Work On! International Summer School on Human Rights in Theory and Practice

TU Dresden and Leipzig University will be hosting the 2nd International Summer School “Human Rights in Theory and Practice” from September 5th to 10th, 2021 in Dresden, Germany

The topic will be “The European Convention on Human Rights in Times of Crises” and will explore challenges and opportunities for the European Human Rights System arising out of situations of crisis. Themes such as emergency situationspopulismmigration, and the role of economic, social and cultural rights in the context of crisis will be explored from an interdisciplinary perspective.

Speakers will include both academics as well as practitioners, offering the unique opportunity to gain insights into current theoretical discussions as well as the everyday challenges of practicing law.

Information on registration can be found here and the session’s program can be found here.

Reminder: 2021 Human Rights Essay Award Competition

The Academy on Human Rights and Humanitarian Law at American University Washington College of Law is currently accepting submissions for the 2021 Human Rights Essay Award Competition. The topic of the 2021 competition is as follows: Human Rights and States of Emergency: Unexpected Crisis and New Challenges. Participants have the flexibility to choose any subject that directly relates to this topic, including international human rights law topics related to international humanitarian law and international criminal law.  The deadline to enter your submission to the Human Rights Essay Award competition is February 1, 2021. Please note that ONLY participants with a law degree are eligible to enter this competition. 

The Human Rights Essay Award will be awarded to two winners—one for a submission in English and one for a submission in Spanish—with a full scholarship (including lodging and transportation to and from Washington, D.C.) to complete the Certificate of Attendance or Diploma in the 2021 Program of Advanced Studies on Human Rights and Humanitarian Law which will take place from May 31 to June 18, 2021.

If you would like additional information or have any questions, please contact humanrightsessay@wcl.american.edu

Why I Do International Criminal Defence Work

Introduction

Most criminal defence attorneys are asked, at least a few times in the course of their careers, How can you do what you do?  How can you defend “x”?  How can you defend someone charged with “y”?   The query may be made by a friend or relative or even, sometimes, a colleague who practices in another area of law.

In 2006, I had just finished Simba, my first case at the International Criminal Tribunal for Rwanda (ICTR) in Arusha and wrote about my experiences as a defence attorney at the ICTR. The article is entitled:  “The Evolution of a Partisan:  Observations of a Criminal Defence Attorney at the ICTR,” and is available at Bepress – Evolution of a Partisan.

In 2014, I again wrote about defence work in an article, entitled “Litigating for Justice: Defense Work at the International Criminal Tribunal for Rwanda (ICTR),” available at Litigating-for-Justice.

And it is now 2021, and I am still defending persons accused of international crimes.

The query of why I do international criminal defence work elicits the same responses today as it did years ago… but I have come to the realization that the question I am really answering is:  how can I not do this?  Especially based on what I have learned over the last fifteen plus years about the nexus of law and politics, through defending clients charged with crimes in international courts and tribunals.

I was ready to “see” political forces at work at the ICTR when I first arrived in Arusha in 2004.  I did not have to be convinced that the reality of the Tribunal’s workings was about the relationship between law and politics.   But, what I was not prepared for (and experienced once I actually started to do work on my case in Rwanda) was the extent of overt State political intervention by Rwanda in the ICTR cases in Arusha.

The most important lesson I learned at the ICTR is that a State Party in a conflict can exercise power over the judicial mechanism, notwithstanding the intentions of jurists and staff to be impartial and adhere to the rule of law.     

                                                                        ***

My background had provided me with a prism with which to view and analyze how law and politics interacted.  I was a student activist, and my politics were formed in the struggles of the late 1960’s in the U.S.   I entered law school when I was 35 years old after more than a decade as a union activist.  I have now been involved in the struggles of peoples for the right of self-determination, for equality and against discrimination for a little more than half a century.

I understood politically that the world is divided into the “haves” and the “have nots,” the oppressor and the oppressed (and similar constructs) based principally on race and class and gender, and also sometimes influenced by other categories.  Law reflected these divisions, and the challenge was to use the system – if possible – to level the playing field so that the rule of law was applied with equality to all.      

I initially decided to focus on criminal defence because I wanted to talk to juries.  (I was trained and practiced in the U.S.)  Pre-lawyer, I was a labor organizer, and – in my mind – talking to juries was close to organizing.  It involved thinking about how an ordinary person, i.e. a non-lawyer, might react to the defendant, respond to the allegations, analyze the evidence, etc.  In essence, I saw part of my Defence task as  “organizing the jury” to rally to the Defence narrative or view….whatever that was in a particular case.

Being a prosecutor never even crossed my mind.

So, when I became a lawyer and started at Legal Aid in New York City, there was no question as to which side I would represent.  My focus was on making sure the client got a “fair shake” in the criminal justice system.

Getting a “fair shake” required making a critique of the criminal justice system.  It meant  starting from the premise that the courts and justice are not ensconced in a cocoon, free of “outside” political influence.  In fact, the workings of justice itself reflected the power relations and systemic racism of society.  One simply had to work (or even watch) arraignments in AR-1 or AR-2 in the middle of the night at 100 Centre Street, Manhattan (or any other time of day) to get a quick lesson in how class and race interact with “justice.”  It is immediately obvious, even to the most avowedly “apolitical” Legal Aid lawyer, that getting a “fair shake” was inextricably linked to the politics of the justice system.

