Interview with Professor Mallika Kaur

Mallika Kaur is a lawyer and writer who focuses on gender and minority issues in the United States and South Asia including post 9/11 violence, racial discrimination, farmer suicides, and transitional and transformative justice. She is also a lecturer at the University of California, Berkeley, School of Law.  She writes regularly for online and print media as well as academic publications; her work has been published in Foreign Policy, Washington Post, California Law Review among others. We would also like to take this as an opportunity to thank Mallika for all the work and efforts she has contributed to INTLAWGRRLS over the past several years.

Her book titled “Faith, Gender and Activism in the Punjab Conflict: The Wheat Fields Still Whisper” was published by Palgrave Publishers a few months ago. I had the honor of interviewing her with regards to her new book. The interview is transcribed below.

Question: What was your motivation behind writing this book? Why did you specifically choose to cover Punjab’s human rights movement?

Answer: I did not in fact set out with the motivation of writing a book. It was not a part of any academic project or research agenda. It was something that came out of my own journeying. I grew up in Chandigarh, Punjab, having been a part of a community of folks who read their news in English, discussed it perhaps in Punjabi, and largely did not talk to their kids about the armed conflict at all. A seminal year in the conflict history was the Indian Army’s attack on Punjab, epicentered at Darbar Sahib (akin to Temple of David or Mecca) in June 1984. This provoked a visceral reaction from Sikhs, indeed even many non-Sikhs. Yet, within months—I was a toddler still—the justified necessity of the June massacres had taken hold in the non-Sikh psyche of India. Since then, any demands for truth-telling–about that June or the decade of mass violence that followed—have been considered suspect by the majority community and the successive governments of India.

As an adult, my legal and international human rights interest was around courts and commissions and possibility of a regional mechanism for South Asia. I was initially interested in those questions but eventually what I landed on in my work was how powerful stories are in unwrapping things that have been largely silenced for a very long time.

Punjab has been a laboratory of several nation-building projects in India: the Partition in 1947, the not so revolutionary Green Revolution in the 60s-70s, and various attempts at stifling dissent in the 80s and 90s. But these multiple upheavals that contextualize Punjab’s present have seldom been woven and written together, much less by a Sikh woman.

Through this book, I have tried to fight against this idea that the Punjab conflict was just about violence against violence with men combating on both sides. I tried to find stories of people who were non-combatants but chose the dangerous work of human rights defence. The book is trying to re-shift focus from “leaders,” combatants and an obsession with violence to a more nuanced and inclusive approach. Instead of just Indira Gandhi and other perpetrators, the book hopes the limelight comes to rest on women leaders like Paramjit Kaur Khalra, Kuldeep Kaur, Amar Kaur, unnamed women like the police officer who secretly helped inmates in one of Punjab’s many torture centers, and Baljit Kaur, who you see on the cover of the book. Within this marginalized conflict, I am looking at further neglected gender issues. For the men’s stories, I highlight the dangerous tendencies that were conveniently ascribed to all turbaned and bearded Sikh men, and then the general prohibition society imposes on men that makes it quite impossible for them to admit many emotions, much less speak about sexualized torture.

Question: How did you approach and research this topic?

Answer: The story-collection, writing, having the subjects of the story read it, all happened over many years, which was fine because this writing did not have any specific deadline of restriction. One of the benefits of doing a project entirely on your own time and dime! People were generous once they understood where the questions were coming from. They shared their personal archives including videos, legal files and other documents. The book eventually combines legal cases, scholarly analysis, community memory and personal narrative. The hybrid approach is necessary to tease the nuances lost in a more straightforward memoir, collective biography or academic examination. Further, memoir snapshots provide the reader the needed history of the author narrating the history of the conflict: exposing my vantage point and influences directly.

The book is all and not at all about Punjab. When generations of violence may have made silence more expedient than excavation, how might we learn about conflicts’ complexities of the past and their manipulated shadows in the present? Most linear, neat, cited and chronological tellings of conflicts overlook essential dynamics such as gender and trauma.

