Violence against trade unionists, application of labor laws at issue in Colombia’s bid for OECD membership

In July 2016, the U.S. Department of Labor accepted the first labor petition filed under Chapter 17 of the U.S.-Colombia Trade Promotion Agreement (TPA).  Filed by Colombian trade unions and the AFL-CIO, the fundamental argument of the petition is that the Government of Colombia failed to meet its commitments under the 2011 U.S.-Colombia Labor Rights Action Plan (LAP) which were a pre-condition for the U.S. to extend preferential trade benefits to Colombia.  USDOL’s public report on the petition is due in January 2017 unless USDOL determines more time is necessary.

Critical among those commitments were (a) effective implementation a new legal framework to investigate and punish threats and violence against trade unionists; (b) putting a stop to employers’ use of intermediaries and certain types of employment contracts to chill representative trade unionism and avoid compliance with labor laws; and (c) ensuring that labor inspection, administrative and dispute resolution processes respond to worker complaints and deter employer violations.  Over 2,500 trade unionists have been murdered in Colombia since the 1980s.  These murders and threats did not stop after the U.S.-Colombia TPA went into effect in 2012.

A lot is at stake this year for Colombia.  Not only did the Government of Colombia and FARC agree to a Peace Accord ending the 52-year-old Civil War, but Colombia is being considered for accession to the Organization for Economic Development (OECD), where it would join Mexico and Chile as the only Latin American members.

Many of the labor-related commitments the Government of Colombia made during TPA negotiations are also required for accession to the OECD.  If USDOL’s Chapter 17 report confirms petitioners’ allegations, Colombia could be subject to international dispute resolution and lose trade benefits under the TPA – and could jeopardize Colombia’s bid to become a member of the OECD.

The OECD formally launched Colombia’s accession process in October 2013.  This rigorous process subjects Colombia to assessment under 250 legal instruments and formal evaluation by 21 separate committees, including the Employment, Labor & Social Affairs Committee.

The OECD’s Roadmap for Colombia’s accession outlines several labor-related policy goals to be met, including:  improvement of labor market opportunities for women, youth, older people and the unskilled; a financially and socially sustainable retirement and social support system; assistance for the poor and out of work; and better management of migration flows to foster integration of immigrants and their children.  Critically, the Roadmap calls for Colombia to implement policies to ensure effective governance of the labor market and to “ensure the full respect of labour rights, with a particular focus on the rights and safety of trade union representatives” (p. 18).

The OECD released its review of Colombia’s Labour Market and Social Policies in January 2016. Much of the OECD’s analysis mirrors the issues raised by Colombian unions and the AFL-CIO in their USDOL petition.  Three of these areas are: (1) inadequate protection of trade unionists from ongoing threats and violence; (2) shortcomings  in labor law administration and enforcement, including weak labor inspection and fine collection processes; and (3) the tendency among Colombian employers to utilize civil law contracts so workers do not benefit from rights in the Colombian Labor Code and making it difficult for workers to effectively organize independent trade unions and bargain collectively.

The OECD observes that 20 trade unionists were murdered in 2014 and that there were over 300 assaults, threats, harassment and other kinds of violence perpetrated against trade unionists that same year.  The OECD cites conflicting reports about the motivation for murders of and violence against trade unionists – whether as a result of their role as trade unionists or local leaders standing up to armed groups – but emphasizes that improved prosecution of the crimes in close contact with trade unions during investigation would promote greater clarity as to why the violence occurred.  While the Colombian protection program for trade unionists has improved, the program faces a number of challenges such as budget cuts, a lengthy and laborious process for assessing threat risk against trade unionists and corruption scandals that demonstrate inadequate controls.

In addition to discussing and assessing fundamental labor rights issues, the OECD’s review of Colombia’s labor and social policies highlights the country’s need for better social security (including unemployment) policies that are more broadly applied.  Over 52% of Colombia’s workforce is self-employed, with 83% in unregistered businesses not covered by social security.

Observing that comprehensive reform to the Colombian social security and pension system is required, the OECD highlights a number of specific policy recommendations to incentivize more Colombians to participate in social security.  Only about 35% of the Colombian population in retirement age receives a pension – in contrast to 90% on average in the OECD.  Acknowledging Colombia’s introduction of a new unemployment protection system, the OECD notes that the system is underfunded and provides limited support to job seekers.

