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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INVITATION TO BOOK LAUNCH

BOOK LAUNCH

The African Foundation for International Law  and the International Institute of Social Studies at Erasmus University, kindly invites you to the launch of ‘International Courts and the African Woman Judge: Unveiled Narratives’ and a Panel Discussion at the International Institute of Social Studies.

Date:    May 7, 2018

Time:   18:00-20:00

Venue:   Erasmus University, International Institute of Social Studies,  Rotterdam,  The Netherlands.

Event details and a flyer with link to registration can be found here: The Hague2018.

                          The event is free and open to the public. Reception to follow.

Doty named Director of Georgia Law’s Dean Rusk International Law Center; Amann and Cohen Faculty Co-Directors

Kathleen A. Doty is the new Director of the Dean Rusk International Law Center at the University of Georgia School of Law. Assisting her are two Faculty Co-Directors, Diane Marie Amann and Harlan G. Cohen. The appointments took effect on August 1.

Since May 2017, Doty (left) has served as the Center’s Interim Director. She joined the law school in 2015, serving first as the Center’s Associate Director of Global Practice Preparation and then as Director of Global Practice Preparation. Her portfolio included: planning and the implementation of lectures, conferences and other events; research projects; advising students interested in global legal practice; administering Global Externships Overseas and At-Home; and coordinating and serving as a faculty member in the Global Governance Summer School, a 10-day offering in Europe conducted in partnership with the Leuven Centre for Global Governance Studies at the University of Leuven, Belgium.

She is a longtime member and former editor of IntLawGrrls (prior posts here, here, and here), and helped coordinate the blog’s 10th Birthday Conference, held at Georgia Law this past March.

As Director, Doty will oversee both global practice preparation and international professional education, including the Master of Laws, or LL.M., degree for foreign-trained lawyers. Her duties as a member of the law faculty will include teaching the Legal System of the United States course to LL.M. candidates.

Dean Peter B. “Bo” Rutledge said:

“We are very pleased that Kate Doty has agreed to take on this leadership role at the law school. I am confident that the center will benefit from her energy and extensive experience in the practice of international law.”

This autumn, the Center will celebrate its 40th birthday. Its namesake is Dean Rusk, who served as a law professor at the University of Georgia after serving as Secretary of State to Presidents John F. Kennedy and Lyndon B. Johnson. The Center serves as the law school’s international law and policy nucleus for education, scholarship, and other collaborations among faculty and students, the law school community, and diverse local and global partners. U.S. News & World Report ranks the law school’s international law curriculum 18th among U.S. law schools.

Doty will be the fifth person to lead the Dean Rusk International Law Center, following in the footsteps of Fredrick W. Huszagh, Thomas J. Schoenbaum, Gabriel M. Wilner, C. Donald Johnson Jr., and, most recently, Diane Marie Amann (yours truly, at left).

Professor Amann, who holds the Emily & Ernest Woodruff Chair in International Law, has just completed a term as Georgia Law’s Associate Dean for International Programs & Strategic Initiatives. An expert in public international law, she is a Counsellor of the American Society of International Law and serves as Special Adviser to the International Criminal Court Prosecutor on Children in & affected by Armed Conflict. She is IntLawGrrls’ founder and an editor emerita (prior posts here, here, and here).

Amann will serve as Faculty Co-Director with Professor Cohen (right), holder of the Gabriel M. Wilner/UGA Foundation Professorship in International Law and an international economic law expert who is the Managing Editor of AJIL Unbound, the online platform of the American Journal of International Law.

In Dean Rutledge’s words:

“Diane provided excellent leadership for the Center over the past two-plus years, creating a strong foundation on which Kate and her team, assisted by Harlan and Diane, will build. I am confident the law school’s influence in the area of international law and policy will continue to grow.”

Before joining the Dean Rusk International Law Center, Doty practiced treaty law in Washington, D.C., as Assistant Counsel for Arms Control & International Law at the Office of the General Counsel, Strategic Systems Programs, U.S. Department of the Navy. Before that, she was Attorney-Editor at the D.C.-based American Society of International Law, where her duties included managing the American Journal of International Law and editing publications like ASIL Insights, International Law in Brief, International Legal Materials and the Benchbook on International Law. Her published writings cover issues such as the European Court of Human Rights, refugee law, transitional justice and the U.S. military commissions at Guantánamo.