Each chapter centers on a key case from the year (or years) of its focus, starting in descending order from 1995, the supposed end of the conflict. Legal case details are available to varying extents, which is instructive: till the mid-90s, legal remedies were de facto suspended in Punjab. Case descriptions thus also draw from non-legal sources. Each case necessarily invokes additional cases. And then advocating for the need to embrace complexity and reject binary understandings, each chapter also contains an interwoven section that quickly traverses the earlier history of Punjab, starting in ascending order from 1839, the transition from Sikh rule to British colonial rule. The two timelines, descending from 1995 and ascending from 1839, converge in the final chapter, on the pivotal year, 1984.

Question: What kind of audience did you have in mind while writing the book?

Answer: The audience of this book is pretty large and varied. It includes scholars, lawyers, policy makers, activists, students, and general readers. By presenting convergences between different forms of violence–current and historical, interpersonal and mass social violence—I believe this book has already engaged a variety of readers. I have received very different reactions and reflections from people of various walks of life over the last months. Women who read between the lines when the women in the book remained silent about certain things. Men who have expressed they never thought of some basic gendered dynamics in how even the more popular stories from the Punjab conflict are spoken about.

Also, I strongly felt that since the violence was rendered so common in Punjab, I had to figure out a way of telling the story in a way that is not limited to lawyers or one academic discipline. That it could be understood by anybody who cares about human rights defenders who do the work of helping us retain our belief in humanity during the worst of atrocities! And it’s meant for those unnamed activists and defenders who may be feeling alone in the world. Despite the world today feeling ever-growing in its apathy and ever-shrinking in its attention span towards even the worst of crimes, you are not alone. Different points and places in history have felt the same and still there are people, like the protagonists of this book,  who have made choices against the tide. They felt they really got something out of it, out of this unsalaried and uncelebrated work. They regularly gained inspiration from the folks they worked with and defended. They felt a sense of collective as they became part of history. When you consider the tenacity of centennial litigants like Chaman Lal, it’s hard not to be moved!

Question: What was your approach while selecting the three human rights defenders for the book?

Answer: These three were in fact my windows on many other human rights defenders, some I named earlier, who were always at much more risk and suffered much more. The life stories of the three people you see on the cover of the book, Baljit Kaur, Justice Ajit Singh Bains and Inderjit Singh Jaijee, became trusted vehicles for traveling through Punjab’s recent history. Each of them is credited with saving countless lives.

Speaking of the approach while selecting these three, I’m reminded of a video I watched, which Baljit Kaur took in the late 80s. A Sikh man, a former Army officer is narrating how he was himself picked up, tortured and almost killed. He was speaking in perfect English so this was somebody with enough higher education. He had been treated this way as he had spoken against a young boy being killed. He mentioned that these folks fighting for justice, Baljit Kaur and her colleagues, were in fact the ones preserving the nation’s unity and integrity. Contrary to being seditious or dangerous as the politicians would have folks believe, it was human rights defenders who were providing ordinary people some hope that the legal and justice system could be the answer rather than further violence.

Unfortunately, people fighting for justice often fight very lonely battles. These protagonists had one another. And they had faith in a higher power that kept them going. And they had a lot of pride in Sikh history that they had heard of or witnessed when younger, through anti-British struggles, for example. Still, it was not like they were joined by a large number of other folks living in Chandigarh, Punjab who were enjoying the same relative privilege of upper class these three protagonists had during the 80s and 90s. So it was very fascinating to hear their stories as to how they surrounded police stations, how they compiled reports, how they visited Amnesty International and learnt how to make video footage to appropriately document what was happening at a time international human rights groups were not allowed in Punjab by the Indian government.

Question: How was your experience while interviewing people on this difficult past?

Answer: What I find fascinating especially about my three protagonists is that they are buoyant spirits, so young-at-heart in their 80s, 90s, even though they have seen such horrific things in their lifetimes. These protagonists have made more change than most of us will be able to make in our lifetime. I found this very uplifting despite the subject matter being very difficult.

Since I allowed myself a hybrid approach, and use memoir in the book as well, I put myself very explicitly into the discussions around the legal cases and this too helped me make sense of people’s trauma experiences. Some of the irrational reactions of these people started making more sense because they had gone through very unnatural set of circumstances. The whole Sikh community had been demonized for several decades. And now in India of 2020, the issues of creating an ‘enemy within,’ and what that does to social fabric, is again playing out. Where for example students, including pregnant women, who are protesting new discriminatory laws are picked up and booked indefinitely under draconian laws, themselves iterations of laws previously used in Punjab and then finally repealed on the books. How can we say the unlearnt lessons of past conflicts are not relevant to India today? I am not didactic about the parallels in the book. There is space for the reader to draw lessons for themselves.

