Dispatch from the Women’s March in Washington

Wow.  What an experience.

img_9288Like Diane, I am not much of a marcher.  I respect and support direct action, but—as an academic—my contributions to social change tend to involve disseminating the written word more than chanting in the streets.

But this was an event to remember.  I am so thrilled that I was able to be here in img_9250Washington, D.C. (having flown from California in a plane FULL of women) with my mom, sister, daughter, and a number of students and friends from all stages of my life.  Thanks to our cell phones (and notwithstanding the overwhelmed cell towers), we were miraculously able to connect at random points along the way.

img_9287The Rally and March offered a beautiful display of American diversity—all ages, races, orientations, and genders were represented.  There were families with children everywhere—marching, chanting, frolicking, and sharing their own messages (“Grown-ups: WTF??” & “I Am 8 Years Old & I Have Better Manners & Fewer Tantrums”). Although this was billed as “The Woman’s March,” thousands and thousands of supportive men were in attendance, all advocating for women’s rights and inclusiveness (“Men of Quality Do Not Fear Equality”).

Although there were incredible speakers and performers (including Gloria Steinem, Michael Moore, Ashley Judd, andimg_9232 Madonna), this was really about building community and solidarity in the streets.  The roar of the crowds was incredible—and deafening—at times.

As usual, the ubiquitous hand-made signs, all emphasizing social justice themes and the power of resistance, were a highlight. They were full of creative double entendres (“Electile dysfunction”) and clever puns (“Donald Dump” (with poop emoji) – “Trump Puts The ‘Twit’ in Twitter” & “We Shall Overcomb”).  Even Trump’s bizarre appearance did not escape reference (“Orange is the New Blech”).

The messages were pro-immigrant (“To All Immigrants: img_9268Thanks for Choosing America”), pro-diversity, pro-social justice, pro-human rights (“Women Just Want to Have FUNdamental Rights”) and pro-reproductive rights.  Indeed, I’ve never seen so many unique renderings of the female uterus in one place (“Shed Walls, Don’t Build Them”).

Not surprisingly, Trump’s unbridled misogyny and sordid history of sexual assault offered frequent themes (“No Sex Offenders in Public Housing” (with a picture of the White House)).  The pussy references were legion, even over and above the seas of pink knitted hats thanks to the Pussyhat Project.  I was thrilled to wear one knitted for me by one of my students. img_9281

Much of the anger was directed toward Trump (“Dump Trump”), but Mike Pence did not escape the crowd’s ire (“Pence Sucks Too”), particularly as we all marched past the EEOB where the Vice President has his office.  There were also plenty of references to Russia’s intervention in the election (“Nyet my President”) and images of Trump as Putin’s puppet or crybaby (“Make Daddy Vimg_9283ladimir Proud”).  Trump’s campaign slogans and vile comments were all turned inside out (“Make America Kind Again” – “Build a Wall Around Trump & We’ll Pay For It” – “Hate Does Not Make America Great” & “You Haven’t Seen Nasty Yet”).  Even Melania receivedimg_9207 some attention (“Free Melania” & “Melania, Blink Twice if You Need Help”).

Everyone was peaceful and loving. Notwithstanding the finality of yesterday’s inauguration, people were upbeat, strategizing for the coming resistance, and exchanging random acts of kindness, even in hot, crowded metro stops and the throngs on the streets.  We saw two people wearing “Trump” hats, but otherwise this was a crowd full of Hillary Clinton supporters (“Still With Her”).

In fact, there were so many references to Hillary that it was as if this were her inauguration celebration. It should have been (“The People’s President: She Got 2,864,974 More Votes”).

Onward.

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Read On! ‘Human Security and Human Rights under International Law: The Protections Offered to Persons Confronting Structural Vulnerability’

I am thrilled to post for the first time in IntLawGrrls and to share the publication of my book Human Security and Human Rights under International Law: The Protections Offered to Persons Confronting Structural Vulnerability (Hart Publishing, 2016).

This book considers the potential of human security as a protective tool within the international law of human rights. Indeed, it seems surprising given the centrality of human security to the human experience, that its connection with human rights had not yet been explored in a truly systematic way. The book attempts to address that gap in the literature and sustains that the human rights of persons, particularly those facing structural vulnerability, can be addressed more adequately if studied through the complementary lens of human security and not under human rights law alone. It takes both a legal and interdisciplinary approach, recognizing that human security and its relationship with human rights cuts across disciplinary boundaries.

