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Bosnian women stage protestBy SAMANTHA LAKIN*

Impunity Watch: Cases of Gender and Post-Conflict Transitional Justice

This is a call to policymakers, who work to formulate policy to prevent the recurrence of genocide. How do we give a voice to survivors? How do we pay appropriate attention to victims of gender-based violence (GBV), as specific crimes, that can be a tool of genocide?  Impunity Watch’s report, “Giving a voice to victims: Towards gender-sensitive processes of TJRNR in Bosnia and Herzegovina, Burundi and Guatemala” attempts to answer these significant questions. The main goal of the report is to provide analysis and recommendations for policymakers to reach gender-sensitive goals in rebuilding plans, to prevent future incidences of genocidal violence.

Impunity Watch, an organization promoting accountability for past international atrocities in violent, conflict-affected countries, released a series of reports on December 18, 2012 about transitional justice and gender. The reports provide an in-depth look at justice, peace, and truth-telling processes in Bosnia-Herzegovina (BiH), Burundi, and Guatemala.

Why a Gendered Analysis?

Gender analysis has become increasingly significant when determining the ways in which conflict and rebuilding processes affect men and women. As notable scholars from The Feinstein International Center at Tufts University have recently reported, separating gender from significant fields, including international development, conflict management, humanitarian response, or policy-making, is neither feasible nor desirable, and will lead to incomplete conclusions about the effects of policymakers’ actions and impact.[i]  The Impunity Watch reports aim to understand how gender, transitional justice, atrocities prevention, and post-conflict policies have been addressed in these three cases, providing both strengths and shortcomings.

This article will address the policies and recommendations (some new, some restated yet important) in the case of Bosnia-Herzegovina, and how the main stakeholders could “do better” to address women’s rights in the aftermath of conflict. In this first article, I will discuss the main findings and challenges in the case of Bosnia-Herzegovina. My next two articles will address the Impunity Watch reports on Burundi and Guatemala.

Gender-Sensitive Processes in Bosnia-Herzegovina

The 94-page report summarizes the main obstacles to promoting gender-sensitive peace, reconciliation, and non-recurrence. Frankly, it is more difficult for women to have access to, participate in, and benefit from processes of truth, justice, reparations and non-recurrence (TJRNR), since these do not take the needs of women into consideration in design or implementation. For example, a female internally displaced person (IDP) reclaiming property will often encounter prejudices and a lack of understanding within society, something a male IDP will likely not experience. Women looking for their missing husbands are not entitled to certain benefits from the Law on Missing Persons. Victims of wartime sexual violence (which are mainly women in BiH, though not exclusively) face major challenges in obtaining war-related compensation. In short, there is a clear need to integrate a gender-sensitive approach to processes of TJRNR, to better include both female and male victims. This will help transform the broader social context of trauma and post-conflict experiences and development.[ii]

Some positive progress has been made to advance gender-sensitive justice in Bosnia-Herzegovina. Currently, the Ministry for Human Rights and Refugees (MHRR) is steering the process of drafting a document entitled Program of Assistance to Women Victims of War Rape, Sexual Violence and Torture 2013-2016. This plan will also include male victims of wartime sexual violence.[iii]

Gender analysis can highlight how gender-based violence, including rape, forced prostitution, and enforced pregnancy, can be used as weapons of genocide; this is a new understanding  in legal practice and policy. In the case of Bosnia, for example, forced pregnancy was used to try and create more ethnically desirable babies, thus further driving out minority communities. This link between GBV and genocide is a clear call to action for policy makers to pay attention to GBV as an instrument of genocide.

How Conflict in BiH Disparately Affected Women

The conflict in Bosnia-Herzegovina, which lasted from 1992 until the Dayton Peace Accords in 1995, was between the region’s population of three ethnic groups, or ‘constituent peoples’: Bosniaks (48%), Serbs (37.1%), and Croats (14.3%).[iv] For more than 40 years the region was a federation of six republics: Serbia, Montenegro, Croatia, Bosnia and Herzegovina, Macedonia, and Slovenia, as well as two autonomous provinces: Vojvodina and Kosovo. In 1987, Slobodan Milošević came to power in Serbia, vividly encouraging Serbian nationalism and nurturing the idea of Greater Serbia. Based on this ideal, fighting ensued and a number of massacres took place, which led to an international crisis, including the use of war tactics and mass violence to drive out minority populations. After the 1995 Dayton Peace Accords negotiated an end to the conflict, the International Criminal Tribunal for the Former Yugoslavia (ICTY) was established in 1996, to establish justice for the region, and ideally to promote a lasting peace. A number of perpetrators indicted by the ICTY were charged with crimes of genocide.

In Srebrenica, one of the most well-known massacres of the war, the men were separated from the women and killed systematically, which left psychological, legal, economic, and social difficulties for the women survivors. More research has been done on the massacre at Srebrenica and the gendered pattern of violence there.

Shortcomings of the Process in BiH

  1. In the processes related to truth, women’s participation so far has been limited.
  2. When it comes to guarantees of non-recurrence, it appears that a rather one-sided picture after the conflict in BiH has been created, whereby women are mostly seen as victims of the war, while men are mostly seen as heroes.
  3. While women make up one half of the Expert Working Group that drafted the Transitional Justice Strategy, and the president of the EWG is a woman, judging from the first draft of the TJS, there is room for improvement regarding the issue of gender-sensitivity. Sexual violence was widely excluded in the document, and a more widespread support from civil society organizations (CSOs) was lacking.