Question: What do you think of the post-conflict scenario of Punjab in terms of violence against women and gender-based violence?

Answer: So, the first thing is that I don’t describe Punjab as post-conflict anywhere in the book because there has been no catharsis, no reconciliation, no period of transition, or justice, towards sustainable and inclusive peace. The estimates of those killed vary from police estimates of 25,000 to civil society estimates of 250,000. Even this variance speaks volumes about how the conflict has lived on; there is no closure, no semblance of transparency. Nobody was able to document the dead. Those who attempted to document it, like Jaswant Singh Khalra, whose amazing story I detail in Chapter 2, were killed. We went from this period of heightened killing and mayhem to an abrupt and strident “normalcy” in Punjab.

Coming to your question about gender and violence against women, I think the situation for women remains really bad through these subsequent decades, if not worse. Of course, across India we are dealing with shameful realities like marital rape being still legal. Dowry, being a ubiquitous feature of almost all weddings, despite being illegal. Ideas of honor and purity instead of autonomy and rights being tied to women’s bodies. And then some women’s bodies being deemed as not worthy of honor even: the Dalits of India disenfranchised by caste, or the women in conflict zones, who were blatantly immediately excluded from the changes that were proposed after the much publicized and horrific Delhi rape of 2012. Women who suffered in Punjab in the 80s and 90s at the hand of State forces have seen no reparations, not even in the form of recognition, much less apologies or restitution.

Question: What is next on your research agenda? Would you like to interview more female reformists of Punjab or write about some other aspect of Punjab region or the conflict?

Answer: I remain interested broadly in how we can make connections between different forms of violence that our communities negotiate – current and historical, in the U.S. and in home countries, interpersonal and mass social violence. I have also been writing and teaching on how lawyers specifically manage trauma, their clients’ and their own. Though most importantly right now, through COVID, I am focusing on the work that I have been doing since 2002, advocacy and crisis response for victims of gender-based violence. Working on gender-based violence as a practicing lawyer in the U.S., I am also really fascinated by comparatives. Right now in the U.S. there are a lot of discussions about alternatives to how domestic violence/ intimate partner violence response has been closely tied to increased policing, especially since the 70s. This is a complicated discussion here. Then add other contexts where feminists are fighting for the police to take domestic violence seriously. Or, even more complicated, cases in India where domestic violence laws are not protecting those they were meant to but are regularly manipulated by the upper-class litigants looking for an end-run. This is a part of my broader interest and possible future writing. And I dream of the time and headspace to write fiction someday! But really, I am presently quite consumed with working on the increased challenges faced by domestic violence survivors where I currently live. This too is a lesson from the protagonists of the book: make a difference where you can, don’t overlook the obvious local needs.

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

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

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

Persecution of Women 

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

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

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

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

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

Women as a Particular Social Group 

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

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

Case for the wider group of ‘women’

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

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

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


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

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

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

VP Biden’s Ambitious Agenda for Women

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

The Right to Seek and Enjoy Asylum During COVID-19

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A Syrian boy poses for a picture during an awareness workshop on Coronavirus (COVID-19) held by Doctor Ali Ghazal at a camp for displaced people in Atme town in Syria’s northwestern Idlib province, near the border with Turkey, on March 14, 2020. (Photo by AAREF WATAD / AFP)

In the words of the UN High Commissioner for Refugees, Filippo Grandi, “[i]f ever we needed reminding that we live in an interconnected world, the novel coronavirus has brought that home.” Though it is a problem common to all of us, the suffering is disproportionately more for the world’s most vulnerable groups, including refugees and asylum-seekers. These vulnerabilities are exacerbated by State practices limiting asylum as a response to the pandemic. Though public health emergencies allow States to impose certain limitations, this must be done in compliance with States’ relevant obligations under international law. This post provides a short overview of the most basic but key protections afforded to asylum-seekers and refugees under international law.

