Gender

Feminist methods in international law 

/ Cochav Elkayam-Levy / Leave a comment

Feminist methods in international law understood– A path to transformation: Asking “The Woman Question” in International Law / Cochav Elkayam-Levy


Methods matter and the discussion over feminist methods in international law is an important one. As Kathrine Bartlett famously noted, “thinking about method is empowering.” It makes us more aware of the nature of what we do and what we aim to improve in the law. Consequently, we can act more effectively when we examine legal structures and do it with a stronger sense of commitment to our feminist work. Methods are also the fundamental means by which we produce “valid knowing.” The discussion of feminist methods in international law is one that engages with the combination of rules and assumptions that shape and delimit our views about the exclusion of women’s experiences from this doctrine. Despite their significance, feminist methods in international law have been deserted. They seem neglected in ways that have weakened the sense of discipline that nurtures our feminist knowing. The prospect of clarifying some of the vagueness is the primary motivation for this new article. The article is dedicated to identifying, explaining and differentiating feminist methods in international law.
It then introduces the potential contribution of the method of asking the woman question – or what can be also termed as the gender question for broader inquiries about people of all genders – as a transformative question – for the work of many international lawyers on their path to developing feminist consciousness. It encourages a bold ambition to tackle structural barriers, embracing a commitment to transformative equality.
While this question seeks to highlight and address the continuing injustice that
women experience, it also allows scholars to see beyond the gender binary in ways that take into consideration a spectrum of genders and the impact of the law on people of all genders. It proposes clarity and promises a feminist sensitivity to any analysis of international law. Based on this method, the article develops a unique analytical model that tackles the distinctive structural ways in which the international legal system perpetuates women’s inequality.

The model is predicated on the evolving global idea of transformative equality – which I further develop in my research – asking us to reimagine the rules by which our society operates. It urges scholars to undertake a transformative reconstruction endeavor asking –

How would the law look like in a gender-just society? What rules would we have had women had a part in the design of the law? How would the law look like if women had equal social power? (pages 473-5).

It is intended to encourage transformative processes that confront entrenched social and legal gendered structures within the international legal system. It requires a complicated intellectual effort to reimagine the future as means to move toward a gender-just global system. Hopefully, reimagining the future will be the most empowering, fulfilling, and transformative result of this work.

Recommended Citation
Cochav Elkayam-Levy, A Path to Transformation: Asking “The Woman Question” in International Law, 42
MICH. J. INT’L L. 429 (2021).
Available at: https://repository.law.umich.edu/mjil/vol42/iss3/2
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3543189

UN Special Rapporteurship on Afghanistan

/ Stephanie Farrior / Leave a comment

On Friday 1 April, the UN Human Rights Council relinquished an opportunity to put talk into action and send an important message to the Taliban by appointing what would have been the first woman UN Special Rapporteur on the human rights situation in Afghanistan.   (All those who held the position during its previous existence from 1984-2005 were men.)  

The UN Consultative Group, the body that screens Special Rapporteur applications (made up this year of three men and a woman, representing El Salvador, Malaysia, South Africa and Canada), had short-listed five candidates: four women — three of whom are Muslim or of Muslim heritage — and a man.  As the candidates’ applications show, all five short-listed candidates were well-qualified, all five had relevant experience, and several had considerable direct experience in Afghanistan and other conflict zones.   

CONSULTATIVE GROUP REPORT TO HUMAN RIGHTS COUNCIL PRESIDENT
Short-listed Candidates for the Position of
Special Rapporteur on the situation of human rights in Afghanistan

First nameLast nameNationalityGender
LeilaALIKARAMIIslamic Republic of IranF
RichardBENNETTNew ZealandM
KarimaBENNOUNEUnited States of AmericaF
KamalaCHANDRAKIRANAIndonesiaF
Kimberley Cy.MOTLEYUnited States of AmericaF

Despite having such highly qualified women candidates for the position . . . the Human Rights Council appointed the only man on the shortlist.  Curiously, in sending its recommendations of candidates to the Council president, the Consultative Group significantly understated relevant experience in its bios of the two women finalists among the final three (Leila Alikarami and Karima Bennoune), even omitting any mention of one candidate’s direct experience in Afghanistan.

Moreover, there was virtually no mention of women’s human rights in the Consultative Group’s entire report on this mandate (except for a brief reference in Alikarami’s bio) — including no mention of any experience at all that the candidate they ranked first might have in this area.   This despite the fact that the Council resolution creating the mandate emphasizes women’s rights and calls on the use of a gender perspective throughout the work of the mandate.    

The new mandate-holder, Richard Bennett, does have considerable experience on and commitment to human rights in Afghanistan, and deserves support in his critically important work.  The statement in his application that if appointed he would give priority to the human rights of women and girls is welcome indeed.  One wonders about the message the Human Rights Council sends, though, as it joins a long list of countries and organizations that are sending all-male delegations to Kabul.  The timing is especially unfortunate coming a week after the Taliban refused to reopen secondary schools for girls, reneging on an earlier pledge to do so.     

ECtHR’s Lost Opportunities in its Transformative Rulings: Queer Interpretation of Right to Privacy and Protection from Discrimination

/ Sarthak Gupta / Leave a comment
European Court of Human Rights © Christian Lemâle

Previous year the European Court of Human Rights [‘the Court’ or ‘ECtHR’] delivered some significant rulings strengthening ECtHR’s jurisprudence on Article 8 and Article 14 of the European Convention on Human Rights [‘Convention’] concerning Queer rights. The author in this article revisits three rulings of the ECtHR to argue that, nevertheless of being progressive rulings, the Court did fall short in addressing some major issues.

Firstly, in AM v. Russia, the Court ruled that Russian Court violated Trans individual’s rights under Article 8 read with Article 14 of the Convention by ending all contact between a trans woman and her children without a balanced and reasonable assertion of the legitimate interests [see here & here].