Many of the structural labor market issues noted by the OECD such as informal work and non-participation in the social security system have a bigger impact on women than men.  Despite the fact that female labor market participation in Colombia has increased over the last few decades, 20% of women aged 16-24 are not active in the labor market or studying (Not in Employment, Education and Training or NEET) compared to 1% of men.  In addition to higher unemployment rates than men and lower participation in formal employment, women in Colombia suffer from a “large and persistently stable gender pay gap” (p. 16).  Fewer women receive health protection or contribute toward a retirement pension so look forward to poverty in their old age.   Laws were passed in Colombia in 2010 and 2011 to make sex discrimination in pay unlawful and extend maternity leave from 12 to 14 weeks, but many Colombian women do not benefit from these protections because they work in the informal sector.

Critics have argued that the Government of Colombia may not be ready for or be deserving of OECD membership or special access to markets and free trade benefits because of ongoing human and labor rights violations.  This may be true.  The Colombian case shows that OECD and U.S. conditionality can contribute to a safer and better society in Colombia though many challenges remain.

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Transitional Justice: What is the role of law in bringing imaginative and imaginary peace to Colombia?

This blog post is based on a reflection presented at the “Transitional Justice as Legal Field, Site and Imagination” panel at the Transnational Law Summer Institute, Kings College, London June 29, 2016. I am grateful to Prabha Kotiswaran and Peer Zumbansen for the invitation.  

What is the role of law in bringing imaginative and imaginary peace to Colombia?

June 23 2016 was described by Colombian and international media as the “last day of the war”, adopting FARC’s hashtag #ElÚltimoDíaDeLaGuerra. The signing of a bilateral ceasefire between the Colombian government and FARC formally ended hostilities in the world’s longest running war. The signing of a peace agreement is expected to take place during the summer of 2016.

To the overlapping academic fields of human rights, transitional justice and post-conflict reconstruction, the sophisticated Colombian transitional justice process is attractive and will likely be highly influential for the coming decade, both as an example of success and of failure. There is also a significant risk that scholars (outside Colombia) will embrace the Colombian experience either deterministically — as an example of systemic yet de-historicized power imbalances — or as a fantastical  and outsized legal progress narrative that can serve as an endless source of political models, constitutional processes and legal arguments suitable for embellishing the transitional justice juggernaut.

My argument in the following is based on one big supposition: I will put forward the idea that approached from a law and social change perspective, the Colombian transitional justice project is necessarily a failure foreseen.

“Everybody” knows that positive peace is not going to happen through legislation, decisions by a progressive Colombia Constitutional Court or the signing of a formal agreement. This Everybody also knows that if positive peace happens, it will not happen soon.  At the same time, it is easy to imagine that a year from now, politicians, ordinary Colombians, pundits and academics will dismiss the transitional justice legislation and the peace agreement as partial or total failures for their inability to perform the impossible expected by the Everybody; namely ending violence, providing reparations and changing the structural inequality that is the source of much of the violence.

However, I think that precisely at this juncture, as a community professionally engaged in the business of imagining peace and transitional justice, we need to reflect on what the critical takeaways from and beyond this failure foreseen could be. We may find that imagined and imaginative outcomes turn out to be imaginary. But this is not enough, it’s not even a starting point. We need to go beyond that.

Hence, after briefly describing the Colombian peace process, I will map out three sets of issues that could serve as tentative points of departure for critical reflection. This includes:

  • How we can gauge the meaning of the Colombian transitional justice process for Colombian citizenry, citizenship and the state;
  • The implications of Colombia being both outlaw and legal outlier for how we consider the role and place of the law in creating durable peace;
  • A first attempt to think through some of the general lessons Colombia can have for transitional justice practice and scholarship.

Peace and conflict as statecraft

The armed conflict between the government and FARC began in 1964. Separate negotiations have previously led to the demobilization of smaller guerillas (MAQL, M-19; EPL) and an agenda for formal negotiations has now been agreed with ELN.  However, Colombia has been at war or seen violent societal conflict for most of the time since the late 1890s. Colombian peace processes and attempts at political, legal and land reform are a fixture of Colombian statecraft. The last round of peace talks with FARC ended with fiasco in 2002. From 2003 president Uribe engaged in a much-criticized effort to demobilize the paramilitary AUC, with a basis in the 2005 Justice and Peace Law. Despite its shortcomings, it must be remembered that this framework has provided a platform for the current process.