Though there is no internationally agreed upon legal definition of asylum, the UNHCR defines it as a process starting with safe admission into a territory and concluding with durable solutions, i.e., voluntary return in safety and dignity, local integration, or resettlement to another location or country. “Asylum-seeker” refers to individuals who are seeking international protection and have not yet been granted asylum by the receiving State. “Refugee” refers to someone who has left their country of origin and is unable or unwilling to return because of a serious threat to their life or freedom on the grounds listed under Article 1A(2) of the 1951 Refugee Convention, i.e., race, religion, nationality, membership of a particular social group, or political opinion. Other regional instruments may provide different definitions to include other grounds for refugee status, such as a “massive violation of human rights” (e.g., the Cartagena Declaration on Refugees). Not every asylum-seeker will ultimately be recognized as a refugee, but every refugee is initially an asylum-seeker. In that regard, at the international level, refugee status entitles those who satisfy that criteria to a specific set of protective regimes laid out in the 1951 Convention and its 1967 Protocol. However, asylum-seekers are still entitled to certain protections in compliance with the receiving State’s obligations under international law, regardless of being recognized as a refugee.

The right to seek and enjoy asylum is enshrined in various international and regional instruments including the Universal Declaration of Human Rights, African Charter on Human and Peoples’ Rights, and Charter of Fundamental Rights of the European Union. The UNHCR interprets the right to asylum to include respect for the principle of non-refoulement, admission to the territories of States, and being treated in compliance with the respective human rights and refugee law standards. Individuals seeking international protection would benefit from the human rights obligations that a State owes to its citizens without any discrimination.

But what are the main parameters of such protection during a pandemic?

The recently issued Human Mobility and Human Rights in the COVID-19 Pandemic: Principles of Protection for Migrants, Refugees, and Other Displaced Persons developed by a committee of established experts and practitioners, and endorsed by a 1,000 international experts, lays out 14 key principles applicable to all persons, irrespective of their immigration status. These principles are developed to elucidate the scope of relevant human rights obligations during emergencies as States and other relevant stakeholders navigate the pandemic response.

In the same vein, the Siracusa Principles on the Limitation and Derogation Provisions in the ICCPR (adopted by the UN Economic and Social Council and UN Human Rights Committee general comments on states of emergency and freedom of movement), provide complimentary guidance as they are critical in implementing the scope of limitations to human rights in public health and national emergency situations. The Siracusa Principles highlight that such limitation must be based on one of the grounds recognized by the relevant article; respond to a pressing public or social need; pursue a legitimate aim; and be proportionate to that aim (Principle 10). Any derogation measure must be “strictly necessary to deal with the threat and proportionate to its nature and extent” (Principle 39). Additionally, certain rights are non-derogable even in the events of public emergency, including the right to life and freedom from torture, cruel, inhuman, or degrading treatment, or punishment among others.

In light of the above, key principles pertaining to States’ treatment of asylum-seekers and refugees in a pandemic can be listed as follows:

Non-refoulement

The prohibition of return (to a real risk of persecution, arbitrary deprivation of life, torture, or other cruel, inhuman, or degrading treatment) cannot be derogated from, even during a public health emergency. The cornerstone principle guaranteeing the right to seek and enjoy asylum is the principle of non-refoulement set forth under Article 33 of the 1951 Convention, which prohibits States from expelling or returning refugees “in any manner . . . where his life or freedom would be threatened.” The principle applies not only to removal, but also to refusal of entry. It applies to all refugees – even if their status has not been officially determined. The prohibition has attained the status of customary international law and is considered a jus cogens norm.

As the UNHCR clarified in its recent guidance on COVID-19 responses, imposing blanket measures to prevent refugees or asylum-seekers from admission or discriminating against certain nationals without demonstrating relevant evidence of a health risk or putting in place measures to protect against refoulement would violate the prohibition. However, in the US, the Department of Health and Human Services has implemented an order to suspend the introduction of persons into the US from certain countries and requiring their immediate repatriation. Belgium and the Netherlands have also suspended the right to asylum for newly arriving asylum-seekers due to COVID-19 despite the guidance from the European Commission stating that even though national authorities may take necessary measures to contain further spread of the pandemic, such measures should be implemented in a non-discriminatory way taking into account the principle of non-refoulement and obligations under international law. Closing borders altogether in these manners violates the principle of non-refoulement affecting the right to seek and enjoy asylum.

