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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Why Wonder Woman matters

WW courage

What, you may wonder, is a blog about a super hero film doing on IntLawGrrls? Well beyond my own personal excitement about the newly released Wonder Woman film, I think there’s an important symbolism that anyone committed to the Women, Peace and Security agenda of UN SC Resolution 1325 will appreciate. And a narrative that anyone committed to raising the profile of women’s voices in international law and international security will value. The film did a superb job of presenting the 75 year old comic book character the way she was intended by her creator William Moulton Marston, as a champion for peace, truth and equality at a time of conflict. He invented her during the Second World War, based on his belief that we need heroes in times of instability and conflict, and the retelling in the DC movie released just this weekend not only stays true to her origins, but reminds us that we all have capacity for war and for love within us.

In the height of the Second World War, Marvel Comics had just created a new character to raise the spirit of a fighting nation, Captain Marvel. He was dressed in the American flag and was a super soldier, and his comics were an immediate hit. Desperate to compete, DC Comics approached Marston, a psychologist who had been writing about why we need heroes in times of war;

Wonder Woman Sensation Comics Issue no. 1

as symbols to galvanise our beliefs. They asked him to create a character that would sell as well as Captain America, and he answered that what they needed was a female superhero. Marston was a staunch feminist, and believed that if women were in positions of leadership there would be more diplomacy and less war. Though many of us today would question this essentialism, there is no doubt that having more women at the decision-making table makes a difference to pre- and post-conflict negotiations, and that women are disproportionately affected by armed conflict.

Marston wove the story of Wonder Woman around his classical education, drawing from Greek mythology stories of the Amazon warriors, who in his origin story were entrusted by the gods to protect Pandora’s Box and keep peace in the world. When “the world of men” finds itself caught up in a world war, Wonder Woman is sent as their champion to teach men the ways of peace and justice. She is incredibly strong, but she fights only to defend, never to attack, and she carries the Lasso of Truth, which forces anyone she ensnares to tell the truth. Marston is credited with also having invented the lie detector, so Wonder Woman was a multi-layered creation of his commitments. He even created an alter-ego for her as a military intelligence officer, granting her a status higher than the inevitable title of “secretary”.

In the film, director Patty Jenkins (who may just have broken the Hollywood glass ceiling for female directors with the sweeping box office success of Wonder Woman’s opening weekend) presents the origin story true to Marston’s values, with one small difference that it is set during the First World War, the War to End All Wars. This allowed for interesting commentary about women being completely politically disempowered at the time, still fighting for the vote, and being hustled out of any room where political negotiations were taking place. Placed in a period of history when we knew women were politically disenfranchised, it’s easier to understand, but it’s a mirror of the way women are still absent and underrepresented at the most powerful tables in the world today. The impact of the mass weaponry of the First World War was also the perfectly devastating background for depicting  how civilians are targeted and affected by war. Women and children are highlighted as the innocent victims, and an entire village is decimated by a deadly gas. One is reminded painfully of Syria today. As she begins to understand how power relations play out, Wonder Woman becomes the voice of the civilians, and fights for what she believes in: the possibility of peace. She is the representation of women in leadership positions, and the importance of women’s participation in decision-making.

The complexity of her character is beautifully portrayed. She is shocked at the corruptibility of humans, at our capacity to destroy each other, but she learns that it is not a simple question good versus bad people. Instead she sees that we are all just as capable of warring (as we know from non-state armed groups, from civilian participation in conflict, and from horrific war crimes and crimes of torture perpetrated by highly trained members of the military) as we are of love. She comes to the conclusion that she cannot save the world, but she can continue to bring love, peace, justice and equality to everything she does. That is her mission as Wonder Woman.

Although I was a fan of the 1970s series with Lynda Carter, which was fun and campy, it was a hyper-sexualised representation, and a long way off the character Marston intended her to be. WW Lynda Carter

In the film she is played by Gal Gadot, an Israeli woman who has trained in the armed forces and understands the warrior mentality just as well as she understands the feminine mother energy of the character she plays. (Stunningly, Gadot was 5 months pregnant during final shooting of the film, and they used digital effects to edit out her rounded belly. I have to admit I was moved to even greater excitement to learn that Wonder Woman was carrying life while fighting the god of war!) WW Gal Gadot

The film also does a great job of referencing the classical education which informed her creation, and the feminist role she was created to play. Gadot’s Wonder Woman speaks hundreds of languages, ancient and modern, and when confronting the German General Ludendorff, she cites Thucydides – in such a way that reminds us of today’s competing powers.  She refuses to have men of high rank tell her what to do, even her love interest Steve Trevor, and when she questions the assumptions about obedience in marriage, she cites Sappho, reversing the wartime assumption that women’s bodies are for men’s pleasure: rather, men are necessary for reproduction, but when it comes to pleasure, unnecessary. (Let’s not debate the truth of that statement! The point was her challenge to the mainstream assumption.) Marston himself was polyamorous, living with two women, who stayed together as partners after his death. He believed marriage was a patriarchal institution which subordinated women and treated them as property. His comic book character defied men’s superiority but still sought partnership between the sexes, which is a subtlety maintained in her film portrayal.

