Introducing Sara Ochs

It is our great pleasure to introduce our new IntLawGrrls contributor Sara Ochs.

Sara Ochs is a teaching fellow at Elon University School of Law in Greensboro, North Carolina, where she teaches Introduction to Legal Studies, Legal Method and Communication, and International Criminal Law. She earned her juris doctor from Loyola University New Orleans College of Law, and her bachelor’s degree in business administration from Loyola University Maryland. Prior to entering academia, Sara clerked for the Honorable Carl J. Barbier on the United States District Court for the Eastern District of Louisiana and practiced law in New Orleans.

Sara’s scholarship examines the role of international and hybrid courts in prosecuting mass atrocities and the use of transitional justice mechanisms in post-conflict societies. She currently serves as a vice chair of the American Bar Association’s International Courts and Judicial Affairs Committee and the editor of the Committee’s Year in Review publication, as well as a researcher for Lawyers, Conflict & Transition’s Cambodia project.

Heartfelt welcome!

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Prioritising Reparations for Conflict-Related Sexual Violence over Prosecution and Prevention

Today the 19th of June marks the International Day for the Elimination of Sexual Violence in Conflict, intended to raise awareness of the need to put an end to conflict-related sexual violence. 2019 also marks the 10 year anniversary of the creation of the mandate of the Office of the Special Representative on Sexual Violence in Conflict. While the past decade has seen initiatives such as the UK’s Preventing Sexual Violence Initiative (PSVI), sexual violence remains prevalent. Moreover, international action has become a shrinking space for adequately responding to victims and survivors’ needs, such as the recently regressive 2019 Women, Peace and Security Resolution 2467 that removed all reference to sexual and reproductive services.

As a registrar doctor in obstetrics and gynaecology conducting a PhD on reparations for conflict-related sexual violence I have interviews dozens of victims of CRSV and come across many in my own practice, which continue to evidence inadequate reparations to remedy their harm. My research has also highlighted the value of an interdisciplinary approach to such complex topics, rather than remaining in our own professional or disciplinary silos, there needs to be a more coordinated response to victims’ needs. As such with victims, healthcare practitioners and transitional justice actors in Peru, Colombia and Uganda I have been exploring a medico-legal approach to reparations for CRSV to better appreciate the harm and stigma of victims and their families, how to more appropriately respond to the harm, but also the role and responsibility healthcare professionals play, such as in forced sterilisation in Peru.

This blog hopes to highlight some of my preliminary findings, in that while there has been increasing attention to reparations for CRSV, it has seen a blurring between charity/ assistance and a rights based approach to reparations that degrades remedying victims’ harm. These questions are not just academic, but also reflect victims’ experience, such as the comfort women’s rejection of funding without acknowledgement of responsibility or apology from the Japanese government. Moreover, reparations are more about providing victims with just compensation, but recognising their harm and ensuring their rights to also medical, legal and social rehabilitation along with other remedial measures (satisfaction, restitution and guarantees of non-repetition). As such this post outlines the key principles for guiding reparations for CRSV that go beyond prosecution and prevention that continue to dominate the international community’s response to such violence. There principles highlight that reparations can more appropriately respond to victims’ harm and experience, while complementing the broader goals of accountability and prevention of recurrence.

Principles

There are a number of principles on reparations for gross violations of human rights or grave breaches of international humanitarian law. Pablo de Greiff, former UN Special Rapporteur on truth, justice, reparations and guarantees of non-recurrence, suggests a number of principles to assess the effectiveness of reparation programmes of completeness; comprehensiveness and complexity; integrity or coherence; finality; and munificence.

Completeness involves the coverage of the ‘whole universe of potential beneficiaries’. Comprehensiveness covers the distinct types of violations or harm, with complexity concerning the variety of measures, such as going beyond just compensation. Integrity involves internal and external coherence, which refers to the relationship between different types of reparations and other transitional justice mechanisms respectively. Finality pertains to whether a reparation programme closes other avenues for victims to bring redress. Lastly, munificence relates to the scope of a reparation programme’s benefits. The Colombian reparation programmes aims to meet these principles, but faces problems of scale and deliverability.

However there is little guidance on conflict-related sexual violence. The 2005 UN Basic Principles on the Right to Remedy and Reparations is gender neutral, even blind, just providing a principle of non-discrimination. The civil society driven 2007 Nairobi Declaration on Women’s and Girls’ Right to a Remedy and Reparations also outlines the importance of transforming the structures of violence which give rise to sexual violence such as CRSV, but it is not binding on states.

