- Interights

BULLETIN
A Review of the International Centre for the Legal Protection of Human Rights
ISSN 0268-3709 2004 Volume 14 No 4
Women’s Rights in the 21st Century
he INTERIGHTS Bulletin in the spring of 1995, immediately prior to the Fourth World Conference on
Women in Beijing, was devoted to the issue of Women’s Human Rights. In that Bulletin it was claimed
that women’s human rights had ‘recently and for the first time, come to the fore of the international
agenda’.1 The World Conference on Human Rights at Vienna in 1993 had
affirmed the human rights of women and the girl-child to be ‘an
inalienable, integral and indivisible part of universal human rights’, and
the following year at Cairo women’s reproductive rights were guaranteed.
n Women’s Rights in the 21st Century
141
Christine Chinkin
The critical areas of concern at Beijing that addressed women’s human
rights, violence against women and the position of women in armed
n Transitional Perspectives in Women’s
Rights
143
conflict largely continued this progress towards strengthening the legal
Penelope E. Andrews
guarantee of women’s human rights.
T
Contents
n The Protection of Women’s Rights
in Africa
Fareda Banda
147
n The Due Diligence Standard and Violence
against Women
150
Stephanie Farrior
n Women’s Rights in Transition: the
Sri Lankan Case
Sunila Abeysekera
152
n Challenges to Litigating Women’s Rights to
154
Inheritance
Sibongile Ndashe
n Enforcing Laws Against ‘Honour
Killings’ in Jordan
Rana Husseini
157
n The UN Special Rapporteur on Violence
Against Women
171
Ambika Satkunanathan
n CEDAW’s Optional Protocol Procedures 173
Catherine MacKinnon
n Promoting Women’s Rights through
Ad Hoc International Tribunals
Mandiaye Niang
n Defending Reproductive Rights through
International Litigation
Christina Zampas
n New Gender Equality Directive
Cécile Gréboval
n Book Reviews
n INTERIGHTS’ News
International
Law Reports
See pages 159 - 170
(2004) 14 INTERIGHTS Bulletin
175
177
179
181
187
Some nine years later INTERIGHTS
has returned to this theme. This suggests a
need both to assess the further progress
that has been made since the 1995 Bulletin
and to consider the current problems and
challenges in securing the empowerment
of women through guarantee of their
human rights.
was adopted in July 2003. Unlike the
equality paradigm of CEDAW, the
Protocol is a rights-based treaty; it covers
all aspects of women’s human rights and is
the first international treaty to seek to
protect women’s reproductive rights
through the authorisation of medical
abortion (Article 14 (2) (c)).
International Treaties
Protecting Women’s Rights
Gender-specific Violence
Over the past decade there has
continued to be significant progress in the
institutions, substance, and procedures of
international human rights law as it is
applied to women. This introduction
briefly highlights some of the landmarks.
The central place of the Convention on the
Elimination
of
All
Forms
of
Discrimination against Women, 1979
(CEDAW) – the United Nations’
‘landmark treaty in the struggle for
women’s rights’2 – has been affirmed and
with 177 states parties constituting over 90
per cent of the members of the UN it is
now the second most widely ratified
human rights treaty. Its enforcement
mechanisms have been enhanced by the
coming into force in December 2000 of the
Optional Protocol, which establishes an
individual complaints mechanism for
violations of CEDAW and empowers the
CEDAW Committee to commence an
inquiry procedure where there is reliable
information of ‘grave or systematic violations’. In Africa the Protocol to the
African Charter on Human and Peoples’
Rights on the Rights of Women in Africa
The acceptance throughout the 1990s
that gender specific violence against
women constitutes both a direct violation
of women’s human rights and contributes
to their inability to enjoy the full range of
civil, political, economic, social and
cultural rights has continued. The
language of the key instruments, notably
the General Assembly Declaration on the
Elimination of Violence against Women,
1993 and the American Convention on the
Prevention, Punishment and Eradication
of Violence against Women, 1994 has been
fleshed out and made concrete by the
outstanding reports of the Special
Rapporteur on Violence against Women
and the jurisprudence of the regional
human rights bodies. These have analysed
sexual abuse and violence as violating
human rights within the terms of their
respective conventions, for example rape
as amounting to torture contrary to
Article 3 of the European Convention on
Human Rights3 and Article 5 of the InterAmerican Convention on Human Rights.4
The incidence of targeted violence against
women in armed conflict and its manifestations through war crimes against
141
Bulletin
Guest Editor
Christine Chinkin
Production Manager
Erica Ffrench
We gratefully acknowledge the work of former intern
Barbora Bukovska in devising and planning this issue of
the Bulletin.
Law Reports
Case summaries by the law firm of Dechert
Staff
Legal Director
Commonwealth Law Officer
Legal Officer
Legal Officer
Legal Officer
Legal Officer
Helen Duffy
Iain Byrne
Andrea Coomber
Ibrahima Kane
Judith Oder
Vesselina Vandova
Board
Lord Lester of Herne Hill QC
Laura Cox DBE
Jeremy McBride
Paddy Ross
Chaloka Beyani
Christine Chinkin
Helena Cook
Tim Eicke
Geoffrey Lewis
Neville Linton
William V W Norris
President
Chair
Vice Chair
Treasurer
Advisory Council
Justice Sabihuddin Ahmed
Shirin Aumeeruddy-Cziffra
Florence Butegwa
Roberta Clarke
Dr Ewa Eliasz
Roger Errera
Professor Yash P. Ghai
Asma Khadar
Harold Koh
Monica Macovei
Marek A Novicki
Sonia Picado
D.J. Ravindran
Mary Robinson
Suriya Wickremasinghe
INTERIGHTS
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Copyright 2004 INTERIGHTS
Items from the Bulletin may be reproduced by prior agreement with the editor.
The views expressed in the Bulletin are not necessarily those
of INTERIGHTS.
142
protected persons, crimes against
humanity and genocide also led to the
inclusion of sexual crimes against women
within the jurisdiction of the International
War Crimes Tribunals for the Former
Yugoslavia and Rwanda and the Rome
Statute for the International Criminal
Court. The jurisprudence of the ad hoc
tribunals has also added to our understanding of the conditions under which
forms of sexual violence are understood as
constituting war crimes, breaches of the
Geneva Conventions Common Article 3,
violations of the laws and customs of war,
crimes against humanity, torture, enslavement and genocide. These developments
make gender-related crimes a striking
example of the move from impunity to
accountability
under
international
criminal law that took place throughout
the 1990s. In addition, after a complex
process requiring 33 ballots over 4 days,
7 women judges were elected to the bench
of 18 judges of the International Criminal
Court – a far cry from the single woman
judge who has ever sat on the
International Court of Justice.
The Role of Women’s NGOs
Women’s non-governmental organisations have sought – with some considerable success – to advance women’s human
rights through the formal institutions and
instruments of international law. They
have also faced the reality that mainstream international institutions may be
inimical to their claims and have accordingly also demanded or seized their own
space within local and international
arenas, for example through Women’s
Courts such as the Women’s International
War Crimes Tribunal that sat in December
2000 to assess the criminal liability of
high-ranking Japanese military and political officials and the separate responsibility of Japan for the rapes and sexual
slavery committed against the so-called
comfort women across the Asia Pacific
region in the 1930s and 1940s.
All these and other developments are
analysed in the articles in this issue of the
Bulletin. The articles show that women
have not been laudatory but have
subjected developments to ongoing
critique, for example through analysis of
the importance of intersecting and relational identities and the ways in which
diverse forms of discrimination, such as
those based on gender, race or minority
status, interlock and impact upon each
other. They also illustrate the reality that
achievement of women’s human rights
does not require the same priorities in all
societies, nor are identical strategies appropriate. Women have sought to achieve their
human rights within their own social and
religious contexts and have not welcomed
unthinking supposition of the primacy of
universal values that they have perceived as
being imposed upon them.
Today’s Challenges
Despite these advances women’s
human rights are far from secure. The
guarantee of women’s human rights goes
well beyond adopting a new instrument,
adding a new institution, ensuring the
inclusion of women in the composition of
a court, or extending the jurisdiction of an
institution. It requires challenging the
structural inequalities and power imbalances that make continued violations
inevitable. As is only too evident from the
continuing and widespread gross violations of women’s human rights, legal
norms and new legal institutions do not of
themselves denote change. They must be
accompanied by the internalisation of a
human rights culture within the particular
contexts of diverse societies and the development of a mindset that rejects the
different forms of adverse treatment meted
out to women worldwide. But women’s
human rights today are challenged by the
forces of globalisation and extremism,
including religious and nationalist
extremism and by the unwillingness of
major players to observe the restraints of
human rights law, especially in the context
of what are perceived as national security
concerns. Commitment to the human
rights of women is irrelevant in the ‘war
against terror’, as is evident from alliances,
for example between the US and such
regimes as the Afghanistan Northern
Alliance, Saudi Arabia, Pakistan and
Kuwait. Gendered aspects of the war
against terrorism are left unremarked, and
the association of terrorism with gendered
violations, either by those labelled as
terrorists or as law enforcers, has not been
explored. The sombre conclusion must be
that despite many important advances
there is little cause for complacency in
considering the development of women’s
human rights, for just as women have to
some extent become ‘insiders’ in human
rights discourse, human rights has become
an ‘outsider’ discourse, especially in
national security decision-making. This
current appraisal of the challenges and
opportunities for women’s human rights is
taking place in a very changed legal and
political environment from that of 1994. n
Christine Chinkin is Professor of
International Law at the London School
of Economics and Political Science, UK.
1
2
3
4
INTERIGHTS Bulletin 9(1), 1995, p1.
(1995) The United Nations and the Advancement of
Women, 1945-1995. New York: United Nations,
para. 12.
See Aydin v Turkey (Case 57/1996/676/866) 3
Butterworths Human Rights Cases 300; MC v
Bulgaria 15 Butterworths Human Rights Cases
627 (in which INTERIGHTS submitted an
important amicus brief).
See Mejia Egocheaga v Peru, Case 10.970; Report
5/96, 1996, 1 Butterworths Human Rights Cases
229; Maria Gives Penha Maia Fernandes v Brazil,
Inter-American Commission on Human Rights,
Case 12.051, 16 April 2001.
(2004) 14 INTERIGHTS Bulletin
Transitional Perspectives in
Women’s Rights
Penelope E. Andrews
arch 8, International Women’s Day, is designated as the day on
which the international community applauds the
achievements of women. Although celebratory, this day also
serves as a reminder of the many obstacles that bedevil women’s
achievement of equality in a host of areas and in most countries of the
globe. It is customary that events at the United Nations highlight
contemporary themes of concern, and in 2002 the celebration of
International Women’s Day at the UN was dedicated to the women of
Afghanistan. Speeches during the proceedings, including one by the first
lady of the United States, Mrs Laura Bush, both praised Afghan women
for their courage and determination, and exhorted the rest of the world
to support Afghan women in their struggle for rights. The day was a
showcase for the possibilities of political transformation linking the
reconstruction of Afghanistan with the struggle for women’s rights and
equality in that country.
M
place on the national agenda. Women
activists fought successfully to ensure that
women’s rights were fully incorporated in
the new Constitution. Indeed, it is
arguable that contemporary South Africa
may provide some pointers in assessing the
possibilities for women’s equality, as well
as demarcating significant limitations in
achieving such equality.
Several questions are pertinent to the
enquiry about unfulfilled promises to
promote and protect women’s rights. First,
how is the contradiction between the
formal declarations of commitment to
gender equality and their ambivalent and
lacklustre pursuit by transitional democratic governments diminished? Second,
what vision of gender equality
The Role of Women in
surfaces after a brutal history of
Democratic
war, dislocation and dispossession,
The last few decades have seen
and is this vision diluted by
Transformation
supposedly more pressing national
concerted
efforts
by
women
activists
One could not resist listening
needs? Third, how are the foundato the speeches with a tinge of scepacross the globe to bring women’s issues
tions laid and strategies designed,
ticism. For decades various
particularly legal ones, to eradicate
from
the
margins
of
political
and
legal
national and global solidarity
or diminish violations of women’s
movements have celebrated the
discourse to a place where women’s
human rights? Fourth, how does
contribution of women to democsociety balance the secular nature
concerns
and
priorities
are
at
least
racy in a variety of post-colonial
of rights enforcement within
locations. Some may wistfully
formally recognised.
contexts of deeply entrenched relirecall the victory of the women of
gious or ‘customary’ norms? In
Zimbabwe, when that country was
sum, how does a society pursue
on the brink of democracy in 1980,
women’s rights in the face of
slogans like ‘mother of the nation’ or
and when possibilities for a redistributive
massive economic inequalities, political
‘standard-bearer of the revolution’. She is
democracy seemed attainable. There was
ambiguities, social upheaval and cultural
also the lynchpin for solidarity of the global
the toasting of the women of Mozambique
uncertainties?
human rights movement, the metaphor of
in the 1970s – brave women fighting alongthe noble victim worthy of rescue.1
side men to dislodge Portuguese colonial
The Global Consensus on
But notwithstanding official rhetoric
rule. In the 1980s some hailed the women
Women’s Rights
and lofty sentiments about the role of
of Nicaragua; there the promises of the
women in democratic transformation,
Sandinista government provided hope for
Feminist legal scholars, particularly
women’s concerns are often relegated to a
the achievement of women’s rights and
those focusing on international human
secondary place. Scouring the legacy of
equality.
rights law, have over the years proffered
several post-colonial societies, one is
some approaches to achieving a global
These examples illustrate how
confronted with ample evidence of this
consensus on women’s human rights. They
frequently the appellation ‘woman’ centres
marginalisation. 2 This state of affairs was
have creatively carved out an international
the values and aspirations of a society in
not lost on South African women. As the
conversation that has challenged national
transformation. During periods leading to
democracy
negotiations
towards
and global leaders to confront national
political transformation, the female
proceeded in the early 1990s, the vigilance
and international policies, practices and
becomes the mythical figure around which
of women activists ensured that women’s
laws that continue to subordinate and
the new democracy rallies, typified by
issues were not relegated to a secondary
(2004) 14 INTERIGHTS Bulletin
143
disadvantage women. Not satisfied with
mere theory, feminist legal scholars
working with women’s activists, have
generated a synergy between local and
global women’s activities. Organising and
lobbying on all five continents, aided and
abetted by the liberating possibilities of
the innovative communications technology, women’s voices in the political
realm are no longer muted. The last few
decades have seen concerted efforts by
women activists across the globe to bring
women’s issues from the margins of political and legal discourse to a place where
women’s concerns and priorities are at
least formally recognised.3
Women activists across the globe have
developed strategies to overcome individual and structural discrimination
against women. A watershed moment was
the passage of the Vienna Declaration of
Violence Against Women in 1993 – a
monumental effort to place violence
against women as central to the global
women’s human rights project. This
Declaration vindicated the labour of
women activists during the UN Decade
for Women 1975–85, and was followed in
1995 by the Beijing Declaration and
Platform for Action, and again by Beijing
Plus 5. Well-orchestrated campaigns by
women activists have also raised possibilities for generating local strategies to
achieve the ends outlined in the various
international documents that promote the
rights of women. In all of these activities
the Convention on the Elimination of All
Forms of Discrimination Against Women
(CEDAW) remains a great resource,
providing a language and a script for
women, which can be indigenised to
accommodate local conditions.
In pursuing transitional perspectives
on women’s human rights, I am interpreting the concept of ‘transitional’ in two
ways: first, in a literal sense, meaning societies that are in some form of political
transition, such as the one South Africa
embarked upon in 1994 and second in a
global existentialist sense – the idea that
the overwhelming forces of global capitalism impact on most aspects of
economic, social and political life. The
consequences have resulted in fluid,
dynamic and modified forms of economic,
political and cultural negotiation and
contestation, particularly around women’s
rights and the role and status of women.
For women, both interpretations of transition provide tremendous opportunities,
but also weighty challenges.
144
The Constitutional
Incorporation of Rights
Transitional and newly elected democratic governments provide fertile opportunities for assessing and analysing issues of
women’s equality. In many of these ‘new’
democracies, a confluence of factors have
created the theoretical and practical
universe for a thorough assessment of
rights. Amongst these factors are internal
ones, linked to the political spaces that
women have carved out for themselves.
The external factors are often represented
by linkages of human rights and democracy. Today, global human rights endeavours have increasingly targeted the specificity of women’s rights as human rights,
and in particular, their substance, their
universality, their recipients and the role of
the state in enforcing rights.
Transitional and newly
elected democratic
governments provide fertile
opportunities for assessing
and analysing issues of
women’s equality.
South Africa’s experience of legal
transformation is a case in point. The
South African Constitution contains the
most comprehensive listing of rights in any
national rights document. The drafters of
the Bill of Rights were explicit about the
aims of the document, namely, to generate
a transformative agenda with human
rights at the core. The Constitution was
designed to be a key instrument in moving
the country from one steeped in racialised
and gendered privilege to one embracing
rights for all, a symbol of the possibilities
of human rights as a mode of political
transformation. The human rights
jurisprudence of the Constitutional Court
in South Africa is increasingly providing
stellar examples of the judicial enforcement of rights. With respect to violations
of women’s rights, the Constitutional
Court has embraced international
legal principles to adopt a version of
equality that recognises the particular
contextualised forms of these violations.4
The constitutional incorporation of
human rights generates significant
possibilities for women who are encumbered by systemic subordination and individual discrimination. Bills of Rights,
however, highlight several contradictions
in societies burdened by economic
inequalities, cultural practices that harm
women, and widespread violence against
women. These severely hamper the efforts
to remedy violations of women’s rights.
