Launching the Spring Issue of the Transitional Justice Institute Research Paper Series on SSRN

Catherine O’Rourke and Elise Ketelaars

We are pleased to announce the publication of a new issue of the Ulster University Transitional Justice Institute Research Paper Series on the Social Sciences Research Network. This exciting new issue engages both with highly-topical contemporary questions, as well as long-standing challenges in international law, peace, human rights and gender equality. First off, Thomas Obel Hansen considers the Policy Paper of the ICC on preliminary examinations and its potential to advance ‘positive complementarity’ between the operation of the court and the domestic pursuit of justice for conflict victims. At a time of apparent crisis for the court, scholarship such as Hansen’s that addresses this critical relationship between its operation and broader domestic impacts is critical. Aisling Swaine, the leading global expert in National Action Plans (NAPs) for Women, Peace and Security, examines relevant practice to date in the Asia-Pacific region. She demonstrates an exciting new methodology for gender-responsive planning, which has relevance well beyond the specifics of Asia Pacific, namely the ‘Gender Needs Analysis Tool’. Likewise, the findings, conclusions and recommendations offer immediate policy relevance to the current 63 UN member states with NAPs on Women, Peace and Security, as well as those currently developing or reviewing NAPs.

Contributions by Catherine O’Rourke and the joint article by Anne Smith, Monica McWilliams and Priyamvada Yarnell both address the question of international human rights obligations and their current and potential impact on Northern Ireland. Catherine O’Rourke, in research from the DFID-funded Political Settlements Research Programme, considers the recent report of the UN Special Rapporteur on Truth, Justice, Reparations and Guarantees of Non-recurrence on his country visit to Northern Ireland. She identifies the potential for the report to positively re-shape both the diagnostic (defining the problem) and prognostic (identifying the solutions) framing of the vexed issue of how to deliver accountability for past conflict killings and harms in Northern Ireland. Finally, Anne Smith, Monica McWilliams and Priyamvada Yarnell engage with the highly topical challenges of protecting human rights in Northern Ireland as the UK advances its withdrawal from the European Union. In a timely and important contribution, the authors consider how the long-promised Bill of Rights for Northern Ireland might finally be advanced as part of broader efforts to ensure continued human rights protections in the midst of Brexit.

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Looking for women experts? Don’t make it a beauty pageant

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1946 – Birth of the UN Commission on the Status of Women, photo credit: UN Photo

This post was co-authored by Almut Rochowanski

Earlier this month, the BBC held its BBC Expert Women’s Day, bringing together “female experts who’d like to appear on air as contributors to BBC programmes”. The event gathered a group of 24 professionals, which included lawyers, scientists, political analysts, entrepreneurs, coders, cultural leaders and sex educators, selected from a pool of 450 applicants for a ‘media familiarisation day”. They were given tips on how to sound natural on air and given the opportunity to experience appearing on camera in a BBC news studio.

Seemingly, this is a well-intentioned effort to diversify sources. However, the way the BBC is going about it makes it seem more like a beauty contest.

This is the latest edition of a programme the BBC launched in 2013. At first glance, it might look like an earnest attempt to overcome the notorious “all-male panel” problem, something the BBC should be applauded for having acknowledged and taking steps to address (even if, in 2012, it was the only major UK broadcaster to refuse signing a pledge to get more women on screen). But, on closer inspection, there are a number of deeply problematic aspects to the initiative. In fact, it is a spot-on illustration of why media organizations suffer from the all-male panel problem to begin with.

The BBC Academy’s call for applications asked women experts to send in their CV, a letter explaining their interest in being on air and a two-minute video of themselves talking about their area of expertise. By having women experts compete to be acknowledged for what they are – experts – this “TV expert” competition puts the onus on women to correct and overcome the discrimination that holds them back. Once again, women are expected to jump through extra hoops to prove that they are good enough to do what men routinely get to do with no questions asked. Women need to not only have the talent and put in the work to become experts on topics like Brexit, terrorism or classical music, but must also submit to a screen test and mentoring in order to be recognized as authoritative voices in their field of expertise.

The screen test that forms part of the application is particularly troubling. Somehow, it doesn’t seem likely that the BBC requires screen tests of the male climate scientists, business experts or lawyers they invite on their programs.  And while the instructions for the video do not mention looks, women are judged on their appearance much more than men, and nowhere more so than in the media. Imagine a female expert on development aid or the music industry considering even for a split second whether she should put on lipstick before recording her video, and it immediately becomes clear how this initiative perpetuates gender discrimination and is self-defeating in its stated purpose.