Recommendations for Rebuilding and Non-Recurrence

Key recommendations highlight where the process in BiH can go to improve gender sensitivity and the rights and status of women. The recommendations also show the link between GBV and genocide. Some recommendations are as basic as institutional reform, and ensuring that institutions include an integrated gender-sensitive perspective in their research and recommendations. Gender/sex disaggregated data is also needed, especially with regard to crimes of sexual violence. [v]

New recommendations, specific to BiH, are noteworthy, and can serve as examples for other post-conflict cases looking to address the same issues of gender and transitional justice. These cover four main categories of change:

  1. Technical changes, including the male/female composition of committees, political appointments, etc. I would also suggest more data collection and dissemination of data about atrocities, to better understand and analyze the gendered effects of the conflict.
  2. Legal changes, including women’s access to reparations (a large section on this topic in the report concludes that women hit many barriers when claiming reparations for crimes committed during the conflict, and often fall through the cracks of what crimes are legally recognized).
  3. Societal changes, including making processes more accessible and open to women, providing economic opportunities to women in the post-conflict economy, and continuing to provide funding and support for the implementation of the National Action Plan on UNSCR 1325.
  4. Structural changes, including encouraging participation by women and civil society in relevant TJRNR processes, particularly those related to integrating a gender-sensitive approach in the latter (such as the Program for Assistance to Women Victims of War Rape, Other Forms of Sexual Violence and Torture 2013-2016); creating a space for women to testify to the ICTY and to tell their stories.

The Impunity Watch report outlines a holistic transitional justice strategy to address gender-sensitive rebuilding and links to prevention of mass atrocities in Bosnia-Herzegovina. Empowering women and changing the narrative of women solely as victims, while recognizing the reality of gender-based crimes as planned tools of genocide (see the work of Hugo Slim, Cynthia Enloe, and Ximena Bunster), can allow policymakers to pay attention to gendered aspects of conflict, rebuilding, and non-recurrence.

Photo: guardian.co.uk


*Samantha Lakin is currently earning her M.A. in Law and Diplomacy at Tufts University’s Fletcher School.
[i] Dyan Mazurana, Prisca Benelli, Huma Gupta, Peter Walker, The Feinstein International Center, Tufts University
[ii] Maja Šoštarić, “Perspectives Series: Research Report, War Victims and Gender-Sensitive Truth, Justice, Reparations, and Non-Recurrence in Bosnia and Herzegovina” Impunity Watch, December 2012, 9.
[iii] Ibid 8
[iv] Ibid 21
[v] Ibid 76-83

 

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songBy MARISSA GOLDFADEN

On Tuesday, 12 February, Columbia University World Leaders Forum hosted International Criminal Court (ICC) President, Judge Sang-Hyun Song, for an address titled The International Criminal Court and the Fight Against Impunity for Atrocity Crimes. University President Lee C. Bollinger gave the opening remarks, wherein he spoke of the electoral violence that wracked Kenya in December 2007. During that time, more than 1,000 people died and 600,000+ Kenyans became internally displaced.  As a result, four individuals accused of crimes against humanity–Deputy Prime Minister Uhuru Kenyatta, Cabinet Secretary Francis Muthaura, Education Minister William Ruto, and radio executive Joshua Sang–are due to stand trial this spring at the ICC. Regardless, Kenyatta is running for president in next month’s elections in Kenya.

Judge Song began his speech with a brief personal background, before delving into the titular topic. He stated that the fight against impunity for atrocity crimes is far broader than the ICC, though the ICC is at the forefront. Believing that law is the best tool for prevention, he also stressed the importance of the UN, states, and civil society working together to end impunity. The UN and the International Court of Justice were created in the aftermath of World War II; together with the Nuremberg and Tokyo tribunals, the seeds of international criminal justice were planted. However, it soon took a backseat to the Cold War. The field further developed as a result of the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the former Yugoslavia (ICTY) in the 1990’s. The Rome Statute was negotiated in 1998 and entered into force in 2002. 

To date, the ICC has tried individuals from DRC, Uganda, the Central African Republic, Sudan, Kenya, Libya, Cote d’Ivoire, and Mali. In 2017, the Court’s jurisdiction will expand to include the crime of aggression. Because peace and justice are interlinked, Judge Song spoke of the mutually reinforcing relationship between the United Nations Security Council (UNSC) and the ICC. Darfur and Libya were both referred to the ICC by the UNSC, but the use of UN funds was prohibited. The UNSC can limit or expand the jurisdiction of the ICC, which bears judicial responsibility, while states are responsible for enforcement. Aside from the issue of money, the UNSC needs to take a more consistent and vigilant approach. 

The ICC is a court of last resort and in order to strengthen national justice systems, Judge Song said development agencies need to be involved. The UN is also in a unique position, as it can advance the rule of law throughout the world. The ICC is not a hierarchical institution. All judges and prosecutors are independent and their own bosses. To carry out its mandate, the ICC must maintain its independence and integrity and remain non-political. 