For example, attempts by South African
women to address the country’s HIV
epidemic have highlighted structural
obstacles linked to a profound legacy of
racism, patriarchy and sexism. Any
strategy to remedy violations of women’s
human rights has to engage with both the
possibilities and the limitations of human
rights legal stratagems as an integral part
of the overall political project.
Global Activism
The global reality suggests vast
economic, geographical, cultural, and
social differences between women, particularly between those in the developed world
and their counterparts in the developing
world, but not exclusively so. Despite this,
global women activists continue to insist
on a collective mobilisation of women
against female subordination in all its
various guises.
Feminist activists, largely from the
South and schooled in nationalist struggles for independence, utilised their political skills at the UN to challenge that body
to pursue women’s rights more vigorously.
They strategically engaged the support of
women from the wealthier countries in the
North. The result of much of this activism
has meant that despite formidable obstacles to women’s equality in a vast array of
economic, social, and political areas, there
now exists a highly organised, politically
astute, articulate, and vocal group of
women activists who have committed
themselves to remedying violations of
women’s rights, not only within their
borders, but on a global scale.
But the activities of some global
activists have over time begun to raise
concerns, not because of disagreement
with the ultimate goal that violations of
women’s rights ought to be eradicated, but
because many women activists, especially
those in the developing world, have
expressed reservations concerning the
tactics utilised. These concerns have
surfaced after several global campaigns
which appeared to be tinged by a certain
evangelism, embracing the narrative of
rescue: women in non-western societies
(2004) 14 INTERIGHTS Bulletin
continue to be embroiled in the often
needed to be rescued from barbaric and
Almost always in regarding women’s
rancorous debates regarding culture and
oppressive cultural practices. This evangerights the question of culture, or rather
law; frequently the tensions are not just
lism, apparent in much of the writing and
cultural concerns, become crucial in
between men and women but amongst
the resultant activism, was most
discussing the appropriate status of
women themselves. In other words, in its
pronounced in discussions about indigewomen. Opportunistic male politicians
most generalised form, the conflict has
nous law. It became particularly animated
have exploited this ‘tension’ between
pitted traditionalists against feminists.
with regard to certain traditional pracrights and culture to attack what they
tices, such as polygamy and female genital
consider the imperialism of the global
surgeries. Very often the campaigns to
feminist movement. Often, their rendition
discard these practices
of culture is a static one,
failed to appreciate the
impervious to the notion
totality of a particular
that shifting cultural
…in the contemporary international women’s
community’s traditions
norms and their accomand laws. They largely
modation occur all the
human rights community the debate between those
ignored the complexities
time. When these politiwho advocate a universal secular approach to rights
and the contradictions of
cians appropriate the
the interaction of law,
discourse of women’s
enforcement are increasingly confronting a vocal
identity, tradition and
rights, they insist on a
constituency of women who espouse a religious,
community, and the
version of culture devoid
nuanced and complex
of the resilience which has
nationalist, or cultural interpretation of rights.
nature of an individual’s
been the hallmark of
engagement with these
culture
since
time
interactive processes. Nor
immemorial.
did women activists fully appreciate how
Scholars and activists who insist on the
This tension has played out at the UN
their campaigns would dovetail with
centrality of culture in human rights also
in several ways. For example, the language
nationalistic and jingoistic attitudes which
often portray culture as constant and
in the Beijing Platform for Action was
surfaced in many anti-immigrant
unchanged. Although not explicitly
watered down considerably. The human
initiatives in the West.
stated, culture appears to function in an
rights of women were designated as a
unproblematic, seemingly natural manner,
primary principle while the document
The Question of Culture
unencumbered by the constraints of politrecognised the ‘significance of national
ical, economic, social and other factors.
These tensions are not novel. But in
and religious particularities and various
The paradox results in the cocoon of
the contemporary international women’s
historical cultural and religious backcultural existence, shielded and isolated,
human rights community the debate
grounds’. At the UN Population
depicted in direct contrast to Western
between those who advocate a universal
Conference in Cairo, 1994, the Vatican
culture, which is constantly evolving and
secular approach to rights enforcement
joined with several Muslim governments
dynamic at its core.6 However, with regard
are increasingly confronting a vocal
to counter what they considered the impoto odious cultural practices and norms, as
constituency of women who espouse a relisition of Western values of individualism
far as most Western feminists are
gious, nationalist, or cultural interpretaand autonomy on the rest of the world.
concerned, the impetus is outwards. What
tion of rights. The global women’s rights
In many ways there has been a global
occurs to women inside Western society,
movement now finds itself having to
consensus on the theoretical edifice of
becomes immune from criticism.
engage with the voices of women who
human rights law and policy: across a
insist on a human rights vision that incorWhat is often lacking is attention to
range of constituencies and in multiple
porates their religious, nationalist or
culturally sanctioned discrimination in the
locations, the concept of human rights is
cultural concerns and which embodies
developed world. Western feminists
seen as good for humanity. While it is
remedies and strategies that do not necesappear to be loath to focus their intellecarguable that the rhetoric of economic
sarily conform with the accepted global
tual lenses on their own societies, where
redistribution has been replaced by the
approach. These voices challenge global
negative cultural stereotypes persist and in
rhetoric of human rights, there has also
feminists continuously to confront what
which privatised violence against women
emerged, although to differing degrees, a
appears to be a particularly taxing human
is widespread. An example is the range of
growing recognition that economic, social
rights problem, namely, how human rights
cosmetic surgeries, including breast
and cultural rights deserve the equivalent
accommodates the claims of culture.
augmentation, face lifts and liposuction
primacy of civil and political rights.
Although culture complicates questions of
that thrive in the US cultural environment
Indeed, the interdependence of rights has
rights and equality, it is ultimately the
and which demand that women conform
almost universally been accepted. But one
economic condition of women that deterto a particular feminine stereotype.7 This
of the enduring tensions within human
mines gender roles, and how in fact culture
stereotype is perpetuated by a media saturights law and practice persists, and has
is negotiated and experienced.
rated with demeaning depictions of
become even more pronounced: the
women – all clothed in a liberatory
Political events in the past few years
tensions between the apparently competing
language of choice, freedom and
have catapulted the issue of religious or
claims of cultural minorities and the claims
autonomy.8
cultural rights to the epicentre of global
5
of equality and human rights.
politics. It has been highlighted most
The question then becomes: how do
starkly in the conflict in Afghanistan, and
we in the human rights community have a
to a lesser degree in Iraq. Women activists
(2004) 14 INTERIGHTS Bulletin
145
candid conversation about the role of
culture in perpetuating stereotypes of
women? How can we engage in a debate
that appreciates the need to eradicate all
forms of cultural discrimination against
women, in a manner that is thoughtful,
respectful and productive? How do we
avoid the polarising impulses that perpetuate the notion of the exotic or uncivilised
‘other’ and the civilised or progressive ‘us’?
Most importantly, how do we focus on the
eradication of violations of women’s rights
which occur through economic exploitation, limited access to economic resources,
institutionalised private and public
violence, and cultural impediments?
Conclusion
In many ways those of us involved in
the pursuit of women’s rights have benefited tremendously from the debates that
raged during the 1980s around the issues
of universalism and cultural relativism,
about whether human rights principles
apply globally or whether their applicability is limited within particular cultural
contexts. The dust has largely settled on
those debates, a consequence of widespread engagement by women from the
non-Western world who have mainly
eschewed cultural relativism in favour of
feminisms for which they have developed
and fought. As the Iranian feminist,
Valentine Moghadan, points out:
‘It is no longer possible to speak of a
feminism for the West versus a different
set of priorities for the developing
world…feminist movements have proliferated in the Muslim world…and they
have taken strong objections to
discourses of cultural relativism…’9
So too, South African women, when
they negotiated the Constitution to govern
a democratic South Africa, vehemently
opposed attempts by the traditional
authorities to immunise customary law
from the dictates of equality, the primary
principle of the Constitution. These
leaders and their supporters argued for the
uniqueness of traditional institutions,
their autonomy and authenticity. South
African women appreciated the significance of these concerns but recognised the
flexibility of traditional laws and customs
that could accommodate the principle of
equality.
Even though feminists from nonWestern societies have largely rejected the
spurious claims of cultural relativism to
which women’s rights and equality are
held hostage, there is still not a global
146
consensus amongst women about the
place of culture or religion in pursuing
women’s equality, or indeed what that
equality looks like. As Valentine
Moghadan points out, feminist movements exist in the Muslim world, and they
have largely articulated an indigenous
vision of women’s equality which
acknowledges the role of religion and
culture in their lives. The secular pursuit of
human rights, as defined in most Westernstyle democracies, has great difficulty
taking a foothold in many Muslim countries. Indeed, Haleh Afshar, another
Iranian feminist, argues that Islamic
women defend their faith ‘as a dynamic
system that has offered much to women’.
They believe that in fact their faith offers
them ‘even more than Western-style
feminism’.10
augmentation, eyelid surgery, rhinoplasty and
breast reduction. See Report of the American
Society for Aesthetic Plastic Surgery available at
<www.my.wemmd.com/content/Article/82/97313.
htm>. Of course these surgeries occur elsewhere,
e.g. in Brazil and China. But these countries are
not attempting to impose their cultural values on
the rest of the globe.
8 Morgan, K.P., ‘Women and the Knife: Cosmetic
Surgery and the Colonization of Women’s Bodies’,
in Bushnell, D.E., (ed.) (1995) Nagging Questions,
Rowman & Littlefield.
9 Moghadan, V.M., ‘Patriarchy, The Taleban, and
Politics of Public Space in Afghanistan’, Women’s
Studies, 2002, pp.17, 27.
10 Afshar, H., ‘Islam and Feminism: An Analysis of
Political Strategies’, in Yamani, M., (ed.) (1996)
Feminism and Islam: Legal and Literary
Perspectives, New York University Press.
This is a wonderful moment to engage
in a fruitful dialogue about the implementation and enforcement of rights for
women both locally and globally. Women
in some locations have made tremendous
advancements and can proceed to build on
those successes. But the task of changing
the dismal reality of the condition of
majority of the world’s women remains the
greatest challenge. We need to continue to
raise difficult, even uncomfortable, questions - and to seek answers collectively,
respectfully and productively. n
Penelope E. Andrews is Professor of Law
at City University of New York.
1
2
3
4
5
6
7
See, for example, Mandela, W. (1985) A Part of My
Soul Went With Him, W.W.Norton & Co.
Maboreke, M, ‘Women and Law in PostIndependence Zimbabwe’, in Bazilli, S. (ed.) (1991)
Putting Women on the Agenda, Ohio University
Press, p227.
See Bazilli, S., (ed.) (1991) Putting Women on the
Agenda, Ohio University Press; Cook, R. (ed.)
(1994) Human Rights of Women. National and
University
of
International
Perspectives,
Pennsylvania Press.
Andrews, P.E., ‘The Stepchild of National
Liberation: Women and Rights in South Africa’, in
Andrews, P.E. and Ellmann, S. (eds) (2001) The
Post-Apartheid Constitutions: Perspectives on
South Africa’s Basic Law, Witwatersrand
University Press Publications.
Arguably these issues have been central to the
modern global human rights project. They may
have been attached to different labels over time –
first and third world, individualism versus
communitarianism, traditional versus modern.
See Buruma, I., and Margalit, A. (2004)
Occidentalism: The West in the Eyes of its Enemies,
Penguin.
Binder, G., ‘Cultural Relativism and Cultural
Imperialism in Human Rights Law’, Buffalo
Human Rights Law Review 5, 1994, p1053; Currie,
I., ‘The Future of Customary Law: Lessons from
the Lobolo Debate’, Acta Juridica, 1994, p156.
In 2003 approximately 8.3 million cosmetic
procedures were performed in the US. The top five
surgical procedures were liposuction, breast
(2004) 14 INTERIGHTS Bulletin
The Protection of Women’s
Rights in Africa
Fareda Banda
f the 20th century was about the African struggle for political
liberation from colonialism and racism, then the 21st century will be
about two further stages in that revolution: the fight for economic
and ideological sovereignty from the West, and the fight for the liberation
of African womanhood from the shackles of sexism and gender-based
discrimination. All three struggles are part of the same revolutionary
continuum taking African people towards a collective and comprehensive
liberation based on tolerance, dignity, freedom and respect for all
children, women and men who live on the African continent.1
I
July 2003 marked the apotheosis of the
struggle for formal legal rights by African
women, for that is when the African
Union adopted the Protocol to the
African Charter on Human and Peoples’
Rights on the Rights of Women in Africa,
2003 (African Protocol on Women’s
Rights)2. The instrument – a radical
document – provided unprecedented
rights for African women. However,
although signed by 30 states, only three
states have ratified it3 and it seems unlikely
that it will gain, in the near future, the 15
ratifications needed to bring it into force.
It took nine years for the African Charter
on the Rights and Welfare of the Child,
19904 (ACRWC) to come into force. Will
the same be the case with respect to the
African Protocol on Women’s Rights?
What does this tell us about the commitment of African states and statesmen (for
the heads of states on the continent are all
men) to women’s rights? Why is it that
rights affecting women and children are so
slow to be implemented? Is securing rights
on paper without the necessary political
commitment to deliver, almost as bad as
having no rights at all?
This article charts the genesis of
women’s rights in Africa, examining
constitutional provisions, sub-regional
initiatives and the African human rights
framework. While acknowledging the
normative gains made, the paper explores
some of the reasons for the non-implementation of rights on the continent.
It goes without saying that all Africans
suffered under colonialism. Public life was
regulated by the imported colonial law,
applied to privilege the minority group.
African women were particularly
(2004) 14 INTERIGHTS Bulletin
disadvantaged. Although having reproductive worth, their day to day labours
were not valued and they were left out of
the construction of the legal norms that
governed their personal lives. Personal
laws in ‘Anglophone Africa’ for the indigenous people were fashioned by male elites
(colonial and local men). The ‘customary
law’ which emerged during colonialism
and continued after its demise has been
identified as the source of much of the
discrimination experienced by women on
the African continent.5 Some post independent states, through legal reform and
judicial activism have tried to reform or
moderate that law to fit into a more
gender-friendly framework. The results
have been varied.
Constitutions
One of the ways states have tried to
ameliorate women’s lives has been via
constitutional reform. Specifically, states,
particularly those who have drafted or
amended their constitutions post 1990,
have included non-discrimination principles, proscribing discrimination based on
sex or gender within their Bills of Rights.
Although the South African Constitution
has become the most well known, other
countries with non-discrimination provisions include Namibia, Eritrea, Ghana
and Senegal. Given the challenge of ‘the
customary law conundrum’, some states
have gone further and provided that
customs, ‘culture’ and ‘traditions’ which
impinge on women’s enjoyment of their
human rights are not allowed to stand.
The Ugandan Constitution is a good
example of this model providing that:
The importance of
constitutional protection of
women’s rights lies not only
in the fact that the
constitution is the supreme
law of the country…but
also because local remedies
may be the only ones
available for women to
access.
‘Laws, cultures, customs or traditions
which are against the dignity, welfare or
interest of women or which undermine
their status, are prohibited by this
constitution.’6
The importance of constitutional
protection of women’s rights lies not only
in the fact that the constitution is the
supreme law of the country, technically
‘trumping’ all other legal norms operating
in the state, but also because local remedies
may be the only ones available for women
to access. Nyamu notes how rural African
women are two times removed from the
state and experience a double alienation,
‘first on the basis of their sex and second,
of their poverty and diminished political
and economic power.’7 They are thus three
times removed from the international
sphere. Taking complaints to the African
Commission on Human and Peoples’
Rights (the African Commission) and
other international bodies remains the
preserve of those with the intellectual and
financial wherewithal to translate their
personal problems into legally recognisable categories, which more often than not
excludes poor, rural women.8
CEDAW
Over the years, middle class African
women and states have become active
participants
in
international
fora
discussing issues pertaining to human
147
rights. This has resulted in widespread
ratification of the UN Convention on the
Elimination
of
All
Forms
of
Discrimination Against Women, 1979
(CEDAW). Although some north African
states have ratified with reservations,9
most African states have accepted
CEDAW unconditionally. With varying
levels of detail and regularity, African
states have reported to the CEDAW
Committee on the progress that they have
made towards achieving the goals of
CEDAW. Across the board, those
reporting have identified as the chief
impediment to the enjoyment by African
women of their rights, the issue of
‘culture’.10
Sub-Regional Initiatives
The participation of African women at
the Beijing Conference in 1995 resulted in
gender activists from the states which form
part
of
the
Southern
African
Development
Community
(SADC)
lobbying for a sub-regional instrument to
tackle gender-based discrimination. The
result was the adoption of the SADC
Gender and Development Declaration,
1997.11 This was followed in 1998 by an
Addendum to the Declaration on the
Prevention and Eradication of Violence
Against Women and Children.12 The
Declaration mirrors many of the provisions of CEDAW, for example access to
resources, healthcare and education,
changing social practices that constitute
discrimination against women and
enacting empowering gender-sensitive
laws. It also provides for a target of 30 per
cent participation of women in political
and decision-making structures by 2005,13
which target is unlikely to be met by the
majority of states.
The African Charter and the
Work of the Commission
Within the African human rights
system itself, the founding human rights
document, the African Charter on Human
and Peoples’ Rights, 198114 (the African
Charter) article 2 prohibits discrimination
based on sex15 and article 3 provides for
equal protection before the law.16 Article
18(3) also provides that states are obliged
to eliminate every discrimination against
women (my emphasis). The word ‘every’
suggests that this injunction admits of no
exception, and yet, article 29 (7) on the
duty ‘to preserve and strengthen positive
African cultural values’ has been the
subject of intense academic debate where
148
It is revealing that there
have been no complaints to
the African Commission on
gender-based
discrimination, although
state reports show that this
cannot be because genderbased discrimination does
not exist.
gender-based discrimination is concerned.
