Can two fingers tell the truth?

In many countries around the world – still more than 20 as of late 2018 – the state of a woman’s vagina is given more importance than her words. Virginity testing is, indeed, still common practice in these countries and affects two main categories of women: the survivor of rape wishing to get justice, and the to-be married. In the latter case, the test aims at assessing the ‘purity’ or ‘chastity’ of the women by verifying the presence of their hymen (e.g. in 2018, Moroccan civil society started an important movement against the virginity test imposed on to-be married women through a very explicit slogan : « my vulva belongs to me »). In the former case, the one discussed more in-depth below, the main practice imposed on rape survivors is the famous ‘two-finger test’.

It is a very straightforward test: the doctor inserts two fingers in the vagina of the survivor to assess its size and elasticity. Depending on the result, the doctor draws a conclusion on the sexual habits of the survivor. This conclusion is then used in trial in favor of, or (much most likely) against, the testimony of the survivor. If she is considered sexually active – oftentimes deemed an “immoral behavior” – she will lose credibility and the rape case will be discarded. Not only is this conclusion disturbingly wrong but it also reduces the crime of rape to an act of penetration of the vagina. Although in concordance with the legislations of the countries where the test is performed, this highly conservative interpretation of the crime is inconsistent with the reality of its commission.

In October 2018, a UN joint statement by the World Health Organization, the Office of the High Commissioner for Human Rights and UNWOMEN called for the ban of any kind of virginity testing, including the two-finger test. The UN agencies recalled that these tests lack medical utility and scientific veracity in establishing any sexual activity, and can have a deeply harmful impact on the survivor (for an in-depth analysis of the relevance of such test and its harmful consequences see here). This call, long awaited, is of great support to the human right defenders, NGOs and other entities fighting to eradicate the practice. It may also bolster State-level developments with the same aim.

The call mirrors the international standards on prosecuting sexual violence, according to which the sexual past, behavior or habits of a survivor cannot be taken into consideration by judges. See, for example, the Rules 70 and 71 of the Rules of Procedure and Evidence of the ICC according to which “Credibility, character or predisposition to sexual availability of a victim or witness cannot be inferred by reason of the sexual nature of the prior or subsequent conduct of a victim or witness”. Taking this into account, “a Chamber shall not admit evidence of the prior or subsequent sexual conduct of a victim or witness”.

Indeed, virginity testing also constitutes a violation of the survivor’s international human rights, which dictate a right to non-discrimination on the basis of sex, physical and sexual integrity, prohibition of cruel, inhuman or degrading treatments, right to privacy, equality before the Courts and Tribunals and equal protection of the law (see mainly articles 2,3, 7,17,14, 26 of the International Covenant on Civil and Political Rights).

Continue reading
Advertisements

Introducing Dorine Llanta

It is a great pleasure to introduce our new IntLawGrrls contributor Dorine Llanta!

Dorine is a Legal Researcher at Women’s Initiative for Gender Justice, working specifically on the ‘Call It What It Is Campaign’ launched in December 2018. She is also a PhD Candidate at the University of Perpignan (France). Her research focuses on the repression and accountability of sexual violence in international and national settings. 

Prior to her current role, Dorine worked with the Centre for International Justice of Amnesty International, based in The Hague, and focuses on ICC-related legal analysis. She participated in the organisation of Amnesty International’s side-event at the 17th Assembly of States Parties to the Rome Statute on the accountability for crimes committed in Nigeria. She also worked as a legal advisor to Asylum Access Ecuador, an NGO providing legal assistance to asylum-seekers in Ecuador, South America. Through these experiences she gained substantive expertise on the prevention and accountability for sexual and gender-based violence. 

Heartfelt welcome!

Non re-appointment of Judge Akay – Is International Judicial Independence under threat?

The challenges to independence of international judiciary has again come to the fore-front with the non-reinstatement of Judge Aydin Akay Sefa for a new term by the UN to the United Nations Mechanism for International Criminal Tribunals (“UNMICT”).

