Launching a Global Campaign Against Gender Apartheid in Afghanistan

Three items to share on this, the one-year anniversary of the Taliban takeover of Afghanistan:

Register and attend what promises to be a riveting discussion on Global Strategies for Countering Gender Apartheid in Afghanistan on Friday 19 August 2022, with courageous Afghan women human rights defenders like Shaharzad Akbar and Zarqa Yaftali and international partners like the University of Michigan’s Professor Karima Bennoune and Human Rights Watch’s Heather Barr. Register here.

View filmmaker Ramita Navai’s documentary Afghanistan Undercover, about which noted interviewer Terry Gross of the program Fresh Air remarked in her interview with Navai: “I feel like the world isn’t watching as carefully anymore. And your documentary was a wake-up call to me. . . . things have gotten so dire for women there.”

Read Professor Bennoune’s powerful analysis The Best Way to Mark the Anniversary of Taliban Takeover? Launch a Global Campaign Against Gender Apartheid in Afghanistan, which explains why “it is critical to commit to a more effective and principled global response, and to do so by recognizing this grave set of abuses for exactly what it is: gender apartheid.”

RELINQUISHMENT TO THE GRAND CHAMBER: THE CLIMATE CHANGE CASE

INTRODUCTION:

On Friday, 29th April, the European Court of Human Rights [ECtHR] declared that the Swiss Climate Case [Verein KlimaSeniorinnen and Others vs Switzerland] was relinquished to the Grand Chamber. The competent Chamber of the ECtHR relinquished authority to the Grand Chamber in compliance with Article 30 of the ECHR and Rule 72 (1) and (2) of the Rules of the Court. This relinquishment can be utilized, firstly, when the 7 judges agree that the issue raises a ‘grave question impacting the interpretation of the ECHR or its Protocols, or secondly, where there is a chance of deviating from preceding case laws’. 

FACTUAL BACKGROUND:

The Swiss Climate Case involves a complaint filed by a Swiss Association and its members [a group of elderly individuals] who are protesting against the effects of global warming on their health and living standards. The applications mentioned three primary issues: first, insufficient climate policies in Switzerland that infringe upon the right to life and health under Articles 2 and 8 of the ECtHR; second, the Swiss Federal Supreme Court dismissal of their cases on irrational grounds, in breach of Article 6 of the Convention; and third, the courts and Swiss officials non-compliance with the subject-matter of their complaints, in breach of Article 13 of the Convention. 

The significance of the Swiss Climate case is that it will be the first case of climate change adjudicated by the ECtHR. Although Duarte Agostinho and Other was the first case to bring up the topic of climate change, the Swiss Climate Case and Agostinho address different legal issues.

RULE:

The competent Chamber of the ECtHR relinquished authority to the Grand Chamber in compliance with Article 30 of the ECHR and Rule 72 (1) and (2) of the Rules of the Court. This relinquishment can be utilized, firstly, when the 7 judges agree that the issue raises a ‘grave question impacting the interpretation of the ECHR or its Protocols, or secondly, where there is a chance of deviating from preceding case laws’.

In the case of Tatar vs Romania, the Court emphasized that pollution can damage the personal and family sphere of an individual because pollution damages the individual’s well-being and health. Further, the government has a responsibility to safeguard its people by governing and controlling the authorization, establishment, functionality and security of industrial operations, particularly those that are hazardous to the environment and human health. 

ANALYSIS:

i.                        VICTIM STATUS: 

The admissibility stage, particularly the acknowledgment of ‘victim status’ will be the initial obstacle for the Swiss Climate Case. According to Article 34 of the Convention, applicants can allege ‘to be the victim of an infringement’ of the rights in the Convention by one of the states.  If the claim is an omission to undertake appropriate measures mandated by a constructive obligation, the legal evaluation will invariably need at least an inquiry into whether the complainants have victim status.  Further, to be a victim of an infringement, the applicant must demonstrate that he/she was ‘directly impacted’ by the actions complained of, like in the current case, the allegedly omitted implementation of necessary actions despite an international duty binding upon Switzerland. 