The consensus appears to be that positive
African values are not reliant for their
continuation on gender-based discrimination.17 This interpretation is reinforced by
the ACRWC which proscribes discrimination on the basis of sex and that based on
custom:
‘(1) States Parties…shall take all
appropriate measures to eliminate
harmful social and cultural practices affecting the welfare, dignity,
normal growth and development of
the child and in particular:
(a) those customs and practices
prejudicial to the health or life of
the child; and
(b) those customs and practices
discriminatory to the child on the
grounds of sex or other status.18’
the
African
CEDAW,
Like
Commission when examining state reports
has highlighted the prevalence of sex-based
discrimination in all African states, in
particular discrimination against women
in the accessing of resources on death or
divorce.19 It is revealing that there have
been no complaints to the African
Commission on gender-based discrimination, although state reports show that this
cannot be because gender-based discrimination does not exist. Alternative explanations have to be found, including the difficulties of financial and socio-psychological
access. Had communications been brought
before it, the African Commission could
have used its powers under article 58 to
refer the matter to the Organisation of
African Unity/African Union to enable the
African Commission to launch an inquiry,
or indeed multiple inquiries, into the
serious and massive human rights violations against women. Does the African
Commission’s silence on gender indicate a
lack of commitment, or gender blindness?20
Similar questions could be asked about the
lack of communications brought by the
NGO community citing violations of
women’s rights. It cannot be for lack of
evidence so one must conclude that human
rights NGOs on the continent and those
working internationally are themselves
state-centric, focusing only on violations
occurring within the public sphere and that
they are gender blind, or at best indifferent,
otherwise they would have used communications to highlight gender-based violations of human rights and to try to bring
about change. This leads us to ask why it is
that violations of rights that occur mainly
to men are somehow classed as ‘more
important’ and therefore more deserving
of NGO and institutional attention than
violations endured predominantly by
women.21 Are human rights not women’s
rights too?22 It is telling that the former
Chairperson of the African Commission,
referring to the first meeting at which the
decision to draft a protocol on women’s
rights was made, notes:
‘The participants to the [African]
Commission’s conferences are selected
according to expertise and interest.
Accordingly, the participants at
the…Lome Conference on the Rights of
Women in Africa were largely women.’23
The African Protocol on
Women’s Rights
At the regional level, work on an
instrument focusing on the rights of
women came about as a direct result of
lobbying by Women in Law and
Development in Africa (WiLDAF), a
women’s regional NGO. The first
NGO/African Commission meeting on
drafting an instrument to protect women’s
rights was held in Togo in March 1995.24
Many consultations and drafts later, the
African Protocol on Women’s Rights was
adopted by the African Union in Maputo
in 2003. This, the ‘African CEDAW’ like its
international counterpart, addresses
violations of women’s rights in the public
and private spheres. It incorporates civil,
political, social, economic and cultural
rights. Women’s rights to equal inheritance
with men, to equal property sharing on
divorce are recognised together with rights
to adequate housing, food security and the
right to a healthy and sustainable environment. Article 17 (1) addresses ‘cultural
issues’, providing that women have a right
to live in a positive cultural context and to
‘participate in the formulation of cultural
policies at all levels’. The document is
(2004) 14 INTERIGHTS Bulletin
radical in that it enshrines rights not otherwise found in human rights documents,
one of the most controversial being article
14 (2) (c) for the protection of the ‘reproductive rights of women by authorising
medical abortion in cases of sexual
assault, rape, incest, and where continued
pregnancy endangers the mental and
physical health of the mother or the life of
the mother or the foetus.’ The African
Protocol on Women’s Rights is a
document of its time confronting the
AIDS pandemic by providing that women
have the ‘right to self protection and to be
protected against sexually transmitted
infections,
including
HIV/AIDS’.25
Globalisation is addressed with a plea in
article 19 (f) that efforts should be made to
minimise the ‘adverse effects of the implementation of trade and economic policies
and programmes’ on women’s lives. With
great optimism, article 10 (3) challenges
states parties to ‘take the necessary
measures to reduce military expenditure
significantly in favour of spending on
social development in general, and the
promotion of women in particular.’
This last point on military expenditure
is important, not least because most
contemporary wars are based on the
African continent. That civilians are the
main casualties of modern warfare is now
a well-documented fact. Women and
female children26 are additionally
burdened by being disproportionately
subjected to sexual violations and by the
socio-economic deprivation brought
about by civil war. In addition to article 10
on the right to peace, article 11 recognises
the uneven impact of war on the lives of
women and calls for the protection of
women in armed conflict. The concerns of
women refugees and those seeking refuge
are addressed in article 4 (2) (e) and (k).
Although using CEDAW as its starting
point, the African Protocol on Women’s
Rights goes further, providing explicitly
for women’s rights to live their lives free
from gender-based violence (article 4)
including female genital mutilation
(article 5 (b)), sexual harassment (article
12 (1) (c) and (d)), trafficking (article 4 (2)
(g)) and pornography (article 13 (m)) to
identify but some of the forms of violence
contained within the African Protocol on
Women’s Rights.
That the African Protocol on Women’s
Rights is a radical and ambitious instrument is not in doubt. The realisation of its
vision would indeed be the culmination of
all three generations of liberation identified
in the introduction. However, what is the
(2004) 14 INTERIGHTS Bulletin
likelihood of success of this and other
initiatives in achieving the promotion of
women’s rights on the African continent?
Dr Fareda Banda is a Lecturer in African
Law at the School of Oriental and African
Studies, London.
Barriers
1
Discussing the promotional visits
made to states by members of the African
Commission,
former
Commission
notes
that
Chairperson
Dankwa
Commissioners reported that while the
(rhetorical) political will was there, the
delivery was not.27 He identifies many
shortcomings, not least shortage of judges
and the public’s lack of trust in existing
judges, resource constraints which lead to
a limited legal aid service and lack of
expertise in the preparation of state
reports.28 Shockingly he also reports that
the Human Rights Commission in the
Central African Republic and the
Ministries of Justice and Foreign Affairs in
Liberia were all without a single copy of
the African Charter,29 leaving open the
question about how these agencies are to
do their work of promoting and protecting
human rights within their states when they
themselves are without the key text.
Dankwa asserts that we may need to
change the measure of achievement or
success. To date, success has been
measured quantitatively by identifying
how many resolutions or human rights
instruments have been passed or adopted,
or how many normative lacuna have been
filled. He suggests a change in direction for
the African Commission, namely to ease
up on the number of resolutions made in
favour of consolidating existing ones.30
Arguably, this suggestion should be taken
into account by all in the human rights
field eager for yet more instruments to
address our ever growing concerns.
Changing the law and making resolutions is, as Dankwa has noted, easy – what
is more difficult is seeing that those
changes are actually implemented. Where
women’s rights are concerned there is the
additional challenge of working towards a
change in attitudes and behaviour – the
underpinnings of constructions of gender
and with it gender-based discrimination.
Perhaps this task is beyond the purview of
law and human rights, but it is not beyond
a people who have experienced multiple
and intersecting forms of discrimination
over long periods of time. We as Africans
can change our communities so that individually and collectively we are all able to
enjoy living lives grounded in freedom,
dignity, mutual respect, non discrimination
and above all, peace. n
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
This vision of a comprehensively liberated African
continent is envisaged by the Constitutive Act of
the African Union, 2002, available at
<www.africa-.union.org>. See too Grand Bay
(Mauritius) Declaration and Plan of Action
CONF/HRA/DECL (1) reproduced in 11 (1999)
RADIC 352. See Naldi, G., ‘Future Trends in
Human Rights in Africa: The Increased Role of the
OAU?’ in Evans, M. and Murray, R., (eds) (2002)
The African Charter on Human and Peoples’
Rights: The System in Practice 1986–2000, CUP,
Cambridge 1-35, pp.17–31.
Protocol to the African Charter on Human and
Peoples’ Rights on the Rights of Women in Africa,
2003 available at <www.africa.union.org>.
The Comoros, Libya and Rwanda. See
<www.africa-union.org>.
Available at <www.africa-union.org>.
Chanock, M., (1985) Law, Custom and Social
Order: The Colonial Experience in Malawi and
Zambia, CUP, Cambridge.
Constitution of Uganda, 22 September 1995,
article 33 (3).
Nyamu, C., ‘The International Human Rights
Regime and Rural Women in Kenya’, East Africa
Journal of Peace and Human Rights 6, 2000, p1.
Although see the challenge brought by such a
woman to discriminatory inheritance rights in
Tanzania in Ephraim v Pastory [1990] LRC (Const)
757.
For example Egypt which has reservations to
article 9(2) on the nationality of children and parts
of article 16 on women’s rights in the family.
CEDAW – Concluding Observations Ethiopia, UN
Committee on the Elimination of Discrimination
Against Women, A/51/38, 1996, para. 139;
CEDAW Concludes Consideration of Morocco’s
Report, UN Press Release, 20 January 1997,
WOM/927 at <www.un.org/News/Press/docs
/1997/19970120.wom937.html> p1; Need to
Modify Cultural Practices Harmful to Women in
Democratic Republic of Congo Stressed by
Discrimination Committee Experts, UN Press
Release, WOM/1164, at <www.un.org/News/
Press/docs.2000/200001225.wom1164.doc.html>;
CEDAW General Recommendation No. 21 on
Equality in Marriage amd Family Relations, UN
Doc. A/49/38, para.15.
SADC Gender and Development Declaration,
1997 reproduced in Southern African Research
and Documentation Centre (SARDC), (2000)
Beyond Inequalities: Women in Southern Africa,
SARDC, Harare, p317.
‘The Prevention and Eradication of Violence
Against Women and Children: An Addendum to
the 1997 Declaration on Gender and Development
by SADC Heads of State or Governments’ in
SARDC, supra note 11, p318.
SADC Gender and Development Declaration,
supra note 11, at para. H (iv).
The African Charter on Human and Peoples’
Rights, available at <www.africa-union.org>.
Ibid, article 2
Ibid, article 3. See as example Legal Resources
Foundation v Zambia, Communication 211/98,
Decision of the AfCmHPR, 29th Ordinary
Session, April/May 2001, [2001] IIHRL 1 (1 May
2001) para. 63.
Beyani, C. ‘Towards A More Effective Guarantee
of Women’s Rights in the African Human Rights
System’, in Cook, R., (ed.) (1994) Human Rights of
Women: National and International Perspectives,
University of Pennsylvania Press, p285; Mutua,
M., ‘The Banjul Charter: The Case for an African
Cultural Fingerprint’, in An-Na’im, A., (ed.)
(2002) Cultural Transformation and Human Rights
in Africa, Zed, pp.88–9.
The African Charter on the Rights and Welfare of
the Child, 1990, article 21.
Murray, R., (2000) The African Commission on
149
20
21
22
23
24
25
26
27
28
29
30
Human and Peoples’ Rights and International Law,
Hart Publishers, Oxford, p44.
It is however worth noting the appointment of a
Special Rapporteur on the Rights of Women in
Africa. However, apart from early co-ordination of
the drafting process for the African Protocol on
Women’s Rights, little is known about the work of
this Rapporteur. See Evans, M. and Murray, R.
‘The Special Rapporteurs in the African System’,
in Evans, M. and Murray, R. (eds) (2002) The
African Charter on Human and Peoples’ Rights:
The System in Practice, CUP, Cambridge, 285,
pp.295-298. See too Dankwa, V. ‘The Promotional
Role of the African Commission’, in Evans, M. and
Murray, R. (eds) (2002) The African Charter on
Human and Peoples’ Rights: The System in
Practice, CUP, Cambridge, 335, pp. 340, 343. It
remains to be seen whether the coming into force
of the African Court on Human and Peoples’
Rights and the requirement that ‘due
consideration shall be given to adequate gender
representation in the nomination process’ (article
12(2)) will make a difference.
The silence may reflect the male dominance of
many human rights agencies. Oloka-Onyango, J.,
‘Modern Day Missionaries or Misguided
Miscreants? NGOs, the Women’s Movement and
the Promotion of Human Rights in Africa’, in
Benedek, W. et al (2002) Human Rights of Women:
International Instruments and African Experiences,
Zed, London, p291.
See generally Charlesworth, H. and Chinkin, C.
(2000) Boundaries of International Law: A Feminist
Manchester
University
Press,
Analysis,
Manchester, UK.
Dankwa, V. ‘The Promotional Role of the African
Commission’, in Evans, M. and Murray, R. (eds)
(2002) The African Charter on Human and Peoples’
Rights: The System in Practice, CUP, Cambridge,
335, p. 341.
Final Communiqué of the 17th Ordinary Session
of the African Commission on Human and
Peoples’ Rights, Lome, Togo, 12–22 March 1995,
ACHPR/COM/FIN/XVIII/Rev.3, para. 31.
Ibid, article 14 (1) (d). See also article 14 (1) (e).
Ibid, article 1 (k). The Protocol makes clear that
the definition woman includes the girl-child.
Dankwa, supra note 23, p344.
Ibid, p343.
Ibid, p338.
Ibid, p349.
150
The Due Diligence Standard and Violence against
Women
Stephanie Farrior
ue diligence is the standard often used to determine what actions
states should take to address violence against women. A series of
international instruments establishes that domestic violence and other
forms of violence against women are not always a private matter, but may
entail state responsibility under international law. Under these instruments, states have a duty to take positive action to address violence
against women. This duty arises from treaty provisions under which
states undertake to ‘ensure’ or to ‘secure’ to all within their territory or
jurisdiction the rights in the treaties.
D
Numerous rights are implicated by
violence against women, which, as the
United Nations Committee on the
Elimination of Discrimination against
Women (the Committee) has explained in
its General Recommendation 19 on
Violence against Women, 1992, is a manifestation of gender discrimination that
‘impairs or nullifies the enjoyment by
women of human rights and fundamental
freedoms.’ 1
For the state to bear responsibility for
failing to exercise due diligence with
respect to violence against women, it is not
necessary to attribute the act of violence
directly to the state. Instead, the human
rights violation lies in the failure of the
state to fulfil its obligation to take appropriate measures with respect to such
violence. The Committee’s General
Recommendation 19 asserts that: ‘States
may also be responsible for private acts if
they fail to act with due diligence to prevent
violations of rights or to investigate and
punish acts of violence, and for providing
compensation.’ The UN General
Assembly Declaration on the Elimination
of Violence Against Women (GA
Declaration), 1993 also urges states to
‘exercise due diligence to prevent, investigate and, in accordance with national
legislation, punish acts of violence against
women, whether those acts are perpetrated by the state or by private persons’.2
Two years later identical language was
used in the UN Fourth World Conference
on Women Declaration and Platform for
Action in Beijing, 1995 (the Beijing
Platform for Action).3 The standard
continues to be used, as in the
Recommendation adopted in 2002 by the
Council of Europe’s Committee of
Ministers on the protection of women
against violence. 4
There is no single agreed definition of
what constitutes due diligence. To determine just what diligence is due in a given
situation depends on context and the
particular facts of the situation.
Nonetheless, the four categories of action
appearing in the instruments cited above
are standard; due diligence entails action
to prevent, investigate, punish and provide
compensation. As for more detailed explanations of what action is required, the
Beijing Platform for Action5 and the GA
Declaration, article 4 list a series of
judicial, legislative and administrative
steps that states should take to eliminate
violence against women. However, neither
these instruments nor the work of the
bodies that have applied a due diligence
standard indicates whether negligence or
strict liability is the appropriate measure
by which to judge whether a state has met
its obligations.
Defining Due Diligence
The concept of ‘due diligence’ was
drawn from the 1989 judgment of the
Inter-American Court of Human Rights
(IACtHR) in Velasquez-Rodriguez v
Honduras,6 where the IACtHR held it irrelevant whether the human rights violations
at issue were perpetrated by state agents or
private individuals. The IACtHR found
that the state’s failure to prevent
Velasquez’s disappearance, and its failure
to punish the perpetrators, was a violation
of its obligation to ‘ensure to all persons . . .
the free and full exercise of . . . rights and
freedoms’ under article 1 of the American
Convention on Human Rights (ACHR).
Importantly for the area of violence
against women, the IACtHR then stated
that ‘[t]he same is true when the state
allows private persons to act freely and
with impunity to the detriment of the
rights recognised in the ACHR.’7 Thus, for
(2004) 14 INTERIGHTS Bulletin
example, if the state allows men to beat
their wives or girlfriends with impunity,
the state has failed to meet its due diligence
obligation. A more difficult question is not
addressed by this approach – how to judge
a state when it has taken some measures,
such as enacting legislation, which is then
sometimes, but not always, enforced.
As to what measures in addition to
legislation are required, the IACtHR in
Velasquez said that states have a duty to
‘organise the governmental apparatus,
and in general, all the structures through
which public power is exercised, so that
they are capable of juridically ensuring the
free and full enjoyment of human rights’.8
The UN Commission on the Status of
Women has stated that ‘women victims of
violence should be given comprehensive
assistance, with legal measures, national
machinery, preventive policies and institutional forms of assistance’.9 Women often
encounter or experience impediments to
access to legal information and assistance
as well as to legal redress. Due diligence
requires that these be removed.
In his massive study of the subject,
‘Due diligence’ e responsabilita internazionale degli stati10, Riccardo Pisillo
Mazzeschi examined many arbitral and
court decisions from the late 1800s
through the 1900s, and explored, amongst
other things, whether a state has an obligation to maintain a certain minimum
infrastructure to carry out its obligation to
protect, or whether its sole responsibility is
to exercise due diligence in using the infrastructure it has in place.11 He found no
evidence for the notion that due diligence
entails an obligation of result, but also no
support for the notion that the state
should be measured against just domestic
standards of conduct.