The competition is based on the lazy and ignorant assumption that women are underrepresented as experts in broadcast media because they have not tried hard enough or because they just do not shine as brightly as their male colleagues whom the media somehow manage to find without them having to answer to a casting call. The same argument is routinely employed to rationalize the low numbers of women on corporate boards, among tenured professors or in government. And yet we know that women are underrepresented in roles of power and prestige because they are overlookeddismissedignoredexcluded and discriminated against.

Our critique isn’t directed at the women who took part in this year’s BBC Expert Women’s Day, or the many more who applied and were not invited. Quite the contrary. These women are obviously very good at what they do, and the fact that they’re ready to put in the extra work and face new challenges illustrates why they have become leaders in their fields. Our point is that they shouldn’t have had to go through a competition like this to be recognised for their expertise and to get a chance to contribute to public discourse.

If the BBC concludes that they have too few female experts on the air, they ought to first take a good, hard look at themselves and figure out where they went wrong. Have they sufficiently questioned their own habits and assumptions? Have they probed their organization’s practices for hidden biases and discrimination? Do terrorism experts always look male in the imagination of the editorial staff? Have they given proper research a try?

Because, really, it is not difficult to find women experts out there. We are literally everywhere. We are at universitieshospitals, research centers and think tanks. We publish booksblog post and articles, we are on LinkedIn and social media, we win prizes and fellowships, we are part of professional networks. In addition, numerous databases have been set up to assist researchers who might be at a loss in identifying women experts for their news coverage. There is The Women’s RoomSheSource, Women Also Know Stuff and The OpEd Project, to name but a few. Having women compete to have their voices heard in a space where their opinions should be sought out as often as those of their male counterparts is not a solution. Rather, by failing to acknowledge and reject the systematic inequalities that women face, this casting call for women experts perpetuates the problem it ostensibly tries to solve.

Almut Rochowanski is a co-founder and coordinator of the Chechnya Advocacy Network. Nani Jansen Reventlow is a human rights lawyer with Doughty Street Chambers and a fellow at the Berkman Klein Center for Internet & Society at Harvard University.

This post has been cross-posted on Medium.

SCOTUS should grant cert in Castro. Judicial review of Trump’s immigration detention regime depends on it

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60 miles outside Philadelphia, on a bucolic country road in Berks County, PA, sits a brick building with a fenced-in yard fronting a line of trees. To look at it, you would never guess this place is the epicenter of the coming battles over judicial review of immigration detention in the United States.

Today the Supreme Court is conferencing to decide whether to grant a writ of certiorari in the case of Castro v. Department of Homeland Security.

Of the two dozen families who are the plaintiffs in Castro, about half have been released. But 14 families remain at Berks. They fled gender-based violence and threats to their lives in their home countries and sought asylum in the United States. After deeply flawed credible fear interviews and rubber-stamp affirmations by an immigration judge, they have languished in legal limbo for the past year and a half.

The Third Circuit decided that these families had no access to habeas corpus, the ability to seek judicial review of one’s detention – a basic right dating back to English common law. The Third Circuit’s reasoning was that these families had entered “surreptitiously” and were apprehended “near the border,” ergo they had no constitutional right to challenge their detention.

That’s plainly wrong. Even Guantánamo detainees, as law professor Steve Vladeck has pointed out over at Just Security, have been given more right to judicial review than the Berks families.

Vladeck called the ruling “deeply troubling” and pointed out that “it is now so much more important for the Supreme Court to grant certiorari in Castro–and reverse the Third Circuit. Reasonable minds may well disagree about the limits of immigration law, and the extent to which the Executive Order (and other U.S. immigration policies) run afoul of the Constitution. But the courts have to be the institution to settle those disputes; under Castro, the Executive Branch’s actions could theoretically be immune from such review… .”

Over at the Insightful Immigration Blog, David Isaacson writes:

The purpose of the Suspension Clause is to ensure that the government can be held to account in court when it detains someone, whether that someone is a suspected terrorist or a woman fleeing persecution with her child. The Third Circuit panel in Castro denied the petitioners in the case that Constitutionally guaranteed ability to demonstrate that they were being held pursuant to an erroneous application or interpretation of the law. We can hope, however, that … the Supreme Court on certiorari, may restore it to them.

Signing on as amici in Castro are no less eminent legal scholars than Chemerinsky, who literally wrote the book on constitutional law; the American Bar Association; and IntLawGrrls’ own editor Jaya Ramji-Nogales and contributors Lindsay M. Harris and Sarah Paoletti, who conclude: “Particularly given that the procedural and substantive protections provided to asylum claimants are consistently flouted or ignored, safeguarding Petitioners’ access to habeas corpus is of exceptional importance.”

Since last fall, I’ve been working with the Berks families and their attorneys as a legal advocate. Berks may be fine for a short-term stay but to be stuck there for 600 days is a living nightmare. This week NBC published an in-depth investigative article on the facility. If you haven’t read it yet, please do.

