women’s human rights

Interview with Professor Mallika Kaur

/ Prerna Tara / Leave a comment

Mallika Kaur is a lawyer and writer who focuses on gender and minority issues in the United States and South Asia including post 9/11 violence, racial discrimination, farmer suicides, and transitional and transformative justice. She is also a lecturer at the University of California, Berkeley, School of Law.  She writes regularly for online and print media as well as academic publications; her work has been published in Foreign Policy, Washington Post, California Law Review among others. We would also like to take this as an opportunity to thank Mallika for all the work and efforts she has contributed to INTLAWGRRLS over the past several years.

Her book titled “Faith, Gender and Activism in the Punjab Conflict: The Wheat Fields Still Whisper” was published by Palgrave Publishers a few months ago. I had the honor of interviewing her with regards to her new book. The interview is transcribed below.

Question: What was your motivation behind writing this book? Why did you specifically choose to cover Punjab’s human rights movement?

Answer: I did not in fact set out with the motivation of writing a book. It was not a part of any academic project or research agenda. It was something that came out of my own journeying. I grew up in Chandigarh, Punjab, having been a part of a community of folks who read their news in English, discussed it perhaps in Punjabi, and largely did not talk to their kids about the armed conflict at all. A seminal year in the conflict history was the Indian Army’s attack on Punjab, epicentered at Darbar Sahib (akin to Temple of David or Mecca) in June 1984. This provoked a visceral reaction from Sikhs, indeed even many non-Sikhs. Yet, within months—I was a toddler still—the justified necessity of the June massacres had taken hold in the non-Sikh psyche of India. Since then, any demands for truth-telling–about that June or the decade of mass violence that followed—have been considered suspect by the majority community and the successive governments of India.

As an adult, my legal and international human rights interest was around courts and commissions and possibility of a regional mechanism for South Asia. I was initially interested in those questions but eventually what I landed on in my work was how powerful stories are in unwrapping things that have been largely silenced for a very long time.

Punjab has been a laboratory of several nation-building projects in India: the Partition in 1947, the not so revolutionary Green Revolution in the 60s-70s, and various attempts at stifling dissent in the 80s and 90s. But these multiple upheavals that contextualize Punjab’s present have seldom been woven and written together, much less by a Sikh woman.

Through this book, I have tried to fight against this idea that the Punjab conflict was just about violence against violence with men combating on both sides. I tried to find stories of people who were non-combatants but chose the dangerous work of human rights defence. The book is trying to re-shift focus from “leaders,” combatants and an obsession with violence to a more nuanced and inclusive approach. Instead of just Indira Gandhi and other perpetrators, the book hopes the limelight comes to rest on women leaders like Paramjit Kaur Khalra, Kuldeep Kaur, Amar Kaur, unnamed women like the police officer who secretly helped inmates in one of Punjab’s many torture centers, and Baljit Kaur, who you see on the cover of the book. Within this marginalized conflict, I am looking at further neglected gender issues. For the men’s stories, I highlight the dangerous tendencies that were conveniently ascribed to all turbaned and bearded Sikh men, and then the general prohibition society imposes on men that makes it quite impossible for them to admit many emotions, much less speak about sexualized torture.

Question: How did you approach and research this topic?

Answer: The story-collection, writing, having the subjects of the story read it, all happened over many years, which was fine because this writing did not have any specific deadline of restriction. One of the benefits of doing a project entirely on your own time and dime! People were generous once they understood where the questions were coming from. They shared their personal archives including videos, legal files and other documents. The book eventually combines legal cases, scholarly analysis, community memory and personal narrative. The hybrid approach is necessary to tease the nuances lost in a more straightforward memoir, collective biography or academic examination. Further, memoir snapshots provide the reader the needed history of the author narrating the history of the conflict: exposing my vantage point and influences directly.

The book is all and not at all about Punjab. When generations of violence may have made silence more expedient than excavation, how might we learn about conflicts’ complexities of the past and their manipulated shadows in the present? Most linear, neat, cited and chronological tellings of conflicts overlook essential dynamics such as gender and trauma.