Applications of the Due
Diligence Standard
Both UN and regional human rights
bodies have applied a due diligence
standard in addressing private violence.
For example, the Committee on the
Elimination of Racial Discrimination
(CERD) did so in L.K. v Netherlands,12
stating that ‘when threats of violence are
made, . . . it is incumbent upon the state to
investigate with due diligence and expedition’. In that case, threats of violence had
been made against a Moroccan man while
visiting a house in Utrecht for which a
lease had been offered to him and his
family. The police and subsequently the
judiciary did not take his complaint
(2004) 14 INTERIGHTS Bulletin
seriously. CERD found that ‘in view of the
inadequate response to the incidents, the
police and judicial proceedings in this case
did not afford the applicant effective
protection and remedies within the
meaning of article 6 of the ACHR’.13
That the measures required vary with
the circumstances is evident from the
statement
of
the
Inter-American
Commission on Human Rights in its
report on Ciudad Juarez, in which it
stated:
‘In some instances, the duty of due
diligence to prevent a violation requires
an urgent response, for example in the
case of women in need of measures to
protect against an imminent threat of
violence, or in response to a report of a
disappearance’.14
The European Court of Human
Rights (ECtHR), though not using the
term due diligence, was clearly applying
the concept in Osman v United Kingdom,15
which involved threats against an individual that were brought to the attention
of the police, who did not intervene. The
ECtHR said the state bears responsibility
if (1) ‘the authorities knew or ought to
have known at the time’ that criminal acts
of a third party posed a ‘real and immediate risk to the life of an identified individual or individuals’ and (2) the authorities ‘failed to take measures within the
scope of their powers which, judged
reasonably, might have been expected to
avoid that risk’. The ECtHR indicated
that ‘[i]t is sufficient for an applicant to
show that the authorities did not do all
that could have reasonably been expected
of them to avoid’ this risk.’16
The IACtHR, in a domestic violence
case, addressed the state’s failure to take
proper steps to prosecute and punish the
perpetrator and secure the victim’s safety.
It stated that ‘[w]hat is decisive’ is whether
a violation of rights under the ACHR took
place ‘with the support or the acquiescence of the government, or whether the
state has allowed the act to take place
without taking measures to prevent it or to
punish those responsible.’17 Citing its
judgment in Velasquez, the IACtHR said
that ‘[t]he state is obligated to investigate
every situation involving a violation of the
rights protected by the Convention. If the
state apparatus acts in such a way that the
violation goes unpunished and the victim’s
full enjoyment of such rights is not
restored as soon as possible, the state has
failed to comply with its duty to ensure’
the rights in the ACHR.
Conclusion
The cry of inadequate resources is not
a valid response to claims of a failure to
exercise due diligence to address violence
against women. What resources a state has
must be allocated on a non-discriminatory
basis. Violence against women is per se a
manifestation of discrimination and a
state that does not allocate resources to
address the problem is perpetuating that
discrimination. At a bare minimum, a
state with few resources should have a
plan for addressing such violence.
These are just some examples of the
flexible standard of due diligence to
address violence against women. The basic
duties are to prevent, investigate, punish
and provide compensation. Whether
measures a state has taken to prevent or
investigate, for example, are adequate to
meet the due diligence requirement will
depend on the context and facts of the situation. Preventive measures should include
training as well as education against the
patterns of thinking that allow violence
against women to exist in all societies with
impunity. n
Stephanie Farrior is Professor of Law at
Pennsylvania State University, Dickinson
School of Law, USA.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
CEDAW General Recommendation No. 19, UN
Doc. CEDAW/C/1992/L.1/Add.15, 1992.
UN General Assembly Resolution 48/104, 20
December 1993.
UN Doc. A/CONF.177/20.
Recommendation 2002/5 of the Committee of
Ministers to member states on the protection of
women against violence (30 April 2002).
Beijing, Platform for Action, paras. 124–30.
4 InterAm. CHR 61, OEA/ser. C./4 (1988),
reprinted in 28 ILM 291, 3257 (1989).
Ibid, para. 176.
Ibid.
UN Doc. E/CN.6/1995/3/Add.4, para. 1.
(1989) Dott., A. Giuffre Editore, Milan. The
material on this book in the present article is drawn
from the book review of this volume by Varges,
G.S., ‘Book Review: “Due diligence” e
responsabilita internazionale degli stati’, American
Journal of International Law 85, 1991, pp. 568–9.
Ibid, p568.
Committee on the Elimination of Racial
Discrimination, Communication No. 4/199,
Opinion of 16 March 1993.
Ibid, para. 6.7.
Inter-American Commission on Human Rights,
2002 Annual Report, Ch. VI: The Situation of the
Rights of Women in Ciudad Juárez, Mexico: The
Right to be Free from Violence and Discrimination,
OEA/Ser.L/V/II.117, Doc. 1, rev. 1 (7 March
2003), para. 155.
Case No. 87/1997/871/1083, 28 October 1998.
Ibid, paras. 115–17.
Maria da Penha Maia Fernandez v Brazil, Report
No. 54/01 (April 16, 2001), paras. 42, 43.
151
Women’s Rights in Transition: the Sri Lankan
Case
leader Prabhakaran: ‘Tell us, where are
our children?’
Sexual Violence
Sunila Abeysekera
he ethnic conflict in Sri Lanka is one of the world’s longest and most
brutal, and has resulted in death, destruction of property and the
displacement of over a million persons from their homes in the main
arena of the war, the north and east of the island. The original struggle in
the 1970s of the minority Thamil community for self-determination and
the independent state of Thamil Eelam emerged as a response to years of
discrimination on the basis of ethnicity and language, and blatant
disregard of Thamil demands for dignity and equality by successive
southern governments that were dominated by the majority Sinhala
community. As the conflict progressed, it moved from non-violent forms
of protest to armed militancy.
T
The years of conflict have also been
marked by a steady erosion of democratic
rights throughout the island, and by gross
violations of human rights by the security
forces, as well as by the group known as the
Liberation Tigers of Thamil Eelam (LTTE).
Following many different attempts at
reaching a negotiated settlement of the
conflict over the years, in February 2002,
the government of Sri Lanka and the
LTTE signed a Ceasefire Agreement
through a process facilitated by the
Norwegian government. Up to date, the
ceasefire has continued to hold, in spite of
many minor infractions. During 2003,
there was a period during which the LTTE
withdrew from the process and presented
the government with a proposal for an
Interim
Self-Governing
Authority.
Following the Parliamentary elections of
April 2004, the Norwegians have engaged
with both sides to the conflict to re-start
the negotiation process.
Much has been written on the impact
of the conflict on women and on women’s
rights. Feminist scholars have explored the
ways in which the capacity of women to
reproduce the community, in both a
biological and social sense, ascribe a
special role for them in conflict situations.
On the one hand, conflict dislocates
communities and generates a process of
social disintegration within which women
are called on to assume roles of leadership
and responsibility, at the level of the
community and within their families,
which in ‘normal’ times would have
remained out of bounds for them. On the
other hand, the stress on women’s role in
maintaining and defining the identity of
the community leads to many restrictions
on their rights, including their rights to
mobility, choice of marriage partner, and
152
in general to control over their reproductive and sexual lives.
Mobilisation of Women’s
Groups
Using the symbolic and cultural
‘values’ ascribed to motherhood, in both
the south and the north-east of the island,
women organised as mothers to initiate
the first public agitations against impunity
and the cult of ‘disappearance’ in Sri
Lanka.1 During the years of the conflict,
women’s groups that work for the protection and promotion of women’s rights
have been in the forefront of agitation
against the range of human rights abuses
that take place in the context of a conflict:
torture and disappearance, arbitrary
arrest and detention, censorship and
controls on the freedom of movement. In
particular Sri Lankan women’s groups
have continued to work together, across
the ethnic, religious and geographic separations, to stand together against the
violations and abuses of women’s rights
that occur as a consequence of the conflict.
For example, in 1989 women from the
south traveled to Jaffna to join in a
demonstration and meeting to protest
against the assassination of Rajini
Thiranagama, founder member of
University Teachers for Human Rights
(Jaffna) in September that year. In July
2003, the Association of War Affected
Women (AWA), representing mothers and
wives of soldiers ‘missing in action’, and
the Guardian Association of Jaffna, representing wives and mothers of young men
who ‘disappeared’ while in the custody of
the security forces, demonstrated together
in Colombo, united by a common demand
to President Kumaratunga, Prime
Minister Wickremasinghe and LTTE
Sexual violence in the context of the
conflict has been the focus of many
women’s rights and human rights groups.
The environment of impunity that has
prevailed during this period has led to
cases of rape, and of rape and murder, of
women while in the custody of the armed
forces and the police. The impunity and
practice of sexual violence against women
who are in custody has also extended to
the areas of the island that are technically
outside the conflict. The rape of Nandani
Herath in Wariyapola in 2001 is but one
example. Counselors working in organisations that assist women victims and
survivors of violence point to the high
numbers of cases of domestic violence
being reported within families of armed
forces personnel. The presence of large
numbers of armed army deserters
engaging in petty crimes has led to an
increase in crimes against women, while
some researchers and journalists have also
commented on the increase in the numbers
of women engaging in sex work in and
around areas where there is a large army
presence. Yet, as Urvashi Butalia points
out ‘...in the hierarchy of violence set up by
such situations, the “external” violence of
conflict somehow comes to acquire much
greater significance than the “internal”
violence of domestic strife, no matter that
domestic strife may be generated or exacerbated by the external violence’.2
Displacement
Large-scale displacement that has
taken place as a consequence of the
conflict has also had a specific impact on
the lives of women. Thousands of women
have fled as refugees to the south of India,
and to Europe, North America and
Australia. Tens of thousands of others
have been ‘temporarily relocated’ in staterun Welfare Centres and makeshift
‘villages’ set up by NGOs; the ‘temporary’
nature of their stay sometimes exceeds ten
years. The circumstances of displacement
and dislocation destroy the familiar
survival networks and strategies adopted
by women of all communities and propels
them into decision-making situations to
which they are unaccustomed.3 The
radical reversal of gender roles and undermining of gendered power relations result
in what Rajasingham-Senanayake calls an
‘ambivalent empowerment’.4
(2004) 14 INTERIGHTS Bulletin
The Women’s Charter
As the conflict and related political
tensions and economic pressures generated by the processes of globalisation have
taken precedence in the national arena,
issues such as the decriminalisation of
abortion, the recognition of marital rape
and domestic violence as a crime, the
reform of divorce and inheritance laws to
ensure equality of women from different
communities that have all been on the
agenda of women’s rights advocates in Sri
Lanka have remained on the backburner.
Patriarchal prejudices at every level of the
decision-making structures have made the
task of pushing forward with these legal
reforms and changes extremely arduous.
The Women’s Charter, promulgated in
1993, is an attempt to codify women’s
rights in Sri Lanka and draws largely on
the UN Convention on the Elimination of
All Forms of Discrimination against
Women. However, the government has not
established a Women’s Commission to
oversee the implementation of the Charter.
Attempts to Move Forward
As the process of negotiating a
political settlement to the ethnic conflict
slowly progresses, proposals for reform of
electoral laws and for constitutional
reform occupy a key place in political
debates and discussions. A consistent
demand for the imposition of some regulations on political parties that compel
them to nominate a fixed number of
women in parity with men on their nomination papers and a second demand for a
number of seats to be reserved for women
are among the reforms that have been
proposed. Once again, intensive lobbying
among those who believe that women’s
political participation is not a major issue
and among those who believe that any
type of affirmative action is discriminatory and counter-productive, remains a
critical arena for women’s rights activism
in present day Sri Lanka.
In addition, in the ceasefire period,
there have been a range of discussions
regarding processes of rehabilitation,
reconstruction and resettlement that have
engaged the interests of women’s rights
defenders and advocates. The need to
ensure legal and institutional recognition
of women as heads of household, to guarantee parity of status between men and
women, especially for single women, in the
making of land grants and the issuing of
other re-settlement benefits, and to ensure
the participation of women and their
(2004) 14 INTERIGHTS Bulletin
active involvement in decision-making
regarding the entire process of reconstruction in the war affected areas have been
highlighted in many reports and submissions initiated by women’s groups.5
Focusing on issues of equal access to
education and healthcare and ensuring
that women and girls receive high quality
education and healthcare in keeping with
their specific needs is extremely important
within this scenario. Some feminist
commentators have pointed out the
absence of any mention of women’s reproductive and sexual health concerns in an
initial Needs Assessment of the North and
East done by the United Nations
Development Programme in 2003.
Following intensive lobbying by women’s
groups and partly in response to international pressure, in 2002 the government
and the LTTE created a Sub-Committee
on Gender Issues (SGI) ‘to explore the
effective inclusion of gender concerns in
the peace process’.6 Five women each were
nominated by the government and the
LTTE. However, since the peace negotiations broke down at the next round of talks
the SGI has never been able to fulfil its
mandate. A key criticism of the SGI was
that it created a separate space for gender
concerns while not addressing the issue of
gender in general; for example, there were
no women included in any of the other key
Sub-Committees, such as that set up to
discuss matters relating to reconstruction
and immediate humanitarian needs.
1
2
3
4
5
6
Sunila, A., ‘Organizing for Peace in the Midst of
War: Experiences of Women in Sri Lanka’, in
Schuler, M., (1995) From Basic Needs to Basic
Rights: Women’s Claim to Human Rights, Stylus
Publishing.
Butalia, U. (2003) Speaking Peace – Women’s
Voices from Kashmir, Zed Books, p xvi.
Elek, S. (2003) Rice against Risk: Peace and
Resettlement – Challenges Faced by Displaced
Women, Centre for the Study of Human Rights,
Colombo; (2003) Land and Property Rights of
Internally Displaced Persons, Centre for Policy
Alternatives, Colombo.
Rajasingham-Senanayake,
D.,
‘Ambivalent
Empowerment: The Tragedy of Tamil Women in
Conflict’ in Manchanda, R. (ed.) (2001) Women,
War and Peace in South Asia: Beyond Victimhood
to Agency, Sage.
‘Women’s Concerns and the Peace Process:
Findings and Recommendations’, (2002) Report of
the International Women’s Mission to the North
East of Sri Lanka, 12–17 October 2002, the Women
and Media Collective, Colombo.
Press Release from Royal Norwegian Embassy in
Colombo, 5 December 2002.
International and national agencies
engaged in reconstruction and resettlement in the war-affected areas are moving
ahead with their programmes, and
women’s rights groups attempt to monitor
their implementation from a gender
perspective. Women’s groups that have
maintained solidarity with each other
across ethnic and other divides
throughout the years of the conflict
remain committed to supporting each
other in the struggle for rights and justice
and continue to press for more inclusion of
women and of women’s concerns in the
peace process, whenever it resumes. n
Sunila Abeysekera is Director of
INFORM Human Rights Documentation
Centre, Sri Lanka.
153
Challenges to Litigating Women’s Rights to
Inheritance: The Continuing Issue of
Customary Law
Sibongile Ndashe
he equality jurisprudence developed by the South African
Constitutional Court to redress past imbalances has been consistent
with the corrective objectives of the Constitution. This normative framework has been able to contribute to a progressive development of the
jurisprudence on women’s rights, notably in the sphere of violence against
women1. This enabling environment has however not been able to yield
the desired outcome in the field of women’s access to resources and
particularly women’s inheritance rights. This article examines the
challenges in litigating on women’s rights to inheritance. It limits the
inquiry to the tensions, between the application of black law and custom
and the Constitution and shows how these difficulties have hampered the
realisation of women’s rights to inheritance.
T
the extent that it was not inconsistent with
other rights in the Constitution.
The Bill of Rights has three sections
relating to the right to culture. Section 15
makes provision for the freedom of
religion, belief and opinion. Section 30
makes provision for the right to language
and culture. Section 31 makes provision
for the rights of cultural, religious and
linguistic communities. Sections 15 and 30
spell out the rights as individual rights,
whilst s 31, ‘emphasises the protection to
be given to members of communities
united by a shared language, culture, or
religion.’6 The golden thread that runs
across all of these sections is the internal
modifier that recognises customary law to
the extent that it is not inconsistent with
the other rights in the Constitution.
These cultural rights are often juxtaposed with the right to equality when
women’s rights under customary law are
was perpetrated against women on the
Customary Law in Context
under consideration, and this is partly
basis of their gender and race.
Commentators on the field of
responsible for the slow progress made in
customary law have pointed out
the realisation of women’s
the disparity between the values
inheritance rights. The right to
that inform the Bill of Rights
equality
prohibits
unfair
The duty to protect and promote is
and those that inform customary
discrimination and promotes
law. This disparity produces the
equality. It is one of the
positive and it requires the state to use its
result that the Bill of Rights has
founding values of the
power to advance the rights and assist
a disintegrating effect on
Republic of South Africa.7
customary law, in its current
Section 7 (2) provides that the
individual rights holders to realise them.
form. It is doubtful whether this
state has a duty to protect,
Redressing previous imbalances means
was the desired outcome of
promote, fulfil and respect the
making customary law subject to
rights in the Bill of Rights. This
acknowledging the humiliation and
the Constitution. This is where
section imposes three distinct
mutilations suffered by indigenous law and
the tension between the Bill of
obligations on the state. The
Rights and custom is located,
duty to respect is negative, it
this implies that the state has to take
and women’s lack of inheritance
requires the state to refrain
measures to preserve cultural rights.
rights have become the centre
from infringing these rights.
stage for these contestations.