In the AM case, the Russian authorities and the applicant’s wife argued that the applicant is suffering from Transsexualism and further contended that the applicant’s intention to disclose her gender transition information to her children will impact their mental health and psychological development. This institutionalised prejudice of Russian authorities, nevertheless of ‘homosexuality propaganda law’ being held as unconstitutional in the state, exacerbates the ‘vicious wheel’ connected with prejudiced perceptions against trans individuals and a lack of education and awareness on Queer rights. The Court fails to address this elephant in the room, that how these prejudiced notions could impact the children’s education and perception about their parent’s gender identity.

When addressing the ‘best interests of the children’s, the Court had the chance to conceptualise the children’s right to non-discrimination on the grounds of their parents’ gender identity under Article 2 Convention on the Rights of the Child [‘CRC’], and the right to preserve personal relations and direct communication with both parents continuously under Article 9/3 CRC. Further, the UN Committee on the Rights of the Child General Comment no. 14 also stipulates their right to receive information on Queer Community challenges as well as gender identity and transition under Article 13 CRC and the right to education under Article 28 and, Article 29 of the CRC. Arguably, the ECtHR could have delved into significant length concerning the challenges with utilizing negative preconceptions about transgender individuals to rationalize restraining relationships and communication between transgender parents and their children.

In the second ruling, the Fedotova v. Russia, the Court ruled that Russia’s failure to provide same-sex couples with the opportunity to have their relationships formally acknowledged in form of a marriage, or in any other form is in violation of Article 8 & 10 [see here and here].

Nevertheless, the application was brought for recognition of same-sex marriage, the Court doesn’t feel adequate to discuss Article 12 [‘right to marry’] anywhere in the ruling. The Court concluded that the moral views of the majority cannot be used to deny sexual minorities access to forms of legal recognition. Taking reference from queer interpretations of the ECHR (here and here), which consider the inherent heteronormative (i.e. bi-genderism) notion of most of the Convention’s rights and how to transgress this dialectic. Regardless of the fact (which is still unclear), whether the applicant didn’t include Article 12 or not, the Court itself could have incorporated Article 12 of its own volition.

Not only Supreme Courts of other jurisdictions [the US and South Africa] but also the international institutions like Inter American Court of Human Rights [‘IACtHR’] have rejected the anti-majoritarian notion. It can be argued, that the Court’s rationale of Schalk and Kopf v. Austria, i.e. the appreciation of the majority opinion, remains viable. Furthermore, it can be argued that the ECtHR entirely embraces Article 12’s “heterosexual structure,” principally rendering the article inapplicable to same-sex relationships.

The second issue is the necessity of the non-discrimination principle under Article 14. The applicants did claim on Article 14, however, the Court concluded that it was not relevant because it heretofore ruled the violation of Article 8. Since Dudgeon v. UK, it has been a well-established tenet of the ECtHR that rules that discrimination does not need to be investigated if it is not “a crucial element of the case“. It is unrealistic to contend that the lack of legal recognition does not have a severe discriminatory intent in a nation where same-sex individuals are continuously stigmatised and marginalised, where even the Constitutional Court supported the law on prohibition on “homosexuality propaganda.”

Lastly, in the  X v. Poland case, the Court ruled that there had been a violation of Articles 8 and 14 of the Convention after the domestic courts had refused to grant custody of the child on the grounds of the mother’s sexual orientation [on mother’s relationship with another woman].

Nevertheless, the observations that the Court concluded in its rationale, which was first observed in the Hoffmann v. Austria and have been repetitively reaffirmed in many of its rulings about allegations of discriminatory treatment against divorced parents, the Court overlooked an outstanding opportunity to state unequivocally that a parent’s sexual orientation does not influence their parental capabilities. The Court could have gone a step forward like it did in Vojnity v. Hungary, where the Court made clear that parents’ religious beliefs per se cannot influence their capacity to raise their children.

In Atala Riffo v. Chile, the IACtHR concluded that the Chilean Courts’ judgement to take children from their homosexual mother’s custody based on her sexual orientation was discriminatory, emphasising that ‘an abstract reference to the child’s best interest… without specific proof of the risks or damage to children that could result from the mother’s sexual orientation’ is not acceptable’

What is more disappointing is that the third-party intervention also highlighted Poland inequalities and prejudices in legal and practical matters concerning rainbow families and the attitude towards the Queer community being negative and Queerphobic. Later, the same was also emphasized by Judge Wojtyczek in his dissenting opinion. However, the Court still neglected to address this concern.

Conclusion: The Test Continues

These judgements are undoubtedly significant and are progressive in protecting trans parents’ rights, same-sex marriage recognition and discrimination on gender identity & sexual orientation. The author doesn’t question their contribution, however, the abovementioned arguments do signify the ECtHR’s inherent narrow approach in Queer Interpretation of Article 8 and 14. The ECtHR’s upcoming opportunities here, here and here, will further demonstrate the extent to which the Court is inclined to tread unprecedented ground in terms of acknowledging rainbow family relationships.

Question for the UN Human Rights Council: So, should only men apply?

/ Stephanie Farrior / Leave a comment

At its session concluded earlier this month, the UN Human Rights Council established two new country rapporteurships, one on Afghanistan, and one on Burundi.  The call for applicants has now been posted. However, even before any applications have been collected and reviewed, the Office of the High Commissioner for Human Rights seems to have already decided that both appointees will be men, based on the Name of Mandate-holder column (click screen shot below to enlarge). They’ve done this for the two thematic mandate openings, as well.

UPDATE on 29 October 2021: I see that today the OHCHR has now fixed this issue on the country rapporteur page by removing the “Mr.” from the two open positions in the Mandate-holder column, and on the thematic rapporteur page it has removed the “Mr.” from this column for the newly-created thematic rapporteurship on climate change, but has still left in place the “Mr.” in the opening on the Working Group of Experts on People of African Descent.

