Open Letter to the African Union: Africa’s Opportunity to Address the Gender Diversity Problem at the International Court of Justice

Women of Africa are increasingly demonstrating their resilience in global leadership, financial institutions, international criminal law, the United Nations, the World Bank and the International Criminal Court to name a few. But there is more that needs to be done— the November 11, 2020 elections to the bench of the International Court of Justice (ICJ) provides a unique opportunity for member-states of the African Union to once again demonstrate their support for gender equality by supporting the candidature of Judge Julia Sebutinde of Uganda—the first and only African woman to serve on that court.

Currently, women represent only 20% of the judges on the bench of the ICJ. As the ICJ is poised to celebrate its 75th Anniversary in April 2021, it is noteworthy that historically, out of the 108 judges since the court was established, only four have been women. To date, the principal judicial organ of the United Nations remains the most gender-imbalanced international court in the world. This imbalance has prompted scholars and advocacy groups such as the Gender Equality Campaign (GQUAL) to engage in advocacy for diversifying the ICJ bench. On November 11, 2020, elections will be held to fill five judicial positions on the ICJ. Of the eight candidates on the ballot for this election, three are women; Julia Sebutinde of Uganda, Hanqin Xue of China, and Maja Seršic, of Croatia.

In 2012, Judge Julia Sebutinde made history as the fourth woman to be elected to the bench of the ICJ in over 60 years of the Court’s existence. Judge Sebutinde’s election was remarkable for reasons beyond her gender: she was also the first woman from the African continent to be elected to the ICJ, compared to the 14 African male judges who sat on that court before her. As an international judge, Judge Sebutinde’s appointment signaled the intersections of race, gender, geographical location, and other identities that women from non-western societies must navigate. Judge Sebutinde’s journey to the ICJ, was as a combination of an unwavering ambition to become an international judge, and professional experiences spanning 41 years, having has served as a judge and jurist at national and international levels, including as a judge of the High Court of Uganda and the Special Court for Sierra Leone. 

Judge Sebutinde’s multiple and intersecting identities of race, gender, geography, as well as her professional experience  are reflective of her journey to the international bench, a journey which she describes as ‘different threads that were woven into a kind of cloth, the kind of cloth that I now am’ (quoted in Judge Julia Sebutinde: An Unbreakable Cloth,” in International Courts and the African Woman Judge: Unveiled Narratives.

Judge Sebutinde’s journey as the first woman from an African country to sit on the ICJ is symbolic of the increasing number of African women judges sitting on international courts since 2006.  As one of the most gender-imbalanced international courts, the upcoming elections in November to fill the five vacant seats on the bench of the ICJ provides a unique opportunity for the Africa group of States to back the nomination and election of a strong candidate—who just so happens to be a woman!

Judging Julia Sebutinde

On Merit

Judicial selection processes to international courts aspire to meet the highest standards of merit, integrity, professionalism, equal opportunity, inclusion, and diversity. Julia Sebutinde possesses a total of 41 years of experience as a judge and jurist at national, regional, and international levels. Her expertise spans public international law, international humanitarian law, international human rights law, the law of the sea, environmental law, and international criminal law. As a judge at the ICJ since 2012, Judge Sebutinde has contributed to 40 Judgments, 65 Orders of Court, and an Advisory Opinion. Besides her judicial functions, she has served on the Court’s essential committees, including the Chamber of Summary Procedure, the Budgetary and Administrative Committee, and Head of the Information and Communications Technology Committee of the Court. As an incumbent judge, she has experience in the internal operations of the Court. She has initiated key internal reforms that have contributed to strengthening the ICJ internally, including internal justice for staff members and the modernization of the Court’s processes.

Judge Sebutinde’s knowledge and grasp of international law builds on her experiences as Judge of the Special Court for Sierra Leone (SCSL) (2005-2010); and Presiding Judge of Trial Chamber 2 of the Special Court for Sierra Leone (2007-2008 and2010-11). Judge Sebutinde’s contribution to jurisprudence is captured by international law professor Nienke Grossman when she notes;

Among Judge Sebutinde’s most noteworthy individual opinions during her time on the Special Court are a separate concurring opinion regarding “forced marriage” in the AFRC Trial and a dissenting opinion on whether to accept a late brief by defense counsel in the Taylor trial. Judge Sebutinde’s separate concurring opinion in the AFRC trial explored the legal contours of “forced marriage” and highlighted the testimony of expert witnesses on the subject.