Wonder Woman is unafraid to use force when that is necessary, but she believes in the possibility of all of us being released from “the grip of Ares, god of war“. In the comics she used to go to great efforts to turn Nazi characters – particularly, but not only, the women – back towards good, and would release them rather than kill them if she saw a possibility of remorse. Marston reminded us that women also play the role of perpetrator in many conflicts, and one of his female villains, Dr Poison, has a key role in the film, inventing the chemical weapons used against civilians. Yet even when Wonder Woman has the chance to kill her, she sees the humanity of Isabel Moru behind the mask of Dr Poison, and decides to let her go, rather than be corrupted herself by the desire to destroy. At the same time, Wonder Woman is not naive: there are times when force is called for, as long as it is proportionate and there is a distinction between lawful and unlawful targets.

Which is why Marston was so committed to us understanding the importance of super heroes. It’s not that we should look to these non-existent fantasy figures who have indestructible (and highly sexualised) bodies as models, it’s that we need something to believe in when the world becomes politically unstable, unpredictable and violent. And given his commitment to women’s political participation, and his understanding of the complexity of human nature regardless of gender, anno 2017, Wonder Woman is a hero for our times.

Conference: “The EU Social Market Economy: Challenges and Opportunities”

Date: Friday September, 23th 2016

Time: 9.30 am-4 pm (registration at the venue from 8.30)

Venue: Renehan Hall, South Campus, Maynooth University

 

The Department of Law is pleased to announce the conference ‘The EU Social Market Economy: Challenges and Opportunities’, which will take place on Friday September, 23th 2016.

 

Speakers include: Prof. Sybe De Vries (University of Utrecht), Prof. Dagmar Schieck (Queen’s University Belfast), Dr Egle Dagilyte (Anglia Ruskin University), Prof.  Blanaid Clarke (Trinity College Dublin), Dr David Mangan (City University London), Dr. Clemens Rieder (Lancaster University), Dr. J. Jorge Piernas Lopez (University of Murcia).

The full programme will also be available at https://www.maynoothuniversity.ie/law.

The conference will be convened by Prof. Michael Doherty and Dr Delia Ferri, and attendance is welcomed and encouraged from researchers, academics, practitioners and postgraduate students.

To express your interest or to RSVP please email Dr. Delia Ferri at delia.ferri@nuim.ie

Find Programme Here 

 

Introducing OLYMPE: Francophone Feminist Approaches to IL represent!

P1100700There is obviously no better place than the IntLawGrrls blog to introduce to the anglophone world the first research network for francophone feminist studies in international law, OLYMPE, and its recent first collective publication, released in March, Féminisme(s) et droit international. Études du réseau Olympe.

Founded in January 2014, OLYMPE is a research network gathering more than 80 scholars and practitioners with an interest in feminist approaches to international law in French. Thought broadly, OLYMPE aims at promoting transdisciplinary feminist, gender, LGBTQIA and queer studies in international law (and international relations) in the francophone world where, by contrast to the anglophone world, they are still unknown and institutionally underdeveloped, if not inexistent. Named after Olympe de Gouges (1748-1793), a prominent French feminist figure who used the law as a tool for activism, the network pursues a number of objectives through various events, research publications and scientific watch and diffusion. OLYMPE seeks to introduce feminist approaches to international law and international relations in the francophone world and engage in a critical discussion of it using the abundant francophone feminist tradition in order to contribute to new developments in the field, in French and in English. It also actively fosters an inclusive approach to gender at the normative and institutional levels in international law in order to reinforce social and economic equality of individuals notwithstanding their gender identity or sexual orientation: it therefore promotes gender as an explicit and inescapable element of international policy-making. Aware of the limits and obstacles generated by “gender mainstreaming”, OLYMPE wishes through its activities to question the global dimensions of what is nowadays called feminist governance. Last but not least, OLYMPE is an institutional platform around which a network of scholars, practitioners and any other professionals interested in those issues can organize in order to contribute to the implementation of the objectives listed above.

As the coordinator of OLYMPE, it is therefore my very pleasure to give you a first introduction to the network and its activities in the hope that you join it or share its existence around you (website; facebook). While being a francophone network, its members do not have to be French-speaking to join (although it might help as we do share some information in French); all in all, an interest in French-speaking feminist research in international law (and relations) suffices! OLYMPE is happy to relay any information regarding future conferences or calls in English or any other language, as long as it is related to feminist/women’s/gender/lgbtqia/queer studies in international law (and relations). To become a member or for any other query or communication, please feel free to get in touch with me via email (berenice.schramm@graduateinstitute.ch).