Probably all of my cases at Legal Aid were not political cases based on the charges, but  the social and political contexts in which they occurred were generally determined by systemic racism, poverty and drugs.

The Nexus of Law and Politics at the ICTR

What immediately struck me about the ICTR cases was that they were – in the first instance – political cases.  Politics was written all over them:

  • from the Rwandan government’s official narrative of the events of 1994 repeated in every ICTR indictment to
  • the fact that not one of the 93 persons prosecuted at the ICTR was a Tutsi, or a member of the RPF, despite the findings and reports of international commissions of systematic crimes against the Hutus.

The ICTR courtroom was an important battlefield of the Rwanda Patriotic Front’s (RPF) war, starting from its 1990 invasion against the Hutu leadership in Rwanda.  This applied not only to the selective prosecution of the former Hutu government and military leadership by the ICTR.  It also permeated all aspects of the Defence work on the case, including investigations and other preparations for trial, and even more dangerous, the threats to Defence witnesses by the Rwandan government and its agents.

Rwanda’s Interference with Defence Investigations and Witness Appearances

It is important to read the Trial Chamber’s section in the Simba Judgment, at paras. 41-53.[1] And, it is crucial to ask yourself – even if only a fraction of the Defence’s allegations were true – was the defendant given his right to due process by the ICTR.  The answer, in my view, is “no,” based largely on Rwanda’s State interference with the ICTR.

Rwanda implemented a “witness as hostage” policy in its dealings with the ICTR, which was operational before the Simba case started in 2004.  In 2003 and 2004, for example, witness interference was identified in US State Department reports as a tactic of the Rwandan government.[2]  At that time, Rwanda withheld witnesses from the ICTR by refusing to issue travel papers to any witness (Defence or Prosecution).  This resulted in the disruption of three trials.

Rwanda’s policy was in retaliation for two events:  (1) ICTR Prosecutor Carla del Ponte’s “Special Investigations” into the alleged crimes of the RPF and (2) the Trial Chamber’s decision in the Barayagwiza case.

In 1999, del Ponte had opened “Special Investigations” into the alleged crimes of the RPF, and was about to issue indictments in 2002-2003.[3]  Rwanda adopted the tactic of threatening to withhold witnesses from the ICTR, as a demonstration of its displeasure with the investigation.  At some point in  2002, the “Special Investigations” were suspended,[4] and in September 2003, the Security Council relieved del Ponte of her assignment at the ICTR and replaced her with Justice Hassan Bubacar Jallow, a Gambian jurist.

The second event for which Rwanda sought “payback” was the ICTR Appeals Chamber’s decision in late 1999, dismissing the charges against Barayagwiza and ordering his release, with prejudice to the Prosecutor, based on the “egregious” conduct of the Prosecutor and the numerous due process violations.[5]  Not even five months later, the Appeals Chamber reversed its decision to release Barayagwiza, based on “new facts.” It held that the remedy for the  violation of the defendant’s rights should be determined at the end of the trial, at the time of judgment –if he is found not guilty, there should financial compensation, or if he is convicted, there should be a reduction in sentence for violations of his rights.[6]

In sum, the confluence of the initial Trial Chamber decision to release Barayagwiza and the inception of “Special Investigations”  was viewed by Rwanda as  a threat to its political agenda.   And  Rwanda was correct.  Rwanda – the only country which voted against Security Council Resolution 955 (1994) establishing the ICTR,[7]  repeatedly tried to disrupt and obstruct the ICTR – making effective Defence investigations difficult and sometimes impossible, threatening Defence witnesses and violating defendants’ fair trial rights, guaranteed under the ICTR Statute and other international instruments.    Rwanda’s policy continued, in different permutations, throughout the ICTR’s existence.  Not only had Rwanda’s political agenda permeated the ICTR’s judicial process, but it succeeded in  effectively controlling the proceedings at the ICTR.

Rwanda’s “witness as hostage” policy, in addition to halting the ICTR trials at the time,  had another important aspect:  witness intimidation.   This intimidation of Defence witnesses often started long before anyone’s name even appeared on an official witness list in court.  For example, the Simba Trial Judgment reveals that there was evidence presented by Defence prisoner witnesses that persons who had been interviewed by the Defence were instructed by the Rwandan prosecutor’s office to write down what had been discussed with the Defence, and that some potential witnesses were moved to a different prison where they were put in isolation cells, upon the order of the Rwandan prosecutor’s office.[8]   The Simba case is also cited by Professor Nancy Combs as an example of defence allegations of how Rwanda impeded Defence investigations.[9]

The aim of the Rwandan policies of obstruction was to prevent the prisoner and civilian witnesses from testifying for the Defence in Arusha.  In Simba, threats to the security of the only witness (BJK1) who could corroborate Simba’s alibi throughout the entire time period of the charges resulted in his refusal to appear in court.   And, the same Trial Chamber refused to accept the alibi statements of this witness, which he had made to both the Defence and the Prosecution.[10]

