Landmark decision in first case of domestic violence brought to ECOWAS Community Court of Justice (ECCJ) (Ruling ECW/CCJ/APP/26/15, 24th January 2017)

In a decision that can be interpreted a historic milestone and a ‘triple high-five’ for the promotion of accountability for women’s human rights in Africa; for the recognition of violence against women as a violation of human rights, and for the emerging role of African regional courts in addressing human rights issues, on the 24th of January, 2017, the ECOWAS Court (the ECCJ or the Court) ruled that it has the competence to hear a case of domestic violence instituted against the Federal Government of Nigeria by two NGOs. I review that decision in this post.

The NGOs – the Women Advocates Research Documentation Centre (WARDC) and the Institute for Human Rights and Development in Africa (IHRDA) – had jointly filed a suit in August 2015 at the Court on behalf of Nigerian citizen, Ms. Mary Sunday, an alleged victim of severe domestic violence from her fiancé (a policeman), which had taken place three years earlier in August 2012.

WARDA and IHRDA alleged that since the attack happened, the Nigerian authorities had failed to carry out an independent and impartial investigation on the allegations of severe domestic violence suffered by Ms. Sunday.  As a result of the lack of effective investigation and prosecution of the offender, they argued that the Nigerian government had violated several rights of the African Charter on Human and People’s Rights; the Protocol to the African Charter on the Rights of Women in Africa, and other international human rights agreements. These rights included the right to dignity, to freedom from torture and other forms of cruel, inhuman or degrading punishment, and the right to a remedy.

The case was filed before the Court for human rights violations pursuant to Article 3 of the Supplementary Protocol of the Court. This provision gives the Court the competence to determine matters of human rights violations of citizens of the ECOWAS Community. The Nigerian government lodged a preliminary objection based on three grounds; that the Applicants had not established a cause of action; that the Applicants had no locus standi, and that the Court lacked the jurisdiction to hear the case. The Court was urged to dismiss and strike out the case for lack of merit.

In delivering the Court’s ruling, the Honourable Justice Micah Wilkins Wright, held that the case was admissible; that the Applicants had established a cause of action and also have locus standi to file the case.

Though this decision relates only to jurisdiction and admissibility by the ECOWAS Court, it is certainly noteworthy for the clear signal communicated by the Court to continue to hear cases relating to women’s human rights.

In 2008, in Mani v. Niger, (Hadijatou Mani Koraou v The Republic of Niger, Judgment No. ECW/CCJ/JUD/06/08 of 27 October 2008, available at http://www.refworld.org/docid/491168d42.html), the ECCJ broke new jurisprudential ground on women’s human rights when it found that that the Niger “[B]ecomes responsible under international as well as national law for any form of human rights violations of the applicant founded on slavery because of its tolerance, passivity, inaction and abstention with regard to this practice.” (See paras 84-85, based on its recognition of the failure of the Nigerien courts to denounce the instance of slavery, and the failure of the Nigerien authorities to bring a criminal prosecution. Emphasis my own).

In a decision that drew from instruments and decisions from international criminal law; international human rights law; African, Council of Europe and Inter-American regional human rights instruments; the ECOWAS Revised Treaty and Protocol on the ECCJ, and Nigerien domestic law, the ECCJ demonstrated an innovative interpretive approach to both the crime of slavery, and its particular manifestation for women.

The ECCJ’s openness to hearing cases that directly relate to women’s human rights, and to contributing to human rights jurisprudence at the African level, directly challenges perceptions of African human rights institutions as being ‘weak and ineffectual’ or ‘dysfunctional.’ (This description has been noted by several commentators including Obiora Chinedu Okafor who has observed that most commentators have historically described the workings and effectiveness of the African human rights systems thus. See Obiora Chinedu Okafor, The African Human Rights System, Activist Forces, and International Institutions, (CUP, 2007) at 63).

In the under-litigated area of women’s human rights both within regional human rights systems in general, and within international human rights law, this decision on jurisdiction and admissibility by the ECCJ is welcome. We await the details and the results of the hearing with great interest.

NOTE on details on the case;

 

Advertisements

Call for Papers for the Canadian Journal of Women and the Law

The Canadian Journal of Women and the Law/ Revue Femmes et droit is Canada’s oldest and only feminist legal periodical. Since it began in 1985, the journal has provided a forum in which feminist writers from diverse backgrounds, speaking from a wide range of experience, can exchange ideas and information about legal issues that affect women. We are looking to build on this tradition and remain committed to reflecting a diversity of political, social, cultural, and economic thinking, unified by a shared interest in law reform.

