Feminism and the Kenyan TJRC (Part 1)

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Commissioners Tecla Namachanja and Margaret Shava at the launch of public hearings in Garissa (April 2011)       (Kenyan TJRC)

In 2004 a task force chaired by Professor Makau Mutua travelled throughout Kenya to determine whether a truth commission should be established to address historical injustices.  In their report, the task force observed that while their provincial hearings were “on the whole” well attended, the number of women participating in the hearings was “low.” The experience of the Mutua task force mirrored that of truth commissions generally. Female participation in truth commission processes worldwide has been low, leading more recent truth commissions to create special units to encourage the participation of more women. Kimberly Theidon discusses attempts to incorporate a greater gender sensitivity to transitional justice processes, focusing in particular on Peru.

 

Christine Bell and Catherine O’Rourke pose three sets of questions as part of a feminist critique of transitional justice generally.  First, where are women (both representation and participation in transitional justice design and process)? Second, Where is gender (where are the voices and experiences of women with respect to conflict, human rights violations and justice)? Third, where is feminism (referring to the feminist critique of justice and its applicability to transitional justice)?

Feminist critiques of truth commissions tend to focus on two issues. First, truth commissions ignore or do not devote sufficient attention to systemic, structural, and institutional violence that tends to affect women disproportionately. Second, truth commissions are not designed to encourage the participation of women, and thus perpetuate the silencing of women in those societies.

The drafters of the Kenyan legislation establishing the Truth Justice and Reconciliation Commission were sensitive to these critiques, requiring that there be gender balance among the commissioners (we began with five male and four female commissioners); requiring that the chair and vice chair be of opposite gender; including sexual- and gender-based violence in the violations we were to investigate, and suggesting that we put into place special mechanisms and procedures to address the experiences of women. During most of our operational period, our CEO was a woman; and during the fourteen months when we conducted most of our external activities (statement taking, public hearings, investigations, and other outreach activities), our acting chair was a woman – in fact Tecla Namachanja Wanjala was the first woman to serve as the chair of a truth commission. Continue reading

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Exporting Censorship: How U.S. Restrictions on Abortion Speech and Funding Violate International Law, Part 2

GlobalJusticeCenter_GagRule

Part 2: The Global Gag Rule and Freedom of Association

This is the second of a two-part post illustrating how U.S. abortion restrictions violate the ICCPR’s requirements for lawful restrictions on the freedom of speech and association, which is examined in more detail in the Global Justice Center’s recent brief. Although the Helms and Siljander Amendments (discussed in Part 1) also violate the freedom of association in various ways, this post focuses on the Global Gag Rule and its unique effects on the freedom of association.

The Global Gag Rule Strikes Again

Over one year has passed since the Trump administration announced it was expanding the Global Gag Rule (Gag Rule) (also known as the “Mexico City Policy” and now “Protecting Life in Global Health Assistance”) to cover all U.S. global health assistance funding—a significantly larger amount of foreign aid than previous iterations. The expanded Gag Rule (an executive branch policy) prohibits foreign NGOs that receive U.S. global health assistance funding from “perform[ing] or actively promot[ing] abortion as a method of family planning,”[i] and from using funding from any source (whether foreign or domestic) to carry out abortion-related activities, including counseling, referrals, advocating for increased access to abortion, or lobbying to legalize abortion. By continuing to prevent foreign NGOs from using any of their funding for these activities, U.S. policy violates international law protecting the freedom of association by preventing work and advocacy on a particular human right.

The Right to Freedom of Association Includes Access to Funding

ICCPR Article 22 guarantees the right to freely associate with others, including an association’s right to carry out all its statutory activities. As described in detail in the Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association’s 2013 report, the right to access funding and other resources is essential to associations’ existence and effectiveness, and is thus also protected by Article 22. International law does not distinguish between sources of funding, and recognizes that associations have the right to seek funding from domestic, foreign, and international sources alike. Like those on freedom of speech, restrictions on the freedom of association are only permitted where they are provided by law, serve a legitimate aim (to respect the rights or reputations of others or to protect national security, public order, public health or morals), and are necessary in a democratic society and proportionate to achieving that aim. The Gag Rule exemplifies how U.S. restrictions on abortion speech, activities, and funding violate the ICCPR’s requirements for restrictions on the freedom of association. Continue reading

Exporting Censorship: How U.S. Restrictions on Abortion Speech and Funding Violate International Law, Part 1

GlobalJusticeCenter_WhiteHousePart 1: The Helms Amendment and Freedom of Speech

This is the first of a two-part post exploring how U.S. restrictions on abortion-related speech, activities, and funding violate U.S. human rights obligations under the ICCPR. Although much attention is rightfully paid to the devastating impact of the reimposed Global Gag Rule, the Helms and Siljander Amendments (which have been permanently in place since the 1970s) often command less consideration. These restrictions are discussed separately here in order to illustrate their unique effects on freedoms of speech and association. However, Helms, Siljander and the Global Gag Rule all fall short of the ICCPR’s requirements and therefore violate freedoms of speech and association in complex ways, as examined in more detail in the Global Justice Center’s recent brief. This post explores how the Helms and Siljander Amendments fail to meet the ICCPR’s standards for lawful restrictions on the freedom of speech. Part Two will focus on the Global Gag Rule and its violation of the freedom of association.