Human security with its axis of freedom from fear, from want and from indignity, can more integrally encompass the inter-connected risks faced by individuals and groups in vulnerable conditions. At the same time, human rights law provides the normative legal grounding usually lacking in human security. International human rights norms, individualistic in nature and firstly enacted more than sixty years ago, present limits which translate into lack of protection for people globally. As a result, the collective and contextual conditions undergone by persons can be better met through the broader and more recent notion of human security, which emphasizes ‘critical (severe) and pervasive (widespread) threats’, and accentuates socioeconomic vulnerabilities as authentic security concerns. Indeed, as signaled by Sadako Ogata, human security is ‘the emerging paradigm for understanding global vulnerabilities’.

The analysis follows a two-part approach. Firstly, it evaluates convergences between human security and all human rights – civil, political, economic, social and cultural –and constructs a general framework for thought and action, the ‘human security – human rights synergy’. Secondly, it goes on to explore the practical application of this framework in the law and case-law of UN, European, Inter-American and African human rights bodies in the thematic cores of 1) violence against women and girls (VAW); 2) undocumented migrants and other non-citizens such as asylum-seekers and refugees; converging in 3) a particular examination of the conditions of female undocumented migrants. In the last chapter, the book systematizes this evidence to reveal and propose added values of human security to human rights law; and inversely, it indicates how human rights standards/indicators can deliver a needed more precise, normatively grounded and operational conception of human security.

These ‘interpretative synergies’ offer promise for shifting the boundaries of international human rights law: in constructing integrative approaches to fill legal gaps, better prevention and addressing protectively collective threats, and –in the spirit of the Universal Declaration of Human Rights- creating an ‘enabling environment’ to fulfil all human rights, especially for those not only confronting isolated moments of risk or individual human rights violations, but rather conditions of structural vulnerability affecting their everyday lives. Continue reading

Law of peace(making) and the promise of a new beginning for children

Cross-posted courtesy of the Oxford Human Rights Hub.

The act of peacemaking may be viewed as the promise of a new beginning. It is latent within the sui generis legal form of the self-constituting process, and the often layered human rights transformation at its substantive epicentre. In the complex and evolving legality that constitutes peacemaking, international human rights claims often have heightened performativity. Or in other words, international human rights law (itself born of international peacemaking processes) is both applicable to, and performative within, the self constituting process of peacemaking. However, the layered human rights transformation is often partial: children and their rights are particularly likely to be invisible in the successive processes and agreements that constitute peacemaking. Yet, there is an international legal obligation to respect and ensure their rights ‘in’ and ‘through’ peacemaking, as affirmed by the Committee on the Rights of the Child and underwritten by the Security Council. Further, as noted in an earlier posting, peacemakers may for multifarious reasons — some principled, others political — commit to ‘transforming children’s rights as part of human rights’. So, why, then, are children mostly invisible in peacemaking? Continue reading

How Do Wars End?

I had the great pleasure of attending Southern Denmark University’s Center for War Studies‘ signature event “How Do Wars End?”.  The conference started with the riveting reflections of the famous Danish author, Carsten Jensen, on “The Forever Wars”.  He described his experiences embedded with Danish troops in Afghanistan and related the soldiers’ problems dealing with a lack of clear strategic goals within the conflict, complex  homecoming struggles, as well as the current trend towards privatization of war. His books included characters that range from traditional soldiers to drone pilots and who grapple with ethical challenges as well as boredom.  He also provided a wonderful overview of war literature from around the world, leaving the audience with a compelling urge to run to the library.  The next presentation was by Christopher Kolenda, a Senior Military Fellow at King’s College London.  Kolenda served as commander of an infantry task force in Afghanistan which handed out notebooks and pencils to the local community as part of its peacemaking strategy (in part influenced by Greg Mortenson’s book Three Cups of Tea).  He also co-authored the McChrystal assessment on Afghanistan and has worked with strategic policy on Pakistan as well.  He delivered an insightful explanation of why the US has trouble managing war termination; including the cost of failure to follow up early negotiation opportunities, problems related to centralization of security decision-making, and the challenges of narratives which delegitimize the enemy and impede negotiation.  This was followed by Joachim Krause , the Director of the Institute for Security Policy at the University of Kiel.  He discussed confusion regarding the definition of war and set forth a typology, ranging from cabinet wars to classic international wars, limited wars over specific islands, post-modern wars, hybrid wars, people’s wars, religious wars, wars of secession, civil wars, and the emergence of war economies.  He ruefully commented on the negative consequences of war efforts that were terminated too early as well as those that were terminated too late.  The breadth of his presentation served as a confirmation to me that the ethics academic, Jonathan Glover, had appropriately named his book on the scope of atrocities committed in the 20th Century, HumanityCian O’Driscoll of the University of Glasglow reflected on the Victory of Just War, ruminating on the scope of triumph.  He was followed by Thomas Obel Hansen of Ulster University who gave a thorough overview of transitional justice, breaking myths and underscoring real dilemmas in practice.   In conclusion, I gave a perspective from international law in which I reflected on the challenges we face given the lack of normative agreement on what we mean by peace, explaining the difference between negative peace and positive peace, as well as institutional failures to implement peace in the long term.  I gave an overview of the book Promoting Peace through International Law and then proceeded to discuss specific cases. I noted the Peace Accords in Colombia and the observation that there is no more war in the Americas.  To counter this, I used the example of Guatemala, which formally experienced a Peace Accord in 1996 while having 1 million IDPs and 200,000 refugees who claimed land restitution, as well as 200,000 paramilitary troops and 3,000 URNG guerillas who required demobilization.  In spite of a solid commitment by MINUGUA, USAID, World Bank, EU, Norway, and other entities, Guatemala experienced a serious setback in human rights and security, well documented in a report by the Inter-American Commission on Human Rights. At present, Guatemala has the fourth highest rate of chronic malnutrition in the world, as well as high levels of illiteracy, and a homicide rate that renders it one of the most murderous countries in the world.  Most crimes are not prosecuted and the state’s security system has been infiltrated by criminal elements resulting in a parallel state. Thus, there is in effect a new war between criminal elements and the government.  This experience leads us to consider the process in Colombia, which has an overwhelming 7 million IDPs to contend with, difficult in particular due to ongoing polarization within the society regarding accountability vs. amnesty dilemmas.  I called for more research in peace studies, in particular adding legal and critical perspectives.

