rights.

Since Rome, two decades of international human rights law has solidified the definition of gender as a social construct across UN Agencies and human rights mechanisms. The term sex is left for biologists. However, while this “footnote” to the term gender is understood to be inclusive, there are states that would gladly use this opaque definition as an excuse to ignore conflict-related gender-based crimes.

So how does an outdated definition to a protected group get adopted into a new crimes against humanity draft treaty?

Bensouda Photo

             Photo courtesy of CUNY Law School

While oodles of rights and protections were taken into consideration during the dialogues on the draft treaty, no one thought to discuss gender. Perusing through the comments over the last four years of discussions and debates by states and experts partied to the drafting process, not one mentions the outdated definition that was cut and pasted into the draft. While issues concerning everything from the rights of witnesses and victims to the cooperation between states have been discussed in great detail, there’s no mention of women, gender, LGBTI people, or even sexual violence. 

At the beginning of the drafting process, a small handful of legal advocates pointed to the definition and called for the drafters to either not include it¾since no other ground of persecution required one¾or adopt a clearer definition as used by the UN. Valerie Oosterveld, an international criminal law professor who was a pivotal delegate at Rome, raised concerns about the problematic nature of adopting a definition into the CAH treaty that was drafted to be deliberately ambiguous (“constructive ambiguity” in diplomatic parlance) in order to resolve polarized positions during the Rome Statute negotiations. Considering she’s one of the foremost experts on the issue of gender under international criminal law, it’s astonishing her ideas were dismissed.

Part of the problem stemmed from the fear that the controversy surrounding the definition twenty years ago would resurface and tank the treaty if the debate on gender were reopened. Some states and drafters have expressed the need to get the treaty passed expeditiously and to keep the original language from Rome intact.

But does a new treaty that codifies an outdated definition of gender serve the interests of justice?

Fighting for recognition of gender-based violence is not new. Sexual violence crimes were not taken as seriously as other crimes in the early years of international criminal tribunals. Feminists had to struggle tirelessly to secure the recognition of rape as a form of torture in certain contexts.

In the 1990’s the Human Rights and Gender Justice Clinic of CUNY Law School, (known then as the International Women’s Human Rights Initiative Clinic) served as the secretariat for the Women’s Caucus for Gender Justice, a global coalition of women’s rights activists working to address gender gaps in the draft Rome Statute. Just as there was push-back against the term “gender”, there was also great opposition to recognizing sexual violence as a serious international crime.

A key component to their success was combining advocacy with legal strategy. Gender strategies in the tribunals grew from the notion that “women’s rights are human rights.” Today, advocates are calling for a “gender equal world.”

This is a pivotal moment in history to affirm our understanding of discrimination, including where gender-based oppression dictates narratives for sexual orientation, gender identity and sex characteristics. What we do now will affect people’s rights for generations to come.

It’s time for the international community to take a stand. A treaty meant to protect people against the worst atrocities imaginable by its nature should protect all of us.

 

The Akayesu Judgment at 20: looking back, pushing forward

Twenty years ago, on September 2nd, 1998, the International Criminal Tribunal for Rwanda (ICTR) handed down a landmark trial judgment in the Akayesu case: the first to define rape as a crime against humanity, and the first to recognize that rape and other acts of sexual violence are constitutive acts of genocide. The defendant, the mayor of the Rwandan town of Taba, was found guilty of genocide and crimes against humanity for acts he engaged in and oversaw against Taba’s Tutsi residents, including murder, torture, rape, and other inhumane acts.

Throughout its findings, the ICTR Trial Chamber surfaced gender in its legal analysis, illuminating the gendered experience of mass atrocities, and underscoring how the perpetrators’ and victims’ understanding of gender influenced the planning, commission, and impact of a wide range of genocidal acts.