Judge Sebutinde has written many declarations and separate opinions appended to the judgments of the ICJ, thus contributing to its jurisprudence, including a separate opinion to the Chagos Advisory Opinion, in which she elaborated on the right to self-determination in the context of decolonization as having attained peremptory status (jus cogens) under customary international law, from which no derogation is permitted.

Judge Sebutinde has delivered numerous papers and public lectures and holds several international awards, including two Honorary Doctorates, in recognition of her contribution to international peace and justice. Having served on the ICJ bench since 2012, Judge Sebutinde brings with her the knowledge and skills of an incumbent judge who has demonstrated that she understands the internal workings of the Court and has contributed to international law through her judicial opinions.

On Process

Fourteen male African judges preceded the arrival of Sebutinde as the first African woman judge at the ICJ. The practice has been for the African Union (AU) to endorse the re-election bid of incumbent judges contesting for a second term. Judge Julia Sebutinde is the first and only African woman on the Court, and the first judge whose bid for a second term has not been formally endorsed by the AU and is instead challenged by two male competitors. While AU endorsement does not necessarily mean an automatic election, the fact that the first woman candidate’s bid for re-election has not been endorsed by the AU, calls for further reflection on promises of gender equity in representation. The AU must honor the customary practice of supporting incumbent candidates for re-election by openly endorsing the re-election bid of the incumbent candidate who just so happens to a woman.

On Gender Equality

Gender equality does not mean that women should be nominated or endorsed at the expense of men. The ICJ’s infamous historical record as one of the most gender-imbalanced courts in the world requires deliberate action in addressing this disparity. All the former male African judges of the ICJ received the AU’s endorsement, and each one served two terms (unless they died in office or voluntarily resigned). Why is the AU refusing to endorse the first and only African woman judge? The lack of endorsement by the AU should send a chilling signal to all member States, international organizations, civil society advocacy groups, women’s organizations, and all individuals interested in gender diversity, inclusion and equal opportunities for all sexes. The AU must affirm its commitments on gender equality contained in multiple legal instruments at the regional and international levels. The election of international court judges should be of concern to all members of the international community. As a principal judicial organ of the United Nations, the bench of the ICJ should symbolically reflect the world’s gender diversity.

The AU must hold true to the progress within the AU system as demonstrated by the election of women judges to the ACtHPR—making it the most gender-balanced court in the world currently. In electing judges to the ICJ, the AU and individual African states have been presented with a unique opportunity to showcase to the world that qualified African women candidates have equitable and strong support from member-states of the AU to serve in international organizations. The AU must live up to its commitment to promoting gender equity, equality, inclusion, and diversity as espoused in the Maputo Protocol. The AU must continue the progress made, as seen in the number of women represented in the African Commission and the African Court (ACtHPR). The African Union must live up to its espousal of gender equality by endorsing the incumbent candidate’s re-election—who has the merit, comes with a wealth of international law experience, and just so happens to be a woman!

**An earlier version of this post was published on the blog of the Institute for African Women in Law.

Defending Against Charges of Sexual and Gender-Based Crimes: Confronting Prejudices of Counsel on a Defence Team

(This post is an excerpt from a longer forthcoming article on ‘How to Litigate an International Criminal Case’)

Introduction

It should be uncontested that for a defence counsel to do her/his job effectively, it is necessary to put aside whatever prejudices and pre-conceived notions s/he may have about the charged crimes.  Counsel must separate her or his subjective feelings about the charged crimes from the task of defending against the charges: this is essential to mounting an effective defence for the client.  In short, in order to “think like a lawyer,” s/he has to recognize what prejudices s/he may be harboring and struggle to ensure that they do not interfere with the representation of the client.  This process is generic to effective defence work:  it must be undertaken, in different forms, regardless of who the counsel is and her or his characteristics.  And the process is ongoing:  counsel must engage, and often re-engage, in it throughout every case. 

