Redressing an oppressive past which seeps into the present – a meeting with Andrea Durbach

 Who is Andrea Durbach?andrea durbach-3

Andrea Durbach’s career has been deeply entangled with access to justice. Currently a professor at UNSW Law in Australia, Andrea, born and brought up as a white, middle class woman in apartheid South Africa, was introduced to the legal profession working as a human rights lawyer opposing the apartheid regime, often representing student organisations and labour unions. Although she witnessed law being used simultaneously as an instrument of oppression and discrimination by the apartheid state, she expresses her choice of study as one inspired by the idea of law being used in the pursuit of justice. The possibility to ‘hold the law up against the state’ – or using the master’s tools to dismantle the master’s house – was appealing to her as a young lawyer.

In one of her most famous cases from the end of the 1980s, she acted as the solicitor to 25 black defendants (who became known as the ‘Upington 25’) who were facing the death penalty, accused of killing a black policeman under the notoriously used common purpose doctrine. The trial was gruelling, both inside and outside the courthouse. Shortly after 14 of her clients were sentenced to death, her barrister in the case, her colleague and friend Anton Lubowski, was assassinated by state agents – which she describes as symbolising ‘the lengths people would go to in order to silence and terrify opponents of the state’. Andrea subsequently depicted her experiences of the case in the book, Upington. The story of the Upington 25 was also made into a documentary film, A Common Purpose, directed by Mitzi Goldman which won the Audience Award at the 2011 Sydney Film Festival.

 The trial took its toll on Andrea’s personal and professional life and she took time out with family in Australia in 1989, where she eventually stayed. Since then, she has, among other things, worked in a major Sydney law firm, directed a litigation and policy centre, the Public Interest Advocacy Centre (PIAC) (1991–2004), worked as an academic and Director of the Australian Human Rights Centre at UNSW Law and was appointed Deputy Sex Discrimination Commissioner at the Australian Human Rights Commission (2011–2012). Throughout her career, she has been instrumental in establishing mechanisms that facilitate access to justice, such as the Public Interest Law Clearing House (which matched pro bono lawyers in private practice with public interest litigation and NGOs), a proposal for a Stolen Generations Reparations Tribunal to address the injustices caused by the forced removal of Aboriginal and Torres Strait Islander children from their families, and more recently, she has been part of a major research project which considers the capacity of courts and tribunals to implement ‘transformative’ reparations to combat gender violence post-conflict. In recognition of her extensive human rights contribution, Andrea was awarded the Australian Human Rights Commission Human Rights Law Award in 2013.

On 30 October, Andrea delivered the 2018 John Barry Memorial Lecture at the School of Social and Political Sciences at the University of Melbourne, entitled ‘Keeping justice at bay: institutional harms and the damaging cycle of reparative failure’. When I meet her, remedies, reconciliation and reparations are our main conversation themes. Perhaps this is due to the enduring demands on states to provide reparations for historical injustices that persist in the present, evident in ongoing discussions in Australia concerning public responsibility for the past oppression and the continuing marginalisation of Indigenous communities.

What remedies?

Holding states to account for abusing the human rights of individuals and communities has been a key driver of much of Andrea’s work. Remedies in the broad sense can be described as the provisions of measures directed at righting a wrong. They are often referred to in a collective sense, sometimes in the context of national reconciliation efforts and transitional justice settings – such as the Truth and Reconciliation Commission in South Africa – addressing past wrongs and harms with a view to transition and transformation into a fairer social order. Apart from this social meaning, remedies and reparations also have an individual dimension, with a right to remedy for persons whose rights have been violated. In the United Nations Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, remedial modalities are taxonomised as restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.

Remedies are not, however, limited to legal, judicial, or even state-centred settings. Andrea emphasises alternative forms of reparation and healing for individuals and communities – using the example of the earlier mentioned documentary film concerning the Upington 25 court case:

The film, in a way, is a reparation, because it enabled my clients to tell their experiences outside of the confines of the court case, without the strictures of what is permitted as evidence and what is not. This allowed for an opportunity to tell their story in a neutral setting, to have it validated via a different process [documentary], rather than trying to persuade a judge who was so much part of the apartheid infrastructure and an agent of the state. So it was a journey, a reparative journey, for many of them … and for their children to see what they had done and how they had been treated. And for the world, the South African nation, a democracy, to see them as people who had contributed to that democracy, rather than as accused numbers 1 to 25 … having to answer allegations against them which in the majority of cases had been fabricated.

