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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Landmark decision in first case of domestic violence brought to ECOWAS Community Court of Justice (ECCJ) (Ruling ECW/CCJ/APP/26/15, 24th January 2017)

In a decision that can be interpreted a historic milestone and a ‘triple high-five’ for the promotion of accountability for women’s human rights in Africa; for the recognition of violence against women as a violation of human rights, and for the emerging role of African regional courts in addressing human rights issues, on the 24th of January, 2017, the ECOWAS Court (the ECCJ or the Court) ruled that it has the competence to hear a case of domestic violence instituted against the Federal Government of Nigeria by two NGOs. I review that decision in this post.

The NGOs – the Women Advocates Research Documentation Centre (WARDC) and the Institute for Human Rights and Development in Africa (IHRDA) – had jointly filed a suit in August 2015 at the Court on behalf of Nigerian citizen, Ms. Mary Sunday, an alleged victim of severe domestic violence from her fiancé (a policeman), which had taken place three years earlier in August 2012.

WARDA and IHRDA alleged that since the attack happened, the Nigerian authorities had failed to carry out an independent and impartial investigation on the allegations of severe domestic violence suffered by Ms. Sunday.  As a result of the lack of effective investigation and prosecution of the offender, they argued that the Nigerian government had violated several rights of the African Charter on Human and People’s Rights; the Protocol to the African Charter on the Rights of Women in Africa, and other international human rights agreements. These rights included the right to dignity, to freedom from torture and other forms of cruel, inhuman or degrading punishment, and the right to a remedy.

The case was filed before the Court for human rights violations pursuant to Article 3 of the Supplementary Protocol of the Court. This provision gives the Court the competence to determine matters of human rights violations of citizens of the ECOWAS Community. The Nigerian government lodged a preliminary objection based on three grounds; that the Applicants had not established a cause of action; that the Applicants had no locus standi, and that the Court lacked the jurisdiction to hear the case. The Court was urged to dismiss and strike out the case for lack of merit.

In delivering the Court’s ruling, the Honourable Justice Micah Wilkins Wright, held that the case was admissible; that the Applicants had established a cause of action and also have locus standi to file the case.

Though this decision relates only to jurisdiction and admissibility by the ECOWAS Court, it is certainly noteworthy for the clear signal communicated by the Court to continue to hear cases relating to women’s human rights.

In 2008, in Mani v. Niger, (Hadijatou Mani Koraou v The Republic of Niger, Judgment No. ECW/CCJ/JUD/06/08 of 27 October 2008, available at http://www.refworld.org/docid/491168d42.html), the ECCJ broke new jurisprudential ground on women’s human rights when it found that that the Niger “[B]ecomes responsible under international as well as national law for any form of human rights violations of the applicant founded on slavery because of its tolerance, passivity, inaction and abstention with regard to this practice.” (See paras 84-85, based on its recognition of the failure of the Nigerien courts to denounce the instance of slavery, and the failure of the Nigerien authorities to bring a criminal prosecution. Emphasis my own).

In a decision that drew from instruments and decisions from international criminal law; international human rights law; African, Council of Europe and Inter-American regional human rights instruments; the ECOWAS Revised Treaty and Protocol on the ECCJ, and Nigerien domestic law, the ECCJ demonstrated an innovative interpretive approach to both the crime of slavery, and its particular manifestation for women.

The ECCJ’s openness to hearing cases that directly relate to women’s human rights, and to contributing to human rights jurisprudence at the African level, directly challenges perceptions of African human rights institutions as being ‘weak and ineffectual’ or ‘dysfunctional.’ (This description has been noted by several commentators including Obiora Chinedu Okafor who has observed that most commentators have historically described the workings and effectiveness of the African human rights systems thus. See Obiora Chinedu Okafor, The African Human Rights System, Activist Forces, and International Institutions, (CUP, 2007) at 63).

In the under-litigated area of women’s human rights both within regional human rights systems in general, and within international human rights law, this decision on jurisdiction and admissibility by the ECCJ is welcome. We await the details and the results of the hearing with great interest.