We invite submissions from people who are engaged in feminist analysis of socio-legal issues that reflect a range of approaches, including multidisciplinary, action-focused, theoretical, and historical, and that reflect linguistic and regional differences in Canada. We particularly encourage submissions authored by women from different backgrounds, disciplines and jurisdictions who are doing new feminist work.

The CJWL/RFD is seeking papers for publication in the following sections of the CJWL/RFD: articles, review essays, commentaries, case comments, research notes, book reviews, and notes on Canadian and International events of interest to our readers. Comments on previously published materials are also welcome.

Full submissions information is available at http://bit.ly/cjwlsubmit.

If you have comments or questions, please contact:

Natasha Bakht

English Language Co-Editor

Canadian Journal of Women and the Law

cjwl-rfd@uottawa.ca

Annie Rochette

French Language Co-Editor – Corédactrice francophone

Revue Femmes et droit

cjwl-rfd@uottawa.ca

Appel à contributions

La Revue Femmes et droit/The Canadian Journal of Women and the Law est le plus ancien périodique consacré à des analyses féministes en droit au Canada. Depuis son lancement en 1985, la Revue offre aux auteures féministes de tous horizons un forum où échanger des idées et de l’information sur des questions juridiques qui touchent les femmes. Nous souhaitons renforcer cette tradition, en continuant de nourrir des réflexions politiques, sociales, culturelles et économiques diversifiées qui partagent un même intérêt pour la réforme du droit.

Nous accueillons les contributions de personnes engagées dans l’analyse féministe d’enjeux sociojuridiques. Les articles reflèteront à la fois des approches variées – multidisciplinaires, centrées sur l’action et historiques, notamment –, et les différences linguistiques et régionales du Canada. Nous recherchons, en particulier, des travaux de féministes issues de différentes formations, disciplines et juridictions qui renouvèlent les approches et analyses féministes.

La RFD/CJWL sollicite des textes relevant des catégories suivantes : articles, études de fond, commentaires de jurisprudence, études de cas, notes de recherche, recensions de livres, et observations sur les évènements nationaux et internationaux susceptibles d’intéresser notre lectorat. Les réactions à des textes publiés précédemment sont également bienvenues.

Vous trouverez tous les renseignements concernant les propositions d’articles au http://bit.ly/cjwlsubmit.

Engendering Reparations in Forced Sterilization Case

The Inter-American Court of Human Rights recently heard its second reproductive rights case, IV v. BoliviaThis case deals with the sterilization of a migrant Bolivian woman who did not give prior informed consent to the doctors who performed her sterilization. The judgment will be released in the coming months, and is expected to be the first Inter-American Court case to apply the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women (“Convention of Belém do Pará”) to a woman’s reproductive rights case. This is especially exciting because the Court’s first reproductive rights case, Artavia Murillo et al. (“In vitro fertilization”) v. Costa Rica failed to examine women’s reproductive rights violations through the Convention of Belém do Pará, which ultimately resulted in reparations that were gender-free. The IV v. Bolivia case presents an opportunity for the Inter-American Court to connect gender stereotyping to forced sterilization. It also provides a forum for the Court to expand upon its gender-based analysis in previous women’s rights cases in order to frame reproductive violations within a violence against women framework.

Ciara O’Connell (University of Sussex) and representatives from Dejusticia,  Diana Guarnizo-Peralta and César Rodríguez Garavito, submitted an amicus curiae brief in this case  in order to emphasize the need to repair gender-based harm in reproductive rights cases. The amicus reviews the Inter-American Court’s jurisprudence in relation to gender stereotyping, and in doing so highlights the advancements and shortcomings in how the Court defines the role of women in society. The amicus suggests that the sterilization of “IV” was not an individual violation, but rather, this case is emblematic and represents a culture of gender-based discrimination and “paternalistic control” within the Bolivian medical sector. The final elements of the amicus suggest specific reparation measures designed to address gender discrimination and stereotyping, and the need to comply with international standards on informed consent.

If you’re interested, the amicus can be downloaded here in both English and Spanish. And, the public hearing before the Inter-American Court of Human Rights can be viewed here.

Article 8 of the Convention to Eliminate All Forms of Discrimination against Women (CEDAW): A Stepping Stone in Ensuring Gender Parity in International Organs and Tribunals

Article 8 of CEDAW requires state parties to the treaty to “take all appropriate measures to ensure to women, on equal terms with men and without any discrimination, the opportunity to represent their Governments at the international level and to participate in the work of international organizations.” Given the plain text of the provision and its subsequent interpretation by the Convention’s enforcement body, the CEDAW Committee, it is clear that state parties have a duty to ensure gender equality in the access to positions in international tribunals and bodies that play key roles in developing international law and human rights. As of today, 189 states have ratified CEDAW, thereby making the obligations arising out of Article 8 an almost universal requirement. The goal of GQUAL is to work with states, international bodies, and civil society organizations towards the effective implementation of this duty.