Continue reading

Sexual and gender-based violence in the Colombian conflict should not get a raw deal before the International Criminal Court

In 2014 an average of two women were raped every three days in the course of the armed conflict in Colombia. Sexual and gender-based violence is a systematic and widespread phenomenon. Yet to date there have been very few convictions for sexualized violence – especially in cases in which the perpetrator was a member of the armed forces. By failing to act, the Colombian state is denying women the protection against sexualized crimes and access to justice that it is obliged to guarantee under national and international law. The Office of the Prosecutor (OTP) of the International Criminal Court (ICC) in The Hague has to date failed to include a comprehensive gender perspective into its assessment of the Colombian conflict. In its Interim Report on the Situation in Colombia from November 2012, the OTP acknowledged that between 2002 and 2008, members of the Colombian army deliberately killed thousands of civilians (so called “falsos positivos” cases) and classified them as crimes against humanity. The OTP also noted that rape and other forms of sexual violence can be attributed to state forces, paramilitaries and guerrilla. Regarding state forces, however, the OTP thus far considered sexual crimes only as war crimes. It remained silent on the question of whether sexual violence committed by the state forces could amount to crimes against humanity.

A comprehensive legal analysis of a conflict situation under international criminal law requires an adequate narrative of the conflict, which necessarily involves a gender perspective in order to detect and avoid patriarchal ways of applying international norms and international criminal law. The new Policy Paper on Sexual and Gender-Based Crimes (PP) by the OTP of the ICC provides a helpful tool for applying these norms without reproducing gender inequalities. The content of the PP is the achievement of long-term lobbying by feminist activists and academics and is based on a liberal rights-based approach of feminist theory. In the PP, the OTP announces its intention to integrate a “gender perspective” and “gender analysis” at all stages of its work, terms, which, however, remain rather vague. Prosecutor Fatou Bensouda recently acknowledged, “an important aspect of challenging the culture of discrimination that allows sexual and gender-based crimes to prevail is the effective investigation and prosecution of those most responsible for such heinous crimes.”

Therefore, the OTP should start implementing its PP in the Colombian case. This could have a substantive effect on preliminarily examinations in general, and on evaluating command responsibility and the admissibility criteria in particular. Continue reading

Recent developments in Colombian jurisprudence on conflict-related sexual violence

During her first visit to Colombia last month, UN Special Representative on Sexual Violence in Conflict Zainab Bangura drew attention to the issue of sexual violence in Colombia’s five decade long conflict. She met with government officials, survivors and civil society to discuss the progress made in preventing and responding to sexual violence. The conflict, which has involved left-wing guerrillas, right-wing paramilitaries and state security forces, has taken a heavy toll on the civilian population, in particular women and children. Those who have experienced sexual violence want their crimes acknowledged. Ms Bangura’s message was clear: Colombian authorities must work to end the silence and impunity surrounding these crimes.

This is an important message. Despite their prevalence, sexual violence crimes are rarely prosecuted, and impunity levels remain high. However, several recent decisions—in which courts have stressed the need for accountability—reflect positive developments in the judiciary’s handling of these crimes.

Colombia’s Constitutional Court has played a significant role in giving sexual violence crimes visibility. In January of this year, the Constitutional Court issued Auto (Order) 009, in which it noted “with alarm” the persistence of sexual violence as a serious form of gender discrimination. It urged authorities to not only address these crimes, but to comply with their obligations to prevent and ensure their non-repetition. Importantly, it stressed that all parties to the conflict were responsible for such crimes, and referred over 400 sexual violence cases to the Attorney General’s Office for investigation and prosecution.

The Court also highlighted two underreported issues. It noted that sexual violence against children illegally recruited by armed groups persists, in particular against indigenous children. During her visit, Ms Bangura also referred to this issue as well as to the silence that exists regarding the generations of children born out of rape. Additionally, the Court recognized that women are at times targeted for sexual violence and displaced because of their sexual orientation−an aspect of the conflict often ignored.

This ruling follows the Court’s landmark decision of 2008, Auto 092 on women and displacement, in which it acknowledged that women are among those most affected by displacement and that displaced women are particularly at risk of sexual violence. In that ruling, the Court stressed that sexual violence is “a habitual, extensive, systematic and invisible practice in the context of the Colombian armed conflict”. It called on the Attorney General’s Office to investigate 183 cases attached to the decision. Continue reading

Beyond Sexual Violence: Gendered Political Insecurity as a Threat to Peace

Julieta Lemaitre and Kristin Bergtora Sandvik

Based on extensive field research in Colombia, our new article Beyond Sexual Violence in Transitional Justice: Political Insecurity as a Gendered Harm examines political insecurity as a specifically gendered harm that must be addressed in the ongoing Colombian transitional justice process.