The necessity of this process is plainly illustrated in the case of male counsel and the defence of sexual and gender based crimes (sgbc).  I have singled out the role of male counsel because I believe that the difficulties and obstructions associated with male supremacy are the main obstacles when defending against these crimes, and also have a spill-over effect on a team’s working conditions.   

I would not conclude that women counsel, because of gender, are immune from prejudices or pre-conceived notions about sgbc – but these prejudices and notions are within a different framework.  We are still operating in a society where men generally exercise (or strive to exercise) power over women, and not vice versa.  

I also recognize that the gender criterion in sgbc, in some circumstances, applies to crimes against boys and men.  This makes perfect sense:  it is a logical extension of the premise that male supremacy, which targets – in the first instance – women, also results in conduct that attacks men.

LastIy, I have directed this note to Defence teams.   Male supremacy is obviously not limited to Defence teams – it is found in all aspects of the judicial processes, and among all parties.  I believe that if the Defence struggles on the issue of male supremacy within a team, the defence team will become stronger, and will be better positioned to deal with the issue of male supremacy in other parts of the judicial system and the court processes.

1.  Sexual and gender based crimes are the most highly charged allegations for all parties involved in an international criminal case.

As heinous as other criminal allegations are, and as difficult as they may be to defend against, sexual and gender based crimes  are the crimes that evoke passion, emotion and subjectivity to the greatest degree. 

             Sexual and gender based crimes (sgbc), in some ways, are the most intimate and personal of crimes.   They involve violations which occur simply because of one single fundamental part of one’s identity:  one’s gender.  While not all sgbc involve sexual conduct or acts, per se, the alleged criminal conduct is based on the sexual identity of the victim (usually, but not exclusively, women).

             Sexual and gender-based crimes are also the most universally familiar of crimes:  to one degree or another, many of the elements of the crimes have become “part and parcel” of daily life for countless women (and men). 

             Yet, most of the conduct involved in sgbc never makes it into a courtroom….and it is dealt with by women, alone and in private.  

             But because of the ubiquitous nature of these crimes in societies, it is almost a “spontaneous” reflex for someone to identify with the victim, or, in some instances, with the perpetrator of male supremacy.

2.  Counsel understands the charges and interprets them against his own view of, and practice with, women. 

             This means that when a counsel is defending a client against sgbc, it is not unusual for him to analyze the crimes from a subjective point of view:  his analysis of the crimes charged is tainted by the counsel’s own values, societal or cultural influences, and experiences in his personal life – most particularly in respect to women.  

             For male counsel who are fighting male supremacy and are fair to women and treat them as equal partners, there is no problem – they take the lead in formulating the theory of the case in respect to sgbc, and identifying key issues. 

             But for male counsel who operate as privileged and show disrespect toward women….the effects can be destructive to the client’s defence.  If he views women from a lens of male entitlement or privilege, he may not necessarily view alleged criminal conduct against the accused as being criminal.  For example, if a client is charged with rape, a counsel who views women as sexual objects for the pleasure of men, will not be able to understand the elements which have to be defended against….because he conceives of the conduct as “normal” for a man, i.e., it is not a crime.

3.   This means that the predicate to effectively defending sgbc crimes is to identify and recognize the prejudices on the Defence team, especially from counsel and make conscious efforts to overcome these prejudices.

             This is much easier said than done, obviously.  This process demands an awareness or consciousness of one’s views and opinions.  Levels of awareness or consciousness, especially about biases, vary among individuals.  

             A male counsel, especially if he has perfected his attitudes toward women for decades, does not (and perhaps, cannot) easily leave sexist baggage at the door.

             A lawyer who treats women as sexual objects cannot develop a coherent and comprehensive strategy for defending against sgbc.  The counsel becomes an “apologist” for the alleged criminal acts, in some cases.  Or, the counsel may rely on his interpretation of his own cultural background to justify his view of women.  Within different cultures, there is an ongoing struggle for equality and respect for women, often led by women.  This means that the counsel’s use of culture may not accurately reflect the view of women in the same culture.           

             And, the person who has the most to lose is the client, who is charged with these crimes.   

              In essence, this male “blindspot” makes it impossible for counsel to mount an effective defence for the client and counsel is vulnerable to being compromised by his prejudices.        