In Simba, in response to multiple Defence allegations of witness intimidation, the Trial Chamber denied that the intimidation existed, except for one person who “may have been dissuaded” to attend the trial.[11] But, three paragraphs later, it negated its ruling, by holding that this intimidation did not materially prejudice the defendant.[12]

Lastly, the flip side of Rwanda’s witness interference and intimidation of Defence witnesses was its organized preparation, within its State structures and organizations, of the Prosecution witnesses for the ICTR.  It is well-known that organizations such as IBUKA or AVEGA[13] prepared their members to testify for the Prosecution.   Within the prisons, the prisoners who would testify for the Prosecution were kept together in the “Arusha Aisle,” where they underwent preparation for Arusha.  As I recall, this evidence was elicited in the “Military 1” case.  I tried to question a Prosecution prisoner witness about this in the “Military II” case.  Unfortunately, I was unsuccessful.  But the existence of an “Arusha Aisle” and State-led organizations of victims is not so surprising.  Rwanda is a society which has perfected the molding of a collective memory based on the RPF’s version of history, and has institutionalized this in its “re-education camps”[14] and laws on “genocide deniers.”

Fighting for Fair Trial Made Me a Political Partisan

Notions of law and justice, of course, played some role in the courtroom.  But this role was overshadowed and often overwhelmed by Rwanda’s unrelenting, planned efforts to make the ICTR, whose establishment it had opposed, serve its own political ends.

Every Defence request to implement the client’s fair trial rights was tantamount to being seen by the Prosecution (and treated by the Rwandan press and government) as a hostile act  against the Rwandan government.  This adds substantial dimension to the notion of “criminal transference” generally experienced by defence attorneys in many jurisdictions.[15]   There was simply no “independent” position of the Prosecution, which was routinely advised by Rwandans who identified with the RPF.

It was almost inevitable, then, that fighting as a Defence attorney to “level the playing field”  – whether it was in conducting investigations in Rwanda or requesting withheld exculpatory material – made the Defence attorney a partisan in the events of 1994.  

The notion of  a “fair trial” for ICTR defendants was an impossibility where the ICTR became a battleground for Rwanda’s leadership under the RPF to assert and re-affirm its political power.  As Avigdor Feldman, a leading Israeli human/civil rights lawyer, and founder of B’Tselem, has stated in the film The Advocate (about the work of Lea Tsemel, an Israeli attorney who represents Palestinians),

“A fair trial means giving both sides an equal chance.  But since the balance of power is a priori unequal, a fair chance is never given [referring to Palestine side in the Israeli Occupation].”

In an ICTR courtroom, there were two sides:  the Prosecution and the Defence.  But the weight of Rwanda on the Prosecution side guaranteed that the Defence did not have an “equal chance,” rendering fair trial illusory and unattainable.

I quickly came to the powerful realization that struggle in the courtroom is as much about the historical narrative as it is about culpability.  At the ICTR, its judgments are a historical narrative of the events of 1994. This is the reason that the government of Rwanda has so tenaciously tried to exercise control over the ICTR, especially the Prosecution. As a former ICTY Prosecutor has pointed out, “The struggle for the interpretation of historical events through the trial record might be as important in [the] long run as the determination of guilt or innocence of the individuals tried.”[16]

The result was that the historical record produced by the ICTR was marred by its selective prosecution of only Hutus, and its failure to hold include the RPF accountable for its well documented crimes in the conflict.  As Wilson has pointedly stated, “Unless this changes, we can conclude only that the historical record produced by the ICTR is a partial one, as it has rendered an account of the crimes of just one side in the conflict, the losers.”[17]

This purpose of writing the historical record – from the perspective of the victors – means that notions of justice and fairness are submerged within the judicial process.  The struggle for defence attorneys is to pull these notions out of the political morass which is inevitable in the cases in international courts and tribunals.  So, if you want to make sure your client has a “fair shake,” you try to extricate fairness and justice from the sometimes muck of political conflict.  Not an enticing image, but probably an accurate description of the work I do as an international criminal defence attorney.

[1] There are also a number of law review articles, which can be found through Google, citing Simba as an example of  Rwanda’s witness intimidation and interference in ICTR cases.

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[2] The 2003 US Department of State Country Report for Rwanda states:

The International Criminal Tribunal for Rwanda (ICTR) experienced its most troubled year to date. Shortly after Prosecutor Carla Del Ponte announced her intention to indict RPF soldiers for war crimes committed in 1994, a part of the mandate established for the ICTR, Rwandan genocide survivor organizations in January called on prosecution witnesses to boycott the ICTR for a number of reasons, including alleged mistreatment of witnesses. In June the government imposed new travel restrictions on prosecution witnesses that disrupted three trials, and refused to provide access to documents needed by the prosecution. In July Del Ponte informed the U.N. Security Council about these obstructions.

In the 2004 Rwanda Country Report on Democracy, Human Rights and Labor, February 28, 2004, the US Department of State acknowledged that “ government authorities sporadically prevented witnesses from attending and giving testimony at the ICTR, which delayed the judicial process.”

See also Wilson, Richard Ashby, Writing History in International Criminal Trials  (Cambridge University Press: New York, 2011), pp. 43-44.