The duty to protect is positive,
it obliges the state to protect
In the apartheid past,
these rights from infringement
customary law suffered from gross distorby third parties. The duty to protect and
The
Constitutional
Framework
tions. Where it was not actively distorted it
promote is positive and it requires the state
was immobilised. Customary law in its
Is the right to culture suffering
to use its power to advance the rights and
current form has been described as an
secondary victimisation under the new
assist individual rights holders to realise
enfeebled body of customary law that has
Constitutional dispensation in the name
them.8 Redressing previous imbalances
been alienated from its roots and is little
of egalitarian principles or are women’s
means acknowledging the humiliation and
more than invented tradition.2 Whilst
rights to equality being sacrificed at the
mutilations suffered by indigenous law
common law was developed through
altar of multicultural pluralism?
and this implies that the state has to take
statutory reform, customary law was not
The Constitution introduced a new set
measures to preserve cultural rights. The
3
treated similarly. Mokgoro J said that
of norms and values that spelled a break
important role of African jurisprudence in
customary law has ‘lamentably been
with the apartheid past.4 The tensions
the development of the new constitutional
marginalised and allowed to degenerate
were however made clear from the onset.
legal order cannot be downplayed.9
into a vitrified set of norms alienated from
The congress of traditional leaders
its roots in the community’.
In the constitutional scheme of rights,
(CONTRALESA) had lobbied for
the right to culture and custom cannot
The impact of the dysfunctional
customary law not to be made subject to
however trump the right to equality. There
relationship between customary law and
the Bill of Rights.5 This debate was settled
is no need to balance the right to equality
the ‘formal legal system’ has, to a large
in the final Constitution when customary
against the right to culture because the
extent, been felt by women. Reform has to
law was not only made subject to the
outcome is predetermined. The internal
respond to the double discrimination that
Constitution, but was only recognised to
154
(2004) 14 INTERIGHTS Bulletin
first born do not participate in the intesThe Court in Mthembu v Letsela12
modifiers to cultural rights deliberately set
tate succession of the deceased’s estate.
a low threshold in the inquiry, which is to
declined an invitation to develop
Only a male who is related to the deceased
ask whether there is a prima facie inconcustomary law saying that the engine for
through a male line, qualifies as intestate
law reform was the legislature and that
sistency with other rights. Other constituheir. The elder son of the family head is his
courts were ill-equipped to deal with these
tional rights also have modifiers, but they
heir. If the elder son does not survive his
matters. This approach was rather unforare not of the same sort as for the right to
father, then his (the elder son’s) eldest male
tunate. The lack of constitutional support
culture. Rights can be limited in terms of
descendant is the heir. If there is no
for this proposition has been made clear in
the limitations clause,10 but the limitations
surviving male descendant in the line of
s 39 of the final Constitution which
clause is not needed when the right to
the deceased’s eldest son, then an heir is
provides that when a court interprets or
culture is up against any other right in the
sought in the line of the second, third and
develops a right in the Bill of Rights it
Bill of Rights. The right to culture has to
further sons. If the deceased is not
must take into account the rights in the Bill
give way to any other right in the Bill of
of Rights. The mere fact that a court
Rights as the text states that ‘the
decides that it is ill-equipped to
rights may not be exercised in a
develop a particular rule cannot be
manner inconsistent with any proviWhy then has it taken the
advanced as a reason to justify
sion of the Bill of Rights’. The core
distinguishing feature between the
Constitutional court almost ten years to deferring the rule to the legislature,
and implying that the court is
interim and the final Constitution
hear a case dealing with the
powerless to do anything about the
was the creation of the hierarchy of
constitutionally offensive rule, even
rights, in the absence of which there
discriminatory aspects of customary
in an obiter remark. The court
would have been competing rights
law of inheritance, if the Constitution
in the first stage of enquiry.
retains the power to declare law or
Balancing of rights only occurs
conduct unconstitutional. This
has removed the legal barrier that
when rights are limited. The refusal
explains why the constitutional
makes it difficult to challenge rules of
to accept this as a plausible interattack that was launched against
pretation has necessitated the
the rule of primogeniture dedicated
customary law?
ongoing renegotiation of the right
a fair amount of time in explaining
to equality whenever it comes up
why the law reform process cannot
against the right to culture and
be relied on, because it had been
survived by any male descendant, his
custom.
‘lamentably remiss’.13 As a strategy it was
father succeeds him. If his father also does
considered insufficient to show that a right
not survive him, an heir is sought in the
had been violated.14
Overview of the Customary
father’s male descendants relating to him
Law of Inheritance
The dilemma, on customary law
through the male line. Women are therereform,
of whether one opts for the
The reform in the sphere meant more
fore rendered ineligible to succeed in terms
approach
that shows the violation of the
than just cleansing the legal system of its
of primogeniture.
right
and
asks the court for a remedy
association with the apartheid past. It
(abolitionist)
or one undertakes the
meant the need to reform aspects of
Strategic Choices and Practical
exercise
of
developing
customary law
customary law that were not consistent
Difficulties
and
only
asks
the court to
(reformist)
with the Constitution and to develop them
declare
the
rule
unconstitutional
when
to be in line with the Constitution.
Why then has it taken the
that
approach
has
been
unsuccessful,
Constitutional court almost ten years to
The general rule in the administration
continues to influence litigation strategy.
hear a case dealing with the discriminatory
of intestate estates of black persons is that
Courts are indebted to litigators who
aspects of customary law of inheritance, if
they must devolve in accordance with
bring relevant information, including socithe Constitution has removed the legal
black law and custom, which has been
ological studies, before them that assist
barrier that makes it difficult to challenge
largely interpreted to mean the principle of
them in developing a particular rule. The
rules of customary law?
primogeniture.11 This principle received
courts have a constitutional injunction to
legislative recognition, and although not
The rejection of a draft bill, by
develop common law before striking it
defined in any legislation, an enabling
CONTRALESA,
that
sought
to
down on the basis of unconstitutionality.
framework for its application was made.
uniformly apply statutory law instead of
In some cases it is possible to assist a court
The intestate succession applicable to
developing customary law pointed to the
to develop a rule by showing how the
black people in South Africa differs from
task at hand. It would not suffice to
common law position had been altered by
the laws applicable to people of other
replace customary law with another
the Constitution.15 A distinction however
races. An estate of a deceased black person
system of law. How then does one develop
needs to be made between the exercise of
is wound up in the same way as for all
the customary law of inheritance to be
developing customary law and other law,
other race groups when the people have
consistent with the Constitution? What is
in that in customary law the development
taken action to exempt themselves from
the role of a litigator in developing
goes further than saying the law has to be
the application of black law and custom.
customary law? Will it suffice to show a
interpreted in a constitutionally consistent
violation of a right to equality when
manner. It involves making specific alloPrimogeniture is derived from the
asking for a remedy? These are some of the
cations
about who should get what, when
unwritten rule of African customary law.
pressing questions that have preoccupied
they
should
get it, why they should not get
Women, girl-children, children born
litigators.
it,
and
so
on.
outside wedlock and children who are not
(2004) 14 INTERIGHTS Bulletin
155
This is not even where the tasks begin,
if done properly. Making recommendations on how customary law needs to be
developed involves establishing which
systems of customary law still work, how
they work and where they work. Litigators
have to get evidence from social scientists
and other informants to present before the
court on how certain customary law practices have evolved over time. How much of
this work can realistically be done during
litigation? There is a further need to
consider the dangers of developing the law
based on anecdotal as opposed to empirical data. It has been argued that one of the
reasons that some customary law rules are
biased against women was because the
views of too few people were considered,
and this led to an uneven development of
customary laws. Customary law applies
differently from one community to the
next and has evolved differently as well.
The argument, taken further, raises
serious practical constraints on litigating
in this setting. The cost implications of
undertaking
the
development
of
customary law during litigation are astronomical. Are these cases the kind that can
only be litigated by public interest law
firms where the clients do not have to
carry the costs? The discriminatory law
rules of inheritance more often than not
apply to the poorest section of the population. The threat of the law becoming
irrelevant is easily fulfilled when a society
does not possess the judicial institutions
necessary to remedy the violations of its
citizens’ newly acquired rights.16
The fact that most if not all of these
disputes arise in family and community
settings has contributed to the slow
progress made. The decision to litigate
involves the potential of dislodging one’s
self from one’s family and culture and
upsetting already turbulent relations.
Some women have found it difficult to
follow through with a claim when
confronted with these realities. Other challenges are located in the law of succession;
in a matter dealing with estates a representative or executor of an estate is entitled
to utilise the assets of the estate to defend
litigation. In most instances this would
deplete the estate because invariably these
estates do not have a lot of assets. The
choice to proceed with litigation in light of
these realities often seems negligible.
Conclusion
It is important to acknowledge that
there are still pockets of resistance to the
156
application of the Constitution in
customary law settings. There are
inequality issues that remain deeply
entrenched and which dictate how gender
roles are allocated and fulfilled. The
argument that customary law should be
allowed to develop on its own, because
forcing it to conform with the Bill of
Rights may destroy it, has been made ad
nauseam. The constitutional framework
does not allow this approach.
Litigation strategies adopted to date,
in their attempts to accommodate the
development of customary law, have
unwittingly re-opened the debates that
were closed. They have exposed women’s
rights to the danger of renegotiating the
content of their right to equality in
customary law settings. There is a dire
need for a decision that confirms the interpretation that the right to culture has to
give way to the right to equality or any
other right in the Constitution, because of
the constitutional hierarchy of rights. This
may, at the very least, get us started in
asking the right questions regarding the
values that need to inform the development of customary law without the fear
that discriminatory rules of customary law
will come back and undermine women’s
rights to equality. It may allow the preservation of those rules that pass constitutional muster and the creation of new rules
necessary to preserve cultural rights. n
13
14
15
16
present Constitutional order, that they cannot be
countenanced; nor is this an appropriate case, on
the facts, to entertain an invitation to develop the
rule. In any event, we would be ill-equipped to
develop the rule for lack of relevant information.
Any development of the rule would be better left to
the legislature after a process of full investigation
and consultation, such as is currently being
undertaken by the Law Commission.’
In March 2003, the Constitutional Court heard
three cases, simultaneously, that sought to
challenge the customary law rules of succession.
Two of the cases were referrals for confirmation
from the High Courts where it had been held that
primogeniture was unconstitutional. The third
case sought to ask the Court to declare the rule
unconstitutional and proceeding to set the time for
law reform because of the delinquency of the
Project Committee: Bhe v Khayelitsha Magistrate
& Ors Case No. CCT 49/03; Shibi v Sithole & Ors
CCT 69/03; and South African Human Rights
Commission & Anor v The President of the Republic
of South Africa & Anor CCT 50/03.
This approach should be contrasted with other
strategies adopted in litigating against unfair
discrimination of women. See for example
Carmichelle and Van Eeden, supra note 1. The
issues were on how the failure of the state to protect
women from sexual violence amounted to the
violation of the right to freedom and security of the
person and the right to equality. In arguing why the
state had acquired obligations in terms of the
Constitution to protect women it was not
considered crucial to present the Court with
evidence of the shortcomings of the institutional
framework aimed at protecting women’s rights.
The emphasis was on the rights that were violated
and the responsibility of the state to remedy those
violations.
See Van Eeden and Carmichelle, supra note 1.
Gutto, S.B.O (2001) Equality and Nondiscrimination in South Africa: the Political
Economy of Law and Law Making, Barrow, B.
(ed.), New Africa Education, Claremont, South
Africa, p260.
Sibongile Ndashe works as an Attorney at
the Women’s Legal Centre, South Africa.
Carmichelle v Minister of Safety and Security &
Anor (2001) (4) SA 938 (CC); Van Eeden (formerly
Nadel) v Minister of Safety (2002) SA 346 (SCA);
S v Chapman (1997) (3) SA 341 (SCA); S v Baloyi
(2000) (2) SA 425.
2 Chaskalson et al (1999) Constitutional Law and the
South African Legal Order, Revision service 5, Juta
Publishers, Kenwyn South Africa, p36-1.
3 Du Plessis v De Klerk (1996) (3) SA 850 (CC).
4 S v Makwanyane (1995) (SA) 391 (CC).
5 Chaskalson, supra note 2, p36-20.
6 Currie, I. and De Waal, J. (2001) ‘The New
Constitutional and the South African Legal
Order’, Constitutional Law 1, 2001, p404.
7 Section 1 of the Constitution.
8 Ex parte Gauteng Provincial Legislature in re
Dispute Concerning the Constitutionality of Certain
Provisions of the Gauteng School Education Bill of
1995 (1996) (3) SA 165 (CC), paras. 70, 90.
9 Makwanyane, supra note 4, at pp.364–83.
10 ‘(1) The rights in the Bill of Rights may be limited
only in terms of law of general application to the
extent that the limitation is reasonable and
justifiable in an open and democratic society based
on human dignity, equality and freedom, taking
into account all relevant factors.’
11 Mthembu v Letsela (2000) (3) SALR 867 (SCA).
12 Ibid, para. 40, the Court held: ‘In my opinion, the
present is not a case where the recognition and
respecting of previously acquired rights would be
so grossly unjust and abhorrent, in the light of the
1
(2004) 14 INTERIGHTS Bulletin
Enforcing Laws Against ‘Honour Killings’ in
Jordan
Rana Husseini
MMAN — *Kifaya Ali, 28, was stabbed to death by her younger
brother *Sami on 1 July 2004 in one of Jordan’s neighbourhoods, for
becoming pregnant out of wedlock. The suspect claimed ‘family honour’,
when turning himself in to police shortly after the murder was committed.
Kifaya became the eleventh person reportedly murdered in the Kingdom
this year in a family-related murder. Annually around 20 women are
reportedly murdered in the Kingdom in the name of ‘family honour’.
A
In a typical court ruling, Sami would
have received between three months to a
two-year prison term for his murder
because the tribunal would apply the ‘fit
of fury’ excuse as stipulated in Articles 97
and 98 of the Jordanian Penal Code. But
such a short prison term might soon
become something of the past, following
a government proposal on 5 July 2004 to
increase the punishment of killers in socalled ‘honour crimes’ from a two to a
five year imprisonment term.
The long-awaited amendments to
these two Articles came in response to
repeated calls by human rights activists to
the government to amend laws that
discriminate against women, charging
specifically that these two laws ‘protect
killers in these crimes’. Article 98 stipulates that a person committing a crime in
a ‘fit of fury’ caused by an unlawful and
dangerous act on the part of the victim
benefits from a reduction in penalty. The
reduction in penalty is included in several
clauses of Article 97 of the Jordanian
Penal Code. One of the clauses states that
if the original sentence imposed on a killer
was life imprisonment, and the court
decides to invoke Article 98 because the
crime was committed in a moment of rage,
the sentence is dropped to a minimum of
one year’s imprisonment. If the original
court sentence was less than life imprisonment, and the tribunal decides that it will
apply Article 98 because the murder was
committed in a ‘fit of fury’, the judges can
issue a sentence ranging from six months
to two years. These verdicts are commuted
to half if the victim’s family decides to
drop charges against the defendant.
The government’s amendments will be
referred to Parliament in the near future
for debate. This is the second time the
Jordanian government has taken a step to
amend an article related to family ‘honour
murders’. In December 2001, the
(2004) 14 INTERIGHTS Bulletin
government introduced amendments to
Article 340 of the Penal Code that
scrapped penalty exemptions for killers
but kept the reduction in penalty clause in
what are loosely termed ‘crimes of
honour’. The amendments also entitled
women to benefit from reduced penalties if
they committed murder after discovering
their husbands had committed adultery.
Jordanian activists and lawyers,
however, charged that the amendments
made little or no impact on the existing
situation because the number of reported
‘honour crimes’ has remained the same.
Killers, they pointed out, still received
lenient sentences that were less than one
year. In addition, legal experts say courts
are still applying Article 98 (the ‘fit of fury’
reduction of sentence), and sentencing
killers to shorter prison terms, even in
cases where the perpetrators did not catch
their female relatives ‘in the act’.
In 2002, there were eight cases where the
Criminal Court applied Article 98 in
sentencing killers to prison terms ranging
from one month to one year. In four other
reported cases, killers were sentenced to
between 10 to 15 years imprisonment after
tribunals established they could not
benefit from the article, instead convicting
them of premeditated murder or
manslaughter. In almost every case, the
family of the victim – which is most often
also the family of the suspect – drops the
charges against the defendant, which
immediately halves their sentence.
The controversial Article 340 met
fierce opposition from conservatives and
some Islamists when first introduced by
the government in 1999, failing to win
Lower House approval on two occasions.
It was only later passed as a temporary law
on 13 December 2001.
The temporary law was rejected again
by a newly elected Lower House in July
2003. Opponents to changing Article 340
– a law originating from Ottoman and
Napoleonic codes – accused activists of
working to scrap it as being ‘driven by the
West to destroy women’s morality and
society and that it will encourage women
to commit adultery’. For their part,
activists and lawyers charged that the
wrong Article was changed, stressing that
the focus should have been on amending
or scrapping Article 98 altogether, since
this is the clause being used by courts to
reduce penalties in almost all cases.
‘Changing Article 340 was an
indication the government was interested
in this topic, but there is an urgent need to
amend Article 98, which includes the “fit
of fury” clause,’ says Momen Hadidi, head
of the Family Protection Project. In some
cases, Hadidi adds, the ‘fit of fury’ period
granted a killer to kill his victim is
‘extended... meaning it is not an instantaneous action by the killer, likely signifying
they are not enraged when they commit
their crime. And yet they still benefit from
Article 98.’