FURTHER UPDATE, 5 November 2021: The OHCHR has now removed the remaining “Mr.” from the vacancy listing in the Mandate-holder column on the thematic procedures webpage.

A.M. & Ors. v Russia: Severing Contact Rights between Transgender Parents and their children violates Human Rights

/ Lekha Suki And Soundarya Rajagopal / 1 Comment

Russia’s hetero-normative view of “family” and “traditional values” is the basis of its anti-LGBTQ+ policies. It infamously classified being transgender as a “medical impediment” and banned same-sex marriage and adoption by transgender persons in 2020. Social stigma against LGBTQ+ communities in Russia is often supplemented with discriminatory state policies.

A.M. & Ors. v Russia concerns one such instance of institutional bias against a transgender parent. The applicant, a transgender woman, had two biological children. After her transition, her ex-wife sought to restrict her contact rights with their children. She claimed psychological harm to them as a result of social marginalisation and exposure to “non-traditional” sexual relations, alluding to Russia’s infamous “gay propaganda laws” that prohibit the dissemination of information about the LGBTQ+ community to children. 

The Russian District Court’s decision, later affirmed by the Supreme Court, suspended the contact rights of the applicant. She, therefore, approached the European Court of Human Rights (“ECtHR”). 

The ECtHR Decision

The ECtHR ruled that the Russian Court’s decision improperly balanced A.M.’s rights against the potential harm to her children because the Court had based its decision on a singular, highly-contested study that stated that a parent’s transition would negatively impact their children while recognising that there was a dearth of literature studying this phenomenon. The Russian Courts failed to examine the family situation to identify demonstrable harms to justify the suspension of the applicant’s contact rights. It was found that the decision was motivated by prejudice against her gender identity and hence violated Article 8 of the European Convention of Human Rights (“ECHR”).

Furthermore, the Court found that there was no justification for differential treatment except for A.M’s transition. Article 14 was previously applied by the ECtHR in Bayev v Russia to prohibit discrimination based on gender identity in the context of Russia’s “gay propaganda laws”. In casu, since A.M.’s gender identity was the sole reason for her differential treatment from similarly-placed cisgender parents, the ECtHR found that Article 14 was violated in conjunction with Article 8. 

Stripping transgender parents of contact rights violates International Human Rights Law

International instruments and a slew of human rights case law support the conclusion of the ECtHR in A.M that the state-sanctioned separation of a parent from their child, solely on the basis of their gender identity, is violative of international human rights law.

UNHRC’s General Comment 16 requires the term “family” to be interpreted broadly. Arguably, this means that rainbow families must be brought within the ambit of the term as well. 

In relation to contact rights, the Convention on the Rights of Child, in Article 9(3), codifies a child’s right to maintain direct contact with both parents on a regular basis in instances of separation, unless contrary to their best interest. The term “best interest” was famously explained by the Inter-American Court of Human Rights (“I-ACtHR”) in Atala Riffo v. Chile where it was held that “best interest” cannot be discriminatory on the basis of gender or sexual orientation of parents and that it is strictly limited to assessing impacts of negative parental behaviour. Therefore International Human Rights Law is clear on family rights being available to LGBTQ+ families sans discrimination. 

It must be noted that the Strasbourg Court has also ruled to protect the rights of rainbow families. In Salgueiro da Silva Mouta v. Portugal, a divorced father in a same-sex relationship was prohibited from visiting his child. Portuguese courts deemed that “the child should live in a traditional Portuguese family,” alluding to same-sex partnerships as “non-traditional” and therefore a legitimate ground to take away contact rights. The ECtHR held that such a decision violated Article 8 and Article 14 of the ECHR. 

The primary reason why domestic courts in the European Union have been hesitant to allow contact rights to LGBTQ+ parents is because they factor in societal prejudices against the children as harmful to their best interests. Therapy can be used as a progressive tool to bridge the gap between a conservative society and rainbow families. In A.V. v Slovenia the ECtHR ruled that states must take every measure necessary- including family therapy, to ensure that children adjust to changes in the family dynamics before suspending parental rights. In line with this decision, the potential social backlash against rainbow families cannot be a reason to suspend the contact rights of an LGBTQ+ parent. Instead, children must be given the opportunity to adjust to their parents’ identity with the state’s support. 

This would be in line with previous ECtHR rulings wherein the Court has created a positive obligation on the State under Article 8 of the ECHR to ensure that they take all practical measures necessary to ensure that parental contact rights are not frustrated. In Kılıç v. Turkey, the lack of civil mediation to mend familial relations was held to be a violation of Article 8. Therefore, Article 8 not only obliges states to not discriminate against the parent on the basis of their gender identity but also requires them to take measures to ensure that contact rights can actually be exercised.

Conclusion

The ECtHR’s judgement is a welcome reaffirmation of transgender persons’ family rights under the ECHR. It condemns factoring societal prejudices as a “harm” to children while deciding cases involving contact rights. However, it misses the opportunity to enforce states’ positive obligation to protect rainbow families under Article 8. 

In casu, the Court could have compelled Russia to facilitate family therapy as a part of its positive obligation to help children adjust to social biases against their parent’s way of life. Unfortunately, it missed the opportunity to do so. However, it is important to note that the joint concurring opinion of Judges Ravarani and Elósegui suggests family therapy to protect A.M.’s contact rights. This is in line with the aforementioned ruling in A.V. v Slovenia.

Such a position on family rights is particularly important as it allows LGBTQ+ persons to exercise their right to live and love freely with lesser fear of loss of contact and alienation from their family. It obliges the state to act on ushering in social acceptance of LGBTQ+ rights, thus enabling members of the community to enjoy their family rights at par with “traditional” families.

Migrant Worker Women Advancing Gender Equity through the USMCA

/ rachelmicahjones / Leave a comment

Men only, 18–35 years old. 