Post-coup d’état in Turkey (2016), Judge Akay was arrested by the Turkish government and later convicted for his alleged connections to the Gulenist movement which was held responsible for the coup. This happened while Judge Akay still presided over the UNMICT Appeals Chamber. The UN Office of Legal affairs asserted that Judge Akay enjoyed diplomatic immunity. Judge Akay was convicted and sentenced to seven years imprisonment. While the appeal to this judgment was pending, Judge Akay was not re-appointed for a fresh term at the UNMICT. The incident sparked a fresh discourse on diplomatic immunity available to the judges of international tribunals. Judge Theodore Meron ordered[DD1] [r2]  the Turkish government to “cease all proceedings against Judge Akay” and to release him from detention [DD3] [r4] . Despite the order, the Turkish ministry maintained that Judge Akay did not possess diplomatic immunity.

This post aims to analyze diplomatic immunity of judges of international tribunals and its connection to judicial impartiality in light of Judge Akay’s conviction and subsequent non-reappointment.

Diplomatic immunity has emerged as customary international norm ever since the adoption of the Vienna Convention on Diplomatic Relations (“VCDR”). VCDR grants immunity from arrest detention and from criminal jurisdiction to diplomatic agents. The Convention of Privileges and Immunities of the United Nations (“The New York  Convention”) elucidates the importance of these immunities as a tool to safeguard the members to perform their functions independently.

While interpreting the New York Convention, the ICJ in the Mazilu case held that a UN official protected under the convention is accorded immunity from his State of nationality and/or State of residence on account of him being an international official. The ICJ in the case of Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights clarified the status of UN officials in the New York Convention and held that in cases where immunity of  a UN agent is brought before the domestic Court, the UN Secretary-General must notify the State of the existence of diplomatic immunity and this will be given  utmost preference unless there exists compelling reasons to defy it

Further, Judge Meron in the hearing of  Ngirabatware case clarified that if a judge is replaced on the basis of a State’s political action, the judges will become cautious while delivering judgements adversely affecting the independence of  judiciary.

Article 19 of the UNMICT asserts that an independent and impartial judiciary is indispensable for the right to fair trial. This is reflected even in other human rights instruments. It is also specifically recognized in other regional texts, such as  the Resolution on the Respect and Strengthening of the Independence of the Judiciary, and the Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA Region.

The UNMICT Statue incorporates the New York Convention. The Convention accords privileges to three categories of officials: UN officials, experts on missions for the UN, and member States representatives. These officers are granted functional immunity i.e., the actions of the judges in their official capacity are accorded immunity. Judges of the UNMICT are accorded the status of UN officials. Under the UNMICT statute, any judge “engaged in the business of the tribunal” enjoys the same immunities as a diplomatic envoy under international law. This principle mirrors section 19 of the UN Convention as well.

For interpreting “diplomatic envoy”, reference ought to be made to the VCDR. Article 31 of VCDR states that a diplomatic agent “shall enjoy immunity from the criminal jurisdiction of the receiving State”. Thus, article 31 provides for “personal immunity” to diplomatic envoys and thus, by reference, the judges of the UNMICT ought to be accorded personal immunity during their tenure.

The judges of the UNMICT should be accorded both functional and personal immunity. Moreover, Turkey acceded to the UN Convention without making any reservations regarding the personal immunity guaranteed under the Convention. Additionally, Turkey was a member of the Security Council (“SC”), when the UNMICT statute was adopted and voted in favor of the adoption. The SC resolution also mandated that all States fully co-operate with UNMICT and its Statute.

Moreover, implementation of independence of judiciary is arduous in a global forum. It has often been argued that the success of international judiciary will always be doubtful due to the lack of a unified global government, to enforce the mandates of the court. To elucidate, Judge Akay had diplomatic immunity and the UNSC notified Turkey of his immunity and sought his release. Judge Meron also ordered Turkey to release Judge Akay. However, Turkey did not follow the directive order and subsequently convicted him.

The only redressal that UNMICT and the UNSC can resort to is to issue public declarations and to urge the international community to put pressure on Turkey to comply with the UNMICT mandate. This will lead to practical difficulties and a certain loss of legitimacy of international judicial institutions.