Becoming pregnant out of wedlock,
going out with a strange man, leaving the
family’s home for a period, marrying the
man of a woman’s choice, and uttering
words such as: ‘This is my life. I am free to
do as I choose’, were all considered
unlawful and dangerous acts on the part of
the victim by courts which were cited in
their 2002 verdicts as they reduced the
killers’ sentences. Amendments to Article
340 stipulated: ‘Any man who surprises his
wife or any of his female relatives in the act
of committing adultery or in an unlawful
bed and kills her, the man, or both immediately, or attacks her, or both, in a
manner resulting in death, injury or
permanent disability, benefits from a
reduction in penalty.’ The second clause
stipulates: ‘Also benefiting is the wife who
surprises her husband committing
adultery at their home or in an unlawful
bed, killing him immediately or the
woman with him or both or attacking him
or both in a manner resulting in death,
injury or permanent disability’. ‘Article
340 speaks to victims being caught
committing adultery. None of the cases
heard in the Criminal Court this year
match this condition. That is why judges
did not apply it in their verdicts,’ one legal
expert pointed out.
Veteran judges and legal experts
charged that the previous government,
‘was not serious about the change’,
amending the wrong Article to placate
157
certain parties since Article 340 has only
been used once in court in almost 40 years.
In addition, a political observer explained
that when the Article was introduced to
Parliament it met swift rejection by some
deputies because they needed something
to object to and this law suited their
purposes. The Jordanian government
stated when introducing the amendments
that it was scrapping the exemption in
penalty because of pressure from international organisations and criticism of
Jordan’s law on this issue. This gave legislators an even stronger excuse to reject the
entire draft law altogether, ‘since it was
imposed on Jordan by western influence’.
‘Article 340 was a scapegoat. It was the
easiest law to oppose at that time,’ said the
observer.
Another human rights activist added
that changing Article 340 was considered
a symbolic positive change, ‘but it is not
the Article that courts were using in their
verdicts’. A legal expert said the existence
of Article 98 has virtually paralysed
Article 340, opening the door for judges to
use Article 98, since no murder cases this
year represented a clear case of adultery.
Furthermore, legal experts said that some
lawyers advise killers to add new details to
their original confession. They are advised
to say in court that: ‘The victim told them:
“I am free to do what I want”, which
enraged them and pushed them to lose
control and kill the victim. Defendants
sometimes summon witnesses to testify
that the victim had a bad reputation and
was engaged in several relationships,’ the
expert added.
Many experts agree that simply
changing the law will not solve the
problem. Psychologist Walid Sarhan has
argued that changing the law does not
necessarily mean changing reality or, more
importantly, the mentalities of killers,
many of whom have no knowledge of the
law. ‘I am not surprised that nothing has
changed since the law was amended.
I would be surprised if things changed
because these issues are so deeply rooted in
people’s minds,’ Sarhan has said when
interviewed.
Sarhan has also explained that
‘honour crimes’ are not a new practice. It
was a practice amongst Bedouins in the
past because they did not have a legal
system. When Bedouins moved into the
cities they took the practice with them,
where it has remained until today.
Sociologist Ibrahim Othman has said that
the cultural heritage of women is such that
158
they are the ones who bear the value of
‘honour’. ‘Their behaviour can threaten
their families, while men are allowed to
involve themselves in extramarital affairs
and their actions are not considered
threatening to their own community. They
are even considered heroes. A single
[immoral] act by a woman reflects on the
majority [of the family] creating cultural
and social pressures that force them to rid
themselves of those they think caused the
shame – even if a rumour,’ Othman has
explained in interview. ‘We need to work
on changing people’s beliefs. The legal side
is not the only solution because of the value
system that still dominates,’ he added.
Hadidi, head of the National Institute
of Forensic Medicine where the victims of
these crimes are examined, has said that
changes in the concepts and implementation of Islamic Sharia are necessary.
‘A person should not take a decision based
upon incorrect concepts not related to
Sharia.’ Sheikh Hamdi Murad, a
moderate religious scholar, has agreed,
saying these crimes are not related to
Sharia in any way. ‘This practice is the
result of a deeply rooted tradition falsely
attached to Islam.’ In interview, Murad
cited a Hadith, or saying, by Prophet
Mohammad (pbuh), where a man came to
the Prophet asking what kind of punishment should be given to him if he finds his
wife committing adultery with another
man, and he kills them both. The Prophet
said either you bring four witnesses or you
will be killed. He repeated this sentence
twice, Murad pointed out. ‘It is clearly
noted in the Hadith and the Holy Koran
that there must be four witnesses of good
reputation to an act of adultery for their
testimony to be accepted. If it is proven, it
is the ruler who decides punishment – not
the individual,’ Murad concluded.
Until the amended law of Articles 97
and 98 is discussed and approved by
Parliament, murderers in so-called
‘honour crimes’ will continue to escape
their murders with lenient sentences
passed against them by criminal court
tribunals. n
* Names of the people have been
changed for legal purposes.
Rana Husseini is a journalist with the
Jordan Times. She helped to launch the
National Jordanian Campaign to
Eliminate ‘Honour Crimes’.
(2004) 14 INTERIGHTS Bulletin
International Law Reports
T
he case summaries in this issue were kindly prepared for
the Bulletin by lawyers from the law firm of Dechert. In
London, those attorneys included: Jane Bowers, Elaine
Kellman, Sarah Pritchard and Abigail Robertshaw.
With many thanks to Suzanne Turner of Dechert for managing
the project.
EQUALITY
n Discrimination in benefits - violation of Article 14
together with Art 6; no violation of Art 6
SCHULER-ZGAGGEN v SWITZERLAND
Judgment of the ECtHR, 24 June 1993
S is a Swiss national, who in 1973 began to work for an industrial
firm, D. D regularly deducted contributions to the federal invalidityinsurance scheme from her wages.
European Court of Human Rights
Abdulaziz, Cabales & Balkandali v UK
Jabari v Turkey
Karlheinz Schmidt v Germany
MC v Bulgaria
Petrovic v Austria
Schuler-Zgaggen v Switzerland
161
169
160
164
161
159
European Court of Justice
Kreil v Federal Republic of Germany
160
Inter-American Court of Human Rights
Maritza Urrutia v Guatemala
Myrna Mack Chang v Guatemala
162
163
International Criminal Tribunal for Rwanda
The Prosecutor v Alfred Musema
The Prosecutor v Jean-Paul Akayesu
165
167
International Criminal Tribunal for Yugoslavia
The Prosecutor v Anto Furundzija
The Prosecutor v Biljana Plavsic
The Prosecutor v Dragoljub Kunarac, Radomir Kovac &
Zoran Vukovic
The Prosecutor v Zejnil Delalic, Zdravko Mucic,
Hazim Delic & Esad Landzo
169
164
166
168
Abbreviations:
ACHR:
American Convention on Human Rights;
ECJ:
European Court of Justice;
ECmHR: European Commission of Human Rights;
ECtHR:
European Court of Human Rights;
ECHR:
European Convention on Human Rights;
IACmHR: Inter-American Commission on Human Rights;
IACtHR: Inter-American Court of Human Rights;
IACPPT:
Inter-American Convention to Prevent and Punish
Torture;
ICCPR:
International Covenant on Civil and Political Rights;
ICTR:
International Criminal Tribunal for Rwanda;
ICTY:
International Criminal Tribunal for Yugoslavia.
(2004) 14 INTERIGHTS Bulletin
In 1975, S contracted pulmonary tuberculosis and, in April 1977, she
applied for a pension on the grounds of incapacity to work due to
her illness. The Compensation Office of the Swiss Machine and Metal
Industry decided to grant her half an invalidity pension from the
period 1 April to 31 October 1976. On 28 September 1978, D
dismissed S with effect from 1 January 1979 on account of her illness.
After S made a further application for a pension, the Compensation
Office determined on 25 March 1980 that she was physically and
mentally unfit for work and decided to pay her a full pension with
effect from 1 May 1978.
On 4 May 1984, she gave birth to a son. In 1985, the Invalidity
Insurance Board asked S to undergo an examination and concluded
that S was wholly unfit for clerical work and assessed her fitness for
household work at 60 to 70 per cent.
On 21 March 1986, the Invalidity Insurance Board cancelled S’s pension
as her family circumstances had changed with the birth of her child,
her health had improved and she was able to look after her son. On 21
April 1986, S lodged an appeal, claiming a full invalidity pension or,
failing that, a half pension, arguing that the Invalidity Insurance Act
conferred on her a right to a pension so long as she was at least 66.66
per cent incapacitated. Her appeal was denied. On 7 May, the Court
dismissed the application.
On 26 May 1986, S went to the Insurance Board and asked to inspect
her medical file but she was not allowed to see it. After an appeal to
the Federal Insurance Court, S was able to access her file. In a
subsequent decision on the merits of her claim, the Federal Insurance
Court found it unnecessary to examine whether S was fit to work as
she, ‘would have been occupied only as a housewife and mother’.
On 29 December 1988, S applied to the Commission, complaining
that her right to a fair trial had been infringed in that she had not had
sufficient access to her file in violation of Article 6 and that the Federal
Insurance Court discriminated on the basis of sex in violation of Art
14 taken up with Art 6 in applying the assumption that she would
have given up working if she had not had health problems. The
Commission declared the matter admissible on 30 May 1991 and, in
a report on 7 April 1992, concluded that there had been no violations.
The case was referred to the Court by the Commission on 25 May
and 5 August 1992.
The Court held that: (1) Article 6 applies to the field of social security
claims, including welfare assistance; (2) there was no violation when
the refusal of the appeals court to provide a claimant access to her
files was remedied by a subsequent federal court order granting her
access; (3) the protection against discrimination provided by Article
14 applies only when the substance of the claim falls within the ambit
of another, which in this case is Art 6; (4) a difference in treatment is
discriminatory for Art 6 if it has no objective and reasonable
justification, that is if it does not pursue a legitimate aim or if there is
no reasonable relationship of proportionality between the means
employed and the aim sought to be realised; (5) in cancelling the
pension, both the appeals court and the Federal Insurance Court
159
grounded their decisions on the assumption that women gave up
work when they gave birth to a child; (6) the sole basis for the decision
was grounded in a difference in treatment between the sexes; (7) the
advancement of equality of the sexes is a major goal of the Council
of Europe and very weighty reasons would have to be put forward
before such a difference could be considered compatible with the
ECHR; (8) there was no reasonable or objective justification for such
disparate treatment and, as such, there was a violation of Art 14 in
conjunction with Art 6; (9) with regard to non-pecuniary damages,
the judgment provided just satisfaction; (10) pecuniary damages
could be obtained through a reopening of the proceedings at the
national level; and (11) the state shall pay 7,500 Swiss Francs for costs
and expenses.
n Discrimination on the basis of sex for barring women
from forms of military service - violation of EC
Directive 76/207/EEC
KREIL v FEDERAL REPUBLIC OF
GERMANY
Judgment of the ECJ, 11 January 2000
In 1996, K, a German national, who had been trained in electronics,
specialising in installations technology, applied for voluntary service
in the Bundeswehr, requesting to be assigned to duties in electronic
weapons maintenance. Her application was rejected both by the
Bundeswehr’s local recruitment centre and, when she lodged an
objection, by its head staff office, on the ground that, under national
law, women who enlist as volunteers may be engaged only in the
medical and military-music services and are excluded from armed
services. K challenged the decision before the national court, claiming
that the rejection of her application on grounds based solely on her
sex was contrary to Community Law.
Considering that the case required an interpretation of Directive
76/207/EEC, regarding the principle of equal treatment for men and
women, the Administrative Court in Hanover decided to stay the
proceedings and referred to the European Court of Justice for a
preliminary ruling under Article 177 of the EC Treaty a question of the
interpretation of the Council Directive. In essence, the national court
asked whether the Directive precludes the application of national
provisions, such as those of German law, which bar women from
military posts involving the use of arms and which allow them access
only to the medical and military-music services.
The Court held that: (1) Directive 76/207/EEC is applicable to
employment in the public sphere and applies to employment in the
armed services; (2) the Directive provides that the principle of equal
treatment shall mean, ‘that there shall be no discrimination
whatsoever on the grounds of sex either directly or indirectly by
reference in particular to marital or family status’; (3) the German
government argued that the national provisions are justifiable under
Article 2(2) and 2(3) of the Directive, which provide exceptions to an
individual’s rights to equal treatment; (4) Article 2(3) of the Directive
provides that it shall be without prejudice to ‘provisions concerning
the protection of women, particularly as regards pregnancy and
maternity’ and Art 2(2) allows states to exclude from their field of
application, ‘those occupational activities . . . for which, by reason of
their nature or the context in which they are carried out, the sex of
the worker constitutes a determining factor’; (5) as to the application
of Art 2(3) of the Directive, the Court has previously held that it is
intended to protect a woman’s biological condition and the special
relationship which exists between a woman and her child; (6) Article
2(3) does not allow women to be excluded from a certain type of
employment on the ground that they should be given greater
protection than men against risks which are distinct from women’s
specific needs of protection and, as such, the total exclusion of
women from all military posts involving the use of arms is not one of
the differences of treatment allowed by Art 2(3); (7) Article 2(2) of
160
the Directive must be interpreted strictly and, in determining the
scope of any derogation from an individual right such as the equal
treatment of men and women, the principle of proportionality must
be observed and requires that derogations remain within the limits of
what is appropriate and necessary in order to achieve the aim in view
and requires the principle of equal treatment to be reconciled as far
as possible with the requirements of public security which determine
the context in which the activities in question are to be performed;
(8) the question is whether the measures taken by the national
authorities, in the exercise of the discretion which they are recognised
to enjoy, do in fact have the purpose of guaranteeing public security
and whether they are appropriate to achieve that aim; (9) the German
national law excludes women from practically all military posts and
cannot be justified by the specific nature of the posts in question or
the context in which activity is being carried out: (10) the fact that
persons serving in the forces may be called upon to use arms cannot
in itself justify the exclusion of women from access to military posts
and contravenes the principle of proportionality; and (11) as such, the
Directive precludes the application of the restrictions.
n Discrimination with regard to fire service levy violation of Arts 14 and 4 of the ECHR
KARLHEINZ SCHMIDT v GERMANY
Judgment of the ECtHR, 18 July 1994
S, a German national, was required on 30 April 1982 by the municipal
authorities of the Land of Baden-Württemberg to pay a fire service
levy of 75 German Marks. The levy was based on the Land Fire
Brigades Act and a municipal decree, which made it compulsory for
men, but not women, to serve in a fire brigade or pay a financial
contribution in lieu of such service.
S appealed to the administrative authority against the decision of the
municipal authorities viewing the levy as contrary to the
constitutional principle of equality before the law. S’s appeal was
unsuccessful as were his subsequent appeals. The Federal
Constitutional Court declined to accept constitutional appeal for
adjudication, holding that such an appeal would not have sufficient
prospects of success.
On 11 August 1987, S applied to the Commission. Relying on Article
14 taken in conjunction with Art 4(3)(d) and Art 1 of Protocol 1, he
complained of a breach of the principle of sexual equality in so far as
in the Land of Baden-Württemburg only men were subject to the
obligation to serve as firemen or pay a financial contribution. The
Commission declared the application admissible on 8 January 1992,
and on 14 January 1993 found a violation. On 7 April 1993, the case
was referred by the Commission to the Court.
The Court held that: (1) For the purposes of Art 14, a difference of
treatment is discriminatory if it, ‘has no objective and reasonable
justification’, that is if it does not pursue a ‘legitimate aim’ or if there
is not a ‘reasonable relationship of proportionality between the
means employed and the aim sought to be realised’; (2) some
German Länder did not impose different obligations for the two sexes
in this field and even in Baden-Württemberg women were accepted
for voluntary service in the fire brigade; (3) irrespective of whether or
not there could nowadays exist any justification for treating men and
women differently as regards compulsory service in the fire brigade,
what was decisive was that the obligation to perform such service
was exclusively one of law and theory as in view of the continuing
existence of a sufficient number of volunteers, no male person was
in practice obliged to serve in a fire brigade; (4) as such, the financial
contribution had, not in law but in fact, lost its compensatory
character and had become the only effective duty; (5) a difference of
treatment on the ground of sex for the imposition of such a financial
burden could not be justified and, therefore, Art 14 taken in
conjunction with Art 4(3)(d) had been violated; (6) it is not necessary
to examine the case from the point of view of Art 14 taken in
(2004) 14 INTERIGHTS Bulletin
conjunction with Art 1 of Protocol 1; and (7) within three months of
the final judgment, the state is to pay S 620 German marks for
damage and costs and expenses.
n Respect for family life - immigration rules
discriminatory on the basis of sex - violation of Arts
14 and 8 of the ECHR
n Failure to provide adequate domestic remedies violation of Art 13 of the ECHR
ABDULAZIZ, CABALES &
BALKANDALI v UK
Judgment of the ECtHR, 28 May 1985
A, C and B are all permanently and lawfully settled in the United
Kingdom with the right to remain indefinitely. A, who was originally
from Malawi, married a man from Portugal. C, who was originally
from the Philippines, married a man from the Philippines. B, who was
originally from Egypt, married a man from Turkey, with whom she has
had a son. In each case, the husband tried to remain with or join his
wife who was settled in the UK. However, in accordance with the
immigration rules in force at the material time, specifically the
Statement of Changes in Immigration Rules (the 1980 Rules) their
requests to remain or come to the UK to be with their wives were
denied. In an effort to protect the domestic labour market during a
time of high unemployment, the 1980 Rules contained provisions
attempting to curtail ‘primary immigration’, that is immigration by
someone who could be expected to seek full-time work in order to
support a family. To achieve these ends, the state introduced stricter
conditions for the grant of leave to a ‘non-partial’ husband or fiancé
seeking to join or remain with his wife or fiancée settled in the UK.