The Helms Amendment (first enacted in 1973) provides that no U.S. funds “may be used to pay for the performance of abortions as a method of family planning or to motivate or coerce any person to practice abortions.” In practice, U.S. government agencies have interpreted and applied the Helms Amendment as a total ban on abortion speech and services, despite the Leahy Amendment’s attempt to clarify that counseling on pregnancy options should not be considered “motivation.” U.S. application of Helms also does not include exceptions for rape, incest or life endangerment (unlike the Global Gag Rule), even though these exceptions are often covered by other legal protections (such as international humanitarian law).[i]

U.S. Restrictions on Freedom of Speech Violate International Law

Although experts and advocates have highlighted the harmful effects of abortion restrictions on global health, little attention has been paid to the legality of U.S. abortion speech restrictions, especially under international law. ICCPR Article 19(3) only allows for restrictions on the right to freedom of speech where they: (1) are provided by law; (2) serve a legitimate aim; and (3) are necessary and proportionate to achieving that aim. U.S. abortion speech restrictions fail to meet each prong of this test.

First, for a restriction to be adequately “provided by law,” the Human Rights Committee (HRC) has explained that it must be accessible to the public, be formulated with precise language that allows individuals to regulate their conduct, and not allow “unfettered discretion” to those charged with its execution.[ii] Continue reading

Court of Justice of the European Union takes on Muslim headscarf employment discrimination cases

With the increased reach of the populist movement and changing demographics, several European countries have been confronted with the need to define secularism and freedom of religion in a way where each of these concepts do not impinge on the rights of the other. This has dominated several discussions in politics, law, education, and social interactions throughout Europe.

One issue that stands at the forefront of these arguments is the wearing of the headscarf by Muslim women in Europe as a practice of their faith. The Court of Justice of the European Union (CJEU), the highest court in the European Union with regards to European Union law, provided judgments on two cases involving the headscarf in March 2017.

In Samira Achbita v. G4S Secure Solutions NV (G4S), the CJEU was asked to provide guidance on the interpretation of Council Directive 2000/78 as it related to the dismissal of Ms. Achbita, an employee of G4S, for wearing a headscarf as part of her religious beliefs. The Council Directive 2000/78 provides that the “principle of equal treatment” means that there will be no direct or indirect discrimination based on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation. Furthermore, the Council Directive highlights that indiscrimination occurs when apparently neutral provisions, criteria, or practice put persons of a particular religion, disability, age, or sexual orientation, at a particular disadvantage unless it is “objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.”

G4S stated that the company has a policy of not allowing employees to wear any political, philosophical, or religious signs as it may compromise the visibility of G4S’s position of neutrality. The Court ruled that there was no direct discrimination as the Directive did not single out a specific group of people or religion to target and was facially neutral. The Court did leave room to say that the rule may constitute indirect discrimination if persons of a particular religion or belief were put at a particular disadvantage, “unless justified by a legitimate aim” and the means of achieving that aim are appropriate and necessary.

Similarly, in Asma Bougnaoui v. Micropole, SA (Micropole), Ms. Bougnaoui was dismissed from her employment at Micropole because of her refusal to remove the headscarf that she wore for religious reasons, and about which some customers of the company had complained. However, here the CJEU ruled that the “the willingness of an employer to take account of the wishes of a customer no longer to have the services of that employer provided by a worker wearing an Islamic headscarf cannot be considered a genuine and determining occupational requirement within the meaning of that provision.” Continue reading

Award-winning Akayesu documentary to be screened at ASIL Annual Meeting

“The Uncondemned”, an award winning documentary about the first prosecution of rape as a war crime, will be screened at the Annual Meeting of the American Society of International Law on Friday, April 14 at 7:30pm in the Regency Ballroom A of the Capitol Hill Hyatt in Washington, D.C. The world premiere of the film occurred at the United Nations in October.

Several of the lawyers whose work on the case is featured in the documentary will be in attendance for the screening, including Patricia Sellers, then Gender Officer for ICTR and ICTFY, Pierre-Richard Prosper, lead trial attorney in the Akayesu case, and Lisa R. Pruitt, then gender consultant to ICTR. Executive Director Michele Mitchell will also be present for Q&A after the film.

“The Uncondemned” tells the story of the case against Jean-Paul Akayesu, the mayor of Taba commune. Akayesu was convicted of genocide and crimes against humanity in 1997. While rape has been “on the books” as a war crime for nearly a century, it had never been prosecuted until this case. The film follows the lawyers and activists working to investigate, indict and convict Akayesu, not only on the basis of killings but also sexual assaults. The even more compelling story of the Rwandan witnesses is a focus of the film as well. Despite being initially skeptical of the United Nations and ICTR, these witnesses ended up coming forward to testify about the atrocities they saw and experienced during the genocide.