In 2021, seeing a job posting with those words is startling. Shocking even. But more than a year into a world-changing pandemic that has pushed millions of women out of paid work, U.S. employers continue to discriminate against women, posting ads like that one. To evade legal consequences, U.S. businesses discriminate in Mexico, hiring men to work in the United States with temporary H-2 guestworker visas while turning women away. Other U.S. businesses discriminate by hiring women but channeling them into lower-paying jobs with poorer conditions than those they hire men for. Although the U.S. government knows that H-2 employers discriminate against women, it has done little to stop them. 

For more than fifteen years, since I founded Centro de los Derechos del Migrante, Inc. (CDM)—the first transnational workers’ rights organization based in Mexico and the United States—I have heard from women in Mexico about patterns of abuse in the U.S. H-2 programs. Migrant women have courageously spoken out about blatant discrimination in H-2 recruitment and hiring, sexual harassment and other violence against women at work, unfair pay, and unlawful working conditions. Women report discrimination in industries ranging from Maryland’s blue crab processors to fruit and vegetable sorting. Sex discrimination persists in H-2 labor supply chains even though U.S. law prohibits employers and labor recruiters from discriminating against women. Laws prohibiting discrimination protect all women who work in the United States, even if businesses hire them outside of the country.

Today, migrant women continue the fight for gender justice. In March, in honor of Women’s History Month, CDM and workers’ rights organizations across North America joined migrant women in filing the first viable state-to-state complaint under the new United States-Mexico-Canada trade agreement (USMCA). The USMCA’s labor chapter, Article 23, requires the United States to enforce its anti-discrimination laws, including Title VII of the Civil Rights Act of 1964. In failing to root out discrimination in H-2 recruiting, hiring, and employment and neglecting to ensure gender equity in the program, the United States is violating Article 23. 

In the complaint, we collectively make three demands:

  1. The U.S. government must end sex discrimination in the H-2 guestworker programs once and for all.
  2. The government must ensure that all workers have access to Legal Services Corporation-funded civil legal services. (Without lawyers working in solidarity with them, it is nearly impossible for migrant women to access justice through U.S. courts.)
  3. The government must investigate discrimination complaints from women in the H-2 program under Title VII of the Civil Rights Act, rather than ignoring or summarily dismissing them.

And to increase pressure on the Administration, we are filing a supplemental complaint with Professor Sarah Paoletti, a Practice Professor of Law and the Director of the Transnational Legal Clinic at the University of Pennsylvania School of Law. The supplement will address the U.S. government’s obligations under the ILO and international human rights law to end discrimination in the H-2 program.

We have reasons to be hopeful that the USMCA can serve as a tool to improve access to transnational justice for migrant workers. Unlike NAFTA—the old trade agreement with its toothless labor side accord—the USMCA has a mechanism for migrant workers and their advocates to push governments to comply with labor and employment laws—or face sanctions. Concretely, this means that the U.S. government may face sanctions if it maintains the status quo and ignores the grave abuses that the petitioners report in the H-2 program. It means that the U.S. Equal Employment Opportunity Commission must end its practice of failing to investigate and meaningfully respond to migrant women’s discrimination complaints. And it means that the U.S. Departments of Labor and Homeland Security must stop allowing H-2 employers to discriminate without consequences. In receiving and reviewing our petition, the governments are legally responsible for showing us that they meant what they said about protecting migrant workers’ and women’s rights when they signed the agreement. 

The historic process for the migrant women petitioners began in Mexico, where we filed the USMCA complaint with the Mexican government. Mexico formally accepted the complaint and is now investigating discrimination and other abuses in the agricultural and protein processing industries, the industries in which the petitioners work. Earlier this month, Mexico asked the United States to honor its obligations under the USMCA and invited cooperation in doing so. And now the Biden-Harris Administration has the opportunity to make good on the promise of the USMCA and proactively address the urgent issues we raise in the complaint.

For too long, U.S. businesses have used the H-2 programs to bypass our civil rights and labor laws. Left without government oversight, H-2 employers have enacted their sexist, racist, and ageist ideas about the kinds of workers who maximize profitability. Sex discrimination in the H-2 program harms not only migrant women from Mexico but also U.S.-based workers. 

Over the next year, as we rebuild the U.S. economy for a sustainable and equitable recovery, justice for migrant women must be at the fore of the government’s labor and employment policies and practices. And next Women’s History Month, we look forward to celebrating meaningful, sustainable reforms in the H-2 program that will end discrimination against migrant women and promote access to justice. 

We would be grateful for your support in standing with migrant worker women to fight against discrimination. Please email me (rachel@cdmigrante.org) to join the supplemental complaint on the U.S. government’s obligations under the ILO or to submit an amicus in support of migrant worker women. 

Colombia’s Constitutional Court issues landmark decision recognising victims of reproductive violence in conflict

/ Dieneke de Vos / 2 Comments

A month ago, on 11 December 2019, the Colombian Constitutional Court issued an important decision recognising that women and girls who suffered forced contraception and forced abortion by their own armed groups should be recognized as ‘victims of armed conflict’. The decision is one of very few in the world to specifically recognise reproductive violence as a form of harm committed against women and girls in times of conflict. It thus sets important legal precedent in recognising a form of gender-based violence that has long remained invisible. Although the full written decision has not yet been made available, a summary of the decision has been published. In what follows, I analyse this summary.

Helena’s case

The case was brought by Women’s Link Worldwide on behalf of Helena (pseudonym), a young woman who had been forcibly recruited into the FARC at the age of 14. While with the FARC, she was forced to take contraceptives (injections) and forced to undergo an abortion when she became pregnant. She suffered significant and long-lasting health consequences as a result of the unsafe conditions in which these procedures were forcibly carried out. Continuing to suffer negative health consequences, Helena fled and was in hiding for many years until the peace deal with the government was signed. In 2017, she submitted an application to be recognised as a victim and to seek reparations under Colombia’s Law on Victims and Land Restitution (Law 1448). This law, adopted in 2011, recognizes victims of the armed conflict and confirms their rights to truth, justice and reparations. It includes provisions on the restitution of land and other reparations, and requires that special attention be paid to the needs of specific groups and communities, such as women, survivors of sexual violence, trade unionists, victims of forced displacement, and human rights defenders.