Akayesu‘s ground-breaking findings owed less to the Prosecution’s case theory – which originally failed to include charges of sexual violence, despite the rape of between 250,000 and 500,000 women and girls between April and June 1994 – than to the Coalition for Women’s Human Rights in Conflict Situations. Formed by feminist activists in 1996, the Coalition mobilized around the ICTR’s failure to investigate and prosecute sexual violence. As prosecution witnesses, who were primarily female survivors of the genocide, gave first-hand accounts of sexual violence, the Coalition submitted an amicus curiae brief calling upon the Trial Chamber to use its authority to invite the Prosecution to amend their Indictment to include charges of rape and other acts of sexual violence.

One of the suggestions in the amicus was that the Prosecution charge rape and sexual violence as acts of genocide, arguing that they were essential components of the genocide, and were designed to “destroy a woman from a physical, mental or social perspective and [destroy] her capacity to participate in the reproduction and production of the community.” An oft-cited passage in the Akayesu Judgment, echoes aspects of this argument:

Sexual violence was an integral part of the process of destruction, specifically targeting Tutsi women and specifically contributing to their destruction and to the destruction of the Tutsi group as a whole. […] Sexual violence was a step in the process of the destruction of the Tutsi group—destruction of the spirit, of the will to live, and of life itself.

On the 20th anniversary of Akayesu, two things are evident.

First, despite the judgment’s pioneering nature, a gendered understanding of genocide (and international crimes, more generally) still needs to be consciously asserted in investigations, analysis, and prosecutions. The legal avenues opened by Akayesu were, for a long time, not seized upon by prosecutors; the ICTR and the International Criminal Tribunal for the former Yugoslavia (ICTY) Prosecution’s practice of charging rape occurring during the genocide as crimes against humanity and/or war crimes, rather than genocide, continued. Decades later, the analysis and reporting of genocide continues to revolve around an understanding of genocide as a crime committed through organized mass killings. Killing remains the privileged genocidal act, and consequently the examination of the risk and commission of genocide has largely, and unhelpfully, revolved around the numbers killed. Akayesu notwithstanding, the majority of genocide convictions in both the ICTR and ICTY have been based on instances of mass executions, founded upon strategies geared towards achieving the immediate physical destruction of (predominantly male members of) the protected group.

Second, the work of asserting a gendered analysis of international crimes continues largely to be done by feminist jurists and practitioners, most of whom are female. While it is not the role of female lawyers and activists to bring to light the experience of women and girls in jurisprudence, the task has too often fallen on their shoulders. Akayesu would not have been the landmark case it is without the work of the female-led Coalition; the Judges, notably Judge Navanethem Pillay; and the Chamber’s Legal Officers, notably Cecile Aptel. At the ICTY, three female lawyers and investigators led the development of the evidence of crimes committed in Foča with an express focus on building a case that reflected the organized way rape was used as part of ethnic cleansing. As a result, the Kunarac Judgment found sexual enslavement and rape as crimes against humanity. At the International Criminal Court (ICC), it was under the auspices of the first female Chief Prosecutor, Fatou Bensouda, that a gender strategy for investigations and prosecutions was developed.

The red thread of genocide continues to course its way through human history. In June 2016, the UN Commission of Inquiry on Syria determined that ISIS was committing the crime of genocide against the Yazidis of the Sinjar region of northern Iraq. In August 2018, the UN Fact-Finding Mission on Myanmar held that there was sufficient information to support an inference of genocidal intent regarding the actions of Myanmar’s security forces against the Rohingya. Having failed in its obligation to prevent genocide, punishment remains a priority for the international community. The UN’s recent report on Myanmar has reinforced calls for the Security Council to refer the situation in Myanmar to the ICC. For the Yazidi genocide, the path to justice is likely to be forged through national courts, including, hopefully, in Iraq. The Iraqi Investigation Team, created by the Security Council, has just begun its work.