[3] The mandate of SC Resolution 955 was to prosecute both sides of the Rwandan conflict.

[4] See Human Rights Watch letter to Security Council, 25 October 2002.

[5] Jean Bosco Barayagwiza v. The Prosecutor, ICTR-97-19-AR72, Appeals Chamber, Decision, 3 November 1999, paras. 106-108.

[6] Ibid., Decision, 31 March 2000.

[7] Minutes, Security Council Meeting, 8 November 1994 (S/PV.3453)

[8] SeeProsecutor v. Simba, Judgment and Sentence, 13 December 2005, fn. 54.

[9] Combs, Fact-Finding Without Facts, The Uncertain Evidentiary Foundations of International Criminal Convictions (New York: Cambridge University Press, 2010), p. 147.

[10] See, Beth S. Lyons, “Enough is enough:  the illegitimacy of international criminal convictions:  a review essay of Fact-Finding Without Facts, The Uncertain Evidentiary Foundations of International Criminal Convictions by Nancy Amoury Combs,” in Journal of Genocide Research (2011), 13(3) pp. 293-295, especially fn 70.

[11] Judgment, para. 50.

[12] Judgment, para. 53.

[13] See discussion of Prosecution witnesses who alleged that they were asked to give false testimony by IBUKA in the “Media case” at the ICTR, Combs, pp. 155-156.

IBUKA, formed in 1995, is an organization of genocide survivors.  It has played a leading role in propagating the Rwandan government’s view of the genocide, including its fundamental view that anyone who believes that there was a genocide against both Tutsis and Hutus, is guilty of the crime of genocide denial, or negationism.  See, for example, IBUKA’s “Open Letter to United States Congress Regarding HR#1426,” 17 June 2010, stating that Professor Peter Erlinder is a genocide denier, at www.businesswire.com.  IBUKA has also been the instrument, along with AVEGA, the organization of genocide widows, through which the Rwandan government has implemented its retaliatory policies of non-cooperation to obstruct the workings of the Tribunal.  Lars Waldorf, “A Mere Pretense of Justice”: Complementarity, Sham Trials, and Victor’s Justice at the Rwanda Tribunal,” Fordham International Law Journal, Vol. 33, No. 4, April 2010, pp. 1221-1277 points out that a member of the RPF’s central committee was appointed as president of IBUKA in 2000, “the same year that several Tutsi survivors critical of the RPF’s policies were effectively neutralized,” pp. 1231-1232.  On AVEGA’s website, www.rwanda-genocide.org, it states that the association was approved by ministerial decree No. 156/05 on October 30, 1995.

[14] See, Thomson, Susan.  “Re-education for Reconciliation:  Participant Observations on Ingando.”  See also,  Mgbako, Chi, “Ingando Solidarity Camps: Reconciliation and Political Indoctrination in Post-Genocide Rwanda,” Harvard Human Rights Journal 18, (Spring, 2005), pp. 201-224.

[15] At Legal Aid in NYC, I have experienced the occupational hazard of being the object of criminal transference where, in court, the judge (and/or the prosecutor) transfers his or her attitude about the crimes charged against the defendant to the defence attorney. Both defendant and defence counsel become identified with the criminal acts alleged.  At the international courts and tribunals, particularly at the ICTR, a defence attorney (especially in military and other high profile cases) was often viewed with similar transference:  the crimes alleged against a defendant were imputed to the defence counsel….simply because s/he was defending someone and fighting for a fair process.  So, the line between fighting for a client’s rights and being viewed as a supporter of the client’s side in the conflict was, at best, blurred and more often, non-existent at the  ICTR.

[16] Nice, Professor Sir Geoffrey, “Legal Process as a Tool to Rewrite History – Law, Politics, History,” Lecture, Gresham College, 13 February 2013.

[17] Wilson, Richard Ashby, Writing History in International Criminal Trials  (Cambridge University Press: New York, 2011), p. 46.

International Commission of Inquiry to Open Hearings on Racist Police Violence in the US on MLK Day

FOR IMMEDIATE RELEASE
Thursday, January 7, 2021
Contact Person: Kerry McLean, Esq.
kerrymclean@gmail.com