The agency charged with the registration of victims under this reparations framework (UARIV), however, subsequently denied Helena’s claim for victim status. In doing so, UARIV had relied upon an article in Law 1448 that denied victim status to members of illegal armed groups (Article 2(3)), and held that, in any case, Helena’s claim was submitted outside of applicable timelines set out in Law 1448. Helena fought this decision; while the first instance court did grant her access to government-provided medical support, her claims for recognition as a victim and for reparations under Law 1448 were dismissed in both first and second instance. She thus appealed her case to the Constitutional Court, who heard the matter in 2019, and issued this landmark decision at the end of last year. Importantly, Helena’s case was selected for review by the full panel of nine judges, rather than being decided upon by a panel of three judges. This illustrates the importance the Constitutional Court attached to the issues.

Constitutional Court’s decision

In its December 2019 decision, the Constitutional Court firstly found established that Helena was the victim of grave violations of her fundamental rights. The Court subsequently held that in dismissing her application to be registered as a victim of the armed conflict, UARIV violated Helena’s fundamental rights on two grounds. Firstly, UARIV had violated Helena’s rights as a victim by failing to interpret the applicable rules in accordance with established constitutional principles of most favourable interpretation, good faith, pro personae, and the primacy of substantive law. Secondly, UARIV failed to properly substantiate its decision by neither acknowledging the acts of forced abortion and forced displacement Helena suffered, nor by recognising that Helena’s specific circumstances constituted force majeure, preventing her from submitting an application within designated timelines.

The Court acknowledged that, on its face, Article 2(3) of Law 1448 allowed for the denial of victim status to ex-combatants who demobilised as an adult, and that, under this interpretation, Helena would have to seek reparations through other mechanisms, not including Law 1448 (as Helena fled the FARC after she turned 18). However, the Court also questioned whether this exclusion in Article 2(3) was consistent with Colombia’s obligations towards victims of the armed conflict, noting in particular the coercive nature of the practice of forced contraception and abortion within the FARC and that these acts were often perpetrated upon girls under 18, or upon young women who had only just reached the age of maturity.

According to the Court, denying Helena the right to be recognised as a victim under Law 1448, therefore, would violate her rights to access justice and to timely and adequate protection measures. Noting the principal obligation on the state to recognise victims of sexual violence as victims in such a way as to guarantee their rights to integral reparations, the Court also held that as a victim of sexual violence committed within an armed group, Helena would not have access to other avenues of reparations beyond Law 1448. As such, for the Court, registration in the Register of Victims constituted her only available avenue to adequately repair her fundamental rights.

Importantly, the Court held that the exclusion stipulated in Article 2(3) could not become an obstacle to reparations for victims of sexual violence who, as ex-combatants, were forcibly recruited into those illegal armed groups at a young age. Such a rigid interpretation of Article 2(3), according to the Court, would thus create an unconstitutional lack of protection and vulnerability. The Court also reiterated the state’s obligation to provide immediate, comprehensive, gender-sensitive and specialised health care to all victims of sexual violence by armed actors for such time as deemed necessary to overcome the physical and psychological health consequences of such violence.

For this reason, the Court relied upon the principle of declaring a ‘constitutional exception’ (‘la excepción de inconstitutionalidad’) as provided for in Article 4 of Colombia’s Constitution to overrule the applicability of Article 2(3) of Law 1448 to Helena’s case. Pursuant to this principle, when faced with a conflict between an ordinary legal norm and a constitutional norm, the Court may declare a constitutional exception to preserve rights guaranteed by the constitution in a specific case. In this case, the Court held that relying upon this principle was the only way to guarantee Helena’s fundamental rights and to find an adequate balance between Colombian law and Colombia’s international legal obligations under international humanitarian law and international criminal law. Not doing so, the Court stressed, would give rise to consequences that it held to be unconstitutional. As such, the Court rendered Article 2(3) of Law 1448 inapplicable to this specific case.

The Court thus ordered:

  • that the decision by UARIV not to include Helena in the Register of Victims be declared void;
  • that within 10 days of the date of its decision, UARIV admit Helena to the Register of Victims on the basis of her having suffered forced recruitment as a child, sexual violence (including forced use of contraceptives and forced abortion), and forced displacement;
  • that within 15 days of the date of its decision, UARIV reinstate the provision of psychosocial and medical assistance to Helena to address the emotional, mental health and physical effects of having suffered sexual violence;
  • that in the provision of integral reparations to Helena, UARIV take a gender-sensitive approach to ensure her fundamental rights; and
  • that the health services provide and guarantee access to Helena to immediate, comprehensive, gender-sensitive, specialised care for as long as necessary to address the physical and psychological consequences of the violations she suffered.

Significance of the decision

In finding in favour of Helena’s registration as a victim of the armed conflict, this case establishes that ex-combatants who were forcibly recruited into illegal armed groups and suffered sexual violence, as well as reproductive violence, within those armed groups may seek victim status and thus have access to reparations under Law 1448 – a right they did not have before – regardless of the age at which they demobilised or fled. Beyond the significance of this finding for the claimant in this specific case, therefore, this decision also sets important legal precedent in recognising that victims of sexual and reproductive violence within armed groups are victims of armed conflict. This follows earlier jurisprudence by the International Criminal Court in the Ntaganda case (here and here; see also this 2017 post by IntLawGrrl Rosemary Grey). The Colombian decision is also one of very few in the world to specifically recognise reproductive violence as a distinct form of harm committed against women and girls in times of conflict.

As part of the case, the Court received 17 expert briefs from national and international human rights organisations, women’s rights organisations, academics and international experts, including one from the author of this blog post (written jointly with Ciara Laverty). In our amicus request filing, we offered the Court a comprehensive overview of the way in which reproductive violence long remained invisible in international law, how it is increasingly being recognised, and why it should be recognised as a specific and distinct form of harm, including when committed within armed groups.