Los Angeles Times film critic Kenneth Turan observation that “The Uncondemned” is “the story of how history is made in small, at times uncertain, steps” is exemplified by the sexual assault charges eventually brought against Akayesu. Originally, the indictment included only charges based on killing, despite the documentation of sexual assaults by human rights NGOs. During the case, however, evidence of sexual assaults surfaced, leading to suspension of the trial until the matter could be investigated further. In the end, the indictment was amended and Akayesue was convicted not only of killings but also in connection to sexual assaults.

As a UC Davis law student interested in international human rights, I had the opportunity to attend a screening of this inspiring film at my law school a few months ago. As an aspiring lawyer, I found the documentary inspiring and uplifting. Documentaries about the Rwandan genocide tend to be uninspiring and focused on the lack of intervention of the international community. However, “The Uncondemned” tells a different story. It illustrates the extraordinary resilience of and solidarity among the Taba women who witnessed and experienced genocidal atrocities. A New York Times reviewer felt the same about the film, writing that the “most extraordinary are the interviews with the women…their integrity and tenacity, and their loyalty to one another are enough to bring you to tears.”

Continue reading

Read On! ‘Human Security and Human Rights under International Law: The Protections Offered to Persons Confronting Structural Vulnerability’

I am thrilled to post for the first time in IntLawGrrls and to share the publication of my book Human Security and Human Rights under International Law: The Protections Offered to Persons Confronting Structural Vulnerability (Hart Publishing, 2016).

This book considers the potential of human security as a protective tool within the international law of human rights. Indeed, it seems surprising given the centrality of human security to the human experience, that its connection with human rights had not yet been explored in a truly systematic way. The book attempts to address that gap in the literature and sustains that the human rights of persons, particularly those facing structural vulnerability, can be addressed more adequately if studied through the complementary lens of human security and not under human rights law alone. It takes both a legal and interdisciplinary approach, recognizing that human security and its relationship with human rights cuts across disciplinary boundaries.

Human security with its axis of freedom from fear, from want and from indignity, can more integrally encompass the inter-connected risks faced by individuals and groups in vulnerable conditions. At the same time, human rights law provides the normative legal grounding usually lacking in human security. International human rights norms, individualistic in nature and firstly enacted more than sixty years ago, present limits which translate into lack of protection for people globally. As a result, the collective and contextual conditions undergone by persons can be better met through the broader and more recent notion of human security, which emphasizes ‘critical (severe) and pervasive (widespread) threats’, and accentuates socioeconomic vulnerabilities as authentic security concerns. Indeed, as signaled by Sadako Ogata, human security is ‘the emerging paradigm for understanding global vulnerabilities’.

The analysis follows a two-part approach. Firstly, it evaluates convergences between human security and all human rights – civil, political, economic, social and cultural –and constructs a general framework for thought and action, the ‘human security – human rights synergy’. Secondly, it goes on to explore the practical application of this framework in the law and case-law of UN, European, Inter-American and African human rights bodies in the thematic cores of 1) violence against women and girls (VAW); 2) undocumented migrants and other non-citizens such as asylum-seekers and refugees; converging in 3) a particular examination of the conditions of female undocumented migrants. In the last chapter, the book systematizes this evidence to reveal and propose added values of human security to human rights law; and inversely, it indicates how human rights standards/indicators can deliver a needed more precise, normatively grounded and operational conception of human security.

These ‘interpretative synergies’ offer promise for shifting the boundaries of international human rights law: in constructing integrative approaches to fill legal gaps, better prevention and addressing protectively collective threats, and –in the spirit of the Universal Declaration of Human Rights- creating an ‘enabling environment’ to fulfil all human rights, especially for those not only confronting isolated moments of risk or individual human rights violations, but rather conditions of structural vulnerability affecting their everyday lives. Continue reading

Call for Papers: Gender on the International Bench

Gender on the International Bench Workshop in Oslo: March 23-24, 2017.

At present, women make up an average of 17% of the judges of international courts and tribunals. There is a significant variation in the proportion of women on the benches of different legal regimes. To better understand and assess this inequality, PluriCourts and iCourts invites papers for a workshop on gender on the international bench.

The aims of the workshop are

  • to better understand the current patterns of gender diversity and inequality on these international courts and tribunals,
  • to critically assess reasons to be concerned with this gender disparity, and
  • to identify challenges and ways to alleviate disparities that should be changed.

We invite papers in political science and philosophy, on a range of issues.

For further information please read the full call for papers.

Please submit an abstract before January 20 to:

For political science: Daniel Naurin Daniel.naurin@jus.uio.no

For philosophy: Andreas Follesdal andreas.follesdal@jus.uio.no