In a previous blogpost we described the tragic plight of the women’s rights activist and survivor of sexual violence Angélica Bello. Bello was one of the main proponents of Law 18 June 2014, which sets out to guarantee access to justice for victims of sexual violence. The Law is part of the transitional justice process and seeks to bring Colombian law into harmony with international law regarding sexual violence in the context of the armed conflict. It defines crimes of sexual violence as war crimes and crimes against humanity, and sets out criteria for investigating sexual crimes and protecting survivors analogous to those of the ICC. As the peace negotiations in Havana between the government and the FARC guerrilla continue to make slow but steady progress, the sexual violence agenda increasingly captures the field of harms to women in war.

While recognizing the importance of this law, we nevertheless suggest that it is a problem for the ongoing transitional justice process that there are so few articulations of what other kinds of gendered harms may look like and how they should be effectively addressed. Much of the growing literature on gender in armed conflict and the debates over post-conflict reparations for women focuses on the prevalence and harms of sexual violence. This development has engendered controversial debates concerning the alleged prioritization of sexual violence at the expense of other harms to women, whether this debate sexualizes and infantilizes women, as well as with respect to forms of victimization not captured by feminist frames of reference, such as male rape (This is often framed as a debate between the Halley and MacKinnon schools of thought). In her work on reparations, Ruth Rubio-Marin takes issue with what she sees as an excessive emphasis on sexual violence in transitional justice, embodying both a suggestion that sexual harm is the worst abuse that can happen to women and the entrenchment of a patriarchal ideal of female chastity. Rubio-Marin (2012) argues that the ‘hyper-attention’ to sex now risks doing further harm to women by deviating attention from other non-sexual forms of sex-specific harms, and isolating sexual and gender based violence from broader agendas that confront the multiple gendered forms of harm and injustice.

What are these other gender specific harms? What should transitional justice focus on beyond sexual violence? How can we think of gendered harms in relation to poverty alleviation or of resource redistribution?

In our article, we argue that if civic trust is to be built among all citizens, women’s experience of exclusion from the political through force and intimidation must be included in the narratives of armed conflict, political insecurity and the aftermath of war. Importantly, political insecurity is complex and extends beyond conflict between the state and the guerrillas, and yet the guarantee of security of political activity is a central component of a transition to peace. Arguably, political insecurity will persist as long as there is no effective challenge to the subnational hold of illegal armed actors emerging in the aftermath of war. The insecurity fostered by these actors is gendered, enforcing cultural mandates to confine women to the domestic space. In a transition to the end of armed conflict guerrillas can stop being both a threat for community organizing, and a justification for state repression.

Finally, we also suggest that the complete dismantling of gendered political insecurity will remain a challenge for transitional justice. A just transition to peace for women would require first, the dismantling of the capacity of private powers (at least of organized crime and business interests) to use violence to achieve their economic goals, and it will also require a vigorous promotion of women’s political participation at the grassroots level. More scholarly attention to the gendered aspects of these problems and scenarios is needed as Colombia continues to stumble towards the end of its 5o year old civil war.

Colombian peace talks advance, but raise difficult justice issues

Last week, I had the honor of addressing the assembled Colombian judiciary on how comparative experiences can help inform the difficult choices the country will need to make in order to finalize a peace deal with the armed insurgents (FARC and ELN) and bring an end to over 50 years of armed conflict.  As part of the meeting, the chief government negotiator in the talks now being held in Havana, Cuba, outlined the points of agreement and difficulties to date.  The process has raised difficult debates over how to take advantage of the best opportunity for peace in a generation while meeting the country’s international legal obligations, in a world where blanket amnesty is no longer an option.

Unlike earlier peace initiatives – and unlike the deals negotiated in Central America more than a decade ago – the current talks focus almost exclusively with ending the war, leaving political and social reforms to later discussion.  There is one major exception:  an agreement on rural development, based on a shared understanding between the parties that structural inequalities in the countryside are fueling the conflict, and that while the urban middle class has increased and agribusiness is flourishing, small farmers have suffered.  The agreement creates a Rural Land Bank, tax incentives for small farmer development, land surveying and titling, better access to credit and technical assistance, and improved government services in rural areas.  Whether any of this will make enough of a difference in the face of simultaneous widespread African palm and export agro expansion remains to be seen.