The obligation to ensure equal opportunity “to participate in the work of international organizations” under Article 8 is two-fold. At the international level, states must exert influence when the rules regulating processes of appointment to international positions are adopted to guarantee that they conform to the gender equality requirements of that provision (Sarah Wittkop, Article 8, in the UN Convention on the Elimination of All Forms of Discrimination Against Women, A Commentary,at 224). At the domestic level, states must establish transparent selection processes to ensure that women benefit on an equal basis from the opportunity to work at the international level, particularly when such opportunity requires states to nominate candidates to be appointed to those positions (Id.). Even though the obligation to ensure gender equality at the international level is of a positive nature, at the domestic level states have an immediate duty to set up the necessary conditions to guarantee women de facto equality to access those opportunities. On the other hand, the duty to achieve in practice gender equality is considered to be of gradual implementation.

When Article 8 speaks of “international organizations,” it is understood that this notion encompasses not only international bodies such as the United Nations, but also regional organizations, including the Organization of American States, the Council of Europe, and the African Union to mention a few (Id.). Moreover, all organs within those organizations are covered by this obligation, including “courts, subsidiary bodies, funds and programmes, specialized agencies, and treaty bodies.”(Id.) Consequently, states have a duty to ensure gender equality in access to positions at both levels and to all international organs.

Additionally, Article 8 requires that state parties to the Convention “take all appropriate measures” to ensure gender equality in their representations to international organizations. According to the CEDAW Committee, the appropriate measures include the creation of objective criteria and processes for the appointment and promotion of women to relevant positions (CEDAW, General Recommendation No. 23 (1997) paras. 38, 50) and the adoption of temporary special measures aimed at accelerating substantive equality for women,(Id., para. 43) as provided by Article 4 of the Convention. The Committee has read this article to require state parties to adopt temporary measures such as special educational opportunities, recruitment policies, and quotas in order to expedite gender de facto equality in areas where women are chronically underrepresented (CEDAW, General Recommendation No. 25 (2004) para. 22). Such temporary special measures are necessary to bypass entrenched cultural and structural issues that make it impossible for women to compete on an even playing field with men (Id., para. 14).

The CEDAW Committee’s interpretation of the Convention through its Concluding Observations on state parties and its General Recommendations is vital to understand the practical implications and obligations of the Convention. Even if Article 8 has not been extensively interpreted, the CEDAW Committee has repeatedly obligated states to take whatever measures necessary to ensure de facto gender equality in international representation. Specifically, the Committee has repeatedly recommended that state parties establish temporary statutory quota systems to achieve substantive equality in both the diplomatic service and states’ representations to international organizations. (Concluding Observations, the Netherlands, 2010, para. 33). Finally, given the precise nature of the obligation to take all appropriate measures, this duty is of immediate application and may be subject to enforcement at the domestic and international jurisdiction (Sarah Wittkop, Article 8, supra, at 231).

Continue reading

This Tuesday (5/5): UN Human Rights Chief Navi Pillay at Stanford

For those of you in the San Francisco Bay Area on May 5, Stanford University’s WSD HANDA Center for Human Rights and International Justice is pleased to present its Inaugural Public Lecture on Human Rights with Former UN High Commissioner for Human Rights Navi Pillay. She will address The Protection and Promotion of Human Rights: Achievements and Challenges at 5:30 p.m. on May 5 in CEMEX Auditorium at Stanford University (641 Knight Way).

The address will cover Ms. Navi Pillay’s work as UN High Commissioner for Human Rights on prevention of human rights violations and implementation of human rights principles, as well as the activities of the UN Human Rights mechanisms such as the Human Rights Council, Treaty Bodies, and Special Procedures. She will also share her insights on future human rights challenges.

Navi Pillay served at the UN High Commissioner for Human Rights from 2008 to 2014. Her tenure was marked by a focus on addressing discrimination on all grounds, including against previously unaddressed groups such as migrants, LGBT people, people with albinism, and caste-based discrimination. She oversaw the 2011 launch of Free & Equal, an unprecedented global public education campaign to promote greater respect for LGBT rights, and the Secretary-General’s endorsement of the Rights Up Front policy, which ensures that every UN department, regardless of mandate, is committed to advancing the protection of human rights.

A native of South Africa, Pillay was the first non-white female judge of the High Court of South Africa, and previously served as a judge at the International Criminal Court and President of the International Criminal Tribunal for Rwanda where she oversaw groundbreaking jurisprudence on rape as genocide, and on issues of freedom of speech and hate propaganda.

Attendees can kindly RSVP to Jessie Brunner at jbrunner@stanford.edu. We hope to see you there!