4.  The Spill-over Effects

             There is a “spill over” effect between the personal and professional:  a misogynist world view affects how one treats women colleagues in a work setting i.e. are they compensated at an equal rate or are they given “less,” based on a notion that a woman may have “less” expenses because she lives with a man; are women colleagues’ ideas acknowledged and addressed, or are the ideas and suggestions ignored or dismissed, as if the women are invisible? 

             This  “spill-over” of male supremacy is not contained:  it seeps into the treatment of male colleagues on a defence team.  A counsel who fails to appreciate the contributions of women, also, most likely, will fail to appreciate the contributions of men who may not express themselves or act in a manner that the counsel understands men should act.  If a counsel presents a viewpoint in an aggressive and vociferous manner, a male colleague whose style or manner is less aggressive or less vociferous can be side-lined, or dismissed, or, in other words, treated as the women are treated. 

             This kind of behaviour creates a toxic work atmosphere for everyone – men and women.  It erodes morale and can even result in unnecessary trauma on a Defence team.  For a number of reasons, including the inequality of resources with the Prosecution, a defence team is a pressurized environment for its members.  When the pervasive and incessant male supremacy of a counsel is added to this, the result is toxic:  team members can spend too much energy dealing with these sexist abuses.  The male supremacy poisons the work environment and constantly competes for attention, distracting the team from the tasks at hand.  

In sum, counsel plays a key role in a defence team:  counsel set the standard for lawyering and lead the team in framing the issues and implementing an effective defence.    The quality of this leadership becomes one of the key indices for how effectively the team can mount a defence against charges of sgbc.  If the sgbc are not taken seriously from the beginning, and recognized – in some cases – as the charges on which the client may be the most vulnerable, it is unlikely that a coherent and comprehensive strategy to defend against these criminal allegations will be developed, and implemented.   At stake, then, is not simply the individual male supremacist practices of a particular counsel…..it is much more:  whether the client’s right to an effective defence will be realized.       

Look Into the Future of the WTO: Illuminate and Implement Inclusivity, Diversity and Equality

The most recent WTO Director-General (DG), Roberto Azevêdo, stepped down on August 31, 2020. Consequently, the new – and the first female – WTO DG will be decided in November 2020. On October 8, 2020, the final two candidates were publicized after two rounds of DG selection process. They are two of the three women candidates (Nigeria’s Ngozi Okonjo-Iweala, South Korea’s Yoo Myung-hee and Kenya’s Amina Mohamed) advanced in the selection. Candidates from Nigeria and South Korea remain to contest in the final round scheduled in late October 2020. This future women leadership appointment is believed and moreover expected to reflect and pivot significances in inclusivity, diversity and equality in the WTO. Discussion on the importance of these measures has taken place in intense and meaningful ways since summer. For example, Maria V. Sokolova, Alisa DiCaprio and Nicole Bivens Collinson have already written a piece titled ‘Is it time for women leaders in international organizations?’. They address four main issues concerning trade tensions, sustainability, inclusion and digitalization in international organizations. In their conclusion, they suggest all nations to consider the role of women leaders and their abilities, considering upcoming challenging issues in international trade and women’s proved ability to handle difficult tasks. Building from this compelling work of Sokolova et al, this blog post is focused on illuminating and implementing inclusivity, diversity and equality by ways of adopting women’s leadership and participation in the WTO’s future.

First of all, inclusivity is described as a priority of the WTO. Since 1947 when the General Agreement on Tariffs and Trade (GATT) was established, all DGs of the GATT and its successor, WTO, have been men. During the GATT period, only 5% of the 168 ad hoc panelists were women. Inclusivity of women in the dispute settlement mechanism of the WTO improved – approximately 43% of the total number of panels were women. Moreover, 5 of the total 25 Appellate Body members were women. Nevertheless, only 3 women have chaired the Appellate Body.

While this year, women leaders are found to better deal with pandemic crisis, a female leader of the WTO can bring about resilience, positive changes and problem-solve capability in post-COVID times than previous DG. Looking back at the economic crisis in 2008, some academic commentators articulated that if women were leaders in the financial sectors, the crisis could have been prevented. For example, in 2014, Irene van Staveren published ‘The Lehman Sisters Hypothesis’ on Cambridge Journal of Economics. In particular, various studies indicate that it is reasonable to expect differences made by women leaderships in effective decision-making process and clearer communication in complex international and foreign affairs.