Ruth Rubio Marin adds two further categories from a gender perspective on implementing reparations, in particular for sexual violence: openness; and transformative potential. Openness refers to the ‘level of participation of victims, victims’ groups, and other relevant actors in civil society in the design of a reparations program’. This openness not only improves the transparency and effectiveness of such reparation programs and outcomes, but Rubio-Marin suggests it can also have a ‘reparative effective by affirming the victims’ status as active citizens’ recognised and respected by the state. Rubio-Marin indicates that the transformative potential is the extent to which a reparations program has the ‘capacity to subvert, instead of reinforce, pre-existing structural inequalities’, not limited to gender hierarchies. Victims of sexual violence often face stigma from their family, community and society that disincentives them from speaking out or punishes those who do so.

A Medico-Legal Approach

A medico-legal approach would add three further principles to provide a more victim-sensitive approach: do no harm; vulnerability; and temporality. Do no harm – ensures that reparations do not compound victims’ harm, and safeguards against uninformed risks of procedures and interventions. Importantly a do no harm approach would stipulate that victims are treated with respect and dignity (both in process and outcomes) so as to guarantee they are not coerced to chose a measure they are not satisfied with nor does it reinforce stigma. For instance, when offering psychological support, victims may also need physical support or vice versus. It is imperative to recognise how one may impact the other at different points in a person’s lifetime, which needs to be reflected in referral pathways for each individual. Alternatively only offering them short term reparation when they need long term support, may cause them further harm and distrust of service providers, especially when their health trajectory is likely to degrade due to age and/or disability.

Any actor involved in reparation can cause deliberate or unintentional harm. In one interview with a local counsellor in Uganda, they told me about a male victim of sexual violence for whom they cared. When this victim went to a doctor in his local hospital he was disbelieved that he was a victim of sexual violence and was rejected from having treatment. Accordingly a component of ‘do no harm’ is recognising and challenging unsafe or unethical practice. Similarly in Colombia the use of purple bracelets helps to identify victims of sexual violence, intended to reduce victimisation by avoiding asking victims about the violation, but as an obvious marker can also cause stigma in itself an unintended harm.

Vulnerability – the situation of vulnerability appreciates how certain groups are impacted more than others, or uniquely harmed, and what type of measures would facilitate redressing intersecting violations. Further still the principle of vulnerability can facilitate a transformative approach and reveal health inequities. The principle requires priority to certain individuals who are vulnerable to access reparation to alleviate their suffering from compounding further. This may include victims of displacement and in displaced persons camps where high rates of sexual violence occurs. For sexual violence being identified as a victim in a reparation programme may cause further social repercussions such as stigma. In Colombia victims in rural areas spoke of insecurity, infiltration of health services by armed groups or social and economic marginalisation that mean they suffered multiple violations and have no service provider to turn to in order to avoid further victimisation.

Temporality – focuses on how the impact of harm can change over time (increase, reduce or resolve). It also requires consideration of the appropriate moment for which reparations to be applied. For example, HIV (human immunodeficiency virus) can develop into AIDS (acquired immunodeficiency syndrome) and conditions to related immunocompromise and late presentation of HIV, such as certain HIV-associated malignancies and opportunistic infections. This underlines the importance of providing humanitarian assistance or interim relief to victims to mitigate their health being worsened or morbidity increasing.  Equally, harm may not manifest until years after registration programme has closed, such as delayed expression of psychological effects or sub-threshold symptoms that do not meet clinical criteria of diagnosis until later in life. For instance in Colombia, medical professionals spoke about victims of CRSV often taking years to come forward, often ten or twenty years later as the consequences of their sexual violence become so acute that they can no longer hide it or cope.

An array of sensory triggers may contribute towards the manifestation of psychological distress that may be linked to sexual violence, like a further traumatic or life event, such as childbirth or a new intimate or sexual relationship. Stigma from sexual violence and the added possibility of a mental health illness functions as a barrier to timely diagnosis (stigma multipliers). Temporality also raises the question of whether reparations are the most suitable intervention given the stage of transition a society may be in (and who they are willing to accept as eligible victims for reparations at a specific time point).