After discussing the above, the floor was opened for a Q&A session:

The first question was in regards to Kenya, and how the ICC plans to proceed with its trials without local support and cooperation. Judge Song said the cases will begin in April as originally scheduled, and won’t be affected by the political processes, though logistics are not easy. The ICC constantly consults the host government on an array of issues.

The second question focused on the tension between international stands and sovereignty/non-member states. According to Judge Song, countries, perhaps most notably the United States, have their own reasons for their reluctance to sign onto the Court, including a fear of abuse of power by the prosecutors and a fear of unnecessary political influence by the UNSC. In terms of the US/President Obama, there is close cooperation on matter of mutual concern and intelligence sharing. Judge Song also noted that the US government dispatched military advisers to Uganda to aid in capturing Joseph Kony and other LRA members. The ICC endeavors to strengthen national capacities.

Finally, 1/3 of the 18 ICC judges must be women, but today, 11 out of 18 are, which may have some bearing on the development of jurisprudence. Obviously, there are no American judges so there is no American influence, such as the practice of witness proofing. Ad hoc tribunals have jurisdictional primacy over the ICC, which has a strong desire to develop its own jurisprudence.

Photo: bwog.com 

By MARISSA GOLDFADEN

On January 25, 2013, Columbia University Mailman School of Public Health, in conjunction with the Women’s Media Center’s Women Under Siege project, hosted a symposium, “Global Sexualized Violence: From Epidemiology to Action.” The focus of this post is on a panel discussing law, policy, and action on global sexualized violence.

Cristina Finch, policy and advocacy director for women’s human rights for Amnesty International USA, opened the panel, citing a UN statistic that 1 in 3 women will suffer some form of violence in their lifetime. Finch believes this to be a conservative estimate. She discussed the Universal Declaration of Human Rights and how it can be used to protect women against rape as a weapon of war, honor killings, and domestic abuse. She also pointed to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) as further providing a road map for eradicating such abuses, though the United States is one of seven countries that has yet to ratify it. Finch also highlighted United Nations Security Council Resolution 1325, which ultimately established the Interagency Taskforce on Women, Peace and Security. She closed her allotted time by talking about the need to reauthorize the Violence Against Women Act, which the U.S. Senate will vote on next week.

The next speaker was epidemiologist Les Roberts, who spoke about how public health feeds into the intersection of law and policy when it comes to sexual violence. Aside from the fact that there is often a lack of information sharing, public health also approaches the subject differently. One way it does so is to provide confidentiality to victims and, in a related manner, handles these matters with sensitivity, whereas a legal approach is necessarily concerned with specificity. Further, in regards to GBV, public health programming is at odds with rights-based frameworking, as Finch spoke about.

Next on the agenda was the Global Justice Center‘s Akila Radhakrishnan, an attorney working on the Geneva Initiative, “which aims to ensure justice, accountability and equal rights to people in conflict and in post-conflict situations, and establish global legal precedents protecting human rights and ensuring gender equality.” A gender lens is not typically applied to international law or the laws of war, but progress was made with the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) in that rape and gender-based violence were officially recognized as being a systematic part of conflict–rape can be considered torture, a war crime, a crime against humanity, and a way to perpetrate genocide. This is codified in the Rome Statute, the treaty that established the International Criminal Court.

The last person to speak before the Q&A session was Meghan Donahue, gender and education coordinator of the Peace Corps. Her professional goal is to “help people develop the capacity to use their own resources and skills to resolve their needs and improve their own lives.” When her volunteers are dispatched, they teach local children about the social constructs of gender. They believe in a people-centered approach, focusing on sustainable development, community mapping, and student-friendly schools. The Peace Corps volunteers also seek to facilitate enabling environments, and help break down gender attitudes and cycles of poverty.

Lastly, moderator Lauren Wolfe asked the panelists a handful of questions before opening up the floor to the audience. When asked about how to put an end to global sexualized violence, the participants stated that we must get rid of misogyny, be honest about risk factors and data, and enforce existing laws. There also needs to be a combination of top-down laws and bottom-up community action/advocacy. Donahue pointed out that this recipe is what led to the disavowal of female genital mutilation in Senegal. Finally, when it comes to sexual violence, focus needs to shift from the victim to the perpetrator.

By MARISSA GOLDFADEN

disarmamentIn November 2012, the United Nations Office for Disarmament Affairs released a publication, Civil Society and Disarmament 2012 – Applying a Disarmament Lens to Gender, Human Rights, Development, Security, Education and Communication: Six Essays. Given the Auschwitz Institute’s mission, this post focuses on the essay, “Minimizing the impact of illicit small arms and diverted weapons transfers in the commission of atrocity crimes, human rights violations and other violence” by Hector Guerra of International Action Network on Small Arms and Robert Zuber of Global Action to Prevent War and Armed Conflict.

This piece centers on illicit small arms and the ways in which they contribute to mass atrocity crimes and community violence throughout the world. One statistic states that “of the 740,000 people who die each year as a result of armed violence, 500,000 are fatalities related to situations of violence other than armed conflicts, fatalities largely related to the use of small arms and light weapons.” The United Nations has endeavored to solve the problem of illicit weapons via various programs and protocols; this past summer, an Arms Trade Treaty (ATT) was negotiated. However, agreement on a final text was elusive and a new meeting will take place in March 2013.