Measures on asylum-seekers upon entry

In all cases, non-discrimination, human rights, and dignity of all travelers must be respected. Relevant WHO regulations are given particular weight in the context of a limitation imposed on the ground of public health (Siracusa Principles, Principle 26). As defined by the WHO’s International Health Regulations, countries may impose relevant measures during pandemics as long as they are non-arbitrary, non-discriminatory, and proportionate. Similarly, medical examinations and other measures may be implemented for “travelers” (“a natural person undertaking an international voyage”) at ports of entry, but these measures cannot be “invasive.” Similarly, Article 13 of the EU Reception Conditions Directive lays out that EU Member States may proceed to a medical screening of applicants for international protection on public health grounds while such medical screening must comply with fundamental rights and the principle of proportionality, necessity, and non-discrimination. Furthermore, Article 19 of the Directive requires that applicants receive “the necessary health care, which shall include, at least, emergency care and essential treatment of illnesses and of serious mental disorders.” The European Commission specified that such health care would also include relevant treatment for COVID-19.

Non-discrimination

Lack of effective realization of non-discrimination undermines the right to asylum. Core international human rights treaties prohibit “discrimination of any kind” viz. refugees and asylum-seekers. In practice, however, migrants are less likely to benefit from relevant health and financial services due to lack of legal status and access to services. Moreover, migrants are often stigmatized and blamed for spreading viruses. In other cases, COVID-19 measures are applied in discriminatory manners as seen in Lebanon, where curfews have been applied more stringently towards Syrian refugees.

Equal treatment and non-discrimination with regards to the right to health are especially crucial in the context of COVID-19. As part of the right to health, States must provide access to food, water, sanitation, and shelter to all persons (UDHR Art. 25 and ICESCR Art. 12 in particular). States must refrain from practices reinforcing stigma and xenophobia and implement public health responses inclusive of all marginalized groups (see, in particular, the International Convention on the Elimination of All Forms of Racial Discrimination Arts. 1.1, 2, 4; CERD Committee General Recommendation No. 30; and 1951 Refugee Convention, Art. 3).

Detention

Detention is a practical impediment to the implementation of the right to asylum. The UNHCR guidelines on the issue establish that a period of confinement may be imposed legitimately as a preventive measure in the event of a pandemic but that such confinement should be limited to its purpose and cease as soon as the necessary testing or treatment is complete. Detention must always be an exceptional measure of last resort and conducted in accordance with the principles of legality, necessity, and proportionality. Alternatives to detention should be considered, including regular reporting requirements, particularly when vulnerable groups are concerned. Human Rights Watch recently reported the arbitrary detention of nearly 2,000 migrants and asylum-seekers in Greece – including vulnerable groups like children, persons with disabilities, and pregnant women.

Detention constitutes a significant risk factor for contagious spread during a pandemic. Such detained people are highly vulnerable to the spread of COVID-19 mostly due to the inadequacy of detention conditions, overcrowding, limited supplies for personal cleaning, limited personal protective equipment such as masks and gloves, and poor access to health care. Detention of displaced persons is not permissible when such detentions pose serious threats to their health and life due to COVID-19. In addition to the adverse risks and impacts to the right to life and health, COVID-19 causes risk of indefinite detention as these people are neither admitted nor provided the option to return due to border closures.

Conclusion

Amidst a global pandemic, adhering to basic principles of international law vis-à-vis asylum seekers and refugees is vital. States cannot impose blanket measures banning asylum seekers and refugees from seeking and enjoying international protection and relevant considerations pertaining to immigration detention that are altogether key to the reinforcement of the right to seek and enjoy asylum. These principles impose clear obligations on States that they cannot simply choose to ignore during health emergencies – even global pandemics.

*This article reflects the personal views of the author and should not be attributed to the World Bank.

Tanzania Withdraws Jurisdiction from the African Court. What recourse remains for Tanzanians?

(photo credit)

On November 21, 2019, Tanzania withdrew from Article 34(6) of the African Charter’s Protocol: the provision by which States accept the competence of the African Court on Human and Peoples’ Rights to receive cases from individuals and NGOs. Tanzania is only the second State—after Rwanda—to withdraw from Article 34(6). When Rwanda made its Article 34(6) withdrawal in 2016, the African Court mandated a notice period of one year for withdrawals and declared that the withdrawal would have no legal effect on cases pending before the Court.