What is important when designing and implementing transformative reparations?

Rather than being merely backward-looking, simply aiming to restore things as they were, the objective underlying transformative reparations is that the structural conditions that enabled historic violations which often maintain post-conflict, require transformation to prevent the recurrence of harm. As Andrea highlights, ‘[political] transition is […] meaningless unless there is transformation’. Symbolic reparations such as apologies, she says, cannot make a ‘difference unless they are met with deep, structural shifts – meaningful measures of justice – in how we respond to the needs of different communities’. In recognising the need for such structural shifts if reparations are to be transformative, Andrea highlights the contextual embeddedness of harms ‘that continue to manifest post-conflict’ which demands comprehensive understanding of the broad needs of beneficiaries – material, therapeutic – in order to determine appropriate remedies.

Having insights into both South African and Australian reconciliation efforts, Andrea highlights shortcomings in both. The South African transitional justice process was one that required a ‘wholesale’ reconstruction and redistribution of ‘the economy’ and ‘the whole political infrastructure’. The post-apartheid South African Constitution advocates transformation, with its preamble recognising past injustices with the aim to ‘heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights’. In Australia, on the other hand, Andrea speaks of ‘more contained but no less significant or transformative’ measures, such as permanently guaranteeing political participation and inclusion of the voices of Indigenous peoples, as proposed in the 2017 Uluru Statement from the Heart. Such transformative changes, however, are yet to be made.

There have been compensation schemes, there has been a national apology, there has been a walk across the [Sydney harbour] bridge. The problem with all of those [measures] is that they do not address … the structural transformation that is needed. You can have all these payment schemes and bits of money coming here and there, but [their value is limited] if you do not change the structure of the policies and the political system to accommodate the call for political recognition [as per the Uluru Statement from the Heart] and to meet the needs with comprehensive, enduring measures of real justice.

‘Truth-telling and treaty making’, Andrea emphasises, are ‘very structural, foundational validations of a nation. Of our First Nations’.

Can we compare different reparative and reconciliation processes? What are the limitations and benefits of comparison?

Remedial debates – with reference to transitional justice contexts, state mistreatment of minorities or other forms of abuse – have intensified in many countries during the last decades. But is it possible to draw parallels between and compare reconciliation processes that might emerge from different historical, social and cultural contexts? What do efforts to redress injustices such as institutionalised racism, systematic gender violence, or abusive health care practices – to name but a few –have in common? In responding, Andrea embraces what she refers to as ‘the dual approach’, in other words, to both critique and to ‘extract the value’ of other reparations processes. ‘What I think has worked’, she says, ‘is being able to analyse and critique these various models and then shape some of the useful measures that come out of them’ in a way appropriate to ‘local traditions and needs and local politics. Just supplanting approaches never works’.

Addressing structural gender violence – another form of transitional justice?

Discussing her more recent work on violence against women and sexual assault in Australia, words like ‘reconciliation’ and ‘remedies’ take on a different tone. Gender violence – particularly sexual violence against women and girls – is ‘endemic to almost all political conflicts’ and to all struggles around social, economic and cultural power. Awareness of the pervasive nature of gender violence has been raised through global movements like #Metoo which seek transformative ways to redesign society and rethink power distribution. Answering the question about what lessons can be learned from transitional justice processes in addressing gender violence debates, Andrea highlights the importance of ‘the inclusivity of voices, but also managing the expectations of those we hope will benefit from the process’. Including victim/survivors in not only the process but in its design ‘from the start’, is critical. But so is validation and follow-up by responsible individuals and institutions. ‘You cannot really expect people to come and give testimony, to open themselves up, and expose the harm and then not meet that in a respectful and just manner’, she says. Just leaving people ‘suspended [following their testimony] is a very damaging process and leads to cycles of reparative failure with long-term public health and social consequences’.

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Modelling the rules of targeting

Maid of Orleans Jan Matejko

Jan Matejko “Maid of Orleans”

The rules of targeting of international humanitarian law play a pivotal role in protecting civilians. They achieve this by requiring military commanders to take appropriate steps when planning and executing military operations to mitigate danger to civilians. Yet, there is little guidance on how parties to the conflict apply the rules of targeting on the battlefield. Consequently, the task of Non-Governmental Organizations to hold parties to the conflict to account for breaches of the rules is extremely difficult. In the course of studying state practice on the rules of targeting I identified a number of trends which capture how commanders in all likelihood apply the rules of targeting to battlefield scenarios. A number of the findings challenge conventional views. This points to the fact that the debate concerning the rules of targeting continues to be necessary even though one can model how commanders apply the rules. I would like at this stage to share with you some of the conclusions I arrived at.