According to the authors, “the irresponsible transfer of weapons and ammunition and the proliferation of illicit small arms have direct implications for our ability to secure our streets, deliver aid to unstable areas, prevent abuses of human rights and the commission of mass atrocities, and create environments conducive to full political and policy participation by women and cultural minorities.” Many ‘illicit’ weapons originate in the legal sector before moving through unregulated transfers into the wrong hands. The uses of such weapons have far-reaching dangerous impacts, including:

  • Illicit arms perpetuate conflicts that could otherwise be resolved.
  • Illicit arms undermine development and inhibit the flow of assistance to internally displaced persons, refugees, and others in dire need.
  • Illicit arms in the hands of both State and non-State actors have been used to violate civilian populations’ human rights and impede efforts to bring perpetrators to justice. 
  • Illicit arms and ammunition hinder the ability of governments to carry out some of their most important functions, including the primary responsibility to protect civilians from violence.
  • Illicit arms “undermine the integrity of the security sector, creating or exacerbating levels of unacceptable risk for women and others seeking their proper place in society.”
  • Illicit arms “contribute to cycles of violence and criminality that reinforce structures of poverty as women and men continue to expend large amounts of energy on security needs that could more beneficially be spent on pursuing educational and economic opportunity.”

All of the above is in addition to the immeasurable physical and psychological damage suffered by civilians as a result of illicit weapons access by criminals, insurgents, or other non-State actors. One of the most serious aspects of the proliferation of illicit weapons is “related to the role those weapons play in the commission of mass violence, including the shootings at Columbine High School in Littleton, Colorado in 1999 and the massacre at Utoya, Norway in 2011.”

The UN has had the prevention of mass violence, both at the community level and within broader international legal frameworks, at the forefront of its agenda since its inception. Urgency in this area escalated in 2005 with the advent of the Responsibility to Protect norm. This is because the illicit trade in conventional weapons and ammunition severely complicates efforts to build State capacity and otherwise help governments fulfill their primary responsibility to protect their civilian populations. Moreover, their are staggering costs to fragile States from mass atrocity and other conflicts fueled in part by illicit weapons. For example, Africa loses ~$18 billion per year due to wars, civil wars, and insurgencies. Conservatively, armed conflict shrinks an African nation’s economy by 15%. 

In order to combat the multitude of problems outlined above, governments, civil society organizations, and other stakeholders must work together. Concrete steps include:

  • Exploring local and regional linkages between the presence of illicit arms and the threat of mass violence/human rights abuses.
  • Calling attention to and addressing the linkages between legal arms sales diverted to non-State actors and criminal elements, and “the commission of human rights abuses, the suppression of access to jobs and services, and the chilling impacts of a compromised security sector on women’s participation in political and social life.”
  • “Assist States, especially fragile States, to guarantee the security of existing weapons stockpiles (or remove them altogether), and help ensure marking, tracing and record keeping of arms that is cost-effective and sufficiently interactive with the highest international standards in this area.”
  • Restricting the illicit flow/diversion of ammunition for small arms.
  • Assisting States in promoting citizen disarmament.
  • Assisting States in implementing important responsibilities resulting from the illicit arms trade, e.g., provide victims’ assistance and flag potentially diverted transfers.

Other resources include the UN’s recently revised Disarmament: A Basic Guide, and voices from impacted communities.

Photo: un.org

The conclusion in a series by Marissa Goldfaden as she works her way through “Introduction to minority rights, regional human rights mechanisms, and minority rights advocacy,” a new online course offered to the public free of charge by Minority Rights Group International. The course’s stated objectives are to introduce concepts of minority rights and discrimination, develop awareness and understanding of international and regional mechanisms for minority rights, and improve practical skills in lobbying and advocacy.

AdvocacyBy MARISSA GOLDFADEN

Topic 11: Guide to advocacy campaigns, Part 2
Section 1: Identifying target audiences

The target audiences of an advocacy campaign can be (individually or a combination of):

a. Community leaders
b. Representatives of other communities
c. Local governmentd. Non-governmental organizations

e. Authorities – such as the police

f. National government, including specific ministries

g. Parliament

h. Other countries’ governments

i. Regional bodies, such as the African Union

j. United Nations

Primary targets are the people who have the power to make the desired changes.
Secondary targets are the people who have influence on the primary targets.
Once a target audience has been chosen, the next step is to craft the messages and consider the ways in which they should be conveyed. It is important to consider what message(s) may convince the target the most, and are most likely to result in them taking action.There are three bases for minority rights messages:

  1. Legal – the country’s laws as well as international law, especially treaties that the country has ratified. Governments that respect the rule of law will listen. Others may say that international human rights standards are just ‘a Western construct’.
  • Moral – even if the government does not follow international standards, it may wish to do (or be seen to do) the right thing. There may be powerful arguments based on religious practice or tradition that may work.
  • Practical – finally, there may be very pragmatic reasons for the government to improve its record. Minority rights prevent conflict and promote stability, for example.