The new measures were not extended to the wives and fiancées of
settled men.
A lodged an application with the Commission on 11 December 1980,
and C and B lodged their applications on 10 August 1981. A, C and
B claim that the rules which did not allow their husbands to remain
or join them in the UK violated Article 3, Art 8 (taken alone and in
conjunction with Art 14) and Art 13. On 11 May 1982, the
Commission declared the three applications admissible and ordered
their joinder. In a report issued on 12 May 1983, the Commission
found violations of Art 14 in conjunction with Art 8 on the basis of
sex (not race), Art 13 and Arts 3 and 8. On 14 October 1983, the
Commission referred the case to the Court.
The Court held that: (1) the state’s contention that Art 8, which
protects the right to respect for family life, is not applicable to claims
in the immigration context given the existence of Protocol No. 4, is
rejected as immigration controls must be exercised consistently with
Convention obligations; (2) Article 8 applied to each of the applicants
who had to a sufficient degree entered upon ‘family life’; (3) the duty
imposed by Art 8 cannot be considered as extending to a general
obligation on the part of the state to respect the choice by married
couples of the country of their matrimonial residence and to accept
non-national spouses for settlement; (4) there was no violation of Art
8 as the applicants had not shown that there were obstacles to
establishing family life in their own or their husbands’ home countries
or that there were special reasons why that could not be expected of
them; (5) the applicants claimed that as a result of unjustified
differences in treatment in securing the right to respect for their
family life, based on sex, race and, in the case of B, birth, they had
been victims of a violation of Art 14 taken together with Art 8; (6) for
purposes of Art 14, a difference of treatment is discriminatory if it,
‘has no objective and reasonable justification’ in that it does not
pursue a ‘legitimate aim’ or if there is not a ‘reasonable relationship
of proportionality between the means employed and the aim sought
to be realised’; (7) with regard to the alleged discrimination based on
sex, it was not disputed that under the 1980 Rules it was easier for a
man settled in the UK than for a woman so settled to obtain
(2004) 14 INTERIGHTS Bulletin
permission for his non-national spouse to enter or remain; (8) the
state explained that the difference in treatment had the aim of
limiting ‘primary immigration’ and was justified by the need to
protect the domestic labour market during a time of high
unemployment; (9) the state relied on what it described as a statistical
fact – that men were more likely to seek work than women; (10) while
there is a margin of appreciation to be respected, equality of the sexes
is a major goal in the member states and, as such, very weighty
reasons would have to be advanced before a difference of treatment
on the ground of sex could be regarded as compatible with the
Convention; (11) it is not convinced that that difference that may exist
between the respective impact of men and of women on the
domestic labour market is sufficiently important to justify the
difference of treatment and, as such, there was a violation of Art 14
taken together with Art 8; (12) there was not a similar violation based
on race as the 1980 Rules did not contain regulations differentiating
between persons or groups on the grounds of their race or ethnic
origin; (13) with regard to the applicants’ contention that they had
been subjected to degrading treatment in violation of Art 3, the
difference of treatment did not denote any contempt or lack of
respect for the personality of the victims and was not designed to
humiliate or debase them and, as such, there was no violation; (14)
with respect to the applicants’ claim that they had no effective
remedy under Art 13, since the UK has not incorporated the
Convention into its domestic laws, there can be no effective remedy
as required by Art 13 with regard to the complaint of discrimination
on the grounds of sex; (15) the finding of violation constitutes in itself
just satisfaction for any non-pecuniary damages; and (16) the state
shall pay costs and expenses totalling £28,768, with a deduction of
9,650 French Francs received for legal aid.
FAMILY LIFE
n Respect for family life - discrimination with regard to
parental leave benefits - no violation of Arts 14 and 8
of the ECHR
PETROVIC v AUSTRIA
Judgment of the ECtHR, 27 March 1998
P is an Austrian national who, at the material time was a student and
worked part-time. His wife, who was a civil servant in a Federal
Ministry, gave birth on 27 February 1989. She carried on working
while P took parental leave to look after the child. On 25 April 1989,
P claimed a parental leave allowance. On 26 May 1989, P’s claim for
parental leave allowance was turned down by the local employment
office on the ground that under the Employment Benefit Act, only
mothers could claim such an allowance when a child was born. On
14 June 1989, P’s appeal, alleging that the provision was
discriminatory and unconstitutional, was dismissed and P then lodged
a complaint with the Constitutional Court. While the complaint was
pending, the law was amended so that a father could claim parental
leave allowance if he was in employment, had primary responsibility
for looking after the child and the child lived under the same roof.
The amended law did not have retroactive effect and, therefore, was
not applicable to P. The Constitutional Court declined to accept the
case for adjudication on the grounds that it did not have sufficient
prospects of success as, on the basis of its case law, P’s constitutional
rights had not been infringed.
On 3 August 1992, P filed an application with the Commission.
Relying on Article 8 and on Art 14 taken together with Art 8, P
complained of the refusal to grant him a parental leave allowance and
of the discriminatory nature of that decision. He also alleged a
violation of Art 13 insofar as the Constitutional Court had refused to
consider his appeal. On 5 July 1995, the Commission declared the
application admissible with regard to the claims for discriminatory
161
refusal to grant parental leave and, on 15 October 1996, expressed
the opinion that there had been a violation of Art 14 taken together
with Art 8.
The Court held that: (1) It first had to determine whether the case
came within the scope of Art 8 and, consequently, Art 14; (2) the
refusal to grant P a parental leave allowance could not amount to a
failure to respect family life, as Art 8 did not impose any positive
obligation on states to provide the financial assistance in question; (3)
nevertheless, the allowance was intended to promote family life and
necessarily affected the way in which family life was organised as it
enabled one of the parents to stay at home to look after the children;
(4) by granting parental leave allowance, states were able to
demonstrate their respect for family life within the meaning of Art 8
and, therefore, the allowance came within the scope of that provision
and Art 14, taken together with Art 8, was applicable; (5) under the
Court’s case law, a difference in treatment was discriminatory for the
purposes of Art 14 if it had no reasonable justification, that is, if it did
not pursue a ‘legitimate aim’ or if there was not a ‘reasonable
relationship of proportionality between the means employed and the
aim sought to be realised’; (6) it was not disputed that the difference
in payment of allowances amounted to a difference in treatment on
the grounds of sex; (7) while it was aware of the differences existing
between the mother and father in their relationship with the child, as
far as taking care of the child during this period was concerned, both
parents were ‘similarly placed’; (8) at the end of the 1980s, there was
no common standard in this field as the majority of states did not
provide for parental care allowances to be paid to fathers and it
therefore appeared difficult to criticise the Austrian legislature for
having introduced in a gradual manner, reflecting the evolution of
society in that sphere, legislation which was, all things considered,
very progressive in Europe; (9) the Austrian authorities’ refusal to
grant the applicant a parental leave allowance had not, therefore,
exceeded the margin of appreciation allowed to them and,
consequently the difference in treatment was not discriminatory
within the meaning of Art 14 and there had been no violation of Art
14 taken together with Art 8.
LIBERTY AND SECURITY
n Right to humane treatment, right to personal liberty,
right to freedom of thought and expression, right to
freedom from torture - violation of Arts 5, 7, 8, 13 and
25 of the ACHR and Arts 1, 6 and 8 of the IACPPT
MARITZA URRUTIA v GUATEMALA
Judgment of the IACtHR, 27 November 2003
U is a citizen of Guatemala who, at the time of the facts, carried out
political tasks for the revolutionary organisation Ejercito Guerrillero
de los Pobres (EGP) and collaborated with a psychologist carrying out
testing in nursery schools. On 23 July 1992, after taking her son to
school, U was abducted by three armed men, who forced her to enter
a car driven by a fourth individual. Once in the vehicle, U was covered
by a hood and transferred to the installations of the Guatemalan
Army’s clandestine detention centre known as ‘La Isla’. She remained
captive for eight days. During her detention, U remained locked in a
room, handcuffed to a bed, hooded and with the light on in the room
and the radio on constantly at full volume. She could only leave the
room when her captors ordered. She was subjected to long and
continuous interrogations regarding her and her former husband’s
link to the EGP. During the interrogations, she was threatened with
physical torture and told that she or other members of her family
would be killed if she did not cooperate. On numerous occasions she
was warned that she would never see her son again. During her
detention, U was also forced to make a filmed statement where she
referred to her participation and that of her former husband in EGP
162
activities and wherein she justified her disappearance as a way of
abandoning the EGP and urged her companions to abandon the
armed fight. She was given clothes and make-up and forced to follow
a script.
U was liberated on 30 July 1992. Following the instructions of her
captors, under threat of death, she went to the Office of the Attorney
General, who received her personally, and took her to the Fifth
Criminal Court so that she could request amnesty based on Decree
32-88. There, she signed an act in which she claimed amnesty before
the corresponding judge, who did not once ask her about what had
happened. Subsequently, she returned to the Office of the Attorney
General and, following the instruction of her captors, gave a press
conference, confirming the content of her video.
Subsequently, U went with her family to a safe place, under the
protection of the Guatemalan Archdiocesan Human Rights Office. On
7 August 1992, U left Guatemala for the US, because of her fear of
attempts on her life. She then went to Mexico, where she was given
refugee status.
U’s father filed complaints before the respective national bodies,
including the Office of the Ombudsman and the National Police,
regarding his daughter’s disappearance. The Criminal Investigations
Unit of the National Police issued an inclusive report on the
disappearance, which merely summarised the interviews. The Office
of the Ombudsman carried out an investigation and concluded that
U’s human rights were violated. The case file is in the hands of the
Attorney General and the investigation has not produced any results.
On 9 January 2002, the Inter-American Commission on Human
Rights submitted the case to the Court, pursuant to Article 51 of the
American Convention on Human Rights (the American Convention).
The Commission submitted the application so the Court could decide
whether the state had violated Art 5 (right to humane treatment), Art
7 (right to personal liberty), Art 8 (right to fair trial), Art 13 (freedom
of thought and expression) and Art 25 (judicial protection), all of them
with respect to Art 1(1) (obligation to respect rights) of the American
Convention and Arts 1, 6 and 8 of the Inter-American Convention to
Prevent and Punish Torture (Torture Convention).
The Court held that: (1) Article 7 of the American Convention
protects every person’s right to personal liberty and security, to be free
from arbitrary arrest and detention, to be notified of charges, to be
promptly brought before a judge and be entitled to recourse to a
competent court; (2) it has been proved that U was abducted by state
agents, introduced by force into a vehicle, her head covered by a
hood, and taken to a clandestine place, where she was held for eight
days, without being informed of the motives for her detention and
the charges attributed to her. She remained incommunicado and was
not brought before a competent authority, and such acts are in
violation of Art 7; (3) Articles 5 and 1(1) of the American Convention
and Arts 1 and 6 of the Torture Convention provide that no-one shall
be subject to torture or cruel and inhuman punishment and the
Torture Convention provides that the state must undertake to prevent
and punish torture; (4) torture is defined to include any act
intentionally performed whereby physical or mental pain or suffering
is inflicted for purposes including a criminal investigation and shall be
understood to be the use of methods upon a person intended to
obliterate the personality of a victim or to diminish his physical or
mental capacities even if they do not cause physical pain or anguish;
(5) U’s right to humane treatment was violated while she was
detained as she was subjected to acts of mental violence by being
exposed intentionally to a context of intense suffering and anguish
that were inflicted deliberately to demoralise her; (6) Article 13 of the
American Convention protects the right to freedom of expression; (7)
the Commission contended that U’s right to freedom of expression
was violated when she was obliged by state agents to record a
statement which contained opinions she did not share and false
information about her abduction; (8) the juridical scope of these facts
is subsumed in the violation of Arts 5 and 8; (9) Article 8 of the
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American Convention provides that everyone has the right to a fair
hearing and Art 25 provides that everyone has the right to simple and
prompt recourse; (10) the state violated U’s right to a fair trial and to
effective judicial protection embodied in Arts 8 and 25 for reasons
including the two state habeas corpus recourses that were filed on
her behalf which did not obtain any results from the competent
judicial authorities and were, as such, ineffective; (11) as a result of
the violations, the state shall (a) investigate effectively the causes of
the case, identify, prosecute and punish those responsible and publish
the results of the investigation, (b) pay US $10,000 compensation for
pecuniary damages, (c) pay US $44,000 non-pecuniary damages, and
(d) pay US $6,000 for costs and expenses; and (12) it shall monitor
compliance with the judgment and shall close the case only when
fully complied with.
LIFE
n Right to life, rights to fair trial and judicial protection,
right to humane treatment - violation of Articles 4, 8,
25 and 5 of the ACHR
MYRNA MACK CHANG v GUATEMALA
Judgment of the IACtHR, 25 December 2003
On 11 September 1990, M, an anthropologist who studied the
phenomenon of internally displaced persons, was stabbed to death
by members of a military death squad on her way home from work.
She was killed in retaliation for anthropological research into the
destruction of indigenous communities by the Guatemalan military
during the country’s armed conflict. She had concluded that the main
cause of the internal displacements of the Guatemalan indigenous
communities was the Army’s counterinsurgency programme. She
deemed the efforts of the government to solve these problems
‘minimal’ and criticised the Army’s policies towards the displaced
population. The execution of M was politically motivated as the
government viewed her research activities as a threat to national
security and the Guatemalan government.
The investigation into M’s death was marked by delay and obstruction
by many government bodies including the police, the Ministry of
National Defence and the Presidential General Staff and the judiciary.
Additionally, there were threats against investigators as well as
witnesses and some witnesses and investigators were forced into
exile. Additionally, M’s next of kin were threatened.
M’s sister initiated and pursued a private prosecution in Guatemala
for those responsible for M’s death. In 1993, a low-level sergeant
named Noel de Jesus Beteta Alvarez was convicted of the murder. In
1996, three high-level military officers were indicted for ordering the
murder and, after multiple delays, were tried in September 2002. In
October 2002, a three-judge panel convicted and sentenced one of
the officers and acquitted the other two on the grounds that there
was insufficient evidence. On 7 May 2003, the appeals court
overturned the one conviction and upheld the acquittals.
4 (right to life), Art 8 (right to fair trial), Art 25 (judicial protection) in
combination with Art 1(1) (obligation to respect rights) of the
American Convention on Human Rights.
The Court held that: (1) with regard to Art 4, every person has, ‘the
right to have his life respected’; (2) compliance with Art 4, in
combination with Art 1(1) requires, not only that no person be
arbitrarily deprived of her life but also that the states adopt all
appropriate measures to protect and preserve the right to life; (3) M’s
right to life was breached as her death was the result of a covert
military operation prepared by the high command of the Presidential
Staff and carried out by its members; (4) the circumstances were
worsened because at the time there was a pattern of selective extralegal executions fostered by the state which were directed against
those who were considered ‘internal enemies’; (5) safeguarding the
right to life requires conducting an effective investigation and there
has not been an effective judicial mechanism to investigate the
human rights violations or to punish those responsible; (6) Articles 8
and 25 protect the right to fair trial and judicial protection,
respectively; (7) it was proven that the investigation and prosecution
of M’s death were obstructed in many ways including: ineffective
gathering of evidence at the crime scene, altering and hiding the
report of the police investigation, manipulation of the evidence
submitted by the Presidential General Staff and the Ministry of
National Defence with the intention of concealing evidence, the
murder of a police investigator, threats and harassment against legal
operators, police investigators, witnesses, members of the Mack
Foundation and next of kin of M, and lack of diligence by the judges
in processing the criminal proceedings; (8) Articles 8 and 25 were
violated as the judicial remedies were not effective, the judicial
investigation had serious shortcomings and the passage of time
played a crucial role in erasing all traces of the crime, thus making the
judicial protection enshrined in Arts 8 and 25 illusory; (9) the
representatives of the next of kin of M contended that the state
violated Art 5, the right to humane treatment and obligation to
respect rights, they felt deep suffering and anguish as to the
circumstances of her death, the harassment directed against them
and the inaction of the state, in spite of their efforts to see justice
brought; (10) it was proven that there was a violation of the right to
humane treatment of the next of kin as a direct consequence of the
threats and harassment they have suffered from the start of the
investigation, and the situation was worsened by the pattern of
obstruction which delayed the proceedings and caused constant
anguish together with feelings of frustration and powerlessness; (11)
as such, the next of kin must be considered victims of a violation of
Art 5; (12) as a consequence of these violations, the state must,
among other things: (a) effectively investigate the facts of the case in
order to identify and prosecute those responsible as well as those who
assisted in covering it up; (b) remove all obstacles to justice and
guarantee adequate security for the judicial authorities, the
prosecutors, witnesses and M and her relatives; (c) publicly recognise
its responsibility; (d) publicly honour the memory of Jose Merida
Escobar, a policeman who was killed in the investigation; (e) establish
a scholarship in M’s name and name a street or plaza after her; and
(f) pay US$266,000 in pecuniary damages, US$350,000 for pain and
suffering and US$163,000 for legal costs and expenses.