(Thursday, January 7, 2021) — The National Conference of Black Lawyers (NCBL), the
International Association of Democratic Lawyers (IADL) and the National Lawyers Guild (NLG)
have assembled a commission of experts from around the world to investigate racist police
violence against people of African descent in the United States. The International Commission
of Inquiry on Systemic Racist Police Violence Against People of African Descent in the United
States will broadcast live hearings online with testimony from victims’ families and lawyers
beginning January 18, 2021, which is the the day that the United States will commemorate the
birthday of civil rights legend Martin Luther King, Jr. The hearings come to a close on February
6, 2021.
In June 2020 an international coalition of hundreds of organizations and individuals sent a
communication to the United Nations Human Rights Council urging that the UN convene a
commission of inquiry to investigate racism and racist police violence in the United States. The
UN declined the request, though it did task the UN High Commissioner on Human Rights with
preparing a report on racism.
Following the UN’s decision to not convene a commission of inquiry, the NCBL, the IADL and
the NLG joined forces to establish a Commission of Inquiry. The Commission of Inquiry will
investigate the systemic, widespread and grave violations of the rights of Black people in the
United States and present its findings in a report. The report will be given to the United Nations
High Commissioner and shared with the public.
“For decades people of African descent in the United States have sought in vain to seek relief
from the systemic lynchings and killings under the color of law by petitioning domestic courts,
including the United States Supreme Court,” said Lennox Hinds, Professor Emeritus at Rutgers
University and chair of the Commission of Inquiry’s Steering Committee. Hinds, who practiced
criminal law for decades domestically and internationally continued, “This International
Commission of Inquiry is our latest attempt to give voice to the international outrage resulting
from the public lynching of George Floyd, to once again expose the pandemic of racist police
violence against people of African descent and to hold the United States government
accountable before the international community.”
The 12 Commissioners hail from countries around the globe and include notable figures such as
Sir Clare Roberts, former President of the Inter-American Commission on Human Rights,
Professor Sir Hilary Beckles, UN Advisor and Chair of the CARICOM Reparations Commission
and pioneering lawyer Hina Jilani, who is a member of the Nelson Mandela-founded group The
Elders.
The hearings will be broadcast live via Zoom. For a full schedule of the hearings and other
information about the Commission of Inquiry please visit: http://www.inquirycommission.org

Register for the hearings at: https://bit.ly/inquirycommission

COVID-19 Battles in Cox’s Bazaar Refugee Camps

Source: The UN Official Website

This article attempts to understand the International Human Rights Violations of the Refugees in Cox’s Bazar Camps and how can they be secured of their right to health.

Introduction

Owing to the travel disruptions caused by the coronavirus, the United Nations High Commissioner for Refugees (UNHCR) and the International Organisation for Migration (IOM), as of March 17, 2020, temporarily suspended refugee resettlement departures, leaving millions of refugees in temporary settlements.  Such closures have significantly impacted refugees by making them more vulnerable to health-care risks. This decision endangers the lives of thousands of refugees surviving the “dire and dangerous” conditions of the world’s largest refugee settlement, the Cox’s Bazaar Camp. The Camp hosts around 725,000 refugees, with only 10.7 square meters per person. Crowded conditions have caused the virus to race through the camps and risked thousands of refugee lives. Given the camp’s conditions, the threat of these cases and human rights abuses are alarming. This situation calls for an effective and inclusive approach to secure the refugees of their human right to health.

Through the Prism of International Human Rights Perspective

The constitution of the World Health Organisation recognises the right to health as a fundamental right and guarantees it to every individual without any form of discrimination. Article 12 of the International Covenant on Economic, Social and Cultural Rights, guarantees every individual the right to enjoy the highest attainable standard of physical and mental health without any discrimination. Bangladesh has ratified this convention and therefore is obligated to uphold right to health as a human right of health as a human right of the refugees. Yet there is only a little indication of these rights being enjoyed by the refugees. The constitution of the World Health Organisation recognises the right to health as a fundamental right and guarantees it to every individual without any form of discrimination.The world health organisation has stated that understanding health as a human right creates a legal obligation on states to ensure access to timely, acceptable, and affordable health care of appropriate quality as well as to providing for the underlying determinants of health, such as safe and potable water, sanitation, food, housing, health-related information. Bangladesh, being a member of the World Health Organisation, and having accepted its constitution, has the obligation to secure the right to Health to it’s citizens. The ambit of this right is broad enough to include refugees as well.

Therefore, Bangladesh has to ensure the protection of human rights of the refugees and provide them with health-care services as provided to the citizens. Long-term neglect and inattention have aggravated the human rights of refugees and made them uniquely vulnerable in COVID-19 Crisis. The World Health Organisation released The Report on the health of refugees and migrants in the WHO European Region: no public health without refugee and migrant health (2018) where it urged the countries to implement policies that provide health-care to the refugees, irrespective of their legal status. Bangladesh lacks an express law regulating the administration and refugee rights. The absence of an administrative framework for refugees in Bangladesh has exposed the refugees to greater healthcare risks and endangered their lives.vHealth-care services like testing are scarce to refugees. Cox’s Bazaar settlement lacks proper hygiene and sanitation. Several reports mention the unavailability of water and soap in/outside latrines, preventing proper hand wash. This exposes the community members to safety and health hazards, making them more vulnerable to the COVID-19 risks.

Conclusion

Although the government of Bangladesh is responsible for protecting the refugees, however, given the economic crisis failed by the country, it might not have the financial means to do that at present. Considering this, the United Nations High Commissioner for Refugees should step in and take responsibility of providing healthcare to all refugees. The government of Bangladesh should focus on holistic development and adopt a human rights-based approach as supported by the Global Humanitarian Response Plan and Develop a detailed response in close collaboration with the United Nations High Commissioner for Refugees. The COVID-19 crisis represents an opportunity to address long-standing structural weaknesses and devise an inclusive crisis-resilient refugee management system by adopting a two-pronged counter-exclusion strategy – financial and socio-medical.