It is imperative to formulate a strategy to impart the campaign’s messages. An advocacy strategy should set out:

  1. The SMART goals & sub-goals (as discussed in the previous topic)
  2. An activity plan
  3. Timeline
  4. Budget

Monitoring is defined as the regular collection and analysis of information to follow the progress of a campaign’s implementation. Evaluation, which is the analysis of the effects of the campaign to assess whether it has achieved its stated goals within the given time and budget, occurs at the end of or after an advocacy campaign.

Image: naela.org

Part 12 in a series by Marissa Goldfaden as she works her way through “Introduction to minority rights, regional human rights mechanisms, and minority rights advocacy,” a new online course offered to the public free of charge by Minority Rights Group International. The course’s stated objectives are to introduce concepts of minority rights and discrimination, develop awareness and understanding of international and regional mechanisms for minority rights, and improve practical skills in lobbying and advocacy.

Take Action!By MARISSA GOLDFADEN

This is the first of two topics explaining how to carry out advocacy campaigns. The first topic introduces advocacy. It shows how to identify problems that need to be addressed through advocacy, and how to set goals for a campaign.

Topic 10: Guide to advocacy campaigns, Part 1
Section 1: What is advocacy?

Advocacy is defined as the process of changing, or trying to change or influence, laws, policies or practices.

Advocacy involves the following nine steps:

  1. Identifying the problem.
  2. Understanding one’s own organization.
  3. Understanding the environment.
  4. Devising goals.
  5. Identifying target audiences.
  6. Creating the messages.
  7. Creating the strategy.
  8. Carrying out the strategy.
  9. Measuring the outcome.

Section 2: Analysis of the problem

It is important for activists or NGOs to first understand the problem to be addressed through advocacy. Notes MRG, “At this stage, it is very important to involve the minority or indigenous community: Activists should listen to the human rights issues that community members raise and what their priorities are.”

Some considerations in understanding the nature of the problem

  • Extent of problem
  • Social attitudes
  • Level of awareness
  • Access to justice
  • Legal framework
  • Gender

Section 3: Analysis of the environment – internal and external

Having identified the problem that needs addressing through advocacy, activists and NGOs must next understand the environment in which they are going to be working. This process involves analyzing both the NGO for which the activist works, and the general situation.

Internal (i.e. organizational) analysis

This element contains two main points.

1. Mandate

What can the activist’s organization work on, and what is it not allowed to work on?

The answers to these questions will depend on:

  • The organization’s charter or constitution, if it has one
  • The organization’s board and its decisions
  • National legislation and government regulations

2. Resources, both financial and human

It will be important to establish the following:

  • What are the organization’s strengths and weaknesses?
  • Is the organization too small to carry out a large-scale campaign?
  • What is the organization’s capacity for given areas of work?

When looking at the external environment, it is important to identify the following four groups of people: stakeholders, supporters, potential allies, and obstacles.

1. Stakeholders

Stakeholders are those persons who have an interest in the advocacy campaign. They can be directly involved and/or affected by it. They may also influence the campaign and its outcomes. A clear group of stakeholders when advocating on behalf of minority rights are the members of a minority community themselves.

2. Supporters

Supporters are people who are not stakeholders but are in favor of the work. They may include members of other communities or the majority who favor the outcome being sought. Supporters may also be drawn if the campaign seeks a change in the law that will benefit another community too.

3. Allies

Allies are supporters who can influence the outcome, such as university professors, journalists, politicians, and government officials.

4. Obstacles

Obstacles are those people who will work against the campaign.

Section 4: Setting ‘SMART’ goals

Having analyzed the environment, the next step in an advocacy campaign is to choose its goals. A useful tool for identifying appropriate goals is SMART, an acronym for the following words:

Specific – it is important to be as precise as possible when identifying a goal(s).

Measurable – there must be a way of identifying how the goal has been achieved or how advancement has been made towards it.

Agreed upon – consultation is conducted with stakeholders and everyone is agreed that these goals are important.

Realistic – depending on the organization’s resources and the situation in the country, the goals should be achievable.

Time-bound – a deadline for the strategy is required.

Outputs are the activities that you do, while outcomes are the achievements that you make. Sub-goals can also be incorporated as a way of measuring success.

Image: basicsinternational.org

Pictured, left to right: Flaherty, Stanton, Akçam, and Rosenberg

Left to right: Professors Flaherty, Stanton, Akçam, and Rosenberg

By MARISSA GOLDFADEN

On 4 December, the Leitner Center for International Law and Justice at Fordham Law School presented a panel discussion entitled “Overcoming Genocide Denial.” Professor Martin Flaherty, the event’s moderator, gave the opening remarks.

The first panelist to speak was Dr. Gregory Stanton, founder and president of Genocide Watch. His talk focused on how to deny a genocide, as he notes that denial is the final stage of all genocides. Denial occurs both during and after a genocide, and triples the probability of further or future genocide. It also extends the crime of genocide to future generations of victims. Because of its prevalence, the tactics of genocide denial are predictable:

  1. Question and minimize the statistics.
  2. Attack the motivations of the truth-tellers.
  3. Claim that the deaths were inadvertent (i.e., as a result of famine, migration, or disease, not because of willful murder).
  4. Emphasize the strangeness of the victims.
  5. Rationalize the deaths as the result of tribal conflict.
  6. Blame “out of control” forces for committing the killings.
  7. Avoid antagonizing the genocidaires, who might walk out of “the peace process.”
  8. Justify denial in favor of current economic interests.
  9. Claim that the victims are receiving good treatment.
  10. Claim that what is going on doesn’t fit the definition of genocide.
  11. Blame the victims.
  12. Say that peace and reconciliation are more important than blaming people for genocide.