Kudos to  Anders Engberg-Pedersen and Sten Rynning for organizing a thought-proving conference!

Trouble? Remembering the Belfast Agreement in the Brexit Aftermath

Although Brexit resurfaced in the weekend’s newspapers with the revelation that Britain’s exit from the EU could be delayed until 2019, the referendum has largely taken a backseat to other news. Even at the height of the Brexit fervour there was little to no substantive debate on the effect a potential EU exit would have on Northern Ireland (which voted remain by a majority of 56%).

UK Passport

The passport for the United Kingdom of Great Britain and Northern Ireland

This oversight notwithstanding, Northern Ireland’s ties to the European Union are significant and merit consideration, especially in the context of the Belfast/Good Friday Agreement. Europe has paid £1.3 billion to the Northern Irish PEACE programmes alone since 1995. This figure does not include farm subsidies or the economic gain from Northern Ireland’s food and agricultural exports to the EU. Monetary ties aside, I will focus on the proliferation of the European Convention on Human Rights in the Belfast Agreement, the important role it plays in the peace process, and the right to citizenship and self-determination in the context of a post-Brexit border poll. Continue reading

El Salvador’s Constitutional Court Invalidates Amnesty Law; Will Prosecutions Follow?

After years of deliberations, the Constitutional Chamber of El Salvador’s Supreme Court ruled on July 13 that the country’s 1993 amnesty law is unconstitutional and must be stricken. The 4-1 decision, although long expected, has caused uproar in El Salvador, where neither side in the civil war has been supportive of prosecutions for past crimes and where rampant criminality and insecurity are present-day scourges. The four-person majority of judges Sidney Blanco, Florentín Meléndez, Rodolfo González and Eliseo Ortiz, grounded the decision in the rights of the victims to access to justice, to judicial protection of fundamental rights, and to full reparations. It makes extensive use of international law, especially the jurisprudence of the Inter-American Court of Human Rights. It will provide new hope for the long-suffering victims of the country’s twelve-year civil war, but will also complicate the country’s politics and challenge a weak and compromised prosecutors’ office.

The complaint was brought by a number of NGO representatives and victims of rights violations, alleging that the amnesty law was illegally passed and violated El Salvador’s international commitments and constitution. The 1993 amnesty was passed to deal with the crimes of both sides in a civil war that cost some 75,000 lives. The amnesty was passed just three days after a U.N. sponsored Truth Commission issued its report. The Commission found that most of the massacres, assassinations, forced disappearances and torture committed had been carried out by the armed forces or by death squads connected to them.