Countries like Bangladesh that host large refugee settlements should attempt to strengthen the health care facilities in the camp and with the help of international and national aid agencies, aim to provide clean water and sanitary conditions.  For decades, the refugees have struggled and have been treated as the Invisibles. The virus would have a catastrophic impact on the lives of the refugees. It is time to acknowledge their human rights and work towards ensuring them a safer environment.

Introducing Pravah Ranka

It is our great pleasure to introduce our new IntLawGrrls contributor Pravah Ranka. Pravah is reading law at Gujarat National Law University, India. Her research interests include International Human Rights Law, Public International Law, Gender-Justice, Law and Technology, Intellectual Property Rights, Criminal law and Arbitration. She has previously interned under Senior Advocate Indira Jaising, where she worked on the written submissions for the ongoing cases in the Supreme Court of India. She has also interned at the National Human Rights Commission of India where she produced policy recommendations concerning the Criminal Law Amendment Bill, 2013 and Violence against women. Currently, she is working as a research assistant at the Centre for Human Rights Studies, Jindal Global Law School under the supervision of Assistant Professor Rohini Sen wherein she is working on a project which hopes to address and contribute to an inclusive and democratic research and policy-making processes that would help in creating safer institutions and making sexual harassment redressal measures more efficient. Her research work has been published on various international as well as national platforms.

She is also the co-founder of the Bleed Organization, which is a non-profit organization, working to end period poverty and menstrual stigma in Rural India. The action plan based on the three pillars: 1. organizing educational workshops about menstrual health; 2. advocacy for systemic change, regarding menstrual equity, through policy and legislation; 3. Distribution of eco-friendly menstrual products in rural areas. She hopes to bring about a positive change in the lives of menstruators all across India.

Heartfelt welcome!

Read On! “Identity and Diversity on the International Bench”

International courts and tribunals hold the power to decide on questions involving sovereignty over territory, grave human rights violations, international crimes, or millions of euros’ worth of economic interests. Judges and arbitrators are the ‘faces’ and arguably the drivers of international adjudication. Yet certain groups tend to be overrepresented on international benches, while others remain underrepresented. 

Although international courts and tribunals differ in their institutional make-up and functions, they all rely in essence on the judgement of a group of individuals, each with their own background and experience. Even if adjudicators’ identity is not the only, and may not be the decisive, influence on their decision-making, the relative lack of diversity has an effect on the judicial process and its outcomes, which in turn entails broader implications for the legitimacy of international law. 

This book analyses the implications of identity and diversity across numerous international adjudicatory bodies, focusing on a wide range of factors. Lack of diversity within the judiciary has been identified as a legitimacy concern in domestic settings, and the last few years have seen increasing attention to this question at the international level as well, making the book both timely and topical.

For more information, please see : https://global.oup.com/academic/product/identity-and-diversity-on-the-international-bench-9780198870753?cc=nl&lang=en&#

Imageries of Self: Guilty Plea Statements in Sexual Violence Cases at the ICTY

During its almost 25 years in operation, the ICTY convicted and sentenced 90 individuals, of which 20 pleaded guilty. Five of these guilty pleas were submitted by defendants who were directly involved in sexual violence. In a new article in International Criminal Justice Review, I investigate the ways that these defendants re-present themselves, their agencies, and their offenses in response to the legal framework within which they talk, building on a narrative expressivist framework.

The defendants’ narratives are wringed in-between individual needs, defense strategies, legal demands, and societal expectations—reflecting the situation’s demand for particular sensemaking. Their individual freedom is on the line, but also their public legacy is at stake. In front of the court, defendants tell a story that becomes a carefully crafted version of who they are, what they have done, and why.  

The analysis draws particular attention to the ways in which defendants consistently silence the sexual crimes they admit to in their guilty plea statements. While public discourse on sexual violence as such often condones, neutralizes, and denies sexual violence; blames victims; and renders most offenders ordinary, once offenders get prosecuted and convicted, or subject to justice campaigns, a large apparatus goes to show that they are deviant, different, monsters. 

The international legal discourse about perpetrators of sexual violence feeds into the hierarchy of violence that constructs conflict-related sexual violence as a particularly heinous crime, and coalesces their character, who they are, with the characterization of their offenses.  

By avoiding reference to a type of violence that, once established, is expected to merge their character with their offense, the silencing of sexual violence in defendants’ statements creates a narrative space that allows defendants to re-present themselves as now moral, rehumanized individuals, “fit to be among us,” detached from the offenses that is expected to essentialize them in the eyes of others.  

They offer personal stories of rehabilitative journeys within the criminal justice system, express hope that the guilty pleas will alleviate pain and contribute to reconciliation, and suggest that their experiences can have a general deterrent effect. The defendants’ statements suggest that their guilty pleas may animate the lives of others by inspiring others to atone for their wrongs and by impacting public imagination of the effect of criminal justice. These imageries of present and future remorseful and responsible selves allude to and confirm the rehabilitative and disciplining purpose of the criminal justice process, and play into the naturalization of criminal justice responses to CRSV

When defendants who plead guilty abide by the rules of the court, and live on according to their stated regrets and remorse, their narrative actions arguably support the legitimacy of the international criminal justice project. Yet, some defendants follow the script convincingly, and later retract their statements and deny their guilt – as is the case with one of the analyzed cases in this article, and is also elaborated on by others.  