She serves in leadership roles for the American Society of International Law (with which Georgia Law is an Academic Partner), as Chair of ASIL’s Non-Proliferation, Arms Control, and Disarmament Interest Group and Vice Chair of its Lieber Society on the Law of Armed Conflict. In 2016, Doty was selected as a Young Leaders Fellow by the World Affairs Council of Atlanta and joined other fellows in a professional development tour of China.

While earning her J.D. degree at the University of California, Davis School of Law, she competed in the international rounds of the Philip C. Jessup International Law Moot Court Competition. After serving as a judicial clerk on the Hawaiʻi Intermediate Court of Appeals, she was the inaugural Fellow of the California International Law Center at Cal-Davis Law. She received her undergraduate degree from Smith College, with a major in Latin American Studies and a minor in Film Studies, and studied abroad at La Universidad de la Habana in Cuba. She is fluent in Spanish and proficient in French.

[I’m very pleased to cross-post this item, which appeared at our Center’s Exchange of Notes blog. References to IntLawGrrls have been added for the purposes of this cross-post.]

You Go, ‘Grrl!

bio_Kalantry_Sital_sk49

“There are too many men in India today.”  So reads the first line of an an op-ed in today’s New York Times entitled “How to Fix India’s Sex-Selection Problem” penned by IntLawGrrls editor Sital Kalantry (congratulations!).   Most of our readers are familiar with the issue of sex-selective abortion and the resulting imbalance in the ratio of males to females in India.  Sital explains that the statistics suggest a correlation (though not causation) between a large male surplus and violence against women.  Rather than the more commonly-presented solution of banning sex-selective abortion, which she argues is unrealistic, Sital suggests the possibility of sperm sorting, which enables parents who want a girl to select the appropriate chromosomes prior to artificial insemination.  Indian law currently prohibits sperm sorting, and she proposes an amendment to “allow pre-implantation sex selection” for families who want a girl child.  The backstory, data, and details are available in Sital’s new book, Women’s Human Rights and Migration, which was published this month by the University of Pennsylvania Press (another congratulations!).  A longer update on the book, which I am in the middle of reading, will be forthcoming soon, but in the meantime I recommend both the op-ed and the book for those looking for a nuanced and thoughtful exploration of the issue of sex-selective abortion in India. You Go, ‘Grrl!

Georgia Law’s Chanel Chauvet, IntLawGrrls conference presenter, begins term as ILSA Student President

Chanel Chauvet, a Dean Rusk International Law Center Student Ambassador and member of the J.D. Class of 2018 at the University of Georgia School of Law, has turned to social media to reach the global membership of the International Law Students Association, whom she now serves as 2017-18 Student President.

In the YouTube video above, she offers her

“deepest gratitude for the confidence that the International Law Student Association chapters all around the world have placed in me and members of my administration.”

That team of student officers were elected earlier this year by vote of the chapters. Chanel adds:

“I would also like to thank the faculty at the University of Georgia School of Law and my family for their support.”

Also thanked were predecessor presidents, among them Kaitlin Ball, who earned her Georgia Law J.D. in 2014 and is now a Ph.D. candidate in the Department of Politics & International Studies at the University of Cambridge, England. (Kaitlin also presented at the March 2017 IntLawGrrls conference, and she’s posted here numerous times.) They are the 2d and 3d Georgia Law students to hold the position; also leading ILSA while a student was Richard Alembik (JD’91).

My student in a number of international law classes and a presenter at Georgia Law’s IntLawGrrls conference last spring, Chanel is working this summer as a Legal Fellow at CARE headquarters in Atlanta. Last summer, she earned a Certificate in International Humanitarian Law at Leiden Law School’s Grotius Centre in The Hague, Netherlands. Prior Exchange of Notes blog posts by or about her are here.

Her ILSA statement looks forward in particular to ILSA’s 2 signature events, the International Law Weekend set for October 19-21 in New York, and the Philip C. Jessup International Moot Court Competition, final rounds of which will occur in April 2018 in Washington, D.C.

¡Brava!