The text of the decision

The Court first dismissed the procedural illegality argument, but used the occasion to note that the amnesty was not, as the Prosecutors’ office argued, a part of the peace accords that ended the civil war. On the contrary, those accords had stressed the need to end impunity for human rights violations. The Court thus confronted head-on one of the central myths of the country’s political classes, that amnesty was required by the peace accords. Rather, the Court held that the legislature had to balance the need for reconciliation with the need for justice for the victims. It cited with approval in this regard the 1992 Law of National Reconciliation, which provided amnesty for political crimes, but expressly excluded “grave violent events from January 1, 1980 on, which have left their mark on society, and demand the most urgent public knowledge of the truth” that were mentioned by the U.N.-backed Truth Commission.

In its July 13 judgment, the Court held that the amnesty is unconstitutional as applied to all crimes against humanity and those war crimes that violate the fundamental guarantees of Protocol II of the Geneva Conventions, committed by either side in the conflict. The amnesty violates the country’s international obligations to investigate and prosecute under the International Covenant on Civil and Political Rights, the American Convention on Human Rights, Protocol II, and the constitutional right of the victim of a crime to civil damages and to judicial protection of fundamental rights. Regarding war crimes, although Protocol II calls for the “widest possible amnesty,” that provision must be read in light of all the country’s international obligations, and the amnesty cannot be absolute. With respect to crimes against humanity, those crimes are by definition not subject to amnesty or statutes of limitations and are subject to universal jurisdiction.

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Transitional Justice: What is the role of law in bringing imaginative and imaginary peace to Colombia?

This blog post is based on a reflection presented at the “Transitional Justice as Legal Field, Site and Imagination” panel at the Transnational Law Summer Institute, Kings College, London June 29, 2016. I am grateful to Prabha Kotiswaran and Peer Zumbansen for the invitation.  

What is the role of law in bringing imaginative and imaginary peace to Colombia?

June 23 2016 was described by Colombian and international media as the “last day of the war”, adopting FARC’s hashtag #ElÚltimoDíaDeLaGuerra. The signing of a bilateral ceasefire between the Colombian government and FARC formally ended hostilities in the world’s longest running war. The signing of a peace agreement is expected to take place during the summer of 2016.

To the overlapping academic fields of human rights, transitional justice and post-conflict reconstruction, the sophisticated Colombian transitional justice process is attractive and will likely be highly influential for the coming decade, both as an example of success and of failure. There is also a significant risk that scholars (outside Colombia) will embrace the Colombian experience either deterministically — as an example of systemic yet de-historicized power imbalances — or as a fantastical  and outsized legal progress narrative that can serve as an endless source of political models, constitutional processes and legal arguments suitable for embellishing the transitional justice juggernaut.

My argument in the following is based on one big supposition: I will put forward the idea that approached from a law and social change perspective, the Colombian transitional justice project is necessarily a failure foreseen.

“Everybody” knows that positive peace is not going to happen through legislation, decisions by a progressive Colombia Constitutional Court or the signing of a formal agreement. This Everybody also knows that if positive peace happens, it will not happen soon.  At the same time, it is easy to imagine that a year from now, politicians, ordinary Colombians, pundits and academics will dismiss the transitional justice legislation and the peace agreement as partial or total failures for their inability to perform the impossible expected by the Everybody; namely ending violence, providing reparations and changing the structural inequality that is the source of much of the violence.

However, I think that precisely at this juncture, as a community professionally engaged in the business of imagining peace and transitional justice, we need to reflect on what the critical takeaways from and beyond this failure foreseen could be. We may find that imagined and imaginative outcomes turn out to be imaginary. But this is not enough, it’s not even a starting point. We need to go beyond that.

Hence, after briefly describing the Colombian peace process, I will map out three sets of issues that could serve as tentative points of departure for critical reflection. This includes:

  • How we can gauge the meaning of the Colombian transitional justice process for Colombian citizenry, citizenship and the state;
  • The implications of Colombia being both outlaw and legal outlier for how we consider the role and place of the law in creating durable peace;
  • A first attempt to think through some of the general lessons Colombia can have for transitional justice practice and scholarship.

Peace and conflict as statecraft

The armed conflict between the government and FARC began in 1964. Separate negotiations have previously led to the demobilization of smaller guerillas (MAQL, M-19; EPL) and an agenda for formal negotiations has now been agreed with ELN.  However, Colombia has been at war or seen violent societal conflict for most of the time since the late 1890s. Colombian peace processes and attempts at political, legal and land reform are a fixture of Colombian statecraft. The last round of peace talks with FARC ended with fiasco in 2002. From 2003 president Uribe engaged in a much-criticized effort to demobilize the paramilitary AUC, with a basis in the 2005 Justice and Peace Law. Despite its shortcomings, it must be remembered that this framework has provided a platform for the current process.

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