As the push for accountability for the Yazidi and Rohingya genocides continues, it is essential that prosecutors and activists alike ensure that acts of genocide, beyond the act of killing, are fully investigated, properly indicted, and raised at trial. As women and girls are more likely to survive genocide, any ensuing trials rely heavily on what they have seen, heard, and suffered. A conception of genocide that relies on them bearing witness to killings (usually but not solely of male members of the group), and which turns away from all non-lethal acts of genocide (usually but not solely visited on female members of the group) is a harm to the survivors, the group, the historical record, and to our understanding of the crime of genocide.

When genocide is recognized only its most murderous articulations and gendered genocidal crimes such as rape, torture, forced pregnancy, and enslavement are ignored, States and international organizations lose much of their power to uphold the legal obligations to prevent and punish genocide. When the gendered crimes of genocide are excluded from prosecutions, the living survivors of genocide are denied justice and history yet again erases the experiences of women and girls.

In 1998, Akayesu’s gendered analysis was ground-breaking. In 2018, it’s never been more necessary.

 

 

 

 

 

 

 

Reflecting on the Australian Feminist Law Journal special issue, ‘Gender, War, and Technology: Peace and Armed Conflict in the Twenty-First Century’

The nexus between war and technology has developed alongside the rapid expansion of military might and spending, evident in recent decades. Militaries have advanced their weapon systems and in theory saved civilian and military lives in the process. Weapons are now more accurate, theoretically cause less destruction to surrounding infrastructure, and require less time to deploy. Drones, for instance, can target ‘hostiles’ from miles away allowing the operator to never physically come in contact with the violence of war. Specialty ‘armour’ can better protect soldiers and make their job more efficient, by providing weight distribution. Therefore, soldiers (both men and women) will likely become less exhausted from carrying out common tasks and would therefore be allegedly clearer of mind when making key decisions on the battlefield. But, are these all welcome achievements? And, are individuals to accept these achievements at face value?

Alongside the development of these military technologies there has been a push from scholars to recognise that technology, war, and law are not the only sites of intersection. Gender, as a starting point for scholarship on war and technology, and as a tool to investigate the ways in which technology is used, understood, and imagined within military and legal structures and in war, offers an analysis that questions the pre-existing biases in international law and in feminist spaces. Using gender as a method for examination as well as feminist legal scholarship, expands the way military technologies are understood as influencing human lives both on and off the battlefield. This type of analysis disrupts the use of gender to justify and make palatable new military technologies. The Australian Feminist Law Journal’s special issue entitled ‘Gender, War, and Technology: Peace and Armed Conflict in the Twenty-First Century’ (Volume 44, Issue 1, 2018) has tacked key issues and questions that emanate precisely from the link between the concepts of ‘gender, war, and technology’ which editors Jones, Kendall, and Otomo draw out through their own writing and various contributing author’s perspectives.

The following thoughts/questions, which developed while reading this issue, speak to the critiques waged within these articles, and from the developments this issue’s engagement with these topics have generated. As this contribution suggests, intersectional issues remain ever present within new technological advances, which begs the question who are the programmers? If the desire and use of technology to gain military advantage is coming from a place of primarily white, Western, heteronormative, masculine, and secure socio-economic status, then does the method of technological advancement and deployment become defined along similar identities? Does the use of such technology change command structures whereby the weapon becomes ‘in charge’? Continue reading

Beyond the Numbers: Gender Parity on the African Court on Human and Peoples’ Rights— A Lesson for African Regional Courts?

Image-1ON August 27 2018, the newly elected judges on the African Court on Human and Peoples’ Rights were sworn in at the seat of the Court in Arusha, Tanzania. Earlier on, from June 25 to July 2, 2018, the 31st Ordinary Session of the Assembly of Heads of State and Government of the African Union (AU) took place in Nouakchott, the capital city of the Islamic Republic of Mauritania. One of the agenda items during the session was the election of new judges to fill vacancies on the African Court on Human and Peoples’ Rights (ACtHPR). Four spots had opened on the court—one of which was left open by Judge Solomy Balungi Bossa who resigned from the ACtHPR after her successful election to the International Criminal Court (ICC) in December 2017.