The principle of distinction requires attackers to distinguish at all times between civilians and combatants on the one hand, and civilian objects and military objectives on the other hand. The conventional view is contained in publications, such as the “Commentary to the Humanitarian Policy and Conflict Research Manual on Air and Missile Warfare.” It postulates that the degree of certainty the principle of distinction requires attackers to achieve is less than that entailed by the criminal law standard of proof of “beyond reasonable doubt.” However, it is concluded that the degree of required certainty is higher. The elements of available intelligence, urgency of acting, force security and the civilian harm which will result if the target is misidentified should each individually reinforce the conclusion that the target is a military objective in order for the attacker to be entitled to engage the target.

The rule of target verification requires the attacker to do everything “feasible” to verify that a chosen target is a military objective. Ian Henderson in his book “The Contemporary Law of Targeting: Military Objectives, Proportionality and Precautions in Attack Under Additional Protocol I” submits that the consideration of how many civilians will be killed if the target is misidentified and the likelihood of the target being a civilian object should play a role in a commander’s assessment of whether he or she is doing everything “feasible” to verify that the target is a military target. The examination of state practice reveals that commanders indeed balance the elements of the likelihood of harm to civilians occurring and the military advantage entailed in conducting further reconnaissance in assessing whether it is “feasible” to allocate additional resources to verifying the character of the target. They may additionally for policy reasons consider the number of civilians who will die if the target is mistakenly identified as having military character. The obligation to comply with the principle of distinction is one of the reasons why commanders do not view the magnitude of potential civilian harm as a core component of the rule of target verification. I was able to derive propositions capturing when commanders are likely to give greater weight either to the likelihood of civilian harm or to particular military considerations, such as the urgency of engaging the target.

Continue reading

Introducing Vladislava Stoyanova

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It’s our great pleasure today to welcome Dr. Vladislava Stoyanova as an IntLawGrrls contributor. Vladislava is a postdoctoral fellow at the Faculty of Law, Lund University, Sweden. She is a lecturer in Migration Law and Human Rights Law and the director of the Migration Law courses. Her research interests are within the areas of international migration law, international refugee law, international human rights law and EU law. Vladislava’s publications include one monograph ‘Human Trafficking and Slavery Reconsidered: Conceptual Limits and States’ Positive Obligations in European Law’ (Cambridge University Press, 2017, recipient of the Lund Society of Humanities and Social Sciences Award), one co-edited volume ‘Seeking Asylum in the European Union. Selected Protection Issues Raised by the Second Phase of the Common European Asylum System’ (Brill, 2015), and various book chapters and articles. As a result of successful research grant applications, she is currently working on a project on positive obligations in the context of the European Convention on Human Rights (ECHR).

 

Her first post today discusses her newly published book with Cambridge University Press ‘Human Trafficking and Slavery Reconsidered: Conceptual Limits and States’ Positive Obligations in European Law’ (2017) and the more recent developments in the case law of the European Court of Human Rights under Article 4 of the (ECHR): the right not to be held in slavery, servitude and forced labour and not to be subjected to human trafficking.

Heartfelt welcome!

Symposium: ICC Assembly of States Parties

I am pleased to introduce a new IntLawGrrls symposium on the International Criminal Court (ICC) Assembly of States Parties. The Assembly opens today in The Hague and will run until November 24.

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2015 ICC ASP, Credit ICC-CPI

The Assembly will open with country statements, and will then consider issues such as the ICC’s annual budget for 2017 and reports from the various organs of the Court. It will also hold a panel discussion on “effective cooperation and accountability for Rome Statute crimes: the contribution of national, regional and intergovernmental initiatives” and an Open Bureau meeting titled: “Relationship between Africa and the International Criminal Court: Resuming dialogue to win the fight against impunity”. The latter is particularly salient, given recent announcements by South Africa, Burundi and Gambia that they are withdrawing from the Rome Statute. There are a number of interesting side-events meant to prompt discussion on key challenges facing the Court.