In the case of Cordella vs Italy, the Court ruled that persons are ‘directly affected’ by the measures complained of if there is the persistence of a circumstance ‘of great environmental danger’, in which the environmental risk ‘will become potentially detrimental to the well-being and health of those who are subjected to it’. The Swiss climate case fulfills that standard because the Swiss authorities have not taken positive action to protect the elderly persons who will be subjected to intense heat waves in the future.

The applicant in Swiss Climate contended that the applicant organization should be given representative status for its members. This contradicts the previous precedent, as the Court does not consider petitions in the public interest [‘actio popularis’]. However, in the case of Fadeyeva, the court stated that because there is no  ‘right to nature preservation’ in the Convention, in cases of environmental deterioration ‘the involvement must personally affect the household, home or private affairs of the applicant’ to invoke Article 8 of the Convention. 

  1. POSITIVE OBLIGATION IN THE CONVENTION: 

Generally, positive duties are those which compel member states to undertake certain actions. They are essential where there is (I) a known and serious danger to the exercise of a right, and (II) the State has the potential to restrict, mitigate a danger or remedy its repercussions. A pre-requisite is that the State was aware of, or should have been aware of, the presence of a serious and imminent threat to a major legal value. In the case of Balmer-Schafroth and Others c. Switzerland, the Grand Chamber pointed to a ‘threat that was not just significant but also precise and, most importantly imminent’.

The two kinds of positive duties which have been recognized by the ECtHR to safeguard can co-exist in the same situation, whether it’s in the context of domestic violence or various other risks. The Swiss Climate case essentially turns on the issue of preventive positive duties under Articles 2 and 8 of the Convention. The applicants note the negative consequences of the absence of climate change prevention measures. See the case of Bevacqua and Others vs Bulgaria.

The case law and precedent of the Court acknowledging the duty to safeguard against widespread risks by legal and other actions [and the recognition that there can be potential victims, before damage has occurred] has conceptual implications on the evaluation of the victim status provision. If claims of omissions to act in respect to particular, one-time risks will receive preferential consideration over claims of breaches of duties to safeguard against potentially serious risks on a broader level, protection would be rendered ineffective. Certainly, the positive duties at issue in the current case are primarily directed at the law-maker [and as the Swiss Federal Tribunal stated, the duties are consequently of importance to political entities]. However, because of the lawful character of the duties, their invocation shouldn’t be considered inadmissible due to procedural grounds. 

CONCLUSION:

Humanity is facing a worldwide climate catastrophe that is already having devastating consequences for human rights. To avoid disastrous climate change and the wave of human rights abuses that would follow, immediate, comprehensive, and revolutionary reforms are essential. When States fail to adopt effective measures to accomplish the objectives of the Paris Agreement, international human rights courts may and should give adequate protection to elderly people or other vulnerable persons who are endangered by catastrophic heat waves and its related consequences. The Court’s reaction to this conclusion is expected to set the stage for how it handles future climate issues, and it will be echoed in the court rulings of domestic courts as well as various other human rights organizations. The ECtHR shall act as a Court of Law within the scope of its jurisdiction, always keeping in account that Convention protections must be practical and genuine, not fictitious.

Solidarity Activism in a time of Unpeace

For inspiration from amazing women who work for solidarity actions to assist the dis-empowered and vulnerable persons, including refugees, minorities, persons subjected to solitary confinement, and victims of atrocity crimes seeking truth, please see the video from the 2022 ASIL Roundtable including Noura Erakat, Maha Hillal, Azadeh Shashahani, Nia Houston, chaired by Cecilia Bailliet. The video is available here

Feminist methods in international law 

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

Prosecution of Environmental War Crimes at the ICC: Exalted Thresholds

This post traces the history of Article 8(2)(b)(iv) (“Article”) of the Rome Statute (“Statute”) – the codification of the first international environmental war crime. The author argues that the Article’s exacting standard renders it toothless.