Its success may also depend on how well the country’s ambitious land restitution scheme ends up working.  Colombia has up to five million forcibly displaced people. In its first six months, newly appointed restitution judges have issued 270 decisions, most of them in favor of people forced off their land by armed groups.  While impressive, this is only a small part of the cases of forced dispossession.  To complicate matters, judges are finding that land was often taken by force more than once during the course of the conflict, leading to multiple claims and contestation by different groups of victims.  The security situation in parts of the country has also impeded implementation of these early decisions, as litigants and judges are threatened and some community leaders have been killed.

The rest of the peace negotiating agenda includes political participation, demobilization, relation to narcotrafficking, victims, transitional justice and the form of citizen approval of whatever deal is reached.  Transitional justice is proving one of the more difficult – and interesting – aspects of the discussion.  There is little talk of amnesty, and a broad understanding that neither the Inter-American Court of Human Rights nor the International Criminal Court (Colombia is a state party, and the Prosecutor has had a preliminary investigation open since 2004) would countenance an amnesty or pardon that included war crimes or crimes against humanity.  At the same time, there are an estimated 10,000 fighters, many of whom have played a role in kidnappings, extortion or military operations.  The Colombian state has neither the ability nor the resources to investigate, much less prosecute them all.

It also has some experience with creating alternative justice procedures, gained in the demobilization of right-wing paramilitary groups starting in 2005.  The Justice and Peace Law 975 promised conditional suspension after a hearing of the normal sentences for murder and other serious crimes, to be replaced by an alternative 5-8 year sentence.  In exchange, the applicant committed to demobilize, give an unsworn public statement detailing his crimes, and turn over any lands or other property stolen as a result of paramilitary activities.   Unfortunately, after years in operation and 4000 demobilization applications, the Law as of 2012 had yielded less than 20 convictions and little asset recovery, in part due to the difficulty of investigating the statements.  There is a widespread sense among judges that the judiciary would get equally swamped were the insurgents included in a similar process.

Arguing that it was needed for peace talks, the government earlier this year passed, and the Constitutional Court approved, a constitutional amendment, known as the Framework Law of Peace.  It allows the Chief Prosecutor to determine criteria to prioritize and select cases for prosecution that involve those most responsible for international crimes.  It also, more controversially, allows for conditions under which sentences can be suspended, alternative sanctions or special modalities of serving the sentence imposed, and some cases not prosecuted at all.  After a challenge, the Constitutional Court upheld the law, reading it, however, as requiring investigation of all grave violations, if not necessarily punishment of all those involved.

 

The FARC have until now rejected the Framework Law because it was unilaterally decreed.  Nonetheless, there seems to be agreement that the shape of a deal will require some form of conditional pardon or suspended sentence for the rank and file, many of whom were recruited as child soldiers.  There also seems to be broad agreement on a Truth Commission that would examine all the actors in the extended conflict, including the state and economically powerful forces.  The big question remains whether some form of conditional suspended or reduced sentence for the top leaders can be crafted in a way that passes muster.  What is clear is how far the region has come since the last wave of post-conflict or post-dictatorship transitions in terms of agreement on the primacy of the obligations towards victims and the rejection of blanket amnesties.

 

The question of how any agreement is ratified by the population is also contentious, with the government proposing an up-or-down referendum and the insurgents leaning towards a constitutional convention.  The idea is that civil society, which has been largely excluded from the talks, would weigh in at that point.  It is unfortunate that, for example, there are no female negotiators on either side (although there are key female advisors), so women’s groups will only be able to raise concerns late in the day.  There is also a determined effort on the part of the right, led by former president Alvaro Uribe, to scuttle the talks and insist on a military victory. Nonetheless, the talks present the best chance in years to finally put an end to Latin America’s longest-running conflict.