Together these principles indicate that sexual violence in conflict and other situations of mass victimisation raises difficult and complex issues that are perhaps glossed over in the rhetoric of ‘ending rape in war’ or even the notion of ‘conflict-related sexual violence’ as a distinct phenomena for prosecution and reparation. At the same time there is a place for healthcare service provision and reparations to complement each other. As doctors we are not trained or practice in terms of who is a victim and who is not. Nonetheless, social and cultural contexts can shape personal attitudes of healthcare practitioners. In general terms we think of the patient as a person and treating their symptoms and working out the cause or diagnosis and formulating an individualised treatment plan for them that aims to improve outcomes. There is a lot to be learnt in these terms of seeing the person and their suffering. Importantly reparations are victim-centred measures intended to remedy and acknowledge their harm, prevention and prosecution are important, but if we are serious about justice for these types of violations it has to start with it benefiting those most directly affected.

Photo of Nurse Norbert Chambu treats approximately five victims of SGBV a week, by USAID

Go On! Rule of Law for Oceans, 4-5 November 2019

Conference in Oslo, Norway: Is law fit for purpose to protect the oceans against increasing pressures and demands? This two-day conference aims at analyzing new trends in the law of the sea, international environmental law, and related fields of law, and discussions related to the effectiveness of certain tools and mechanisms.

The Research Group on International Law and Governance (University of Oslo, Law Faculty) and the Norwegian Institute for Water Research (NIVA) organize this conference to advance discussions on the gaps and challenges in law related to the protection of oceans, and to bring forward novel legal approaches and solutions.  

The oceans are under increasing pressure from climate change, (micro)plastic pollution, loss of biodiversity, habitat destruction, unsustainable use, to name but a few, which all adversely affect the resilience of our oceans.  UN Sustainable Development Goal 14 specifically requires us to conserve and sustainably use the oceans, seas and marine resources. Key to sustainable ocean governance is the understanding of ecosystem functioning and the appreciation of interactions and interconnections among marine ecosystems, land and sea, oceans and climate, and interactions between marine and other types of ecosystems. Changes in the ecosystem functioning and resilience often have consequences far beyond in time and geographical scope and require robust but flexible and comprehensive regulatory solutions and approaches.

International law, including the UN Convention on the Law of the Sea and the Convention on Biological Diversity, provides for a framework governing States’ rights and obligations with respect to the use of oceans and their resources, protection of the environment and biodiversity as well as responsibility for the damage caused to the oceans arising from unlawful activities of different actors. Regional agreements such as OSPAR and HELCOM have similar purposes for regional seas. National legal systems also play a crucial role in the implementation of international and regional obligations. The legal system is fragmented and comprehensive, but is the law ripe for protecting oceans in the face of increasing environmental challenges and human demands? Are legal frameworks effective, strong, and flexible enough to address new challenges and pressures in light of advanced scientific knowledge and understanding of oceans? This conference aims to discuss and reflect on how we could strengthen the rule of law for Oceans.

Where can existing laws evolve, adapt and improve? And where do we have to think afresh? Which innovative approaches and mechanisms are being adopted or under discussion and what could be their advantages?

Please send your abstract (max 300 words) and a short resume to Professor Alla Pozdnakova no later than 15th August 2019. You will be notified by 1st September 2019. Full link to conference call: here

Please mark your email with “Abstract for the Ocean Conference Oslo”. Abstracts submitted after the deadline will not be considered.

The organizing committee,

Alla Pozdnakova                                Froukje Maria Platjouw

Alla.pozdnakova@jus.uio.no               fmp@niva.no

Faculty of Law, University of Oslo       Faculty of Law, University of Oslo,  Norwegian Institute for Water Research            

Write On! American Society of Int’l Law

This installment of Write On!, our periodic compilation of calls for papers, includes calls for papers to the American Society of International Law’s International Economic Law Interest Group, as follows:

The American Society of International Law’s International Economic Law Interest Group will be holding its Biennial Conference on International Economic Law on February 14-15, 2020 at the University of Miami School of Law in Miami, Florida. The theme of the conference is Designing International Economic Law: Challenges and Opportunities.

The deadline for both unpublished paper and panel proposal submissions is Monday, June 24. Submissions should be sent to 2020IELconference@gmail.com. For more information, click here.

On the Job! Internship at The Int’l Nuremberg Principles Academy

On the Job! compiles interesting vacancy notices, as follows:

The International Nuremberg Principles Academy (Nuremberg Academy) is seeking individuals on an ongoing basis for 3-month internships to support the individual areas of event organization, press, and research. 