Countries today are in agreement that the environment is a ‘global common’; a resource shared by one and all, not limited by sovereign boundaries. Time and again, the international community has entered into agreements to motivate member state(s) to protect and reinvigorate the environment. For instance the Paris Agreement, Kyoto Protocol and the UN Framework Convention on Climate Change are all aspirational frameworks pushing states to rethink their relationship with the environment. However, there are no real legal ramifications for the non-performance of these agreements, and their observance has largely been left open to the whims of politics and diplomacy. Moreover, these agreements are limited to state responsibility and do not percolate down to actions of individuals or other non-state actors.

International frameworks with legal consequences, such as the AP-1 to the Geneva Convention, (“AP-1”) are traditional in nature. These frameworks recognize international responsibility of states for ‘environmental destruction’ only in the backdrop of internationally recognized crimes perpetrated against ‘mankind’, such as genocide, crimes against humanity, or recently, crimes of aggression. International conventions such as the UN Convention on the Prohibition of Military or Any Other Hostile use of Environmental Modification Techniques, 1976 (“ENMOD”), removed the need to situate environmental destruction in the backdrop of a concomitant international crime. Notwithstanding, the thrust of ENMOD depends on “damage, destruction or injury” caused to the state. The terms “damage, destruction or injury” have canonically been interpreted in an anthropocentric form, meaning consequent damage to the civilian population.

Eclipsed by climate change and environmental destruction, with rising temperatures and sinking cities, mankind today has been brought face to face with a harsh reality. The environment, as a victim ofcorporate negligence, wanton human behaviour, and silent sufferers of armed conflict, has borne countless losses. The repercussions of such prolonged environmental neglect and degradation are both far ranging and immutable. Recognizing the need for inter-generational equity; the international community through its collective duty to preserve and secure the environment conferred it with independent legal protection. With the Statute in force, and the establishment of the ICC in 2002, the world saw the advent of the first ecocentric war crime.

Ingredients of Article 8(2)(b)(iv)

Successful prosecution under this Article requires that conjunctive benchmarks of “widespread, long term, and severe” damage to the environment be met in the context of an international armed conflict. The meanings of these terms are not defined within this Article, the Statute, or in secondary sources of interpretation as per the Vienna Convention on the Law of Treaties, 1969. The lack of a definition is exacerbated by Article 22 of the Statute which states that “ambiguity” should be interpreted favourably towards the accused.

The preparatory material of the Statute refers heavily to ENMOD and AP-1. Under these conventions the term “widespread” has a geographical bearing, and typically a damage of 100 square kilometres or upwards satisfies the element of “widespread” damage.

The term “long-term”, as the ordinary meaning suggests, has a temporal connotation. It refers to the continued effects of an attack. “Long-term” under AP-1 means negative environmental effects lasting a minimum of 10 years. Given the difficulty in evaluating lasting environmental damage at the time of the attack, it is likely that the drafters of the Statute viewed the quantum of 10 years as a range for understanding the term “long-term” and not a minimum threshold. Environmental impact assessments need to be carried out to gauge long-term effects of an attack. These involve significant costs and questionable efficacy.

Similarly one may look to AP-1 to understand the term “severe”, which refers to the potency of damage on the human and non-human environment. This interpretation takes us back to an anthropocentric approach; an otherwise progressive provision once again ties itself to civilian damage as a crucial factor in affixing international criminal responsibility.