 

(Cross-posted from Exchange of Notes blog)

ASIL-Midwest Works-in-Progress Conference: Call for Submissions

 

ASIL-Midwest Works-in-Progress Conference

Call for Submissions

ASIL-Midwest, an interest group of the American Society of International Law (ASIL) is co-sponsoring its fourth scholarly works-in-progress conference at the Cleveland-Marshall College of Law in Cleveland, Ohio on September 15-16, 2017. The goal is to create a friendly, open conversation about works in progress and to foster a Midwestern United States international law community. To that end, the workshop will include both full drafts and early works in progress.

Those interested in presenting at the conference should send a 500-word abstract to ASIL-Midwest Co-Chair Cindy Buys (cbuys@siu.edu) by Friday, July 28, 2017. Please also include a sentence about the stage the paper is expected to be in by September (e.g., reasonably complete draft, early work in progress, etc.). Papers may address any International Law topics, and this Call for Submissions is open to everyone in the international legal community.  Preference will be given to ASIL members who are also members of the ASIL-Midwest Interest Group.  Paper presenters will be asked to circulate their drafts (or a summary of the project if it’s early stage) to workshop attendees no later than September 1, 2017.

Those interested in serving as a commentator for a paper should also send an email to the Co-Chair Cindy Buys by July 28 (cbuys@siu.edu).  Commentators will be asked to prepare five to eight minutes of comments on one or more of the papers. Those interested in presenting are also encouraged to comment on the other papers and should indicate whether they are willing to serve as commentators as well.

ASIL members and Cleveland-Marshall College of Law faculty, staff, and students may attend for free. Participants who are not ASIL members or Cleveland-Marshall College of Law affiliates will be required to pay a $50 registration fee (includes workshop and some meals) for the conference. Some meals will be provided, but participants are responsible for their own travel and hotel expenses. More details regarding transportation, hotels and other logistics will be provided shortly.

For any questions about papers and presentations, please contact ASIL-Midwest Interest Group Co-Chairs, Cindy Buys (cbuys@siu.edu) or Neha Jain (njain@umn.edu).  For questions about conference logistics, contact immediate past-Chair, Milena Sterio (m.sterio@csuohio.edu).

USC Shoah Foundation awards inaugural research fellowship to IntLawGrrl Diane Marie Amann

The first-ever Breslauer, Rutman and Anderson Research Fellowship has been awarded to Diane Marie Amann, IntLawGrrls’ founding editor emerita. Amann joined the University of Georgia School of Law in 2011, taking up the Emily & Ernest Woodruff Chair in International Law. She also has served, since 2015, as Georgia Law’s Associate Dean for International Programs & Strategic Initiatives.

Amann speaking at the 2016 launch of the International Criminal Court Office of the Prosecutor Policy on Children that she helped prepare in her role as the Prosecutor’s Special Adviser on Children in & affected by Armed Conflict.

The Breslauer, Rutman and Anderson Research Fellowship arises out of a recent gift to the Center for Advanced Genocide Research at the University of Southern California Shoah Foundation in Los Angeles.

Established by Steven Spielberg in the early 1990s, just after he completed his film Schindler’s List, the foundation contains extensive visual history archives. These include oral histories by numerous participants in the post-World War II trials in Europe. Those trials lie at the core of Amann’s scholarship on “Women at Nuremberg,” which explores the many roles women played in those proceedings, including prosecutors, defense counsel, journalists, witnesses, staffers, and defendants – everything except judges. (Prior IntLawGrrls posts on this subject available here.)

Among those whose oral histories may be found at these archives are two members of the U.S. prosecution team: Cecelia Goetz, who as part of the Krupp case became the only woman to deliver part of an opening statement at Nuremberg, and Belle Mayer Zeck, who helped to try the Farben case. As quoted at the USC Shoah Foundation website, Amann commented:

“I’m very interested in finding out what they remember and what they thought was important and what their feelings were about the Nuremberg project. It seems to me there’s a lost story about that era that would be worth uncovering to give a richer picture of what that period was about.”

Amann’s visit to USC will occur next January, during a research-intensive Spring 2018 semester during which she will continue to pursue a Ph.D. in Law at Leiden University in the Netherlands.

(Cross-posted from Exchange of Notes blog)