Each chapter centers on a key case from the year (or years) of its focus, starting in descending order from 1995, the supposed end of the conflict. Legal case details are available to varying extents, which is instructive: till the mid-90s, legal remedies were de facto suspended in Punjab. Case descriptions thus also draw from non-legal sources. Each case necessarily invokes additional cases. And then advocating for the need to embrace complexity and reject binary understandings, each chapter also contains an interwoven section that quickly traverses the earlier history of Punjab, starting in ascending order from 1839, the transition from Sikh rule to British colonial rule. The two timelines, descending from 1995 and ascending from 1839, converge in the final chapter, on the pivotal year, 1984.

Question: What kind of audience did you have in mind while writing the book?

Answer: The audience of this book is pretty large and varied. It includes scholars, lawyers, policy makers, activists, students, and general readers. By presenting convergences between different forms of violence–current and historical, interpersonal and mass social violence—I believe this book has already engaged a variety of readers. I have received very different reactions and reflections from people of various walks of life over the last months. Women who read between the lines when the women in the book remained silent about certain things. Men who have expressed they never thought of some basic gendered dynamics in how even the more popular stories from the Punjab conflict are spoken about.

Also, I strongly felt that since the violence was rendered so common in Punjab, I had to figure out a way of telling the story in a way that is not limited to lawyers or one academic discipline. That it could be understood by anybody who cares about human rights defenders who do the work of helping us retain our belief in humanity during the worst of atrocities! And it’s meant for those unnamed activists and defenders who may be feeling alone in the world. Despite the world today feeling ever-growing in its apathy and ever-shrinking in its attention span towards even the worst of crimes, you are not alone. Different points and places in history have felt the same and still there are people, like the protagonists of this book,  who have made choices against the tide. They felt they really got something out of it, out of this unsalaried and uncelebrated work. They regularly gained inspiration from the folks they worked with and defended. They felt a sense of collective as they became part of history. When you consider the tenacity of centennial litigants like Chaman Lal, it’s hard not to be moved!

Question: What was your approach while selecting the three human rights defenders for the book?

Answer: These three were in fact my windows on many other human rights defenders, some I named earlier, who were always at much more risk and suffered much more. The life stories of the three people you see on the cover of the book, Baljit Kaur, Justice Ajit Singh Bains and Inderjit Singh Jaijee, became trusted vehicles for traveling through Punjab’s recent history. Each of them is credited with saving countless lives.

Speaking of the approach while selecting these three, I’m reminded of a video I watched, which Baljit Kaur took in the late 80s. A Sikh man, a former Army officer is narrating how he was himself picked up, tortured and almost killed. He was speaking in perfect English so this was somebody with enough higher education. He had been treated this way as he had spoken against a young boy being killed. He mentioned that these folks fighting for justice, Baljit Kaur and her colleagues, were in fact the ones preserving the nation’s unity and integrity. Contrary to being seditious or dangerous as the politicians would have folks believe, it was human rights defenders who were providing ordinary people some hope that the legal and justice system could be the answer rather than further violence.

Unfortunately, people fighting for justice often fight very lonely battles. These protagonists had one another. And they had faith in a higher power that kept them going. And they had a lot of pride in Sikh history that they had heard of or witnessed when younger, through anti-British struggles, for example. Still, it was not like they were joined by a large number of other folks living in Chandigarh, Punjab who were enjoying the same relative privilege of upper class these three protagonists had during the 80s and 90s. So it was very fascinating to hear their stories as to how they surrounded police stations, how they compiled reports, how they visited Amnesty International and learnt how to make video footage to appropriately document what was happening at a time international human rights groups were not allowed in Punjab by the Indian government.

Question: How was your experience while interviewing people on this difficult past?