During the Assembly, IntLawGrrls is excited to have four bloggers – Rouguiatou Baldé, Jessica Dufresne, Claire Magnoux and Kirsten Stefanik – reporting daily from The Hague on key developments. Rouguiatou, Jessica, Claire and Kirsten are all doctoral students based at Canadian universities. In true Canadian fashion, their IntLawGrrls posts will be both in English and in French.

rouguiatou-p_Rouguiatou Baldé est criminologue, économiste, et chimiste. Elle effectue actuellement un doctorat en Criminologie à l’Université de Montréal , sous la supervision de Joe-Anne Wemmers. Ses recherches portent particulièrement sur la Victimologie, la Justice Internationale pénale, et la justice transitionnelle.Elle est également titulaire d’une Maîtrise en Justice Pénale, d’une Maîtrise en Économie, option Finance et d’une Maîtrise en Chimie, option Contrôle des Qualités des produits naturels et industriels.

jessica-dufresneJessica Dufresne est candidate au doctorat en droit à la Faculté de droit de l’Université d’Ottawa. Finissante de l’École du Barreau du Québec, elle est également titulaire d’une licence en droit de l’Université Paris-1 Panthéon Sorbonne, d’un baccalauréat en droit de l’Université Laval et d’une maîtrise en droit international de l’Université du Québec à Montréal au cours de laquelle elle a rédigé un mémoire portant sur la protection du droit à l’alimentation en Inde. C’est dans le cadre de ce parcours à la maîtrise qu’elle a développé un intérêt prononcé pour la sécurité alimentaire et qu’elle a décidé de s’impliquer dans la lutte pour une meilleure justice alimentaire au Canada, en mettant notamment sur pied le premier frigo communautaire au pays (Le Fridge de Rosemont la Petite-Patrie, à Montréal). Ses recherches doctorales, encadrées par le Professeur David Robitaille, expert reconnu sur les droits économiques et sociaux et le droit constitutionnel au Canada, portent sur l’effectivité globale du droit à l’alimentation dans le contexte juridique Canadien. Elle en propose une étude holistique qui porte à la fois sur l’interprétation constitutionnelle de ce droit et sur l’incontournable réforme des politiques publiques, poussées par les revendications citoyennes en matière de justice alimentaire.

claire-magnouxClaire Magnoux est actuellement candidate au doctorat à l’Université Laval sous la supervision de Fannie Lafontaine. Son sujet de thèse porte sur les politiques de poursuites du Procureur de la Cour pénale internationale. Après un master en droit comparé et politique internationale (Université de Clermont-Ferrand), elle a passé un an en Bosnie-Herzégovine (Brcko) dans une ONG dont le mandat est la réconciliation entre les communautés. Dans le cadre de son volontariat, elle a coordonné des projets culturels impliquant enfants, adolescents et jeunes adultes.  Elle a également effectué un stage au sein du Groupe de recherche et d’information sur la paix et la sécurité (GRIP) à Bruxelles, dans la section Afrique. Elle est co-coordinatrice de la Chaire de recherche du Canada sur la justice internationale pénale et les droits fondamentaux.

kirsten-stefanikKirsten Stefanik is a fourth year PhD Candidate in the Faculty of Law at the University of Western Ontario. She currently holds a Doctoral Fellowship from the Social Sciences and Humanities Research Council of Canada. Kirsten received her BA from the University of British Columbia and her LLM from Western Law. Her current research focuses on non-state actor involvement in non-international conflicts. This study explores different approaches used by various international and non-governmental organizations to engage armed groups for the purposes of educating and promoting compliance with the law applicable to the conflicts to which they are parties. It draws on international legal theories, as well as criminology and psychology theories to provide a more complete understanding of the motivations of non-state actors in conflict. This study also seeks the views of former members of armed groups with case studies and research interviews conducted in Sierra Leone, Rwanda, and the Democratic Republic of Congo. Through their voices, this research seeks a greater and more nuanced understanding of: the familiarity of these armed groups with international humanitarian law; opinions they have regarding their interactions with international or non-governmental organizations on international humanitarian law issues; and their views on how this law affected their or other members of their group’s actions during conflict.

A heartfelt welcome to Rouguiatou, Jessica, Claire and Kirsten! Thanks are extended to the Social Sciences and Humanities Research Council of Canada for funding their travel to The Hague for this purpose through the ‘Strengthening Justice Through International Crimes: A Canadian Partnership‘ grant.