On a further point about women’s inclusivity, this blog post suggests WTO member states, including both developed and developing countries, to include more women to participate in international trade law and policy. A bottom-up approach might be effective. This advised approach entails providing opportunities and training to more girls and women to be trade delegates, negotiators, trade lawyers and scholars. Moreover, it helps to re-design curriculum of international trade law in higher education institutions to highlight gender inclusivity and to deepen cooperation between different gender categories. It is also helpful to appoint more women in leading roles in cross-border firms in international trade and associated non-governmental organizations. Furthermore, in WTO member states’ domestic law and policy implementation, this blog post advocates states to offer specific support, such as assisting women candidates to engage in local politics or to work for governments, to develop a more friendly political environment.

Secondly, ethnic diversity is on the agenda of trade promotion in the WTO. Looking at previous appointments of DG of the GATT and WTO, more than half of the previous 9 male leaders are from developed economies, such as Pascal Lamy (2005-2013) from France, Eric Wyndham-White (1948-1968) from the UK, and Mike Moore (1999-2002) from New Zealand. Whether the Nigerian candidate or the South Korean candidate, the new female DG of the WTO will represent developing economies and project a new voice to open an unprecedented chapter in post-pandemic era. This is particularly inspiring and welcome news, since for many years, the WTO has been criticized for its deficiency in promoting the interests of the least developed countries and developing countries in international trade. Moreover, the impact of COVID-19 trade disruptions on women in least developed countries is negative in significant ways. As a result, it is anticipated that the next DG of the WTO, who is from less advanced economies, will be a champion for diversity, respecting ethnicity and developmental issues.

Finally and more importantly, gender equality as enshrined in UN Sustainable Development Goals (SDGs) still has to be implemented after strengthening women’s inclusivity and diversity in the WTO and other international organizations. Recently, World Bank and the WTO co-published a report, which assesses the role of international trade to promote gender equality. This blog post emphasizes key and valuable points in this publication. Firstly, the evolving nature of trade produces opportunities for women, and we should create accessible channels for women to make most of these opportunities. The digital economy and the service economy are both remarkable examples since they provide an inclusive growth and gender friendly employment. Secondly, better trade policies will benefit women. We should continue working on breaking down women’s barriers to trade, especially vulnerable women and/or women in least developed countries and developing countries.

To conclude, having an increased number of women to take part in leading and/or participating in international trade is undeniably significant. Appointment of a new female DG of the WTO is a good start and enables us to establish and look into a more inclusive, diverse and equal future.

Introducing I-Ju Chen

It is our great pleasure to introduce our new IntLawGrrls contributor I-Ju Chen. Dr. I-Ju Chen holds a PhD in law from the University of Birmingham in the UK and an LLM degree from the University College London. She specializes and widely publishes in international trade law. She researches and teaches this subject at Birmingham City University in the UK. After completing her LLB and LLM, she practiced international commercial law and worked as a legal research fellow for a prestigious industry think-tank in Taiwan. Her research interests also lie in international law, geopolitics and law and development. She holds a certificate of public international law from The Hague Academy. She also coaches mooting in international law.

Heartfelt welcome!

Rights, Rules and Rhetoric: Exploring Language for and about Migrants in Australia, Europe and North America

The Language, Culture and Justice Hub of Brandeis University invites you to participate in an asynchronous and written online “learning exchange” exploring diverse language challenges facing migrants as they navigate legal and other critical contexts, work in academic/professional settings, and respond to rhetoric that (mis)(re)presents them. 

The event will take place around the clock on 17 and 18 November (starting 16 November in North America).

Participation is simple: over the course of the exchange, attendees log on at their convenience to the learning exchange platform to review comments and contribute their own thoughts to the developing group conversation. A minimum of two hours of participation is expected, and there are no registration fees. 