Mens Rea and Military Objectives

The environment has often been the subject of wartime military attack, be it the scorched earth policy of the Napoleonic Wars to the use of  “Agent Orange” during the Vietnam War. The Article seeks to recognize the military’s strategic needs in conducting an offensive against the environment; it rationalizes that the damage being “widespread, long-term and severe” should also be “clearly excessive to the concrete and direct overall military advantage.” The Office of the Prosecutor, ICC opined that “clearly excessive” does not pertain to instances of collateral damage, which is purely a function of the proximity between civilians and military targets. Similarly in Prosecutor v Milan Martic, the ICTY held that any ensuing harm to civilian objects, such as the environment, cannot be justified in the “absence of closeness” between such objects and the legitimate military target.

Additionally, liability under this Article is confined to wrongdoings by military operatives in leadership positions. It provides a safe harbour to individuals without decision making powers in the military chain of command. “Leadership positions” are determined on the basis of an individuals’ say on the nature, timing, type, extent, and the general scope of the military attack. The military advantage is also qualified by the terms “concrete and direct”. The International Committee of the Red Cross has reflected that these terms do not justify “barely perceptible” military advantages. A military officer ordering an attack is required to demonstrate the potential military advantage and its nexus with the environmental attack.

Conclusion

Environmental crimes had been codified prior to 2002 under several international treaties in an anthropocentric fashion. This approach detracted from the damage caused to the environment, an object worthy of protection in and of itself. While the Article is certainly a harbinger in delinking environmental protection and damage from civilian harms, its exacting standard renders it toothless.      

Unsurprisingly, we are yet to see a single prosecution or investigation launched under this provision. Particularly in the context of gross environmental damage during recent day international armed conflicts, such as the Syrian War and the Ukraine War which are plagued by indiscriminate bombing, non-differentiation between military and civilian objects, and chemical warfare, which has the potential to pollute the lands and waterways of the country for generations to come. The ICC, as the only international court equipped to prosecute and convict individuals for crimes of international magnitude is wanting in realizing its potential.

April 18 – Ukraine Panel

Please join us for this upcoming panel on the conflict in Ukraine – organized by the American Society of International Law, Transitional Justice and the Rule of Law Interest Group, and co-sponsored by the AALS International Law and International Human Rights Law Sections.

April 18, 2022

12:00 p.m. – 1:00 p.m. EST

The Ukraine Conflict: Expert Roundtable on Transitional Justice and International Criminal Law Issues

Organized by the Transitional Justice and Rule of Law Interest Group, American Society of International Law; co-sponsored by the AALS International Law and International Human Rights Law Sections

Panelists:

Milena Sterio, The Charles R. Emrick Jr. – Calfee Halter & Griswold Professor of Law, Cleveland-Marshall College of Law (moderator)

Vladyslav Lanovoy, Professor, Law Faculty, Universite Laval (Canada)

Pavlo Pushkar, Head of Division, Department for the Execution of Judgments, European Court of Human Rights

Margaret deGuzman, James E. Beasley Professor of Law, Temple University Beasley School of Law and Judge of the Residual Mechanism for International Criminal Tribunals

Rebecca Hamilton, Associate Professor, Washington College of Law, American University

Leila Sadat, James Carr Professor of International Criminal Law, Washington University School of Law and  Special Advisor on Crimes Against Humanity to the ICC Prosecutor

Milena Sterio is inviting you to a scheduled Zoom meeting.

Zoom Information:

Join Zoom Meeting

https://csuohio.zoom.us/j/84851000100

Meeting ID: 848 5100 0100

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Refugee and Asylum Law: Towards the Centrality of Human Rights

I am pleased to announce that the UN Audio Visual Library of International Law has released my second lecture titled “Refugee and Asylum Law: Towards the Centrality of Human Rights”. It is available here

The lecture first gives an overview of the definition of a refugee according to the 1951 Convention on the Status of Refugees, including the elements of well-founded fear of persecution, nexus to protection categories, the principle of non-refoulement, and exclusion and cessation clauses. It then addresses the cost of seeking asylum, examining the risks of refugees at sea, the phenomenon of “crimmigration”, urbanization, and warehousing of refugees. This followed by a presentation of the elements of the “return turn”, including application of “safe third country/first country of asylum”, reference to internal flight alternatives, and stringent credibility analysis. There is brief presentation of the challenges regarding contemporary causes of flight, such as climate change and natural disasters. It concludes by referring to the contribution of the human rights courts and commissions from the Inter-American, European, and African human rights systems in articulating the procedural and substantive rights of refugees and migrants- who are all human beings.