Applying the Rwandan precedent to Tanzania’s withdrawal suggests that Tanzanians can only continue to file before the Court until the one-year notice period expires, on November 20, 2020. This change is significant, as individuals comprise the overwhelming majority of applications to the African Court.

Despite the closure of this important avenue for Tanzanians seeking remedies for human rights violations, there are other avenues through which Tanzanians can bring their claims. The African Commission on Human and Peoples’ Rights and the UN Treaty Bodies provide two such avenues.

A. The African Commission on Human and Peoples’ Rights

The African Commission is a quasi-judicial body tasked with the interpretation of the African Charter. Distinct from the African Court, the Commission can hear complaints against States Parties to the African Charter, including Tanzania.

The Commission presents a viable alternative to filing with the Court in several ways. By turning to the Commission, Tanzanian applicants can continue to build jurisprudence in the African continent and pursue Tanzania’s compliance with its human rights obligations under the African Charter. Successful petitions enshrine human rights norms in Tanzania, as well as in all States Parties to the African Charter, and applicants can secure reparations for the harms they have suffered.

Additionally, the Commission has shown interest in ruling on human rights claims in Tanzania, despite Tanzania’s withdrawal. On November 22, 2019, just a day after Tanzania’s withdrawal, the Commission published a statement to Tanzania strongly urging its government to guarantee a range of public freedoms and to protect human rights activists. Tanzania’s withdrawal may only serve to heighten the Commission’s interest in the State’s human rights compliance.

Although the Commission can begin to fill the gap left by Tanzania’s withdrawal for individuals who have suffered human rights abuses, it is not a replacement for the Court. First, the Commission faces a severe backlog in cases: in June 2019, the Commission had 240 cases pending. If Tanzanians seek redress before the Commission in the same numbers as they did before the Court, they can expect to see prolonged delays in having their petitions heard.

Second, Tanzanian applicants may not always see favourable decisions from the Commission enforced at state level. Tanzania is required to submit biannual reports to the African Commission on its human rights compliance, but Tanzania has only submitted two such reports: one in 1992 and another in 2008. Because of this lack of data, as well as the minimal formal policy guiding these state-reporting measures, it is difficult for the Commission to monitor whether Tanzania is implementing its decisions and recommendations. Moreover, Tanzania does not appear to have enforced the one decision on the merits that the Commission decided against Tanzania.

Despite these complications, the African Commission can fill some of the gap that Tanzania’s withdrawal from the African Court will leave post-November.

B. UN Human Rights Bodies

The UN Treaty Bodies can also hear human rights claims against Tanzania.

Two of the UN Treaty Bodies have jurisdiction over Individual Complaints filed against Tanzania: the Committee on the Elimination of Discrimination Against Women (CEDAW Committee) and the Committee on the Rights of Persons with Disabilities (CRPD Committee). Tanzania ratified the Optional Protocol to the CEDAW in 2006 and the Optional Protocol to the CRPD in 2009, thus recognising the competence of both bodies to consider communications against Tanzania.  

Where claims allege a violation of either the CEDAW or the CRPD, Tanzanians may consider bringing an Individual Complaint to CEDAW or CRPD Committees, respectively. Though the Treaty Bodies present a wholly different forum for complaints than the regional human rights tribunals of the African Court and Commission, they go a long way to filling the gap left by Tanzania’s withdrawal.

The longevity and strength of the UN Treaty Bodies lends their judgments gravity and impact. Jurisprudence from both the CEDAW and CRPD Committees shines a light on, and seeks to remedy, human rights violations the world over. Tanzanian lawyers and activists bringing complaints before these Committees can use the international respect and clout of these bodies to their advantage, to build awareness of human rights issues in Tanzania and to support their in-country efforts.

Importantly, Tanzania generally complies with its administrative obligations under both the CEDAW and CRPD by submitting its periodic reports. Neither Committee has heard many Individual Complaints against Tanzania, though, which makes analysing the likelihood of their enforcement difficult. The CEDAW Committee has heard one Individual Complaint against Tanzania, following which Tanzania implemented some—but not all—of the Committee’s recommendations. The CRPD Committee has heard two complaints against Tanzania, with similarly mixed results. Though Tanzania’s limited track record on enforcement may raise questions about the utility of bringing claims to the Treaty Bodies after November 2020, it does not diminish the utility of the UN as way forward for Tanzanians who have suffered human rights abuses.