Reproductive violence is a widespread yet understudied phenomenon that occurs in times of both conflict and of peace. It can have serious physical, mental, emotional and other consequences that persist long after the violence has occurred. It is a form of victimisation connected to but also different from sexual and other violence, due to the distinct harm it inflicts and the underlying value it is said to violate, i.e. reproductive autonomy. Although reproductive violence affects individuals of all genders, there are distinct forms of harm and violence that are inflicted only upon women and girls because of and directly targeting their sex-specific biological reproductive capacities, such as forced contraception, forced abortion and forced pregnancy.

Historically, however, there have only been few instances where such violence has been independently recognised and considered. This left reproductive violence relatively invisibilised in international law. Nonetheless, current developments reflect a growing recognition that reproductive violence constitutes a distinct form of violence that should be independently recognised as violating specific, individual rights and may also constitute (international) crimes in certain circumstances. This decision by the Colombian Constitutional Court recognising the specific victimisation of female ex-combatants through forced contraception and forced abortion thus contributes to providing greater legal recognition to a form of gender-based violence that has long remained invisible in international law.

Importantly, in addition to claiming her rights as a victim through the constitutional action that was the subject of this decision, Helena has also requested participation as a victim in case 007 before the Special Jurisdiction for Peace. As such, further jurisprudence, including on individual criminal responsibility for acts of reproductive violence such forced contraception and forced abortion, may be forthcoming in Colombia.

Stay tuned!

Calling it what it is: It is time to define “sexual violence”

/ melisahandl / Leave a comment

From 5-12 December 2018, International Criminal Court (ICC) member states are convening at the World Forum Convention Center in The Hague for the 17th annual session of the Assembly of State Parties (ASP) to the Rome Statute. Serving as the governing body of the Court, the ASP meets in full plenary once a year to discuss and decide upon matters key to the future functioning of the ICC. Civil society is there every step of the way, monitoring sessions and interacting with delegates, in order to advocate for an independent, effective and fair ICC.

The issue of gender justice, and more specifically of sexual and gender-based violence (SGBV), takes relevance in the side meetings. In this regard, one of the most anticipated events took place on December 10, 2018, titled “What makes violence ‘sexual?’,” including the launch of the “Call it what it is” campaign and the “Gender Report Card” on the ICC 2018. The event was organized by the Women’s Initiatives for Gender Justice with the support of the governments of Australia, Korea, Switzerland, Argentina, Canada, United Kingdom, Costa Rica, Sweden, Switzerland, and New Zealand.

Side-event “What makes violence ‘sexual’,” including the launch of the “Call it what it is” campaign and the “Gender Report Card” on the ICC 2018 @HandlMelisa, the Canadian Partnership for International Justice

The panel was moderated by Siobhan Hobbs, Legal and Program Director Women’s Initiatives for Gender Justice. The opening remarks were made by H.E. Matthew E.K. Neuhaus, Australian Ambassador to the Netherlands, who briefly talked about the challenge of dealing with the impunity of sexual crimes in conflict situations. Peter Wilson, British Ambassador to the Netherlands, also joined the opening remarks.

The side-event featured three speakers: Patricia Sellers, Special Adviser on Gender to the ICC Prosecutor; Dr. Rosemary Grey, Postdoctoral Fellow from Sydney University and author of academic analyses on SGBV; and Jihyun Park, survivor of gender-based violence and women’s rights activist from North Korea. H.E Sergio Gerardo Ugalde Godinez, Costa Rican Ambassador to the Netherlands, presented the closing remarks.

Patricia Sellers explained the genesis of how we came to conceptualize sexual violence in international criminal law, how it is addressed today, and how we want to address it in the future. She concluded by explaining that history shows us that sexual violence is something that can destroy towns, nations, communities, and can be used as means of genocide to destroy groups. Dr. Rosemary Grey stated that the ICC was the first tribunal with a statute recognizing a wide range of SGBV. However, she emphasized that the statute does not clarify the question of what makes an act sexual by nature and that, in the jurisprudence, there is no answer to what makes an act “sexual.” Dr. Grey explained that, in the Bemba case, the prosecutor alleged sexual violence was committed as Bemba’s soldiers subjected men and women to forced nudity in order to humiliate them. However, the Pre-Trial Chamber did not include those acts of forced nudity as “sexual violence” as it did not regard them to be of “comparable gravity.” In the Kenyatta case, perpetrators forced a group of people to remove their clothes and circumcised the men using rough tools and, in some cases, amputated the victims’ genitals. The Prosecutor described these acts as “other forms of sexual violence.” The victims agreed. However, the Pre-Trial Chamber characterized forcible circumcision and penile amputation as “other inhumane acts” under Article 7 (1) (k) of the Statute because it did not regard them as “sexual in nature.”

From left to right, Dr.Rosemary Grey, Patricia Sellers, Siobhan Hobbs and Jihyun Park. @HandlMelisa,Canadian Partnership for International Justice

The side event also included the launch of the campaign “Call it what is!” with remarks by H.E. Sabine Nolke, Canadian Ambassador to the Netherlands. The “Call it what it is!”campaign addresses the issue of lack of accountability for sexual violence. It is a civil society campaign that aims to think about options that otherwise we would have not have been contemplated in the definition for sexual violence, expanding our understanding of sexual violence around the world in a way that is inclusive, culturally sensitive, responds to the realities around the world, and is forward-thinking. The campaign would support the Court in considering how sexual violence is understood in different cultures by “creating a vocabulary so the ICC can speak in an inclusive language.” It aims to do so by creating a definition of sexual violence in order to serve as guide for prosecutors, victims’ representatives, defense counsel, and other judicial actors to better understand what an “act of sexual nature” involves. The campaign also included the launch of a survey (available in English, French and Spanish) that mapped different cultural perceptions on sexual violence available at the Women’s Initiative for Gender Justice webpage.

