Distinguished jurist Navi Pillay discusses state sovereignty and human rights

duo“The biggest violators of human rights are states themselves, by commission or omission.”

This quote by Navi Pillay aptly summarized her talk on “National Sovereignty vs. International Human Rights.” Pillay, whose renowned legal career has included posts as U.N. High Commissioner for Human Rights and as a judge on the International Criminal Court and the International Criminal Tribunal for Rwanda, spoke this morning at the University of Georgia School of Law Atlanta campus.

Elaborating on the quote above, Pillay decried national legislation aimed at restricting the activities – and with it the effectiveness – of local nongovernmental organizations. Such anti-NGO laws already have passed in Russia and are pending in Pillay’s home state of South Africa, among other countries. That said, she welcomed new means of speaking law to power; in particular, social media that permit human rights advocates to reach millions. Also welcomed were accountability mechanisms that the United Nations has developed in recent decades, such as Universal Periodic Review by the Human Rights Council, reporting processes of treaty bodies, and reports by special rapporteurs.

amann_pillayI was honored to give welcoming remarks at the breakfast. Georgia Law’s Dean Rusk International Law Center, which I lead, cosponsored this Georgia WILL event with the World Affairs Council of Atlanta and Georgia State University’s Global Studies Institute. (We owe special thanks to Judge Dorothy Toth Beasley for her hospitality this week.)

Conversing with Pillay was World Affairs Council President Charles Shapiro. They began by speaking of Pillay’s childhood in Durban, where she grew up the daughter of a bus driver. She spoke of how testifying as a 6-year-old in the trial of a man who’d stolen money from her helped spark her desire to become a lawyer – and how donations from her community helped make that dream a reality.

Shapiro then asked about capital punishment, noting a scheduled execution. Pillay acknowledged the absence of any universal treaty outlawing the death penalty, but found evidence of U.N. opposition both in the decision not to permit the penalty in U.N. ad hoc international criminal tribunals and in the growing support for the oft-repeated U.N. General Assembly resolution calling for a moratorium on capital punishment.

“It started with just 14 states against the death penalty, and is now more than 160,” said Pillay, who currently serves on the International Commission against the Death Penalty.

img_0335On this and other issues, she said, advocates endeavor to encourage states first to obligate themselves to respect and ensure human rights, and then to implement the undertakings they have made in this regard:

“The United Nations was formed by states. It is a club of governments. Look how steadily they have adopted treaties and agreed to be bound by them. That doesn’t mean we are transgressing sovereignty.”

(Cross-posted from Exchange of Notes)

The Court’s dialogue with NGOs in S.A.S. v. France

The European Court of Human Right’s decision in the case S.A.S. v. France has been subject to substantial legal commentary. It was recently featured in the ASIL Insights, where the content of the judgment, the dissent as well as its implications were discussed. Earlier in July 2014 Professor Sytal Kalantry provided an analysis of the judgment, noting the fact that there were a number of non-governmental organizations (NGOs) that took part in the case as amici curiae. The case concerned the French law that prohibits the covering of the face in public. The Grand Chamber of the Court granted a leave to Amnesty International, Liberty, Open Society Justice Initiative (OSJI), Article 19 and the Human Rights Centre of Ghent University to submit amicus curiae briefs.

Image by Agência Brasil

Image by Agência Brasil

Currently, amicus curiae participants are commonplace in international tribunals. Amicus curiae submissions are a form of intervention by persons not party to the proceedings that involve presenting views on points of law or fact. This type of intervention in judicial proceedings has expanded from common law systems to countries with civil law traditions and to international adjudication. Article 36 of the European Convention on Human Rights and Fundamental Freedoms allows amicus curiae briefs from states, physical and legal persons and Council of Europe Commissioner for Human Rights.

In terms of organizations that acted as amici curiae in the S.A.S case, all NGOs, except the Human Rights Centre from Ghent University Law Faculty are repeat-players. They are veterans in this capacity and routinely submit briefs across a variety of tribunals. In fact, Amnesty International and Liberty are among the most active amici curiae before the European Court. Amnesty International is an active amicus curiae before a number of tribunals. In the past the organization submitted briefs before the European Court of Human Rights, the Inter-American Court of Human Rights, the International Criminal Tribunal for Rwanda and the International Criminal Court.

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On NGOs’ amicus curiae efforts to friend state-centric international tribunals

arcsunShould nongovernmental organizations be friends of intergovernmental courts? Put another way, is there a role for the NGO amicus curiae in tribunal that states have set up to deal with international disputes?

These are questions that IntLawGrrl Anna Dolidze explores these questions in her just-published, information-filled American Society of International Law Insight, “The Arctic Sunrise and NGOs in International Judicial Proceedings.”

Dolidze’s news hook is The “Arctic Sunrise” Case (Kingdom of the Netherlands v. Russian Federation), filed in late November with the Hamburg-based International Tribunal for the Law of the Sea. At issue was the seizure of Arctic Sunrise, Dutch-flagged ship owned by Greenpeace International, an NGO that, in its own words, “acts to change attitudes and behaviour, to protect and conserve the environment and to promote peace.” During a protest at the offshore oil rig Prirazlomnaya, Russia had seized the boat and detained its crew members on criminal charges. (credit for 2007 photo of the ship) They were not released till very recently.

While the matter was pending, Russia declined to appear before the law of the sea tribunal. Russia nevertheless objected to a Greenpeace petition to file an amicus brief due, Dolidze reports, “to the ‘non-governmental nature’ of the submitting organization.” The tribunal thus kept the brief out of the case file, even though its members and the parties were able to review the document. This Insight by Dolidze underscores the tension in this resolution, given Russia’s nonappearance, on the one hand, and the direct effect of the dispute on Greenpeace, on the other hand.