Entitled Rights, Rules and Rhetoric, this virtual exchange seeks to examine and compare diverse language-related facets of the migration experience across Australia, Europe and North America. These facets can be grouped along three axes:

1) the rights enacted through laws or directives ensuring procedural fairness for migrants, including their ability to access critical information in their languages through translated documents or interpretation;

2) the everyday rules, written and unwritten, of language provision and practice in situations involving migrants which may fall short of formally guaranteed rights and reflect various “language ideologies,” that is, common if sometimes misguided understandings of how language works; and

3) the problematic or demonizing rhetoric about migrants and their communities of origin, and the obstacles such rhetoric may create for people on the move.

The exchange will also examine the impact of the current pandemic both on the availability and adequacy of language services, and on public narratives about migrants from regions that have been described, often inaccurately, as sources of the coronavirus.

Rights, Rules and Rhetoric seeks participation by a broad range of actors: migrants, international students, asylum seekers/refugees, scholars, researchers, activists, and practitioners and policymakers from diverse fields. The working language of the exchange will be English, but contributions can also be offered and read in Spanish, French, and Arabic with the help of computer-generated translation.

Visit the event webpage to download the preliminary program and read more about the aims of the learning exchange, organizers and partner institutions, and how it will all work.

Register for the Rights, Rules and Rhetoric learning exchange until 9 November 2020.

Direct any questions to learning exchange coordinator Hillary Mellinger: hmellinger@brandeis.edu.

We hope you will contribute your perspectives and experiences during this important event exploring language and migration. Please forward on this call for participation to others who might be interested and share the Facebook event with your networks.

Go On! International Nuremberg Principles Academy Book Launch Event

The International Nuremburg Principles Academy announced open registration for the launch and panel discussion of the 3rd volume of the Nuremberg Academy Series, The Tokyo Tribunal: Perspectives on Law, History, and Memory edited by Viviane E. Dittrich, Kerstin von Lingen, Philipp Osten and Jolana Makraiová.

The launch event is on October 30, 2020 at 10:00AM-11:30AM CET. The panel discussion will focus on contemporary perspectives of law and history, and the ongoing significance of the Nuremberg and Tokyo Tribunals.  Click here for details on how to access the book and for the registration link!

The Black and White Campaign in Turkey and its Repercussions Amidst Rising Femicides and an Increasing Hostility Towards the Istanbul Convention

Pinar Gültekin a 27-year-old University student was brutally beaten and burned to a crisp by her ex-boyfriend on 21stJuly 2020 in Turkey adding to the country’s long list of femicides. The victim was reported missing for six days before being found dumped in a bin strangled to death by her former partner for disagreeing to reconcile with him. 

While the news of Gültekin’s death ignited demonstrations all across the country and women and men alike took to the street’s, the death of Pinar and similar atrocities against women in Turkey inevitably raises a few questions. What should happen when a 27-year-old girl is strangled to death and burned to a crisp by her ex-partner? What are the repercussions of a mother being stabbed to death by her husband in a café in front of her child? What happens when a girl is stabbed and burned to her death because she resists rape? What happens when the mysterious death of an eleven-year-old girl is deemed “suicide” by the judiciary. Maybe the answer to the above-mentioned questions lies not in what happens but how it happened or who/what perpetrated the incidents. While the atrocities may be perceived by some as interpersonal their prevalence only against a particular section of the community indicates towards an institutionalisation of violence abetted by a chauvinist patriarchal society. 

Violence against women existed long before the expression “femicide” was devised in 1976 by Diana E. Russell at the first “International Tribunal on Crimes Against Women in Brussels, Belgium”. While the term is defined by the “United Nations Office in Drugs and Crime”as the gender-based homicide of women it not just refers to the killing of women but condones an entire system of Judicial administration that fails to safeguard the women and prosecute the perpetrators. The concept is similar to “rape culture” except applying only in cases of murder concerning a women’s sexual orientation, indigenous identity, dowry-related issues. However, contrary to majority perception the acts under no circumstances are unrelated and spasmodic but is abetted by a chauvinistic society exhibiting unequal power structures and conventionally defined gender roles where women often find themselves pushed to the margins. Encouraged by Right-Wing Populist Parties the above-mentioned manifestations of violence against women in Turkey has increased exponentially over the decades.