Whether their stories help or challenge the prospects of justice and reconciliation, international criminal tribunals provide a platform for defendants to address multiple constituencies. Defendants’ stories matter because of the instrumental purposes they serve rather than in terms of the truth level they entail. And while it is not the task of the article to assess the impact of such statements (as self-serving affronts or not), it stirs questions about the form, role, and place of defendants’ narratives in the international criminal justice project. 

Interview with Jaime Todd-Gher (Part-1)

Jaime Todd-Gher is a human rights lawyer specializing in issues of gender, sexuality, and health. She is working as an Independent Consultant and a Reproductive and Sexual Health Law Fellow with the University of Toronto, International Reproductive and Sexual Health Law Program, Faculty of Law. She recently worked as a Legal Advisor and Strategic Litigation Specialist with Amnesty International. She has also worked as a Human Rights Advisor and Programme Officer with the WHO and UNAIDS, and in the Global Legal Program with the Center for Reproductive Rights. Jaime regularly engages in human rights litigation and advocacy before United Nations and regional human rights bodies. She has also served on the Board of Directors for the AIDS Legal Referral Program and the National LGBT Bar Association and is currently a sitting Board Member for Women Enabled International.

Jaime holds an LL.M. in International law and gender from American University, Washington College of law, a J.D. from the University of San Francisco, School of Law, and a B.A. in sociology from the University of California, Santa Barbara. I had the honor of interviewing her. I thank her for this meaningful conversation. The interview is transcribed below.

Question: As per your observation, do you feel women in today’s time are more aware and vocal about their sexual and reproductive rights? What do you think led to this change?

Answer: Yes, I do think that women in many contexts are more mobilized today. More and more women are completing primary, secondary and collegiate education, which is a significant source of empowerment. We are also seeing a rise in progressive movements. There is a collective energy around making change. However, what I really see as a key factor leading to an increase in mobilization is the retrenchment of women’s rights that we are witnessing around the world. This is compelling women to take to the streets, to file lawsuits, to go to the media, and to demand their rights. So, in essence, a lot of our mobilization is reactionary, which of course is necessary.

We are also seeing a rise in nationalism and anti-gender movements that ascribe to the notion that gender diverse individuals are destroying the nuclear, heteronormative family, a re-assertion of women’s purported “rightful role” as mothers and caretakers, and law and policy reform explicitly aimed at restricting access to contraception, abortion, and comprehensive sexuality education. All of this leads to a collective feeling of women’s rights being under attack. I really think that this has given women, especially younger women, a motivation to push back because this is not happening in just one country or one region, but worldwide. So, despite all the positive developments we have seen over the years, I do think there is a retrenchment of women’s rights which is significant, so we must stand up!

Question: Do you think the international norms and standards around sexual and reproductive health and rights are up to mark?

Answer: I certainly think that there has been a remarkable evolution of international norms and standards around sexual and reproductive health and rights in the past few decades. We are light years ahead, in terms of seeing an explicit articulation of sexual and reproductive rights as core human rights issues that implicate a wide range of states’ international legal obligations. But, of course, there is always room for improvement. Given that women’s rights were not originally conceived as human rights within the original treaties and instruments of the UN human rights system, it continues to be an uphill battle to convince people that sexual and reproductive rights are human rights. This is just the reality we are working in.

While progress has been made, a lot of gaps remain. For example, we still do not have an explicit recognition of personal, decisional and bodily autonomy in the realms of sexuality and reproduction. Our strongest human rights hooks continue to be the rights to health, life, freedom from torture and other ill-treatment, privacy, and equality and non-discrimination. These are useful and compelling advocacy frames, but women’s rights movements will be stronger and more powerful once we can gain widely accepted recognition that women, girls, and all people who can become pregnant have full autonomy over their bodies, sexualities, and reproduction. Until that time, we still have a lot of work to do.

Question: Unsafe abortions are a public health issue. Why is there a level of insensitivity among policymakers and politicians around this issue?

Answer: Unsafe abortions is a significant health and human rights issue. It is one of the leading causes of maternal mortality and morbidity, as well as preventable infertility. Unsafe abortion leads to significant physical and mental harm. One of the most unjust aspects of unsafe abortion is that pregnant individuals are often compelled to resort to unsafe abortions due to restrictive abortion laws around the world, and in many contexts, they can be thrown in jail for years for having an abortion. The same restrictive abortion laws can even lead to women who have suffered miscarriages and stillbirths to being arrested and prosecuted – based on the presumption that they had an abortion.

It is baffling to me that law and policy makers – many of which are men who have never experienced and will never experience an unwanted pregnancy – continue to address abortion with such great insensitivity. I still try to wrap my head around it, but I tend to believe that it boils down to a complete lack of valuing of women’s lives and bodies. I am also astonished by the mental gymnastics that people undertake to think that a pregnant woman and her fetus are separate entities pitted against each other, when, that is just not the case. Only a pregnant person can know and understand whether they are able to bear, birth and raise a child—something that has lifelong implications for their life, and the lives of their partners and families. It is also a matter of patriarchy, sexism, and a dehumanization of pregnant people, which translates to controlling people who do not want to be pregnant because they are “committing a moral wrong”.