***

From November 20, 2020, Tanzanian individuals and NGOs will be deprived of an important avenue through which to bring human rights claims. It is clear, though, that Tanzania’s withdrawal does not doom all human rights claims against the state. Individuals and NGOs must turn to alternative forums to fill the gap left by Tanzania’s withdrawal.

Meanwhile, international groups should recognise the critical work being done by domestic advocates to raise awareness of these changes within Tanzania.

Introducing Nathalie Greenfield & Gabriela Markolovic

It is our great pleasure to introduce our new IntLawGrrls contributors Nathalie Greenfield and Gabriela Markolovic. Nathalie and Gabriela are third-year Juris Doctor students and Charles Evan Hughes Scholars at Cornell Law School in Ithaca, New York. Nathalie is a graduate of the University of Cambridge (UK), where she received her Master’s degree in cultural policy, and she worked in gender equality policy at the European Parliament before starting at Cornell. Prior to law school, Gabriela received her Bachelor’s degree in Industrial and Labor Relations from Cornell University, minoring in International Relations and Law and Society.

Between August 2019 and May 2020, Nathalie and Gabriela were students in Professor Sandra Babcock’s International Human Rights Clinic at Cornell. During their time in the clinic, Nathalie and Gabriela represented defendants facing the death penalty in Tanzania in their appeals to the African Court on Human and Peoples’ Rights, identifying novel legal claims involving sexual and gender-based violence.

In 2021, Nathalie and Gabriela will continue working on behalf of incarcerated women in an advanced international human rights clinic, and are keen to tackle gender-based discrimination and contribute to the advancement of women in the legal profession. 

State Sponsored Persecution of Uighur Muslims in China

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

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

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

China’s Violation of International Law

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

Application of Human Rights Law

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

Crimes against Uighur Women 

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

Conclusion

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

Discussion Friday 3 April: Domestic Violence During COVID-19: Sheltering at Home When Home is the Most Dangerous Place

The Roosevelt House Human Rights Program of Hunter College and the Sisterhood is Global Institute are hosting a live online discussion on Friday April 3 with frontline women’s rights activists from across the world.

Friday, April 3, 2020 1:00 pm – 2:00 pm EDT (17.00 – 18.00 GMT)

For victims of domestic violence, home is often the most dangerous place on earth. As the world moves towards lockdown to prevent the spread of COVID-19, women may have no safe place to turn. Moderated by Jessica Neuwirth, the discussion will explore current realities of domestic violence victims and solutions for supporting women in this vulnerable moment.

Discussants:
Carmen Espinoza, Executive Director of Manuela Ramos in Peru
Shafiqa Noori, Director of Humanitarian Assistance for Women and Children of Afghanistan
Diane Rosenfeld, Lecturer on Law and Director of the Gender Violence Program at Harvard Law School
Randa Siniora, Executive Director of the Women’s Center for Legal Aid and Counseling in Palestine

Registration is required. You may register here and join at zoom.us/j/580841531

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

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

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

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

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

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

Click here to RSVP to this Zoom panel discussion.

ICC Assembly of States Parties Symposium: Between the 18th ICC ASP and the 71st Anniversary of the UDHR … Can hope rise again?

IntLawGrrls welcomes Ghuna Bdiwi, who contributes the post below directly from the International Criminal Court (ICC) Assembly of States Parties (ASP) in The Hague.

Ghuna BdiwiGhuna Bdiwi is a lawyer and a member of the UN Syrian Constitutional Committee as part of the experts and civil society group. She is a PhD candidate of international criminal law at Osgoode Hall Law School – York University. Ghuna is a delegate of the Canadian Partnership for International Justice to the 18th ICC ASP.