NOTE on details on the case;

 

Pursuing Synergies to Guarantee Women’s Rights in Conflict: The UN Security Council Arria Formula Meeting on CEDAW and the Women, Peace and Security Resolutions

Catherine O’Rourke, author of today’s post, and Aisling Swaine co-authored the UN Women (2015) Guidebook on CEDAW General Recommendation Number 30 and the UN Security Council Resolutions on Women, Peace and Security.

A key conclusion of the Global Study on UN Security Council Resolution 1325 was the need for improved synergies between the treaty-based human rights system and the Women, Peace and Security (WPS) agenda:

To fully realize the human rights obligations of the women, peace and security agenda, all intergovernmental bodies and human rights mechanisms must act in synergy to protect and promote women’s and girls’ rights at all times, including in conflict and post-conflict situations. (page 350)

The drive towards improved synergies between WPS and broader human rights obligations was given significant impetus in October 2013, when the monitoring Committee of CEDAW adopted General Recommendation Number 30 on the rights of women in conflict prevention, conflict and post-conflict situations. The Committee called on CEDAW state parties to inter alia ensure that implementation of their WPS commitments was taking place within the broader equality and women’s rights obligations of CEDAW. Further, state parties are called to report on implementation of their WPS commitments in their periodic reports to CEDAW.

The recent Arria Formula meeting between the UN Security Council and representatives from civil society, UN Women and the CEDAW Committee was an important milestone in the continued pursuit of such synergies. Held in UN Headquarters in New York on December 5, 2016, the meeting was convened by Security Council non-permanent member Uruguay. It was formally addressed by Yannick Glemarec, UN Women; Pramila Patten, CEDAW Committee; and Maria Victoria Cabrera-Balleza, Global Network for Women Peacebuilders. The speakers emphasized the following three dividends to be gained:

Information: Improved information sharing between the CEDAW Committee and the Security Council was identified as an important benefit of improved synergies. For example, the Security Council’s assessment of country situations should be informed by the CEDAW Committee’s assessment of women’s rights in the same country, gleaned through state reporting, shadow reporting and the women’s rights issues prioritised in Committee’s Concluding Observations to states. Likewise, the CEDAW Committee could draw on the Security Council activities in situations on its agenda to identify issues for further exploration through state reporting.

Civil Society Participation: The CEDAW process of periodic state examination, as well as broad standing for individual communications and inquiry requests under the CEDAW Optional Protocol, were identified as offering particular opportunities for civil society participation without significant parallel in the WPS resolutions.

Feminist Framing: The clear emphasis of the CEDAW Convention, Committee and General Recommendation Number 30 on women’s human rights, conflict prevention per se (as distinct from the narrower question of women’s role in conflict prevention) and disarmament (for example, the role of the Arms Trade Treaty in advancing WPS) was repeatedly noted. This mooted feminist framing offered a worthy counterpoint to the security and sexual violence focused activities of the Security Council.

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African Women Judges and Gender Parity on the African Court on Human and Peoples’ Rights

At the recently ended 28th African Union Summit, held January 22-31 2017 in Addis Ababa, Ethiopia, the African Union has finally made good on its promise to promote gender parity on the African Court on Human and Peoples’ Rights (ACtHPR)! Two women judges were elected to fill the two remaining vacancies on the court, these are Justice Chafika Bensaoula of Algeria and Justice Tujilane Rose Chizumila of Malawi. This development brings the total number of women judges currently serving on the court to five out of a total of eleven judges. This development is a big victory for advocates of gender parity within the AU, as well as scholars and practitioners advocating for gender parity in international courts. The recent election is preceded by the 27th African Union Summit held in July 10-18 2016 in Kigali, Rwanda, during which there were four vacancies to be filled on the ACtHPR. At this meeting, the Assembly of Heads of State and Government of the African Union (AU) elected only two judges who were both women; Justice Ntyam Ondo Mengu from Cameroon and Justice  Marie Thérèse Mukamulisa from Rwanda. The postponement of the election to fill the two vacancies appears to have been a deliberate action on the part of the AU to make good on its gender parity promise by requiring states to nominate and elect female judges as provided for in Article 12(2) and Article 14(3) of the Protocol establishing the court. This brings the total number of women judges to have ever sat on the ACtHPR to eight, representing 34%, out of a total number of 23 judges since the court first got in session in 2006.