The three newly sworn in judges are; Judge Imani Aboud, the Judge-in-Charge at the Tanga High Court in Tanzania and current President of the Tanzania branch of the International Association of Women Judges (IAWJ), elected from the East African region. Judge Stella Isibhakhomen Anukam, Director of the International and Comparative Law Department in the Federal Ministry of Justice in Abuja, Nigeria, representing the West African region, and Professor Blaise Tchikaya, a Professor of International Public Law at University of Paris, France, a native of Congo representing the Central region. The fourth seat was retained by Judge Ben Kioko of Kenya who was re-elected for a second six-year term.

This recent election is a historical one because it brings the gender composition of the court to six women and five men! The record of gender parity set by the ACtHPR begun with the elections in 2017, where in an earlier post Vive la Diversité!I noted that in celebrating the gains made at the African Court in achieving gender parity,  the Court’s gender parity success should provide lessons for other regional courts in Africa—especially the benches of the  ECOWAS Court of Justice and the East African Court of Justice where women judges are woefully underrepresented.

From Tunis to Lusaka, women judges across the continent of Africa are making important strides in domestic judiciaries as shown in Gender and the Judiciary in Africa: From Obscurity to Parity? These developments do not rest only at the prescriptive level, as  a growing number of women have broken the veil of masculinity and ascended to leadership positions as Chief Justices and Presidents of Constitutional Courts. From Arusha to The Hague, the increase in the number of women judges from Africa is being felt at the international level as documented in International Courts and the African Woman Judge: Unveiled Narratives.  Currently, of the six women judges on the bench of the International Criminal Court (ICC), two are from Africa, accounting for 33% of all women on the bench— in a tie with the Latin America and Caribbean Group. At the International Court of Justice (ICJ), Justice Julia Sebutinde made history when she was elected to the ICJ bench in 2012, making her the first woman from the continent of Africa on the ICJ.

The representation of African women on the ACtHPR and the ICC strongly suggests that there is a pool of qualified women judges from the continent of Africa to fill positions on the benches of sub-regional, regional, and international courts. The record set by the ACtHPR, by achieving gender parity in its 12 years of existence is remarkable in the history of international courts and tribunals, where it took over forty years for the European Court of Justice to appoint its first woman judge, Fidelma Macken in 1999. The gender parity gains at the ACtHPR can be linked to a combination of regional factors and mechanisms. One such mechanism is the activist agenda to achieve gender equality embodied in the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa(Maputo Protocol) and the Solemn Declaration on Gender Equality in Africa, aimed at achieving gender equality across the continent. Second, the sustained advocacy for women’s equal participation in decision-making, led by women’s organizations such as Solidarity for African Women’s Rights (SOAWR). Additionally, the commitment of the Legal Affairs unit of the African Union in reviewing and rejecting nominations that do not contain the names of women, has proved instrumental in meeting the nomination requirements. Credit must also be given for the political will of the Assembly of Heads of State and Government to abide by the gender representation provisions in Article 12 (nominations) and Article 14 (elections) of the Protocol to the African Court on Human and Peoples’ Rights on the Establishment of  an African Court on Human and Peoples’ Rights (Court Protocol).

Beyond the numbers, what should the gender parity on the ACtHPR mean?

Attaining a critical mass of women judges on the ACtHPR is a great achievement, but more needs to be done. In the following discussion, I offer seven suggestions on how to move beyond the numbers.

First, is the need to develop specific strategies. The gender parity on the ACtHPR should provide lessons leading to the development of specific strategies for achieving gender parity on the benches of other African regional courts. This development should be used as an advocacy tool by women’s rights organizations to signal to other regional courts to nominate and elect qualified women judges to judicial positions. Not all sub-regional courts have gender aspirational targets in their protocols. Nonetheless, even where there are no aspirational targets, the success achieved by the ACtHPR should be framed and articulated as a regional diffusion mechanism for developing norms and best practices for judicial selection in other regional courts. The success at the ACtHPR should encourage other courts to revise their selection methods and bring them to par with evolving international standards for achieving gender balanced benches.