December seems to be a remarkable month for international justice. Two important milestones are taking place this month: the 71st Anniversary of the Universal Declaration of Human Rights (UDHR) and the 18th ICC Assembly of States Parties. The former event is to be held on the 10th of December, to commemorate the fundamental principles that should apply to every human predicament. The UDHR affirms in its preamble some of the major principles that humans should not live without, providing that “the inherent dignity of all members of the human family is the foundation of freedom, justice and peace in the world.” The latter event is held every year by State Parties to the ICC to convene and discuss matters related to the advancement of the international criminal justice system. This system is meant to sustain one of the important foundations of human dignity, that is to guarantee justice. The ICC, to a large extent, blossomed to guarantee lasting respect for and the enforcement of international justice, and to ensure that human rights violations do not occur with impunity. The establishment of the ICC was a direct response to prior human suffering resulting from wars and human-caused humanitarian disasters.

In 2019, the picture shows that a number of countries around the world are speaking out against evidence of corruption within authoritarian governments, while demanding democracy, freedom, equality and dignity. We witnessed mass demonstrations in Egypt, whereby Egyptians defied their government. Protests, demanding the government’s resignation, have filled the roads in Lebanon. In Iraq, mass protests have taken place to end government corruption, economic mishandling of economic resources, and other social cavities like poverty, unemployment, and lack of essential public services. In Hong Kong, protests are in response to citizens’ struggle for freedom of expression, rights of autonomy and self-determination. In Iran, national demonstrations have also ensued. Citizens simply want to get rid of authoritarian regimes.

Yet, this picture reminds me of the Syrian uprising that began on March 15, 2011. Many Syrian revolutionists were optimistic to establish the country they had envisioned – a democratic state that secures respect of their humanity, dignity, freedom and the rule of law. Contrary to the expectations of Syrian revolutionists, the response to their demands included grave human rights violations. The responses amounted the infliction of torture, imprisonment, murder, extensive destruction and appropriation of properties, as well as widespread, systematic and indiscriminate targeting of civilians, schools and hospitals. According to Articles (7) and (8) of the ICC Rome Statute, the conduct listed above constitutes heinous international crimes – namely, war crimes and crimes against humanity. In response to state wrongdoing, calls to address and halt human rights violations have been heard loudly from a variety of voices; citizens, the international community, individual states, intergovernmental organizations, non-governmental organizations, practitioners, diplomats, scholars, and others. Despite the list of concerned voices, there have been limited responses. There is no doubt that the UDHR is a milestone document in the history of human rights, but, alone, it is not an adequate tool to respond to calls to protect innocent civilians and prevent the scourge of war.

The strongest response to human rights violations might be a military response, but it can cause severe repercussions. The case of Iraq illustrates this reality. In 2005, the US decided to militarily intervene, claiming its intervention would implement democracy and free the people of Iraq from Saddam Al-Hussein’s ruthless dictatorship, but the country remains in a state of unrest up to this moment.  In contrast, the Rome Statute of the ICC was created to guarantee and enforce legal – rather than militaristic – justice.

In the Syrian context, sadly, the death toll has reached approximately 600,000 people, nearly six million people are displaced outside the country, and approximately 600,000 people are reportedly missing. Despite these harrowing statistics, human rights law has been unable to provide them with adequate responses. If Syria was a State Party to the Rome Statute of the ICC, many perpetrators would likely be imprisoned by now, or at least fleeing from the hands of justice.

I might sound very optimistic, but it sounds to me that when we call for criminal accountability, our calls send a message to perpetrators that we know what they have done, and that they deserve to be prosecuted and punished. We tell them that we will hold them accountable whenever the circumstances allow for it. Calling for criminal accountability has value in itself; value that is beyond the values we generate from calling for human rights violations to be addressed. For example, calls for criminal accountability might deter government figures or make them think carefully before violating citizens’ rights. Think about the range of states mentioned above, which are witnessing recent demonstrations and demanding that governments step down: none of these countries have ratified the Rome Statute. I argue that, if those countries were Parties to the Rome Statutes, government reactions to citizen’s demands would take on an entirely different form, which is enough of a reason to justify the importance of the ICC.

Of course, the ICC faces many critics related to its efficiency, selectivity and financial cost, but let’s not forget that it is still in its childhood. Let’s try to be optimistic that the ICC will be one day be able to fulfil its promise to guarantee lasting respect, enforce justice, and prevent impunity.

This blogpost and the author’s attendance to the 18th ICC ASP are supported by the Canadian Partnership for International Justice, funded by the Social Sciences and Humanities Research Council of Canada.

CPIJ 

SSHRC