The Insight tracks other tribunals’ varied treatment of such petitions. Among the most restrictive is the International Court of Justice, another tribunal in which only states may litigate contentious cases; Dolidze cites ICJ Practice Direction XII, which handles amicus briefs much as ITLOS did in Arctic Sunrise. Among the most expansive is the Inter-American Court of Human Rights’ rule 41, which accepts such briefs within a specified timeline. Others – the European Court of Human Rights, the World Trade Organization dispute mechanisms, and the International Criminal Court – are in between. In sum, Dolidze, who’s now a law professor at the University of Western Ontario, writes:

‘Procedures allowing NGO amicus curiae briefs are currently more a norm than an exception in international judicial proceedings.’

Not all agree this is a good thing. Dolidze points to a 2007 article in which Melbourne Law Professor Robin Eckersley favored NGO participation for its “potential of creating a transnational space for dialogue.” But she also  quotes Arizona State Law Professor Daniel Bodansky’s 1999 caution that amicus litigation by nongovernmental organizations ought not to be conflated with public participation. Dolidze sees in the Greenpeace matter a timely opportunity to revive this debate.

(Cross-posted from Diane Marie Amann)

Sex in Peace Operations

sex in peace opsShould all sex between international personnel and local people in peace operations be prohibited? Why are peacekeepers rarely prosecuted for crimes such as rape? Should humanitarian workers be allowed to pay for sex? Should local laws or international standards determine the age of consent to sex between local people and international personnel in peace operations? My book, Sex in Peace Operations, examines the regulation of sex between international personnel and local people in United Nations peace operations through case studies of Bosnia, West Africa and the Democratic Republic of the Congo.

Over the past two decades there has been a series of scandals implicating UN peacekeepers, humanitarian workers and private military contractors in sexual exploitation and abuse of local people. Perhaps the best known of these are the cases of Cambodia and Somalia in the early 1990s, Liberia and Sierra Leone in 2002 and the Democratic Republic of the Congo (DRC) in 2004.  More recently the film The Whistleblower has publicised trafficking in women by private military contractors employed by DynCorp and seconded to the UN as international police monitors and trainers in post-war Bosnia.  Although less widely reported, there are also non-exploitative sexual relations between peacekeepers and local people.

The response to sex in peace operations has shifted over the last twenty years from an attitude that ‘boys will be boys’ to a ‘zero tolerance’ policy.  The zero tolerance policy, which appears to have been developed as a substitute for an effective legal framework, is itself highly problematic.  My book argues that the regulatory focus should be on preventing, and ending impunity for, sexual crimes committed by international personnel against local people, rather than trying to prevent nearly all sex between international personnel and local people, as the zero tolerance policy claims to do.  It suggests more responsive approaches to sex in peace operations that aim to promote the sexual autonomy of local people, particularly women and girls.

Torture in Kenya: Ending Impunity by Speaking the Victims’ Truth

kenya flagMy heartfelt thanks to IntLawGrrls for the opportunity to contribute this introductory post.

This month, the Committee against Torture will meet in Geneva to conduct a review of Kenya’s progress in meeting its obligations under the Convention against Torture (UNCAT). I worked with Physicians for Human Rights to submit an alternative report in April on Kenya’s efforts to comply with UNCAT. The report highlights Kenya’s inability to address torture stemming from unchecked gang activity, its failure to stop the torture of domestic violence, and its de facto acquiescence to torture in the form of female genital mutilation.

Kenya submitted a report describing its own progress and challenges faced in ending torture. Other nongovernmental organizations submitted reports about Kenya’s efforts to address the insidious, destructive problem of torture within its borders. The independent observations of NGOs are central to the UNCAT reporting process, offering alternative perspectives to the self-serving reports submitted by the states.

PHR, while largely known for its cutting-edge forensic work exposing human rights abuses, is also home to the Asylum Program. The Asylum Program is a unique model that provides direct services to asylum seekers while advocating for improved conditions in immigration detention centers and documenting human rights abuses suffered by immigrants. To document torture suffered by asylum seekers in their home countries, the Asylum Program pairs volunteer physicians and mental health experts with asylum seekers in the U.S. The medical professionals perform evaluations, prepare affidavits based on those evaluations, and submit the affidavits along with the asylum seekers’ applications, providing medical documentation to support claims of torture and abuse.

In writing the report to the Committee on behalf of PHR, I read all the medical affidavits for asylum seekers from Kenya since 2008, written by professionals affiliated with the Asylum Program. (2008 was the last time Kenya participated in the reporting process to the Committee; the Committee had been requesting a report from Kenya for each of the preceding nine years, and the country finally complied for the first time in 2008).

The affidavits make up a stark narrative of torture and ill-treatment suffered by Kenyans at the hands of the mungiki, a criminal gang that has terrorized the country with impunity for decades. Rape, genital mutilation, and beheadings characterize its violence. Despite its status as an illegal organization, Kenya has been powerless to put a stop to the mungiki’s torture and has even harmed innocent civilians in its efforts to address mungiki violence. The government allegedly formed a secret police force to kill members of the mungiki on sight. When Kenyan activists began to investigate these extrajudicial killings, the police then began targeting the activists to silence their investigations. Staff of human rights organizations faced threats and beatings from police for their work in exposing the execution-style murders of suspected mungiki members.

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