Two Steps Forward, One Step Back

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Book cover, courtesy International Nuremberg Principles Academy. (Original: Montana Historical Society)

On 4 November 2016 in Nuremberg, at its annual forum commemorating the 70th anniversary of the adoption of the Nuremberg Principles by the UN General Assembly, the International Nuremberg Principles Academy launched its first book, a volume of deterrence studies titled, Two Steps Forward, One Step Back: The Deterrent Effect of International Criminal Tribunals. This volume comprises ten country studies (Serbia, Kosovo, Rwanda, Sierra Leone, DRC, Uganda, Darfur, Kenya, Cote d’Ivoire and Mali), as well as a chapter on methodology, and conclusions drawing from all the country studies, with recommendations for further action.

Two Steps Forward is notable in a number of respects. While various articles have addressed deterrence in international criminal law in some fashion, it is apparently the first volume that addresses the issue so comprehensively. It also ventures to offer conclusions on the question of deterrence based on quantitative and qualitative research, noting that nearly 20 years have passed since the ICTY and ICTR’s establishment, and nearly 15 since the ICC and Sierra Leone Special Court’s establishment. While the Nuremberg trials themselves arguably took several generations for their effects to be fully felt, enough time has passed that it is fair to begin to examine what has been the deterrent effect so far of international tribunals, and how that effect can be enhanced or improved.

The good news is that in all of the country situations surveyed, at least some deterrent effect was reported. The authors draw on quantitative factors first to assess whether overall criminality has risen or fallen, a fundamental baseline for asking whether crimes have thereafter been deterred. The authors draw on qualitative factors to assess perceptions of deterrence, in particular amongst perpetrators and potentially like-minded individuals, including members of militaries and rebel groups, political actors, diplomats and politicians, as well as academics, civil society members and victims. Perceptions of deterrence are as significant as objectively measurable deterrence; people act on their perceptions, for good or bad, and these actions can help determine whether further crimes will be committed. In all the situation countries surveyed, the authors found that while the international court or tribunal concerned had a deterrent effect, both objective and perceived, it proved difficult to sustain because the factors supporting it often fell apart. This is an important starting point for examining how to ensure that any hard-won deterrent effect is not ultimately lost. Continue reading

Introducing Beth Goldblatt

beth goldblatt-5(4)It’s our great pleasure today to introduce Beth Goldblatt as an IntLawGrrls contributor. Beth is an Associate Professor in the Faculty of Law at the University of Technology Sydney. She is a Visiting Fellow of the Australian Human Rights Centre in the Faculty of Law at the University of New South Wales and an Honorary Senior Research Fellow of the Faculty of Law at the University of the Witwatersrand. Beth received her PhD from the University of New South Wales and her LLM from the University of the Witwatersrand.

Beth has been involved in research, advocacy, litigation, law reform, policy work and teaching in South Africa and Australia. Her work focuses on feminist legal theory and gender, family law, equality and discrimination, comparative constitutional law, transitional justice, disability, and human rights with a focus on economic and social rights and the right to social security in particular. She has co-edited Women’s Social and Economic Rights (2011, Juta) with Kirsty McLean and Women’s Rights to Social Security and Social Protection (2014, Hart) with Lucie Lamarche. She co-authored ‘Gender Equality and Human Rights’ with Sandra Fredman, a background paper for UN Women’s Progress of the World’s Women Report, 2015-2016.

Her first post will discuss her newest book, Developing the Right to Social Security – A Gender Perspective (2016, Routledge). Heartfelt welcome!

Introducing Tequila Brooks

T Brooks Photo It’s our great pleasure today to introduce Tequila Brooks as an IntLawGrrls contributor. Tequila is an attorney and international employment policy specialist in Washington, DC. She is pursuing a Ph.D. in International Trade and Working Women’s Rights at Tilburg University in the Netherlands. She has an LL.M. in International Labor and Social Security Law from Tilburg University, an LL.M. in International and Comparative Law from the George Washington University in Washington, DC, a Certificate in International Human Rights Law from Oxford University and a J.D. from the University of New Mexico School of Law.

Tequila served as Labor Law Advisor with the North American Commission for Labor Cooperation from 1999 to 2004 and is co-author of NAFTA and the NAALC: Twenty Years of North American Trade-Labour Linkage (Lance Compa and Tequila Brooks, Wolters Kluwer 2015). Her forthcoming article in the Comparative Labor Law & Policy Journal discusses how and whether labor provisions in U.S. and Canadian free trade agreements can be used to improve working women’s lives.

Her first post will assess an idea posited by the International Finance Corporation (IFC) that export processing zones can be used as vehicles for women’s economic empowerment. Heartfelt welcome!