The misogynistic heteronormative dogmas embedded in the social fabric of Turkey gets exemplified by the Global Study on Homicide, 2018 conducted by the “United Nations Office on Drugs and Crime” which reportedly delineated the death of 89,000 women in Turkey in 2017. Turkey has been ranked114 of 167 countries in the “Women, Peace and Security Index, 2019” and 130thof 149 countriesin “WEF’s the Global Gender Gap Index, 2020”. The data is at face value enough to glean the status and treatment of women in the country. 

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Introducing Indrasish Majumder

It is our great pleasure to introduce our new IntLawGrrls contributor Indrasish Majumder. Indrasish is pursuing his B. A L.L. B (Hons.) from National Law University Odisha. He has a special interest in Human Rights, Humanitarian Law, Public International Law and Criminal Law. Accordingly, he has presented and published articles and papers in National/International seminars namely: Indian Law Institute (New Delhi) ‘International Conference on Human Rights and Person with Disabilities’, Amity University ‘International Conference on Human Rights of women, children and sex workers’, MNLU‘National Conference on Gender Justice and Media’ edited books and blogs e.g. Opinio Juris, Jurist Commentary (University of Pittsburgh), International Policy Digest. In pursuance to his interest in policy research, Criminal Law and Human Rights he has interned at the NLUD Centre for Criminology and Victimology and volunteered at the Amnesty International Troll Decoders Project.

Indrasish exhibits a keen interest in working for the underprivileged and has been involved in various volunteering programs in his college and outside. The Robin Hood Army ( involved in accumulating leftover food from restraint across Calcutta and distributing them among the
underprivileged), Increasing Diversity by Increasing Access (IDIA) (A pan India initiative by students from National Law Universities to help the underprivileged overcome their monetary constraints and pursue a legal education), Parichay (working in tribunals on behalf of the people left out from the final list of National Register for Citizens in India), IAYP (International Award for Young People), Child Rights and You and Help Age India, to name a few.

Heartfelt welcome!

To Detain or Not to Detain? Deciphering Detention in Non-international Armed Conflicts

Internment is a frequent occurrence in armed conflicts. Particularly in the aftermath of the litigation surrounding the Guantanamo Bay detention facility and the US’s justification for the displacement of human rights norms, questions about its authority to detain individuals in non-international armed conflicts (“NIACs”) received increased attention. This post will take a closer look at these questions – in particular, the legal basis for detention in NIACs under international humanitarian law (“IHL”) and human rights law (“IHRL”).

In international armed conflicts (“IACs”), the detention regime is sufficiently grounded in the Geneva Conventions. Articles 21 and 4A of the third Geneva Convention confer on states a right to detain prisoners of war, only so long as the circumstances that made internment necessary continue.

In comparison, in NIACs, the IHL basis itself is debatable. For one, the Geneva Conventions do not authorise detention or even prescribe procedures to challenge detention in NIACs. At most, Common Article 3 regulates the treatment of persons deprived of their liberty and Articles 5 and 6 of Additional Protocol II contemplate that internment occurs in an NIAC. This is not to say that contrary views don’t exist. Goodman constructed a case for why IAC rules on detention can be extended by analogy. Goodman reasoned that IHL itself permits States to a fortiori undertake those practices in an NIAC that they can implement in an IAC. However, this argument is not completely reasonable since some NIAC rules are arguably more restrictive, in that they divest ‘fighters’ of privileges that they would otherwise enjoy in IACs – whether it is combatant immunity or rules of targeting.

This question came up before the British High Court in the Serdar Mohammed case. The claimant alleged that his capture and detention by Her Majesty’s armed forces in Afghanistan, from 7 April 2010 till 25 July 2010, was unlawful because it exceeded the authorized period of detention as per the arrangement between Her Majesty’s armed forces and the State of Afghanistan. This amounted to a breach of his right to liberty under Article 5 of the European Convention of Human Rights (“ECHR”). In response, the Secretary of State argued that Article 5 of the ECHR was not the correct legal basis here, since IHL rules on detention in NIACs displace or modify the ECHR. To establish that IHL permits detention in NIACs, the Secretary of State theorized that the implicit power to kill those participating in hostilities in an NIACSs would have to logically encompass the power to detain. However, the Court rejected this argument noting that it was not convinced that the regulation of restrictions of right to life under IHL could be read as an ‘authorization’ to kill. Even if it is, the power to kill does not go further than justifying the capture of a person who may lawfully be killed.