They offer interesting and diverse insights into the work of an internationally oriented foundation located in Nuremberg, the birthplace of modern international criminal law

The Nuremberg Academy is a foundation established to promote international criminal law and is based at the site of the Nuremberg Trials, the birthplace of modern international criminal law. It makes it a special priority to work with countries and societies that face challenges in international criminal law. For more information on the requirements to apply and the position, click here.

Go On! Regional ILA Conference in Slovenia

Go On! makes note of interesting conferences, lectures, and similar events.

► The Slovene Branch of the International Law Association is organizing the first Regional ILA Conference in Slovenia. The conference will take place from June 27 to 30, 2019 in the seaside resort of Bernardin located between the town of Piran and the Portorož Riviera on the Adriatic coast. The general theme of the conference is “Migration / international legal regulation” and will thus provide a forum to address and discuss a plethora of challenging questions related to the issue of migration from both the public and private international law lens in a region largely affected by the topic. The program of the conference is available here.

The U.S. Supreme Court Can’t Avoid Sex-Selective, Race-Selective, and Disability-Selective Abortion Bans Forever

After considering the case in fifteen consecutive conferences, the Court in Box v. Planned Parenthood of Indiana and Kentucky gave us a rare window into its politics. In a carefully negotiated compromise, the Court denied certification on the U.S. Court of Appeals for the Seventh Circuit’s finding that laws that banned sex-selective, race-selective, and disability-selective abortion are unconstitutional. In addition, the Court summarily (without further briefing or oral argument) reversed the Seventh Circuit’s finding that Indiana’s law that fetal remains must be disposed of like human remains is unconstitutional.

On the question of disposal of fetal remains, Justice Ginsburg points out that the litigants used the weaker “rational basis” test rather than the “undue burden” standard articulated in Planned Parenthood v. Casey for “strategic” reasons. It is also for strategic reasons that pro-choice advocates have tried to keep what pro-life advocates call “anti-discrimination” provisions as far away from the Court as possible. While there were numerous amicus briefs from pro-life groups urging the Court to take certification in the case, no pro-choice group wrote an amicus brief.  Sex-selective abortion bans were adopted by Pennsylvania along with a host of other abortion restrictions in 1989. Planned Parenthood challenged a number of restrictions but didn’t challenge the one on sex-selection.

In the last decade, states started to ban sex-selective abortion on the false empirical premise that women, particularly Asian American women, abort fetuses when they learn of its sex. Proponents of those bans make reference to laws and practices in other countries to justify bans in the United States. Similarly, Justice Thomas also refers to countries where sex-selective abortions are widespread in his opinion. For example, he inappropriately quotes an article I wrote about sex-selective abortion in India. Vice President Pence who signed the Indiana laws when he was governor of Indiana released a statement urging the United States to follow the lead of other countries around the world and ban sex-selective abortion.

Pointing to the disproportionate abortion rate among African-American and Hispanic women, Justice Thomas suggests that race-selective abortion bans are necessary to prevent eugenics. Race-selective abortion bans prevent a woman from aborting her own fetus on the basis of its race. The text of the race-selective abortion ban was crafted to mirror the language of sex-selective abortion ban. However, the analogy becomes absurd when the actors with the purported racist and sexist intent are brought into the picture. It makes little sense to say that minority women obtain abortions because they object to the race of their own fetuses. The concept of “race” itself is socially constructed so it is not even possible to know the “race” of a fetus before it is born.

The reality is that among the so-called “anti-discrimination” bans, the only type of abortions that are known to occur in the United States are disability-selective abortions. Some women who may not want to raise a child with a severe disability might choose to abort a fetus in that situation. This issue deeply divides liberal communities with some advocates arguing that aborting fetuses with disabilities such as down syndrome devalues people with down syndrome.

For the moment, Justice Thomas agreed with his liberal colleagues to punt this complicated question to a different day, but he is right to say that the Court can’t avoid it forever. Rarely does the Supreme Court explain why it refuses to hear cases on appeal, but in Box v. Indiana, they stated that they refused to hear a challenge to the Indiana bans because the Seventh Circuit was the only appeals court that had ruled on the issue. Recently, a Federal judge granted a temporary injunction against Kentucky’s bans. That case will likely be appealed to the Federal Court of Appeals for the Sixth Circuit and their opinion might diverge from the judgment of the Federal Court for the Seventh Circuit. If that happens, it would create the circuit-split that would make granting certification more compelling. Bans on specific reasons for abortion could appeal to members of the Court that do not want to drive a truck through Roe v. Wade, but are willing to kill it with a thousand cuts.

[cross-posted on the Human Rights at Home Law Professor Blog]