Another criticism that most international frameworks face is the influence of western hegemonies in the appointment and reappointment procedure of the judiciary. Diplomats who are political actors of a State, nominate and then vote in the election of these judges. This gives the appointment and reappointment of judges a political tinge. As per the UNMICT statute, reappointment is done by the Secretary-General in consultation with the SC and the General Assembly. Judge Akay was not reappointed and the Secretary General did not offer any reasons for the non-reappointment showcasing the lack of transparency in the proceedings.

To establish judicial independence in the international realm, steps need to be taken to reduce extraneous State political influences. One solution is to have a collegium of international judges that includes presidents and vice presidents of all international tribunals. They should be accorded equal voting rights while electing judges of a particular tribunal and the vote should be on the basis of the nominations made by member States. Further, the reappointment is done solely by the collegium, irrespective of the member States’ political agendas. This will reduce political influence in the election process.

However, the nationalities of judges in the international tribunals can often overlap, possibly excluding certain member States in the collegium. In such a scenario, the modalities of the proposed model can be refined to include the Minimum Voting Requirement (“MVR”) which was devised to ensure adequate representation. MVR was most recently used for the election of judges at the ICC where the States have to mandatorily vote for a stipulated number of candidates of a particular gender or region.

Independence bestows on the judge the freedom to decide a case fairly and impartially––[j]Judges must not only do justice but must also let it be seen that justice is being done”. The threat to judicial independence can only be tackled by bringing policy changes in the appointment proceedings of judges in the tribunals.


Introducing Aparimita Pratap

It is our great pleasure to introduce our new IntLawGrrls contributor Aparimita Pratap!

Aparimita is a final year student at the West Bengal National University of Juridical Sciences Kolkata. Through her work with human rights activists and lawyers, she has developed a keen interest in human rights law and policy. She also closely follows and has conducted research on issues relating to international criminal law, public international law, refugee law, migration law and humanitarian law. She has previously worked with Centre of Policy Research where she got insight into issues faced by indigenous tribes with respect to their land, and at chambers of Jawahar Raja where she worked extensively on queer issues, sexual harassment, domestic violence, trafficking and labour law. She has also previously written on issues on the overlap of human trafficking and international criminal law. Through moot courts, research projects and everyday reading, Aparimita has nurtured an avid interest in rights-based approaches to law and legal theory.  

Heartfelt welcome!

Introducing Varsha Maria Koshy

It is our great pleasure to introduce our new IntLawGrrls contributor Varsha Maria Koshy!

Varsha is a final year student at the West Bengal National University of Juridical Sciences, Kolkata. She takes keen interest on various aspects of international criminal and humanitarian law and has written on various issues on the same.  She has previously interned with the Human Rights Commission and the Centre of Policy research which broadened her exposure on various socio-legal issues.

Heartfelt welcome!

Go On! Blasphemy Law Conference

trunks.jpg

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

The Benjamin N. Cardozo School of Law presents the “Claiming Truth: Heresy and Blasphemy in Religion, Law and Literature Colloquium“.

Today, dozens of states across the globe still have anti-blasphemy laws on the books, and a good number continue to enforce those laws. Please join the Cardozo Law Institute in Holocaust and Human Rights (CLIHHR) to further explore the motivations behind these laws, their consequences, and the challenges faced by those working to abolish them. The colloquium will convene three expert panels to further discuss these issues, and will feature a keynote address by Professor Deborah Lipstadt. Click here to register and for more details.

Write On! Tripathi Foundation Conference

backlit_keyboard

This installment of Write On!, our periodic compilation of calls for papers, includes calls to submit papers to the Prof. H. N. Tripathi Foundation as follows:

► The Prof. H. N. Tripathi Foundation is holding a conference on “Emerging Trends in Environmental Law & Policy in India” in Varanasi, India on March 30, 2019. It is accepting papers on a range of environmental law topics. Abstracts must be submitted by March 10, 2019 to hntripathi17@gmail.com. 

For more details, click here.