I’d really like to let the families speak for themselves, but cameras aren’t allowed in Berks, nor is access to social media.

Here’s America’s sweetheart Tom Hanks recently discussing the Castro plaintiffs with lead attorney Lee Gelernt of the ACLU. The card made for him by the Berks kids says simply, “We want to be free.”

Finally, please watch this 9-year-old girl who was detained in Berks but freed in December after “only” a year. This is her heartfelt message on behalf of the families who still remain:

For the sake not only of the Castro plaintiffs, but all those who are and will be caught up in Trump’s expanded detention regime, let’s hope SCOTUS is listening.

Gender-Sensitive Reparations in the I.V. v. Bolivia Case: A Missed Opportunity?

 

woman-1022060_1280The human rights and feminist lawyers were hopeful. Finally a decision on forced sterilization from the Inter-American Court. Deprived of the remedial austerity of its Strasbourg equivalent, and with a harder legal force than the CEDAW Committee, this judgment was bound to be important. The I.V. v. Bolivia landmark decision on the forced sterilization of a refugee woman in Bolivia was delivered during the late days of 2016.

Inspired by the insightful earlier post by Lisa Reinsberg and Francisco Rivera Juaristi, I here discuss the specific reparations provided by the Inter-American Court and explain why the Court missed an opportunity to do something more transformative.

The reparations in I.V. v. Bolivia demonstrate the usual remedial richness of the Inter-American Court. The Court ordered personalized, specialized, and free medical rehabilitation, considering the direct victim’s sexual, reproductive, psychological and psychiatric health harms and needs. It also ordered the state to include I.V.’s family in the therapy and to pay 50,000 US Dollars in compensation to the direct victim for monetary and non-monetary damages. The Court recognized the encroachment of the applicant’s personal integrity, and the subsequent denial of justice, and commanded the state to publish the judgment and acknowledge its responsibility. As a guarantee of non-repetition, the Court stated that Bolivia needs to secure that consent to sterilization is always prior, free, informed, and full. Hence, all public and private hospitals ought to be equipped with printed, succinct information about the reproductive and sexual health rights of women: for the patients and the personnel. Finally, Bolivia should adopt permanent programs for medical students and professionals on informed consent, stereotyping, gender discrimination and violence.

The reparations ordered by the Court in I.V. v. Bolivia are plentiful, but not groundbreaking. They are largely consistent with existing, cited supranational practice. Indeed, also the CEDAW Committee (in the 2006 case A.S. v. Hungary) highlighted the importance of educating and monitoring medical staff in public and private health centers, and “naming and shaming”-awareness-raising through publication of supranational decisions. Moreover, the 50,000 US Dollars for damages is not that much more than the approximate 30,000 US Dollars that the Strasbourg Court has ordered the state to pay victims of involuntary sterilization (in 2011–12 cases V.C. v. Slovakia; N.B. v. Slovakia; and I.G. and Others v. Slovakia). In comparison to compensation amounts normally figuring in the IACtHR’s decisions, the figure in I.V. v. Bolivia is relatively low. Overall, the Court’s remedial approach is similar to the Inter-American Commission’s recommendations in the same case two years earlier. The landmark nature of I.V. v. Bolivia, in combination with the substantial references to earlier cases, seems to have made the Court self-conscious, adopting a cautious approach.

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Intlawgrrls 10th Birthday Conference: A Transformative Experience

Last week, I had the pleasure of participating in the 10th Birthday Conference of Intlawgrrls (our direct predecessor) at the University of Georgia.   The conference was organized by Intlawgrrls founder, Professor Diane Marie Amann, without whom this blog (www.ilg2.org) would not be in existence today.  Today is March 8th, International Women’s Day, and in honor of this international holiday, Professor Amann, Intlawgrrls, and all of my female colleagues I wanted to share the following thoughts regarding my experience at the conference. 