For the first time in the history of the court, there will be five women judges sitting concurrently on the eleven-member court. The election of Justice Bensaoula of Algeria is another major milestone as it marks the first time in the history of the court that a woman is represented from the Northern region of the continent. As Osai Ojigho has argued, increasing the number of women judges on the ACtHPR can be achieved if the vacancies are widely advertised, if nomination procedures at the domestic level are transparent and widely publicized, civil society involvement is encouraged, outstanding candidates are sought out and that at least one of three possible nominees is a woman. The recent elections have shown that where there is a will, there is always a way for gender parity. In the note verbale communications sent out to States during vacancies on the court, the Office of the Legal Counsel has consistently asked for the nomination of women. So, what changed this time around? It appears that in the last two elections, a punitive measure was applied whereby states that did not have women were disqualified to run. For scholars concerned with achieving gender egalitarian benches both at the domestic and international levels, the recent election of four women judges to the ACtHPR may provide some glimmers of hope and it is a hope that we need to actualize at other sub-regional courts on the continent.

As I have documented elsewhere, African women judges have, to date, accounted for the largest number of women judges from one geographic region to serve on the ICC. The fact that African women hold this record is indicative of the fact that women judges have the right qualifications to fill vacancies on courts at the regional and continental levels—thus the limited pool argument does not hold much sway. The patterns and history behind the growing number of African women judges in international courts, is discussed in the forthcoming volume, “African Women Judges on International Courts: Untold Stories”, (Dawuni, Josephine and Kuenyehia, Akua  Routledge, 2017). As IntLawGrrl Nienke Grossman has suggested, the use of temporary mandatory quotas may be one strategy to increase the number of women on international courts. While temporary quotas may be a good way to expand access for qualified women judges, I do not ascribe to that strategy. As we have seen in the recent elections to the ACtHPR, enforcement of existing provisions for gender parity such as the application of measures to hold States to their obligations may be one strategy to achieve gender parity. It becomes the duty of States Parties to nominate the strongest female candidates, nonetheless, women judges will also have to be intentional about gaining access to nomination processes and gatekeepers. Preliminary evidence on the record of women’s success at the domestic level in most jurisdictions across the continent as discussed in  Gender and the Judiciary in Africa: From obscurity to parity? strongly indicates that there is a big enough pool of qualified women from which to draw women nominees for international courts. We may also be missing some important factors when we focus only on the numbers. We should ask a couple of questions: first, whether female candidates know about these courts and, second, whether they are interested in positions on these courts? This is where the role of networking and awareness raising becomes crucial in programs such as open dialogues hosted by the Institute for African Women in Law, where former judges Justice Akua Kuenyehia and Justice Sophia Akuffo discussed their experiences on international courts.

As Dawuni and Kang have observed, African women judges have risen to the upper echelons of judiciaries across Africa. At the international level, we have seen the record set at the ICC, with African women accounting for 33% of the total number of women (15 to be precise) to serve on the ICC bench. The Economic Community of West African States (ECOWAS) Court of Justice comes has had 40%, the East African Court of Justice comes in at 25% and the African Court of Human and Peoples’ Rights has just moved from hovering around 18% to 34% as currently constituted. African women judges have also made their mark on ad hoc tribunals such as the ICTY, ICTR and SCSL. As the highest-ranking continental court, the ACtHPR has proven once again that where institutional mechanisms are enforced and opportunity structures are opened, African women will always rise to the occasion. This is just the beginning and it is the hope that the sub-regional courts such as the ECOWAS Court of Justice and the East African Court of Justice will learn from these new developments. Now is the time to start working towards future elections at the sub-regional levels. Now is the time for Heads of States, civil society organizations and other agencies to nominate women for future elections on the ICC and other international courts and tribunals. Now is the time to sign the pledge on the Gqual Campaign!