The Rome Statute is the first instrument of international criminal law to expressly include a wide range of crimes of sexual violence. However, jurisprudence of the ICC highlights the need for a working definition of what sexual violence could entail. Specifically, the ICC legal framework lacks a definition of “act of a sexual nature” (found in the ICC Elements of Crimes for sexual slavery, forced prostitution, and “other forms of sexual violence”).


Women’s Rights Activist Jihyun Park, sharing her experience as a sexual violence and forced marriage survivor in North Korea @HandlMelisa, Canadian Partnership for International Justice

One of the questions asked in the survey is what makes an act “sexual.” There are several characteristics that could help define and conceptualize a “sexual” act; it could be that the act involves contact or exposure with sexual body parts; that the act affects the victims’ sense of sexual identity; that the act affects the victims’ reproductive capacity; that the act is widely regarded as “sexual” in the victims’ community; that the act results in sexual gratification of the perpetrator; or/and that the act affects the victims’ capacity for sexual activity. The survey also asks participants to provide examples of an “act of sexual nature” — other than those listed in the Rome Statute — that could amount to sexual violence. Examples of such acts could include forced nudity, forced abortion, and genital mutilation, among many other. Finally, the survey asked participants to contextualize by explaining in which country, region, culture, or religion this“act” may be considered as an “act of sexual nature.”

As of this morning, there were more than one hundred responses from diverse geographical regions that will inform a civil society effort to develop a declaration on sexual violence, probably a non-exhaustive list.

Dr. Rosemary Grey explained how initial responses to the survey showed the range of thinking in this topic, including many acts such as forced nudity, sexual mutilation, forcing victims to watch an act of sexual violence, and forcing victims to rape others. One response that appeared many times is the “non-consensual circulation of sexual images” in media. Other examples also included forced virginity testing in order to check the condition of the hymen, groping, total abortion bans, forced abortion, and denial of contraception methods, among others. Some responses also referred to historical precedents: human experiments of a sexual nature, such as Nazi experiments on homosexual men and practices in concentration camps whereby homosexual men were not allowed to put their hands under their blankets under the presumption that they would otherwise masturbate, “weaponizing the victims’ sexuality against them.” Shaving the heads of women who have had sexual connection with the enemy as a way to humiliate them, unwanted or forced touching of body parts, violating a victim’s sexual privacy, and violations affecting reproductive rights and reproductive autonomy, were also among the sexually violent acts mentioned in some of the responses to the survey.

The expressive harm of denying diverse sexual-based crimes their recognition as related but distinct crimes is silencing the wide-ranging spectrum of gender-related harms that victims often experience.Victims of gender-based crimes not only experience forced penetration. There are gender-based harms that are equally or even more physically, psychologically, socially and emotionally harming than rape. Crimes such as enforced prostitution, sexual slavery, forced abortion, the transmission of sexual diseases, and forced pregnancy often provoke irreversible internal organ damage, psychologically traumatize the victims for the rest of their lives, subsume them in shame and guilt, and socially stigmatize them within their communities.

The ICC – a role model organization with a clear gender-sensitive mandate – has the capability to establish a gender perspective that can guarantee the effective investigation, prosecution and trial of gender-based crimes. No other institution in the world has such a significant power to contribute to ending the era of impunity for gender-based crimes.

This blogpost and my attendance to the 17th Assembly of States Parties are supported by the Canadian Partnership for International Justice and the Social Sciences and Humanities Research Council of Canada.

Human Trafficking as a Gendered Phenomenon – Part I

/ Gema Fernandez & Keina Yoshida / Leave a comment

This is part 1 of a two-part post on human trafficking as a gendered phenomenon. In this first part we provide a brief contextualisation to the issue and introduce our recently published article examining the relationship between the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and human trafficking. In the second post, we take a historical look at how the issue of trafficking became divorced from the Committee’s work on violence against women.

Trafficking in human beings is a gendered phenomenon.[1] An estimated 79% of all detected trafficking victims are women and children and traffickers are ‘overwhelmingly male’.[2] As the former Special Rapporteur on Violence against Women, its Causes and Consequences (Special Rapporteur on VAWG) commented in her 15 year review of the mandate, human trafficking is one of the major areas of concern with regards to violence against women (alongside domestic violence, sexual violence in conflict and reproductive rights violations).[3]  The Special Rapporteur on VAWG commented that there has been a marked shift on policy in this area from a ‘prostitution framework’ to a framework which places human rights at the centre of the debate. The Declaration on Violence against Women (DEVAW) confirms this view and recognizes human trafficking as a form of violence against women (Article 2(b)). Further, violence against women has now been recognized as a form of discrimination against women.[4] It is therefore clear that human trafficking is a form of violence and discrimination against women.

More recently, trafficking has been recognised as one of the main forms of violence that women face in the context of migration.[5] Trafficked women and girls often face different forms of gender-based violence such as sexual violence, rape, violation of their reproductive rights, and slavery both in destination and during their trip. Trafficking may constitute torture, crimes against humanity, and war crimes, and it has been identified as a threat to international peace and security by the Security Council (S/RES/2331 (2016)). States of origin, transit, and destination have obligations to prevent trafficking, protect victims (within their territory and from refoulement to a country where there is a risk of torture or cruel, inhuman or degrading treatment or punishment, including the risk of re-trafficking), and to prosecute traffickers. For States to comply with these obligations, victims must be properly identified and identification proceedings must be put in place at strategic points on migration routes and access to asylum proceedings must be granted.

In practice, much remains to be done to implement a human rights and a gender approach to trafficking that can provide justice to those who have suffered violations of their rights due to human trafficking for sexual exploitation, forced labour and other forms of exploitation, slavery and servitude. Most States aim to combat human trafficking from a migrant model a criminal justice perspective and more recently a security approach, thus neglecting the rights of trafficking victims.