Second, is the need for advancing knowledge. Current scholarship needs to look beyond the descriptive representation of women on the ACtHPR. Feminist legal scholars should move past essentialist studies on the numbers of women judges and move towards analyses of questions on the substantive representation of judges. Research on substantive representation of African women judges has shown that women judges bring more than gender and racial diversity to the benches of international courts. Scholars need to focus on new research questions that interrogate wider judicial issues beyond why more women are needed and what they do on these courts. In this endeavour, scholars need to be mindful of avoiding essentialist repetitions of the “difference women judges make”, a caution succinctly captured by Judge Sebutinde when she notes;

In a world where one half of the population is female and the other half male, I would like for people to say one day that the World Court is comprised of fifty percent men and fifty percent women. That would be gender parity. It serves no purpose for people to ask, what difference or contribution have those three women judges made since they joined the Court? … For over seventy years there have been predominantly male judges serving on the International Court of Justice, yet nobody ever asks those kinds of questions when it comes to men. Why should the female judges serving on the Court have to justify or validate their presence or role on the Court? As long as we meet the statutory qualifications and are duly elected, we have as much right to sit on that Bench and to participate in the settlement of State disputes, without having to validate or justify our presence there with “value addition,” period.[1]

Third, is spreading the progress across sectors. The gender parity gains made at the ACtHPR and the long established gender parity on the African Union Commission, should be used as tools for promoting the African Union Agenda 2063, specifically goal 5, of achieving “an Africa whose development is people driven, relying on the potential offered by people, especially its womenand youth and caring for children.” Relying on the potential of women for development is not new to the African context. Women have always been at the center of economic development and have contributed in many ways to the domestic and international economic development projects. Yet, one of the many things lacking is the political will and commitment of governments and leaders to provide conducive political conditions and free and fair electoral processes aimed at encouraging and promoting women running for elected office. The remarkable progress made in increasing the gender representation on the ACtHPR should spread horizontally and vertically into other political, bureaucratic and administrative levels—beginning with the African Union organs and spreading across domestic government structures.

Fourth, is the mentoring impact. The increase in the number of women judges on both domestic and regional courts in Africa opens the door and encourages young girls and women to aspire for professional leadership. As the continent of Africa deals with its youth bulge, the success of women judges and other women in leadership positions should be used as learning and mentoring opportunities for the younger generation. In the words of Judge Florence Ndepele Mwachande Mumba;

The call for women judges must start at state level. National governments must be persuaded to open judiciaries to women judges and to promote their nomination to international courts. It is necessary to provide for gender balancing in international courts, at all times. Otherwise, women judges can easily be overlooked as the majority heads of state are still men. International legal practice offers women opportunities to excel and to contribute towards peace and harmony for all. Other women judges I worked with were of similar views. They felt that if women lawyers were promoted to high judicial office, gender balance would be attained. This would encourage girls to pursue law knowing that if they distinguished themselves, they can reach the highest offices in the legal profession.[2]

There is a lot to learn from the growing trend of women judges and their leadership capabilities. In May 2010, of the 18 judges on the ICC bench, 11 were women, the highest number the court had ever had. In 2015, the ICC made history with its all-female Presidency with the election of Judge Silvia Férnanda de Gurmendi as President, Judge Joyce Aluoch as First Vice-President and Judge Kuniko Ozaki from Japan as Second Vice President. At the ICC, four African women have served in the Vice Presidency; these include Judge Akua Kuenyehia of Ghana, Judge Fatoumata Dembele Diarra of Mali, Judge Sanji Monageng of Botswana and Judge Joyce Aluoch of Kenya. At the African Court, Judge Sophia Akuffo of Ghana and Judge Elsie Thompson of Nigeria have served as President and Vice President respectively.