According to Dr. Stanton, there are ways to prevent denial, such as:

  • If the state that is committing the genocide (or in which it occurs) is not a State-Party to the Rome Treaty of the International Criminal Court, the UN Security Council should confer jurisdiction over the situation on the ICC.
  • If the genocidal regime has been overthrown, the UN should help the successor government form courts to try the perpetrators.

The next panelist to present was Professor Taner Akçam, who focused on Turkey’s denial of the Armenian Genocide. He posits that one of the main reasons for this denial is that to acknowledge it would be to turn national heroes into villains. Another result of/hurdle to acknowledgement would be that Turkey would have to pay reparations. While state policy may differ from societal attitudes, the lie has gone on too long to simply reverse it and admit the truth–an entire society and culture has been built upon this secret/lie to the point of creating what Professor Akçam refers to as a “communicative reality.” The existence of the Turkish people has been contingent upon the non-existence of Armenians. [Read the full text of Professor Akçam’s presentation.] 

The third and final speaker was Professor Sheri Rosenberg. Her presentation was on her experiences with genocide denial in Rwanda. She started by saying that genocide denial impedes healing, reconciliation, and transitional justice. In Rwanda, where perpetrators live side by side with survivors, there are laws against genocide ideology, as well as against discrimination and sectarianism. The genocide ideology law is simultaneously retrospective and prospective but problematic in that it constricts the public space and suppresses meaningful dialogue. This, in turn, can have a negative effect on individual and group conceptions of identity.

After the panelists concluded, the floor was opened for a Q&A session. In discussing Europe and Holocaust denial laws, Dr. Stanton said he believes such laws in general create a problem by instantly opposing free speech. Moreover, they don’t make a distinction between incitement and having amorphous genocidal thoughts. The next topic was Turkey and Article 301 of the Turkish Penal Code, which makes it illegal to insult Turkey, the Turkish ethnicity, or Turkish government institutions. Professor Akçam said that if the United State acknowledged the Armenian Genocide, the problem would be solved in about three years because of the economic pressure that would be put on Turkey. Additionally, regional security must include historic injustices.

Another audience member asked about accountability for atrocities committed in Burma/Myanmar. That could be accomplished through the Alien Tort Statute,  a section of the United States Code that states, “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” In other words, U.S. courts can hear human rights cases brought by foreign citizens for conduct committed outside the United States. Dr. Stanton ended the evening by saying that Iran should be brought in front of the International Court of Justice for “Direct and public incitement to commit genocide,” a punishable act under Article 3 of the Convention on the Prevention and Punishment of the Crime of Genocide.

Part 11 in a series by Marissa Goldfaden as she works her way through “Introduction to minority rights, regional human rights mechanisms, and minority rights advocacy,” a new online course offered to the public free of charge by Minority Rights Group International. The course’s stated objectives are to introduce concepts of minority rights and discrimination, develop awareness and understanding of international and regional mechanisms for minority rights, and improve practical skills in lobbying and advocacy.

gender equalityBy MARISSA GOLDFADEN

Topic 9: Thematic focus: Multiple forms of discrimination
Section 1: Key concepts

Sex and gender defined

Sex refers to biological difference between men and women.

Gender refers to socially constructed roles, behavior, or activities that are considered appropriate for men and women.

There is little variation in aspects of sex between different human societies. However, gender roles may vary greatly. Because gender differences are based on societal attitudes of what is considered appropriate for men and women, they can and do change over time.

Section 2: Identifying discrimination on more than one ground

Discrimination: Expanding the concept

As we learned in Topic 1, direct discrimination means less favorable or detrimental treatment accorded to an individual, or group of individuals, due to their possession of one or more specific characteristics. International law specifies those protected characteristics as: race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Intersectional discrimination occurs when two or more layers of discrimination act together to double or triple the disadvantage experienced by the individual.

Section 3: Focus on minority women

The concept of gender affects both men and women. However, intersectional discrimination on the grounds of both gender and minority status frequently affects and disadvantages minority women in a different way than men. Members of minorities frequently face threats and increased discrimination from the majority when they try to defend their rights. A dominant majority usually has an interest in keeping the situation the same. When minority women assert their rights, the backlash may have a gender dimension – often sexual violence.

Conclusion

It is important to remember:

  • Minority women may face particular discrimination or violence because they are both members of a minority group and women.
  • No culture is homogenous.
  • All cultures are constantly adapting and changing.
  • Minority women have the same rights as other women.

Section 4: Balancing cultural rights with the individual rights of minority women

Protection of identity and restrictions

Culture and gender

For many communities, women and girls are the custodians of cultural identity. Often, cultural practices of men will change, whereas the cultural practices of women are maintained. This is one reason why, when there are tensions between the rights of a minority to protect their cultural identity and the rights of individual members of the minority, frequently, the tensions relate to cultural practices of women or those that affect women.