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Technology for Accountability Lab MOOC

 

The Program on Liberation Technology (LibTech) at Stanford’s Center on Democracy, Development and the Rule of Law together with the National Democratic Institute (NDI) are proud to launch a free massive open online course dubbed Technology for Accountability Lab.”

The course is geared for global democracy activists, software developers and other stakeholders to conceptualize, plan and implement technological tools and advocacy strategies to improve transparency by opening political and governmental processes.

This 10-week course – which starts on August 9, 2016 – will feature video lectures by Stanford professors Terry Winograd and Larry Diamond, as well as lecturers from NDI, Transparency International, Sunlight Foundation, Creative Commons, ProPublica, and other experts.

To to learn more about the course and register, visit the course link. Please share this announcement widely with interested participants and professional networks (#TFALAB).

Making the Case to End Gender Imbalance on International Courts: Data Matters

On June 16th, American University Washington College of Law’s Academy on Human Rights and Humanitarian Law hosted a panel on “Women’s Representation in International Organs and Tribunals: A Challenge for the Inter-American Human Rights System and Beyond” as part of its “Human Rights Month” programing.

The discussion highlighted recent data showing that women are found in dramatically low numbers on the benches of the majority of international courts, and articulated how —GQUAL– the Campaign for Gender Parity in International Representation – seeks to remedy this imbalance.

One of the key aspects of the GQUAL campaign is to promote a better understanding of the effects of women’s absence or under-representation in these spaces. Parity advocates argue that equal representation of women lends “greater depth, breadth and legitimacy to decisions made by institutions.” Others underscore that on its face, it is troubling that women are not part of the very international bodies that are making decisions about war and peace, genocide, and the scope of human rights protections.

Some scholars and practitioners credit the presence of women as investigators, prosecutors and judges as helping to advance the cause of gender justice before international criminal tribunals in the past decade. For example, female judges like Navi Pillay (International Criminal Tribunal for Rwanda), Elizabeth Odio Benito (International Tribunal for the Former Yugoslavia) and Teresa Doherty (The Special Court for Sierra Leone) helped develop jurisprudence that defined rape and sexual violence as genocide, rape as torture, and forced marriage as a crime against humanity.

To fully understand the importance of women in international tribunals, it is important to look at the whole picture. Women’s presence as judges and prosecutors undoubtedly matter, but perhaps so does their role as defense counsel. How do we glean whether and at what point of the proceedings their interventions matter the most? Does the presence of women change how female victims and participants are treated as others have suggested? As advocates for gender parity, where can we find the data we need to back up our claims that gender diversity matters? It turns out, it already exists in the form of the Gender Jurisprudence Collections (GJC) created by the War Crimes Research Office and the Women and the Law Program of American University Washington College of Law.

The GJC was created in response to a request by gender justice advocates who lamented the absence of a digital case document repository that was comprehensive, searchable, and keyed to significant gender issues. The GJC now contains more than 31,000 documents issued by thirteen international and hybrid tribunals, domestic courts, and human rights bodies. Users can search the database by up to 30 criteria and more than 130 keywords, including: the manner in which crimes are characterized (such as genocidal rape or rape as torture); substantive elements of the crimes (such as the definitions of consent or coercion); and procedural aspects of prosecutions (such as how courts address witness credibility or handle protective measures).

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Look On! WILIG International Law Networking Breakfast

Please join us for the annual WILIG International Law Networking Breakfast.

Wednesday, June 22, 2016
TIME: 8:30-10:30 AM

ASIL Headquarters, Tillar House (2223 Massachusetts Avenue, NW)

This breakfast roundtable conversation, sponsored by the Women in International Law Interest Group (WILIG) of ASIL, features accomplished professionals with experience working in international law, including at NGOs, law firms, international tribunals, and government. They will discuss their career paths and offer professional advice and insights for women interested in pursuing careers in international law. The facilitated conversation will be followed by a Q&A and networking opportunities among the panelists and participants.

PANELISTS:
• Marinn Carlson, Partner, Sidley Austin

• Christina Giffin, Assistant Deputy Chief, Human Rights & Special Prosecutions Section, Department of Justice

• Fanny Gomez-Lugo, Human Rights Specialist, Rapporteurship for the Rights of LGTBI Persons, Inter-American Commission on Human Rights

• Catherine Rivkin, Special Counsel to the General Counsel at U.S. Department of Defense

• Rita Siemion, International Legal Counsel, Human Rights First

Registration is open through June 20, and is limited to the first 75 participants.

Cost is $10 for ASIL members, $15 for non-members.
Please register at: https://www.asil.org/event-list

This event will be recorded and posted on ASIL’s website following the event.

We hope to see you there.

Best,

Shana Tabak & Tracy Roosevelt
WILIG Co-Chairs