 First, the conference was academic in nature.  Although it was a celebration of the blog, its mission and its legacy, every participant was an academic or an aspiring academic, and all presentations focused on scholarship in the field of international law.  I presented a paper on the Karadzic conviction entitled “The Karadzic Genocide Conviction: Inferences, Knowledge and Intent.”  I had previously written about this paper, which will be published in the Emory International Law Review, but in a nutshell, this paper focuses on the judicial reasoning behind the International Criminal Tribunal for Yugoslavia (ICTY) Trial Chamber’s decision to convict Karadzic of genocide.  Karadzic, the former Bosnian Serb leader during the 1990s civil war, was accused, under a joint criminal enterprise theory of liability, of having participated in a plan to murder thousands of Bosnian Muslim males at Srebrenica in July 1995.  Karadzic had also been accused of and convicted of other crimes but my article focuses solely on the genocide conviction.  In order to achieve a conviction on the genocide count, prosecutors needed to establish that Karadzic not only participated, through a JCE, in the common plan to kill Bosnian Muslims, but that he also possessed the special intent or mens rea to do so.  The Trial Chamber concluded that Karadzic had the special intent to commit genocide at Srebrenica by first inferring that Karadzic must have known about what had been going on at Srebrenica, based on a conversation that Karadzic had with another civilian administrator of the region of which there is no direct evidence or testimony, and by then inferring intent from the inference of knowledge.  According the ICTY Trial Chamber, Karadzic must have known that Bosnian Males were about to be killed and he must have intended for this to happen because this was the “only reasonable inference” based on all the evidence.  My article argues that the Trial Chamber performed judicial gymnastics in order to arrive at this conclusion, because other inferences were clearly available based on the evidence on record, such as that Karadzic could have known and agreed to forcibly transfer Bosnian Muslims out of the Srebrenica area (this would amount to ethnic cleansing), but not to actually kill.  My article then argues that the current definition of genocide under the Genocide Convention, and the statutes of the ad hoc tribunals some of which have adopted this definition verbatim, is too narrow, and that, in order to meaningfully use genocide as a crime of international criminal law, we should think about closing the gap between the intent requirements behind ethnic cleansing and genocide.  The intent to ethnically cleanse an area, by forcibly removing a protected group, is in some instances synonymous with the intent to destroy a protected group.  Reconceptualizing genocide would allow tribunals to more easily convict of genocide – in a world where attaching the genocide label to a specific defendant, crime or region has deeper political and historical meaning.

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Inter-American Court of Human Rights Condemns Forced Sterilization in Landmark Judgment

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The Inter-American Court of Human Rights hears the case of I.V. v. Bolivia, Photo Source: CorteIDH

The Inter-American Court of Human Rights has, for the first time, addressed the all-too-common practice of sterilizing women without their informed consent. In its judgment concerning I.V. v. Bolivia, released on December 22, 2016, the court determined that forced sterilization generally violates a core set of human rights, including the right to dignity, and may also constitute cruel, inhuman or degrading treatment and violate the right to judicial protection (as it found to be the case here).  Its decision was a positive conclusion to I.V.’s 16-year fight for justice and puts in motion significant advances toward providing her with some measure of reparation and ensuring that Bolivia’s health care system recognizes and respects the human rights of women, including their right to exercise full, free, prior, and informed consent to any medical procedure. The International Human Rights Clinic at Santa Clara University and the International Justice Resource Center intervened before the Inter-American Court as amici curiae in the case with the support of 22 law professors, experts, and organizations (other amicus curiae briefs submitted in the case are also available online). We write here to outline the analysis presented in our brief and share the court’s conclusions, particularly because the judgment is only available in Spanish.

In our capacity as amici, we argued that the court should adopt a rights-based definition of forced sterilization and treat it as an autonomous complex human rights violation that affects the rights to dignity, private and family life, personal integrity and humane treatment, freedom of expression, protection of the family, and to be free from discrimination and from acts of violence against women. We argued that a framework that recognizes the indivisibility and interrelatedness of the human rights violations associated with forced sterilization better reflects its complex nature and will assist other bodies tasked with analyzing cases of forced sterilization as a human rights violation. This approach would be in line with the court’s conceptualization of other complex human rights violations that are not specifically mentioned in the American Convention on Human Rights. Such was the case of enforced disappearances, where the court’s characterization as an autonomous and complex violation was instrumental for the development of a more appropriate normative framework. Continue reading

Mainstreaming Women’s Rights in the Human Rights Council Special Procedures: The UN Special Rapporteur on Transitional Justice and UN Security Council Resolution 1325

One of the most significant contemporary developments in international law and its application to the lives of women is the political prominence and proliferating legal development concerning women’s rights in conflict. Against the backdrop of extensive normative and legal activity on this theme across multiple regimes of international law, legitimate questions are being asked as to the efficacy of this norm proliferation. In my new Working Paper for the Political Settlements Research Programme, I consider the local significance of the recent Report on Northern Ireland by the UN Special Rapporteur on the Promotion of Truth, Justice, Reparations and Guarantees of Non-recurrence (informally known as the Special Rapporteur on Transitional Justice). I conclude very positively about the Report’s genuine integration of gender concerns throughout and its potential impact on state and civil society proposals to deal with the past. More negatively, however, I conclude with some concern about the Report’s treatment of UN Security Council Resolution 1325 on Women, Peace and Security and its application to Northern Ireland. In this post, I identify the problem with how the Report addresses the Resolution’s application. I further address the wider significance of this error for broader efforts to improve the integration of proliferating normative and legal activity to advance women’s rights in conflict under international law.

 

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