In our article “Human Trafficking as A Gendered Phenomenon: CEDAW in Perspective”, we argue that CEDAW is an important human rights instrument in the fight against trafficking in human beings. By way of brief introduction, the Convention is an international human rights treaty dedicated to women and girls. It has been described as ‘the definitive international legal instrument requiring respect for and observance of the human rights of women.’[6] At the core of the Women’s Convention is the eradication of discrimination against women and States parties to the Convention accept wide-ranging obligations to promote equality in all spheres of life.[7]

Trafficking is expressly prohibited under CEDAW in Article 6, which mandates states to take all appropriate measures to supress trafficking and the exploitation of prostitution. We argued that given the disproportionate number of women and girls who are trafficked for the purposes of sexual exploitation and forced labour, the Convention is a valuable instrument, contextualising trafficking in the context of structural inequality, violence and discrimination. Further, the Committee’s General Recommendation No.30 and General Recommendation No. 35 point to some of the underlying factos which make women vulnerable to being trafficked including conflict, extractive industries, global supply chains and natural disasters. Significantly no State party has entered a reservation to Article 6.

However, Article 6 does not define the terms trafficking and exploitation of prostitution and the scope and contours of the obligation remain uncertain. Through an analysis of the Committee’s jurisprudence, we found that the Committee has yet to find a violation of Article 6 of the Convention finding all cases pleading Article 6 inadmissible. Further, the Committee has yet to draft a specific general recommendation on Article 6 which seems to be a glaring omission. CEDAW should make good its promise and provide substantive guidance on the scope of Article 6 of the Convention and States obligations to suppress and tackle trafficking. We argue that this is especially necessary given the lack of gender and structural analysis of trafficking by other regional and international courts and bodies and the brevity with which trafficking is dealt with in General Recommendation No 35 on violence against women.

[1] The Inter-Agency Coordination Group against Trafficking in Persons. ‘The gender dimensions of human trafficking’, Issue Brief #4, 2017.

[2] The UNODC Global Report on Trafficking in Persons 2016 notes that an increasing number of men have been detected as trafficking victims, United Nations Publication. Available at www.unodc.org/documents/data-and-analysis/glotip/2016_Global_Report_on_Trafficking_in_Persons.pdf

[3] 15 years of The United Nations Special Rapporteur on Violence against Women, its Causes and Consequences, available at www.ohchr.org/Documents/Issues/Women/15YearReviewofVAWMandate.pdf

[4] General Recommendation No. 35 (CEDAW) see paragraph 1 and 7. Opuz v Turkey (2010) 50 EHRR 28.

[5] Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment on Migration-Related Torture and Ill-Treatment, February 2018, A/HRC/37/50, available at www.ohchr.org/Documents/Issues/Torture/A_HRC_37_50_EN.pdf

[6] Rebecca Cook ‘Reservations to the Convention on the Elimination of all Forms of Discrimination against Women’ 30 Virginia J Intl’l Law (1990) 643, at 643.

[7] Andrew Byrnes and Marsha A. Freeman ‘The Impact of the CEDAW Convention: Paths to Equality A Study for the World Bank’ University of New South Wales Faculty of Law Research Series 2012, paper 7.

Conservative mobilization and adolescent pregnancy in Latin America

/ ReproHealthLaw Blog / Leave a comment

by Camila Gianella, Marta R. de Assis Machado and Angélica Peñas Defago

On September 27, 2017, the Brazilian Supreme Court – in a 6 to 5 judgment – decided that public schools can have “confessional” (Catholic) religious teaching in their curriculum. The constitutional case had been proposed by the Attorney General, who argued that current practice – that privileges Roman Catholic indoctrination – would violate the separation between Church and State as well as religious freedom. Although the judgment brings severe consequences to education rights in Brazil, it is only one example of the recent battles by conservative religious groups to influence Brazilian public education. The Catholic church has a long history of interference in Roman Catholic countries, aiming to block comprehensive sex education in schools. More recently, other churches and conservative groups have adopted similar strategies to influence educational policies in Brazil and elsewhere in Latin America.

In 2011, a school booklet advocating “Schools without Homophobia,” prepared by the Brazilian Ministry of Education, was recalled after strong pressure from conservative movements, evangelical and Catholic leaders. It was denounced as an instrument to promote homosexuality among children and to destroy families. In 2014, the debate over Brazil’s National Education Plan was the battlefield of conservative and religious groups against what they called “gender ideology”. Supported by civil society mobilization, including a organization (ironically) called Escola sem Partido [Schools without Politics] conservative members of congress overruled a clause in the Brazilian National Education Plan that stated, among the goals of the public educational system, overcoming educational inequalities, with emphasis in the promotion of equality among races, regions, genders and sexual orientations. Vocal critics of anti-discriminatory public policies in education also applied political pressure during the discussion and passing of state and municipal education plans.

Brazil is only one example of a new wave of conservative mobilization that is sweeping Latin America, characterized by the gathering of powerful old economic elites and religious conservative groups. Among its central political strategies, this new wave fights against the inclusion of a gender equality approach in public policies, including school curricula among their principal battlegrounds. Across the region, this movement has won many major disputes with significant impact. They have succeeded on blocking gender approaches and comprehensive sexual education not only in Brazil, but in the Argentinian provinces of Mendoza and Entre Rios, in Monterrey (Mexico), Panama, Paraguay, Peru, and even in the most secular country in the region, Uruguay.
As our forthcoming letter to the Editor of The Lancet (2017) explains, this new wave of conservative mobilization has tangible health effects. By opposing sexual education in the schools as well as the introduction of a gender equality approach within the school curricula, they hinder a core element of public health strategies to empower girls and adolescents, and consequently to prevent teenage pregnancies, which have a devastating negative impact on women, by, for example, contributing to female poverty.

Latin America is already the only region in the world where adolescent pregnancies are not decreasing. . . . Continue reading →