Cultural identity of minorities: A limited right

Writes MRG, “Members of minorities have the right to protect and promote their identity. However, this right is not unlimited. The UN Declaration on Minorities permits states to restrict cultural practices ‘where specific practices are in violation of national law and contrary to international standards’.

States may not enact laws to restrict any practice they choose, because this would make the right to protection of cultural identity meaningless. Prohibitions on cultural practices must be based on reasonable and objective grounds. States should prohibit practices that violate other human rights standards.”

International standards

International law sets out principles to which restrictions on cultural practices, including religious practices, must adhere if they are legitimate:

  • Restrictions must not be discriminatory.
  • Restrictions must be necessary to protect one of the following:
    • public safety
    • public order
    • public health, or morals
    • the fundamental rights and freedoms of others
  • The restrictions should be the minimum necessary to meet the aim for which they have been employed.

Undue influence is a legal term defining a situation whereby one person improperly exerts influence over another to act in a certain way.

Conclusions

The right to identity is not unlimited, and there are legitimate restrictions that governments can make on minority cultural practices. However:

  • Restrictions must not discriminate (directly or indirectly), and must conform to international standards.
  • Cooperation with affected communities is important in ensuring that already marginalized groups do not perceive restrictions to be attacks against them.
  • The opinions of diverse sections of minorities are important, since there are likely to be different views on cultural practices and restrictions within the community.

Image: thegrindstone.com

Part 10 in a series by Marissa Goldfaden as she works her way through “Introduction to minority rights, regional human rights mechanisms, and minority rights advocacy,” a new online course offered to the public free of charge by Minority Rights Group International. The course’s stated objectives are to introduce concepts of minority rights and discrimination, develop awareness and understanding of international and regional mechanisms for minority rights, and improve practical skills in lobbying and advocacy.

By MARISSA GOLDFADEN

Topic 8: Taking up individual cases

MRG defines strategic litigation as an advocacy technique used to achieve legal, political, and social change via the judiciary. The goal of strategic litigation is to set precedents that have a broad impact beyond the individual case.

Minority rights activists can use strategic litigation to:

  • Challenge laws or policies that violate constitutional protections or human rights, and ensure that laws are interpreted and applied properly
  • Expose injustice and provide redress for victims
  • Educate the judiciary and legal community about human rights, and expose institutionalized prejudice
  • Promote government accountability by making the international community aware of a government’s actions
  • Raise public awareness and encourage public discussion about minority rights

According to MRG, a good strategic litigation case will involve a legal issue that relates to a broader social problem, so that the precedent set by the case can be used to win other cases with different facts. A precedent is a legal decision that can be used as a standard in future similar cases. Before starting a case, all potential applicants must be carefully evaluated.

Characteristics of a good applicant

  1. They must not only have strong claims, they also must be strong individuals willing to endure the scrutiny of the opponent, the court, media, and general public.
  2. Strategic litigation cases take a long time to work their way through the domestic and international legal systems. The applicant must understand that it may be years before the case is finished.
  3. Applicants should be articulate and credible, and their stories should elicit sympathy.
  4. They must understand that the case is designed to achieve a significant impact beyond their individual claim, and be willing to take a back seat to the lawyers and organizations bringing the case.

Since courts use previously decided cases in order to determine the outcome of the current case, it is helpful to have rulings from courts in the same country, other comparative jurisdictions, or international courts that support the case. The more similar the facts of the prior cases are to those of the current case, the more helpful the cases will be.

Before filing a case, it is important to gather and assess all the evidence that supports its claims. Witnesses, defined as people who saw the alleged violation or were otherwise involved in the events in the case and can testify in court about their experiences and knowledge, should be contacted and interviewed well in advance of the court case. Expert witnesses, defined as people with specialized knowledge about a particular field, such as university professors, scientists, and doctors, who can provide their opinion about the case to the court, may also be hired. When bringing a case, it is important to find a lawyer who is committed to the cause and knowledgeable about strategic litigation and the law relating to the claims.

International mechanisms can only hear cases over which they have jurisdiction (the right, power or authority to interpret and apply the law) and which meet their admissibility requirements. Anyone who believes their rights have been violated can apply to have their case heard before an international mechanism. However, the right that the victim claims has been violated must be protected by the treaty in accordance with which the mechanism operates, and the respondent state must be a party to that treaty.

Before a case can be brought, all domestic remedies must be exhausted. This means using all the procedures available to a person in their own country to seek protection of their rights or to seek justice in respect of a past violation of their rights. These procedures include taking a case to court or making a complaint to the police. One must submit their case to the international mechanism soon after exhausting local remedies.

The international mechanism will require submitting an initial document explaining the case and why the mechanism can hear it.

a) One must show that the case meets the mechanism’s admissibility requirements by detailing the facts of the violation and noting which provisions of the relevant treaty are applicable.b) It may also be helpful to cite pertinent case law and to provide evidence of the violation and one’s attempts to exhaust domestic remedies.c) One will also need to verify that their case has not already been decided by, or is currently pending before, another international mechanism.