Interview with Jaime Todd-Gher (Part-2)

Question: As per your understanding, what could be done so that national governments take the issue of reproductive rights and sexual health more seriously?

Answer: I think, foremost, we need large-scale law and policy reform to remove the vast number of restrictions imposed on the bodies, sexualities, reproduction and lives of all women, children and people who can become pregnant. If we look at the disproportionate number of restrictive laws and policies that dictate our bodies, health, and reproduction, it is outrageous. There is also a need for structural reforms that work against patriarchy which accords greater value and trust to men and boys. By contrast, women, and girls, and really all people who transgress gender norms, are accorded less value and not trusted. Also, like the structural reform that needs to take place to address systemic and institutionalized racism, sexism must be tackled at all levels.

I further believe that community change initiatives to transform gender norms is essential. We can no longer live with the status quo where women’s bodies and lives continue to be the subject of public debate and law and policy making. We are all humans and as a community, men, women, and any person should not be restricted in terms of how they act, live, work, express themselves, etc. We need to think about how we can flourish as a community where everyone’s strengths, interests, health, and rights are equally valid and valued. Along these lines, I think a lot needs to happen in terms of information and education provision, and sensitization around gender. I really believe that we all are born with different attributes, interests, and skills, and that we cannot be compelled to fit into specific boxes and categories, and that should be okay.

Question: You have a wide experience spanning different geographies. Which countries have the most developed legislation related to sexual and reproductive rights? Which countries need to consider this issue more seriously? (It would not require any specific answer in the form of any country’s name if that is not possible. A mention of certain geographical regions or continents would also be helpful.) 

Answer: Legislation related to sexual and reproductive rights can come in many forms, whether it explicitly focus on sexuality and reproduction or whether it has a direct or indirect impact on one’s sexual and reproductive health and rights. One thing I can say for sure is that no one country has gotten it right. Every country has a legal framework that, to some extent, infringes on sexual and reproductive health and rights. There are some countries that more explicitly recognize the autonomy of women and girls to make decisions about their sexual and reproductive health, including some countries in Europe, Latin America, and parts of North America. However, even in these countries, there are laws, policies and practices that create barriers to individuals exercising their sexual and reproductive rights.

Let us consider, for example, Canada where abortion has been fully decriminalized and removed entirely from the penal code. Even there, women and girls still face obstacles to accessing abortion services due to costs, geographic location, race, ethnicity, age and/or Indigenous identity. It is not enough to simply change one law. You must look at the entire legal and policy framework, and its interplay with social, economic, and cultural factors, to assess actual access to abortion services. There are also countries in Europe that have policies that seem quite liberal and call for subsidizing access to contraception and family planning to promote women’s and girls’ control over their fertility, but when you look closer you see that the policy also includes a provision that excludes migrants and refugees from its protections and support, thus having a discriminatory impact on these populations.

I also wanted to mention that we should not simply think about sexual and reproductive rights. Rather we should frame our advocacy and litigation in terms of reproductive justice – which conceives of enabling and empowering individuals to create and nurture the families that they want in conditions where they can thrive. At present, we have legal and other systems that promote reproduction of certain people (often married, heterosexual couples of a certain socio-economic status), while at the same time these systems dissuade or actively work against other individuals from reproducing and forming families, including the poor, the criminalized, black, brown, and Indigenous people, LGBTQ individuals, and people with disabilities (to name a few). So, I think we can miss a lot of human rights issues when we solely focus on ensuring that people can control their fertility. We also need to look at people who are being oppressed and/or prevented from having children as they are not seen as worthy of reproducing, and the structural conditions that prioritize certain individuals and groups in our societies and devalues others.

Question: Recently, the Duchess of Sussex shared that she suffered the miscarriage of her second pregnancy. It has again brought forth an observation that there are very few public conversations about it. Do you think it is high time we stop considering miscarriage as a taboo?

Answer: It is absolutely high time to talk about miscarriage more openly! A vast majority of women around the world experience miscarriages. It is both a common phenomenon and yet a traumatic one. We see people suffering miscarriages alone in silence, not reaching out to their friends or loved ones for support. To make matters worse, as I mentioned before, women and girls can be thrown in jail in some countries for suffering a miscarriage. Its inhumane! I recall facing the tremendous grief of my own miscarriages and then imagining what it would feel like if my life and liberty were also threatened because of my pregnancy loss. I cannot even fathom how difficult that would be.

I also think that there is a fine line between abortion and miscarriage. In essence, they are both a termination of pregnancy. The medication used to induce an abortion is the same medication used to manage a miscarriage in many cases. Abortion and miscarriage are both fraught with sadness, confusion, fear and, in some cases, relief. In both of these closely connected experiences, women and girls continue to suffer alone.

Whether a person is facing an abortion or a miscarriage they deserve to be supported and treated with dignity and respect. We should be talking about these experiences openly so that we can find ways to destigmatize pregnancy loss and termination of pregnancy, to provide better support women and girls and their partners and families, and to ensure that people are no longer facing the pain alone.