Sixth, gains are not linear.The gender parity fluctuations at the ICC has shown that reaching gender parity on an international bench is not to be taken as a given, as these gains can be reversed at any time. Before the December 2017 elections of judges to the ICC, with the retirement of six judges, only one woman remained on the court. But for the election of five new women judges, the ICC would have regressed on its gender parity record. Sustainable gender balanced courts require continued vigilance to ensure that the progress made becomes institutionalized, eventually developing to the status of a customary principle or practice.

Seventh, is the need for sustained advocacy.Many challenges remain in achieving gender parity across other international institutions and courts. Gender activists must continue the drive to change the picture of international law through movements such as the GQUAL Campaign. Sustaining and replicating the progress at the ACtHPR provides lessons not only for African courts, but for all international courts, and advocates of gender parity can draw some best practices from the continent of Africa.

[1]Grossman, Nienke. (2018) Judge Julia Sebutinde: An Unbreakable Cloth. In, Dawuni, Josephine and Kuenyehia, Akua (ed.s), International Courts and the African Woman Judge: Unveiled Narratives (Routledge, 2018).

[2]Mumba, Florence N.M. (2018). Women Judges in International Courts and Tribunals –The Quest for Equal Opportunities.In, Dawuni, Josephine and Kuenyehia, Akua (eds), International Courts and the African Woman Judge: Unveiled Narratives (Routledge, 2018).

***This article is cross-posted from the Institute for African Women in Law.

U.N. Sanctions Can Help Stop Rape in War

Sexual violence is clearly prohibited in peacetime and wartime, both by international human rights law and the lex specialis international humanitarian law. Despite these prohibitions, sexual violence remains prevalent in many modern conflicts. Furthermore, it continues to be used intentionally by government forces and militias as a weapon in order to achieve military or political objectives. As seen in Myanmar, South Sudan, Syria and the DCR, sexual violence is used effectively to terrorize, forcibly displace, ethnically cleanse, and control civilian populations seen as the “enemy”- at the cost of women and girls.

In 2008 the United Nations Security Council (UNSC) issued a groundbreaking resolution (1820) that threatened the use of targeted sanctions against individuals ordering, tolerating or engaging in sexual violence as a weapon of war. Sanctions, foreseen in article 41 of the UN Charter, are one of two coercive powers that the Security Council holds under Chapter VII. Through the threat of coercive measures, the UNSC thus affirmed its ability and willingness to place meaningful restraints on sexual violence in conflict.

This was a groundbreaking and welcomed move. Designation criteria relying on international human rights and humanitarian norms have the potential to reinforce legal frameworks on prevention and accountability. Indeed, targeting political and military commanders with sanctions can create an incentive to stop deliberately ordering or implicitly tolerating sexual violence committed by their soldiers. Sanctions can compel commanders to change behavior and exercise better control over troops.

But ten years after the UNSC first threatened sanctions, where are we in practice? This question drove Georgetown University’s Institute for Women, Peace and Security to investigate whether the Security Council actually translated its threat of sanctions into concrete action.

We studied 8 sanctions regimes in countries characterized by continuing armed conflict and massive human-rights violations, including the use of sexual violence as a tactic of war: Central African Republic, the Congo, Libya, Mali, Somalia, South Sudan, Sudan and Yemen. Our report finds that sanctions have great potential, but are largely underutilized and implemented ineffectively.

Unfortunately, the inclusion of sexual violence in sanctions regimes is not consistent, nor is it timely. Some sanctions regimes do not once mention sexual violence as part of the designation criteria – despite evidence of widespread use (such as in Sudan). Some regimes include references to sexual violence, but only decades after the first violations were reported (such as in Somalia). Moreover, follow-up of the threat of sanctions with concrete designations of individuals is often neither timely nor reflective of the main perpetrators. Failure to act on the threat of sanctions actually gives perpetrators permission and incentive for brutality, because it gives them confidence that no meaningful rebuke will follow. Continue reading