Five UN human rights treaty bodies have a mandate to consider individual complaints:

  1. Human Rights Committee, for alleged violations of the International Covenant on Civil and Political Rights (ICCPR)
  2. Committee on the Elimination of Discrimination Against Women, for alleged violations of the International Convention on the Elimination of Discrimination Against Women (CEDAW)
  3. Committee Against Torture, for alleged violations of the Convention Against Torture (CAT)
  4. Committee on the Elimination of Racial Discrimination, for alleged violations of the International Convention on the Elimination of Racial Discrimination (ICERD)
  5. Committee on the Rights of Persons with Disabilities, for alleged violations of the Convention on the Rights of Persons with Disabilities (CRPD)

An individual whose rights under the relevant treaty have been violated by a state that is party to the treaty can file a complaint with a UN treaty body, so long as the state has recognized the competence of the committee to hear complaints. Third parties may complain on behalf of other individuals provided they obtain written consent.

The European Court of Human Rights (ECtHR) hears cases concerning alleged violations of the European Convention on Human Rights (ECHR). Any individual or organization can bring a case against a state that is party to the ECHR alleging that the state has violated his or her rights under the Convention. The individual or organization need not be a citizen of one of the states party to the Convention, but the violation must have occurred within the jurisdiction of a state that is party to the Convention.

The African Commission on Human and People’s Rights (ACHPR) hears cases concerning alleged violations of the African Charter on Human and Peoples’ Rights. Any individual or organization can bring a case against a state that is party to the African Charter alleging that the state has violated his or her rights under the Charter. Third parties can bring cases on behalf of others.

Photo: interights.org

Part 9 in a series by Marissa Goldfaden as she works her way through “Introduction to minority rights, regional human rights mechanisms, and minority rights advocacy,” a new online course offered to the public free of charge by Minority Rights Group International. The course’s stated objectives are to introduce concepts of minority rights and discrimination, develop awareness and understanding of international and regional mechanisms for minority rights, and improve practical skills in lobbying and advocacy.

By MARISSA GOLDFADEN

Topic 7: Participation in international meetings

NGOs can participate in some UN bodies without any special registration, including the most relevant body for minorities – the UN Forum on Minority Issues. NGOs attending meetings of the Human Rights Council, including the Universal Periodic Review (UPR), must have consultative status with the UN Economic and Social Council, called ECOSOC status. According to MRG, “Minority NGOs have reported that obtaining ECOSOC status, although difficult, has resulted in them being taken more seriously by their Government and by international actors, and sometimes has had a positive impact on their ability to access donor funds.”

Any NGO can submit information to the treaty bodies and attend treaty body meetings to lobby committee members. They are only required to inform the secretariat in advance to arrange accreditation. Any NGO can submit information to special procedures and meet with mandate holders without ECOSOC status. Any NGO can submit information to the UPR. Attending the review in person requires a special registration; however, the debates can also be watched on the UN webcast.

Access to regional bodies

Africa

  • The African Commission on Human and Peoples’ Rights (ACHPR) grants observer status to NGOs, for which there is an application process.
    NGOs without observer status may attend meetings of the ACHPR but they are not allowed to speak. NGOs with observer status sometimes allow other NGOs to make statements under their name.

Europe

  • The Human Dimension Implementation Meeting of the Organization for Security and Co-operation in Europe (OSCE) is Europe’s largest human rights conference. NGOs from OSCE member states can participate in the meetings. There is an online registration process where NGOs need to provide some details about their work. 

Asia

  • The Association of Southeast Asian Nationas (ASEAN) has arrangements for granting affiliation to NGOs; however few, if any, NGOs working on human rights have this affiliation.
  • There is no arrangement for NGO participation in the Summit of the South Asian Association for Regional Cooperation (SAARC). However, some organizations have received official recognition by the Association.

Many states are especially sensitive about minority issues. As such, minority NGOs need to understand the political realities of international bodies so that they can develop strategies to advance their issues despite the difficulties that can be encountered. At most international meetings, formalities such as formal language, protocol for speaking, and time-keeping take place.

It is important for NGOs to devise strategy that links their work at home with the setting of an international meeting. The opportunities available at these meetings generally fall under four categories:

  • Dialogue with the government
  • Media relations
  • Networking
  • Structural or institutional issues

Writes MRG, “Minority rights is frequently a marginalized issue at the international level. Many states are either indifferent or hostile to efforts to improve minority protection.

It is therefore important that minority NGOs attending international meetings are visible, to remind states of the importance of the issue. This can be done by:

  • Making statements highlighting minority concerns under different agenda items and not only under the item specifically dealing with minorities
  • Speaking to a range of different government representatives about the importance of addressing minority rights (It may be easier to speak to representatives from neighbouring countries or the region)
  • Updating MRG and other NGOs working on minority issues about the discussions that have been had to help improve overall strategy on minority rights internationally.”

In summation, planning a strategy before attending an international meeting is very important. NGOs cannot expect attendance alone to have an impact. NGOs need to take advantage of all available opportunities. These opportunities include meeting your government representative to discuss issues, meeting representatives from other governments, publicizing your issues through the international media, networking with other NGOs, and meeting with other potentially useful contacts such as UN staff. Minority issues are frequently ignored or marginalized at the international level. This means it is important for minority NGOs to participate fully and remind states of the importance of addressing minority concerns. Taking time to get involved with institutional issues such as establishment or renewal of human rights mandates may lead to new or improved opportunities in the future.

Image: csonet.org

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