The Secretary of State also suggested that the norms of IACs under the Geneva Conventions and Additional Protocols could be transposed to NIACs by analogy. However, the Court was not sympathetic to this proposition either. Mainly because the drafting history of the Geneva Conventions reflected a clear intent not to authorise detention in Common Article 3. The drafters feared that such a power would enable insurgents to claim that they would also be entitled to detain captured members of the government’s army by operation of the principle of equality of belligerency.

Upon appeal, the British Supreme Court employed alternative reasoning to authorize detention. Instead of IHL, the Court grounded its ruling in IHRL. The Court essentially followed the Hassan case, where the applicant’s brother was detained in Iraq by British forces for over 6 months in 2003.  The applicant’s primary contention was that the Geneva Conventions, in so far as they applied to the NIAC in Iraq at the time, did not permit the British forces to act in violation of Article 5(1) of the ECHR. There the European Court of Human Rights (“ECtHR”) found that Article 5(1) of the ECHR, which permits detention on six permitted grounds, can also invoked to authorize detention during international armed conflicts. The only caveat the Court added was for such detention to not be unduly broad, opaque or discretionary. The Court in Serdar Mohammad went one step further, to extend Article 5(1) to NIACs.

Fortunately, in so doing, the British Supreme Court did not displace IHL completely (an erstwhile view that met with much censure). It chose instead to marry IHRL with IHL. Nonetheless, the decision must still be viewed with caution. For one, it offers little justification for why State parties should not invoke the ECHR’s derogation clause under Article 15.

Moreover, the Court in Serdar Mohammed did not engage with the past jurisprudence of the ECtHR on detention in NIACs where the only condition on which detention was allowed was if there was a clearly worded Security Council resolution to support such detention. Even if the requirement of a resolution is seen as dispensable, it is callous to ignore the requirement of explicitness – either in the IHRL/IHL treaty or in State support (in case the position attains customary status).

With treaty language such as that in the ICCPR (illustratively, Article 9 only proscribes arbitrary arrest or detention), it is easier to cull out an IHRL basis for detention. However, this task is far more onerous when it comes to the ECHR – which does not contain harmonizing language per se. Till such time as explicit authorization is missing, States should strive to comply with the rule of derogation. To ensure effective compliance, international courts should also work towards setting a baseline below which rights cannot be derogated from, thereby protecting the integrity of the IHRL/IHL treaty and identifying the minimum rights that States are bound to afford to those within their jurisdiction.


Introducing Raghavi Viswanath

It is our great pleasure to introduce our new IntLawGrrls contributor Raghavi Viswanath. Raghavi is a PhD researcher at the European University Institute in Florence. Her doctoral project investigates ways to improve State accountability for violations of cultural rights in Asia, with specific focus on India, China, and Myanmar. Raghavi obtained her primary degree in law from the National Law Institute University, Bhopal (India). During this course, Raghavi served as the Convener of the Centre for Research in International Law and the Editor-in-chief of the Law Review. She was also associated with Columbia University’s Global Freedom of Expression project as a legal researcher. Raghavi read for the Bachelor of Civil Law at the University of Oxford, where she studied international criminal law, law of armed conflict, and criminal justice. At Oxford, Raghavi worked on criminal law projects housed at the Oxford Pro Bono Publico and the Bonavero Institute for Human Rights.

Raghavi then secured the Oxford-Meron IRMCT Internship Fund to intern at the United Nations International Residual Mechanism for Criminal Tribunals in the Hague. Thereafter, she pursued an advanced masters in international criminal law at the Leiden Law School. Raghavi wrote her thesis under the supervision of Prof. William Schabas and graduated summa cum laude. Alongside her PhD at the European University Institute, Raghavi works as a research associate at the Public International Law and Policy Group where she studies trends in domestic prosecutions of international crimes. More recently, she contributed to PILPG’s amicus curiae intervention in the Bosco Ntaganda case at the International Criminal Court. Raghavi’s primary interests lie in international criminal law, human rights law, and third world approaches to international law.

Heartfelt welcome!