The Gender Justice Shadow of Complementarity: Lessons from the International Criminal Court’s preliminary examinations in Guinea and Colombia

In early July 2013, Human Rights Watch reported that one of the alleged perpetrators of the 2009 Guinea stadium massacre, Lieutenant-Colonel Claude Pivi, has been charged with murder, rape and destruction of property. This was an important first step towards holding one of primary suspects of this atrocity to account. It was also a significant moment for the International Criminal Court (ICC), which in 2009 had commenced a preliminary examination –under the Rome Statute’s complementarity provisions – into this massacre, and the Guinean authorities efforts to bring to justice the perpetrators. However, as we point out in a forthcoming article in the International Journal of Transitional Justice [forthcoming: Volume 7 (3)] the Guinean case also highlights the existence of a ‘gender justice shadow’ in relation to the ICC’s complementarity processes, especially in relation to the investigation and prosecution of crimes of sexual violence against women.

Our article considers the ICC’s Office of the Prosecutor (OTP) preliminary examinations of both the Guinean massacre and the Colombian conflict and argues that, on an analysis of  publically available information, the OTP has applied a low threshold when assessing crimes of sexual violence against women against the three core criteria – state action, willingness and ability – of the Rome Statute’s complementarity test, effectively leaving intact impunity for these crimes.

Our argument here mirrors the work of Kevin Heller, who has shown that while the Rome Statute establishes the highest standards of due process for cases before the ICC, its complementarity provisions do not extend due process rights in national jurisdictions. Similarly, we suggest that there is a ‘gender justice shadow’ side to complementarity: the Rome Statute provides the most developed articulation of gender justice of any instrument of international criminal law, yet complementarity does little to extend these measures to the domestic level.

Members of the Women’s Caucus for Gender Justice, who were so influential in shaping the ground-breaking gender justice aspects of the Rome Statue, were the first to highlight this gender justice shadow. During the negotiations process in the late 1990s, the Caucus cautioned that unless the Rome Statute recognised in its complementarity tests of action, willingness and inability the gender biased features of national penal codes, especially weak substantive and procedural laws to address sexual violence against women, it ‘could result in impunity for crimes of sexual and gender violence’ (Women’s Caucus for Gender Justice, ‘Gender Justice and the ICC’, paper presented at the Rome Conference, Italy, 15 June – 17 July 1998, 24; document with the authors). This argument has since reiterated by other commentators and academics (see Women’s Initiative for Gender Justice, Susana SáCouto and Katherine Clearly, and Amrita Kapur).

Our analysis shows that the OTP’s preliminary conclusions about complementarity in Guinea and Colombia have failed to take adequate account of crimes of sexual violence against women. There are questions as to whether the domestic proceedings have addressed either the same persons or the same crimes, particularly where sexual violence is involved. In both Guinea and Colombia, some of the sexual violence crimes documented by the OTP are not included in the domestic penal codes, and a lack of transparency makes it difficult to assess which individuals the OTP is investigating, and whether they have been charged for sexual violence at the national level.

Similarly, it appears that in the OTP’s application of the willingness and ability criteria in these two sites, gender biases in domestic law have been overlooked. Based on the available documentation, it seems there has been minimal, if any, attention given to impartiality in proceedings for victims of sexual and gender-based crimes or the limitations in local laws to allow for investigation and prosecution of a full range of sexual and gender-based crimes.

These problems of apparent non-recognition of gender justice issues in Guinea and Colombia are a legacy of the failure of States to include the Women’s Caucus for Gender Justice’s suggestions to expressly integrate gender justice concerns in the complementarity provisions. The prediction made in the 1990s by the Women’s Caucus appears to have become a reality at least in Guinea and Colombia: ongoing impunity for many perpetrators of sexual violence, and little justice for the victims of these crimes. This is, we argue, the gender justice shadow of complementarity.

The positive side of the story is that the ICC’s second Prosecutor, Fatou Bensouda, has professed a strong commitment to gender justice; building around her a team of advisors including Brigid Inder, Patricia Viseur Sellers and Diane Amann, who have high-level gender justice expertise. The creation of an overarching OTP gender policy, slated for release in 2013, will provide the chance for the Office to draw on lessons from its first decade in operation and establish new procedures which embed core gender justice concerns in ongoing and future complementarity assessments. At minimum is hoped that the OTP will provide clear criteria for evaluating action, willingness and ability at the preliminary examination stage in ways that capture existing gender biases in the law. In implementing this policy it will be important that the OTP, and the other arms of the Court, are as transparent as they can possibly be (within a highly sensitive legal context) about their recognition of gender biases when undertaking preliminary examinations and throughout the complementarity process. It is only when such information is available that a complete assessment can be made of the impact of the gender justice shadow of complementarity.

— Co-authored with Louise Chappell and Rosemary Grey.