A note about the Handa Center:

The WSD HANDA Center for Human Rights and International Justice is dedicated to promoting the rule of law, accountability, and human rights around the world, in post-conflict settings, developing countries, and in societies grappling with difficult legacies from a historical period of violent conflict. Through research and international programs, the Handa Center supports and helps improve the work of domestic courts, international tribunals, and human rights commissions around the world. Relying on a small core group of lawyers, scholars, student interns, and volunteers, the Center concentrates its resources where it can make a real difference helping people make sense of the past, come to terms with periods of violent social upheaval, and build institutions that will promote justice and accountability. The Center is further committed to increasing awareness and raising the level of discourse around new developments in the fields of human rights and international law. To this end, the Handa Center has dedicated itself to becoming a major public resource center for the study of war crimes and human rights trials, where students, scholars, and legal practitioners can take advantage of new technologies to access unique archival resources from World War II through contemporary international criminal trials. The Handa Center succeeds and carries on all the work of the University of California at Berkeley’s War Crimes Studies Center, which was established by Professor David Cohen in 2000.

Failing to Face the Gender Challenge – note on the European Court of Human Rights Jurisprudence

The intersection of religion and gender equality in the context of international human rights law has been exceptionally controversial and poignant, touching the very essence of peoples’ personal beliefs and generating intense social and political tensions. Yet, the failure of international law-making institutions to develop substantial legal analysis on this monumental issue is more than a political issue. It is a substantive failure of human rights law to protect women.

Thus far, it can be argued that there is a general rule and agreement in international law by which women’s equality is considered as a higher norm such that freedom of religion and conscience cannot justify discrimination against women. However, even so, there are still several outstanding problems. For instance, it is simply not clear when and how this rule should be applied. What are religious discriminatory practices and how should we identify them? In what circumstances gender equality is really more important than religious freedoms, and under which conditions and exemptions? More generally, how should gender equality be understood in the religious context and what can be a proper balance. Another difficulty is that so far this general rule has been addressed in a binary manner by which gender equality is put against religion while in fact reality brought much complex claims (for instance, by many women who wish to assume their equality within the religious context and within their religious communities). While international law has been useful for obvious and extreme cases (where religion practices aggressively violated women’s rights), it has either avoided the complexity or over simplified the principle of equality in more complicated cases.

The European Court of Human Rights demonstrated these problems in recent case law over the bans on religious garments, much of it surrounding the wearing of veils, headscarves, and other modest garments by Muslim women in public spaces. Very briefly, on one side, proponents of the bans on religious veils have put forward justifications such as preserving state secularism in the public sphere, ensuring state’s religious neutrality, and promoting gender equality (as these garments are often seen as an oppressive practice). On the other side, opponents of the bans have claimed that they violate many aspects of the right to equality and women’s right to manifest their religion, as well as other sets of related rights (such as the right to personal autonomy, the right to privacy, access to public spaces and education, and the right to employment).

In the cases brought before it (most recently in SAS vs France, Dogru, Sahin and Dahlab), the Court dismissed the claims of women who pleaded for the right to manifest their religion and wear headscarves in educational settings or other public places. Generally, the Court ruled that the limitations on religious freedoms were necessary in a democratic society for “… the protection of the rights and freedoms of others” (as prescribed by article 9(2) of the European Convention on Human Rights). In three of the cases, the Court decisions further approved as a legitimate aim the governments’ claim to promote gender equality as these garments were introduced as an oppressive practice towards women and as a threat to democratic values.

However, it is not the results of the rulings that are most concerning. It is the court’s disappointing failure to fully engage in the legal complexity of the debate. In the course of its rulings, the Court avoided confrontation with the competing set of rights, and did not develop any comprehensive legal assessment or methodology on the tension between women’s equality, human rights and religious freedoms, to tackle these conflicts in a systematic manner.

Continue reading

The Troubling Silence Surrounding Human Trafficking and the Conflict in Ukraine

The Council of Europe Convention on Action against Trafficking in Human Beings was opened for signature in 2005, following public accusations in the early 2000’s of international complicity with sex trafficking in Bosnia and Herzegovina. Given the background to the European Convention on Action against Trafficking, as well as the links between trafficking and illegal movement of persons and contraband more generally, it would seem that human trafficking and the conflict in Ukraine should be at the forefront of European security discussions.

Despite the recent post-conflict trafficking scandals in Eastern Europe and the Balkans, surprisingly little attention has been paid to trafficking in Ukraine following Russia’s annexation of Crimea and the most recent round of doomed cease-fire agreements. While empirical data on the conflict in Ukraine is piecemeal at best, UNICEF pegs persons displaced by the conflict in Ukraine at over a million.

Continue reading