Answer: What I find fascinating especially about my three protagonists is that they are buoyant spirits, so young-at-heart in their 80s, 90s, even though they have seen such horrific things in their lifetimes. These protagonists have made more change than most of us will be able to make in our lifetime. I found this very uplifting despite the subject matter being very difficult.

Since I allowed myself a hybrid approach, and use memoir in the book as well, I put myself very explicitly into the discussions around the legal cases and this too helped me make sense of people’s trauma experiences. Some of the irrational reactions of these people started making more sense because they had gone through very unnatural set of circumstances. The whole Sikh community had been demonized for several decades. And now in India of 2020, the issues of creating an ‘enemy within,’ and what that does to social fabric, is again playing out. Where for example students, including pregnant women, who are protesting new discriminatory laws are picked up and booked indefinitely under draconian laws, themselves iterations of laws previously used in Punjab and then finally repealed on the books. How can we say the unlearnt lessons of past conflicts are not relevant to India today? I am not didactic about the parallels in the book. There is space for the reader to draw lessons for themselves.

Question: What do you think of the post-conflict scenario of Punjab in terms of violence against women and gender-based violence?

Answer: So, the first thing is that I don’t describe Punjab as post-conflict anywhere in the book because there has been no catharsis, no reconciliation, no period of transition, or justice, towards sustainable and inclusive peace. The estimates of those killed vary from police estimates of 25,000 to civil society estimates of 250,000. Even this variance speaks volumes about how the conflict has lived on; there is no closure, no semblance of transparency. Nobody was able to document the dead. Those who attempted to document it, like Jaswant Singh Khalra, whose amazing story I detail in Chapter 2, were killed. We went from this period of heightened killing and mayhem to an abrupt and strident “normalcy” in Punjab.

Coming to your question about gender and violence against women, I think the situation for women remains really bad through these subsequent decades, if not worse. Of course, across India we are dealing with shameful realities like marital rape being still legal. Dowry, being a ubiquitous feature of almost all weddings, despite being illegal. Ideas of honor and purity instead of autonomy and rights being tied to women’s bodies. And then some women’s bodies being deemed as not worthy of honor even: the Dalits of India disenfranchised by caste, or the women in conflict zones, who were blatantly immediately excluded from the changes that were proposed after the much publicized and horrific Delhi rape of 2012. Women who suffered in Punjab in the 80s and 90s at the hand of State forces have seen no reparations, not even in the form of recognition, much less apologies or restitution.

Question: What is next on your research agenda? Would you like to interview more female reformists of Punjab or write about some other aspect of Punjab region or the conflict?

Answer: I remain interested broadly in how we can make connections between different forms of violence that our communities negotiate – current and historical, in the U.S. and in home countries, interpersonal and mass social violence. I have also been writing and teaching on how lawyers specifically manage trauma, their clients’ and their own. Though most importantly right now, through COVID, I am focusing on the work that I have been doing since 2002, advocacy and crisis response for victims of gender-based violence. Working on gender-based violence as a practicing lawyer in the U.S., I am also really fascinated by comparatives. Right now in the U.S. there are a lot of discussions about alternatives to how domestic violence/ intimate partner violence response has been closely tied to increased policing, especially since the 70s. This is a complicated discussion here. Then add other contexts where feminists are fighting for the police to take domestic violence seriously. Or, even more complicated, cases in India where domestic violence laws are not protecting those they were meant to but are regularly manipulated by the upper-class litigants looking for an end-run. This is a part of my broader interest and possible future writing. And I dream of the time and headspace to write fiction someday! But really, I am presently quite consumed with working on the increased challenges faced by domestic violence survivors where I currently live. This too is a lesson from the protagonists of the book: make a difference where you can, don’t overlook the obvious local needs.

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)

/ Siobhan Airey / 3 Comments

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;

 

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

/ Claire Poppelwell-Scevak / Leave a comment

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

/ Ciara O'Connell / 1 Comment

The Inter-American Court of Human Rights recently heard its second reproductive rights case, IV v. Bolivia. This 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

/ Claudia Martin / 3 Comments

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).