Adoption as Secondary to Childbirth: India’s Maternity Benefit Act

The joyous moments of childhood often include parents cheering on their children on their simplest yet the most beautiful achievements. Sadly, not all children are able to share ‘firsts’ or experience the thrill of their gleaming parents on their achievements. These children who are left abandoned or have lost their parents often feel a disconnect with the world, the feeling of not belonging. According to a recent report of National Commission for Protection of Children’s Rights (NCPCR), at least 10094 children were orphaned during the pandemic. Adoption, thus, presents an opportunity for these children to live a happy and secure life. 

Framework of Maternity law in India

In India, firstly, there is no scope of paternal or paternity leave and the leave is limited to the extent of mothers. The Indian legislation is drafted in such a way that it is believed only women have the sole duty of nurturing and taking care of their child. Thus, fathers are kept out of the purview of the legislation of granting paternity benefits. On the other hand, it is often seen that employers refuse maternity leave for adoptive mothers because the law does not mandate it. Adoptive mothers are treated to be a class apart from biological mothers and provide an absolute legislative cover to the latter and an exceptional layer to the former.

Under the current Maternity Benefit Act (1961), according to Section 5(4), a woman is allowed a maternity leave of 12 weeks only if the adopted child is below 3 months of age. If a woman adopts a child who is more than 3 months of age, she is not considered for maternity leave at all. On the other hand, biological mothers are allowed a maternity leave of 26 weeks. The most unsettling aspect is the age limit of the adopted child that is set in the Act. 

After the 2017 amendment, The Maternity Benefits Act has considered adoptive mothers to be deserving of a maternity leave, but the amendment doesn’t solve the cause. Not only is it treating adoptive mothers unequally, but is also snatching away a secured life of the adopted child. Firstly, the age limit of 3 months of the adopted child is keeping adoptive mothers outside the purview of the Act because the adoption process itself is very time-consuming. Secondly, it is disincentivizing adoption of children who are not a newborn baby. Thirdly, it is remiss to think that only children in the 0-3 months of age require continuous care and support. 

Continue reading

UN Special Rapporteurship on Afghanistan

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.     

UN General Assembly Emergency Session on the Ukraine

Pursuant to the Uniting for Peace Resolution A/RES/377 (V) 3 November 1950, the General Assembly will hold an Emergency Session on the Ukraine at 10 a.m. New York Time, you may watch on UN WebTV

The letter submitted by the Ukraine is available here

It should be noted that although the primary formal mechanisms of accountability may be limited, there remain alternative forums, such as fact finding mechanisms, reports by UN human rights treaty and charter bodies as well as European institutions, as well as peoples tribunals.

Ingrid Weurth in the LawFare blog correctly critiques the misuse of humanitarian arguments to justify territorial intervention:

“I have been arguing for years that expanding international law to focus on human rights and humanitarian objectives at the expense of territorial integrity has created credibility and other problems that weaken the international legal system as a whole.

Today, the international community should reinvest in norms of territorial integrity and sovereignty through international law, even at the occasional expense of humanitarian objectives (which should be pursued vigorously through other avenues). The work of the United Nations should focus on interstate peace and territorial integrity.”

I would argue that the UN work on peace cannot be divorced from human rights as it is defined as a purpose within the preamble of the UN Charter, as well as Article 55, while Article 56 places an obligation on Member States to cooperate to achieve respect for human rights. The orientation of the international order is the pursuit of a pro homine peace, as discussed in The Research Handbook on International Law and Peace.