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

/ Jessie Brunner / Leave a comment

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

/ Cochav Elkayam-Levy / Leave a comment

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.

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The Troubling Silence Surrounding Human Trafficking and the Conflict in Ukraine

/ Kaitlin M. Ball

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.

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The Prince, his mistress and his lovechild – a feminist perspective on the Couderc and Hachette Filipacchi Associés v. France Grand Chamber referral

/ Nani Jansen Reventlow

Male celebrity has affair with woman. Woman shares story with public. Woman’s version of events gets shut down by the courts. The end.

It is an all too familiar story that seems to repeat itself over and over again. When it comes to information disclosing the infidelity of powerful men, national courts have often been more than helpful in expeditiously securing the silence of the women involved in such affairs, accrediting more weight to the man’s claims of privacy, than the woman’s right to tell the tale of what was ultimately her affair as well.

Gill Philips, director of editorial legal services for the Guardian, wrote about the approach of UK courts to this issue in 2010, arguing that these cases were not so much about protecting anyone’s privacy, but “about protecting a male-dominated view of the world where it is legitimate to have sex with whoever they want and not have to account for it.” This, she argued, “goes to the heart of a much deeper, male-orientated view of society and relationships.”

While the legal landscape in the UK might be changing, as evidenced by cases as Ferdinand v. MGN and Steve McClaren v. NGN, the European Court of Human Rights has continued to tilt the balance in favour of claims advanced by men with public roles based on the right to respect for their private life. As recently as 2013, the Court approved of the Finnish courts silencing a woman who had published a book about her relationship with the (now former) Finnish Prime Minister, Matti Vanhanen. The case, Ruusunen v. Finland, concerned Susan Ruusunen, a single mother, who had been dating Vanhanen for two years while he was still in office. Vanhanen had not objected to her writing about their relationship and even posed for the cover photo of the book together with Ruusunen. Nevertheless, she and her publisher were criminally prosecuted and her book was taken out of circulation. While the Court acknowledged that the ex-girlfriend should be able to tell her story, the panel (consisting of three female and four male judges) stumbled over the fact that Ruusunen had discussed details of the sex life of two consenting adults, namely her and Vanhanen. No sex please, we’re judges.

In the Court’s deliberations, no attention was paid to Ruusunen’s right to tell her story as a matter of personal identity – the entire privacy v. freedom of expression assessment was conducted from the perspective of Vanhanen’s right to privacy. It was therefore refreshing in 2014 to read the Court’s judgment in Couderc and Hachette Filipacchi Associés v. France. The case concerned the publication of an article disclosing the identity of the illegitimate child of Prince Albert of Monaco and “Ms C.”. The article contained an interview with Ms C. and photographs of the mother, father, and child. These were published in French tabloid Paris Match and a similar German magazine called Bunte. The Prince sued both publications, in spite of acknowledging later that the child was indeed his. Continue reading →

20 Years of VAWA

/ Elizabeth Ludwin King / Leave a comment

Twenty years ago, on September 13, 1994, President Clinton signed into law a bill that included the Violence Against Women Act (VAWA). The Act afforded greater protections to victims, brought the issue out of the private sphere and into the public domain, and resulted in a 64% drop in the intimate partner violence rate. Yet, recent news reports have once again thrust the issue front and center here in the United States, where domestic violence accounts for 0ver 20% of all violent crime.

The occasion of the twentieth anniversary of this vital legislation provides an opportune time to consider these sobering global statistics:

Legislation like VAWA is a powerful tool for combating violence against women domestically, and organizations working to prevent this violence and address root causes also effect change. International treaties including the Council of Europe’s Convention on Preventing and Comabating Violence Against Women, which entered into force just last month on August 1, the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence Against Women, and numerous other documents together evidence the depth and breadth of the global support regarding the right for women and girls to live without violence. Change happens slowly, but with all these instruments at our disposal, we have reason to believe it will happen.