On 12 September 1990, the Commision Guatemalteca de Derechos
Humanos filed an application with the Inter-American Commission
on Human Rights (the Commission). On 5 March 1996, the
Commission declared the case admissible. On 3 March 2000, the
state recognised its ‘institutional responsibility’ in this case and
agreed to advance the criminal proceedings under domestic
jurisdiction. On 8 March 2001, the Commission reached the
conclusion that the state had an obligation to effectively redress the
violations committed and that over a year had passed since the state
had acknowledged responsibility and it had undertaken no effective
action and gave recommendations on how to proceed. On 19 June
2001, the Commission decided to submit the case to the jurisdiction
of the Court and asked it to decide whether the state violated Article
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163
TORTURE and INHUMAN OR
DEGRADING TREATMENT OR
PUNISHMENT
n Pleaded guilty to crime against humanity
(persecutions)
THE PROSECUTOR v BILJANA PLAVSIC
ICTY, Judgment of the Trial Chamber, 27 February 2003
P was born in 1930 in Tuzla, Bosnia Herzegovina. She worked as a
professor of natural sciences and was dean of faculty in the University
of Sarajevo. P became involved in politics in July 1990 when she
joined the Serbian Democratic Party (SDP). P rose up the ranks of the
SDP until she occupied a position of leadership. She was elected as a
Serbian Representative to the Presidency of the Socialist Republic of
Bosnia Herzegovina on 11 November 1990 until December 1992. The
Bosnia Herzegovina parliament declared Bosnia sovereign in 1991
and following a referendum in March 1992 Bosnian Serbs signed the
Cutilero Plan and declared the formation of an independent Serbian
Republic of Bosnia Herzegovina (‘Republika Srpska’). P was active
throughout this time in the presidency of the Republic of Bosnia
Herzegovina and that of the Republika Srpska. From February to May
1992 P was acting co-president, and from May until December 1992
she was a member of the collective and expanded presidencies of the
Republika Srpska.
In May 1992, the Army of the Republika Srpska was formed (the VRS).
The VRS reported to the presidency of the Republika Srpska of which
P was a member. As a member of the presidency, P also had authority
over the Bosnian Serb police, the territorial army and civilian
authorities. These forces were part of a campaign of persecution
against non-Serbs in Bosnia that was organised, systematic and
widespread and included atrocities in various municipalities. One
example occurred in the Prijedor municipality where during the time
of conflict the population of Bosnian Muslims fell from about 50,000
to 6,000. There were frequent killings, beatings and prevailing cruel
and inhumane conditions.
As co-president of the Republika Srpska, P supported and maintained
the government and military at local and national levels and
encouraged participation in the objective of ethnic separation by
making public pronouncements that the use of force was justified
because certain territories in Bosnia were Serbian by right. P
encouraged the fear of genocide against Serbs by Bosnian Muslims
and Bosnian Croats and P also invited and encouraged paramilitaries
from Serbia to assist Bosnian Serbs in effecting ethnic separation by
force. P ignored allegations that crimes were being committed by the
Bosnian Serb forces and disregarded reports of widespread ethnic
cleansing while publicly rationalising and justifying it. P was also
aware that other key leaders of the Republika Srpska ignored crimes
that occurred despite the fact that they had the power and ability to
prevent them and punish the perpetrators.
P surrendered voluntarily on 10 January 2001. P’s indictment
contained various counts alleging genocide, complicity in genocide
and crimes against humanity. The alleged crimes against humanity
were listed as: persecutions; extermination and killing; deportation;
and inhumane acts. In October 2002, P pleaded guilty to one of the
counts in the indictment namely, persecutions, a crime against
humanity and the remaining counts of the indictment were dismissed.
The count to which P pleaded guilty stated that between 1 July 1991
and 30 December 1992, P had acted individually, and in concert with
others in a joint criminal enterprise, to plan, instigate, order, and aid
and abet persecutions of the Bosnian Muslim, Bosnian Croat and
other non-Serb populations of 37 municipalities in Bosnia
Herzegovina. The persecutory acts which P acknowledged occurred
164
included: killings during attacks on towns and villages; cruel and
inhumane treatment during and after the attacks; forced transfer and
deportation; unlawful detention and killing; forced labour and use of
human shields; cruel and inhumane treatment; inhumane conditions
in detention facilities; the destruction of cultural and sacred objects;
plunder; and wanton destruction. P was brought before the Trial
Chamber for sentencing on 27 February 2003.
The Trial Chamber held that: (1) this was a crime of utmost gravity
involving a campaign of ethnic separation which resulted in the death
of thousands and the expulsion of thousands more in circumstances
of great brutality. The gravity of the crime was illustrated by: the
massive scope and extent of the persecutions; the numbers killed,
deported and forcibly expelled; the grossly inhumane treatment of
detainees; and the scope of wanton destruction of property and
religious buildings; (2) P’s presidential role was an aggravating factor
in this case and P had supported and encouraged the campaign of
ethnic cleansing by her participation in the presidency which was the
highest civilian body and through her pronouncements; (3) other
factors identified by the prosecution as aggravating factors included
the vulnerability of the victims and the depravity of the crimes; (4) the
relevant substantial mitigating circumstances therefore were P’s:
guilty plea (together with remorse and reconciliation); voluntary
surrender; post-conflict conduct; and age. In particular, weight would
be given to P’s guilty plea and post-conflict conduct; (5) the crimes in
question did not happen to a nameless group but to individual men,
women and children who were mistreated, raped, tortured and killed
and the fact that this appalling conduct was repeated so frequently
calls for a substantial sentence of imprisonment as this was a crime
of the utmost gravity; (6) the serious nature of the offence was
aggravated by the senior leadership position of the accused as instead
of generally preventing or mitigating the crimes she encouraged and
supported those responsible; (7) undue leniency would be misplaced
and no sentence can fully reflect the horror of what occurred or the
terrible impact on thousands of victims; and (8) P be sentenced to 11
years imprisonment.
n Prohibition of degrading treatment - violation of Art 3
of the ECHR
n Respect for private life - violation of Art 8 of the ECHR
MC v BULGARIA
Judgment of the ECtHR, 4 December 2003
MC is a Bulgarian national born in 1980, who alleged that she was
raped by two men, A and P, when she was 14 years old, which is the
age of consent in Bulgaria.
On the evening of 31 July 1995, MC was waiting with a friend to
enter a disco bar when they were approached by three men P, A and
VA. Both P and A were known to MC. MC agreed to go to another
disco with the men in their car. On the way back from the disco,
A suggested stopping for a swim at a nearby reservoir, which they did
despite MC’s objections. At the reservoir the three men left the car.
P subsequently returned to the car and started kissing MC. MC
refused his advances and tried to push him away. P persisted in kissing
her and forced MC to have sexual intercourse with him. MC
maintained that she was left in a very disturbed state. In the early
hours of the following morning, the group then drove to a
neighbouring town where one of the men’s relatives had a house.
MC claimed that A forced her to have sex with him at the house and
that she cried both during and after the rape.
The next morning MC went directly to the local hospital with her
mother. The medical examiner found that her hymen had been freshly
torn and that she had bruising and a grazed neck. Only the first
alleged rape was reported at this time. The second rape was reported
on 11 August 1995.
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A and P both denied raping MC. On 14 November 1995, criminal
proceedings were opened. No charges were brought in the course of
the proceedings. No action was taken on the case between
November 1995 and November 1996. On 18 December 1996, the
investigator completed his work on the case. He found no evidence
that P and A had used threats or violence and proposed that the
prosecutor terminate proceedings. In January 1997 the District
Prosecutor ordered an additional investigation, stating that the
original investigation had not been objective, thorough and
complete. The second finding was again that there was no evidence
demonstrating the use of force or threats. The criminal proceedings
were terminated on 17 March 1997 on this basis. In particular,
because no resistance on MC’s part or attempts to seek help from
others had been established.
On 23 December 1997, MC filed an application with the Commission
and submitted written expert opinions which identified ‘frozen fright’
as the most common response to rape, where the victim either
submits impassively or dissociates psychologically from the rape. MC
complained that Bulgarian law did not provide effective protection
against rape and sexual abuse as only cases where the victim had
resisted actively were prosecuted and that the authorities had not
investigated the events of 31 July and 1 August 1995 effectively. MC
alleged breaches of Arts 3, 8(1), 13 and 14.
The Court held that: (1) States have a positive obligation inherent in
Arts 3 and 8 to enact criminal law proceedings effectively punishing
rape and to apply them in practice through effective investigation and
prosecution; (2) there is a universal trend towards regarding lack of
consent rather than force as the essential element of rape and sexual
abuse, and this has been acknowledged by the Council of Europe;
(3) in the light of this any rigid approach to the prosecution of sexual
offences such as requiring proof of physical resistance in all
circumstances risks leaving certain types of rape unpunished thus
jeopardising the effective protection of the individual’s sexual
autonomy; (4) member states’ positive obligations under Arts 3 and
8 must be seen as requiring the penalisation and effective prosecution
of any non-consensual sexual act, including in the absence of physical
resistance by the victim; (5) there were shortcomings in the
investigation of the incident because little was done to test the
credibility of the version of events put forward by P and A and MC
was not able to question witnesses whom she had accused of perjury.
This was because there was an absence of ‘direct’ proof of rape such
as traces of violence and resistance and the investigator and
prosecutor had been centred on the issue of force rather than lack of
consent; (6) in the light of this the approach taken by the Bulgarian
authorities fell short of Bulgaria’s positive obligation under Arts 3 and
8; (7) no separate issues arise under Art 13; (8) with regard to MC’s
argument that, with regard to the age of consent, the law affords
better protection to ‘homosexual children’ than to ‘heterosexual
children’, in the light of its findings above, it is not necessary to
examine this complaint; and (9) within three months from the date
of the judgment the state is to pay to MC 8,000 euros in respect of
non-pecuniary damages and 4,110 in respect of costs and expenses
(and default interest at a rate equal to the marginal lending rate of
the European Central Bank during the default period plus three
percentage points).
(2004) 14 INTERIGHTS Bulletin
n Rape as a crime against humanity
THE PROSECUTOR v ALFRED MUSEMA
ICTR, Judgment of the Trial Chamber, 27 January 2000, and
Judgment of the Appeals Chamber, 16 November 2001
M was born in the Byumba prefecture. He began his career in the
Rwandan Ministry of Agriculture & Livestock Breeding and in 1984,
by a presidential decree, he was appointed director of a public
enterprise, the Gisovu Tea Factory. This tea factory was in production
for only a short time before M assumed responsibility, and M’s
responsibility for the factory also encompassed responsibility for the
prefectures of Kibuye and Gikongoro. By 1993 the tea factory was
one of the most successful in Rwanda. M was also a member of the
‘conseil préfectorial’ in Byumba Prefecture and a member of the
Technical Committee in the Butare Commune. Both positions
involved socio-economic and developmental matters and did not
focus on prefectural politics.
On 6 April 1994, a plane carrying the President of the Republic of
Rwanda crashed on its approach to Kigali airport, killing all on board.
In the hours that followed, violence set in and massacres began in
Kigali and in other prefectures in the country, marking the beginning
of widespread ethnic confrontations and genocide against the
Tutsi people.
M was accused of playing a part in that genocide. In particular,
throughout April to June 1994, thousands of men, women and
children sought refuge in various locations in Bisesero. These men,
women and children were predominantly Tutsi and were seeking
refuge from attacks on Tutsi which had occurred throughout the
prefecture of Kibuye, the prefecture for which M had assumed
responsibility. The individuals seeking refuge in the area of Bisesero
were regularly attacked, by attackers who used guns, grenades,
machetes, spears, pangas, cudgels and other weapons to kill the
refugees. The attacks resulted in thousands of deaths and numerous
injuries to Tutsi men, women and children within the area of Bisesero.
By May 1994, a number of Tutsi civilians had sought refuge at Muyira
Hill located in the Gisovu Commune, which was also in the prefecture
of Kibuye. A major attack against these Tutsi refugees occurred on
13 May 1994.
In July 1994, an indictment was submitted and subsequently
amended. M was charged with: genocide (count 1); complicity in
genocide (count 2); conspiracy to commit genocide (count 3); crime
against humanity and in particular murder, extermination, rape and
other inhuman acts (counts 4 to 7); and serious violations of Article
3 common to the Geneva Conventions, which extends a minimum
threshold of humanitarian protection to all persons affected by noninternational conflicts (counts 8 to 9).
The Trial Chamber held that: (1) in light of admissions made by M in
1994, widespread or systematic attacks were directed against civilians
on the grounds of ethnic or racial origin. The massacres in 1994 were
targeted and directed against the Tutsi civilians not as individuals but
as members of a group; (2) M took part in a large-scale attack on
Gitwa Hill in April 1994 and M’s alibi that he was in Gitarama was
false; (3) M participated in an attack on Tutsi civilians on Rwirambo
Hill; (4) Tutsi refugees were attacked in May 1994 on Muyira Hill and
the attackers arrived at Muyira Hill in vehicles which included vehicles
belonging to the Gisovu Tea Factory and only 10,000 of the 50,000
Tutsi refugees survived; (5) M also took part in an attack in the middle
of May on Mumataba Hill, in which the assailants attacked a place of
refuge for 2–3,000 Tutsi, most of whom were killed; (6) M’s alibi for
13 and 14 May and the rest of mid-May 1994 is rejected because of
inconsistencies and material discrepancies in the evidence presented
in support of it; (7) in May 1994, M participated in an attack on
approximately 300 to 400 Tutsi seeking refuge in the Nyakavumu
cave, by ordering that the entrance to the cave be sealed with wood
and set on fire. Only one person survived the attack; (8) various alibis
submitted by M cast doubt on M’s involvement in other attacks
165
namely: on Biyiniro Hill in May 1994; near Muyira Hill in June 1994;
and at Nyarutovu in June 1994; (9) the allegations that M ordered the
rape of Tutsi women on Karongi Hill in April 1994, are not proved
beyond reasonable doubt; (10) it was proved beyond reasonable
doubt that M ordered the rape of a Tutsi woman in April 1994 and
the cutting off of her breast to be fed to her son; (11) it is not proven
beyond reasonable doubt that M acted in concert with others to rape
and murder another Tutsi woman in May 1994 nor that M ordered
others accompanying him to rape and kill Tutsi women seeking
refuge from attacks; (12) M did rape a Tutsi woman, N, after ordering
a policeman to bring her to him. Four youths held her down while M
raped her and when M left, the four youths took turns raping her and
left her for dead; (13) M exercised both de facto and de jure authority
over employees of the Gisovu Tea Factory, and the resources of the
tea factory. However, it is not proved beyond reasonable doubt that
M exercised de jure and de facto power over other members of the
population of Kibuye prefecture; (14) M incurs individual criminal
responsibility for ordering, and aiding and abetting in the murder of
members of the Tutsi ethnic group and the causing of serious bodily
and mental harm to the members of the group; (15) although it was
proven that M ordered the rape of a Tutsi woman, M will not incur
individual criminal responsibility for this act because no evidence was
adduced to show that a rape took place as a result of the order; (16)
M will incur individual criminal responsibility for the rape of another
Tutsi woman for having raped her, for having caused serious bodily
and mental harm to her, and for having abetted others to rape by his
example; (17) M committed acts which are the constituent elements
of genocide with the specific intent to destroy the Tutsi group. The
Tutsi group is a protected group within the meaning of the Genocide
Convention and Article 2 of the Statute. M therefore incurs individual
criminal responsibility for genocide; (18) as M is found guilty of acts
constituting genocide as charged in count 1, it is not necessary to
examine whether these acts constitute complicity in genocide, as
charged in count 2; (19) there is no evidence that M conspired with
others to commit genocide nor that he and such persons reached an
agreement to act to that end; (20) M’s conduct in ordering and
participating in attacks on Tutsi refugees on Muyira Hill and on
Mumataba Hill, in aiding and abetting in the attacks by providing
motor vehicles belonging to the Gisovu Tea Factory for the transport
of attackers to Muyira Hill and Mumataba Hill, and his participation
in attacks on Tutsi civilians who sought refuge in the Nyakavumu
cave, Gitwa Hill and Rwirambo Hill, renders M individually criminally
responsible for crime against humanity (extermination); (21) M failed
to prevent or punish participation by his employees, or the use of tea
factory property, in the attacks; (22) the killings at Gitwa Hill, Muyira
Hill, Rwirambo Hill, Mumataba Hill and the Nyakavumu cave
represent killings of a collective group of individuals, hence they
constitute extermination and not murder. M is individually criminally
responsible for crime against humanity (extermination) but is not
individually criminally responsible for crime against humanity
(murder) in respect of these killings; (23) M is individually criminally
responsible for crime against humanity (rape); (24) the prosecutor
failed to establish the existence of a nexus between the acts for which
M is individually criminally responsible and the internal armed
conflict. Consequently M is not guilty of serious violations of
Common Article 3 of the Geneva Conventions; (25) to conclude, M
is guilty of genocide (count 1) and of crime against humanity
(extermination) (count 5) and crime against humanity (rape) (count
7); (26) M is not guilty of: complicity in genocide (count 2), conspiracy
to commit genocide (count 3), crime against humanity (murder and
other inhumane acts – counts 4 and 6) and violation of Common
Article 3 to the Geneva Conventions (counts 8 and 9); (27)
aggravating factors to M’s sentence include: the serious nature of M’s
crimes; the fact that M led attackers who killed a large number of
Tutsi refugees; that M was armed with a rifle and used the weapon
during the attacks; that M took no steps to prevent the participation
of tea factory employees or the use of its vehicles in the attacks and
that M raped a young Tutsi woman and by his example encouraged
others to rape her. Furthermore, M did not prevent the commission
166
of the crimes and took no steps to punish the perpetrators; (28)
mitigating circumstances that were considered were that M:
admitted that a genocide occurred against the Tutsi people in
Rwanda in 1994; expressed his distress about the deaths of so many
innocent people; paid tribute to all victims of the tragic events in
Rwanda; and expressed regret that the Gisovu Tea Factory facilities
may have been used by the perpetrators of atrocities. Additionally,
M’s co-operation, through his admission of facts, continued during
the trial and facilitated expeditious proceedings; (29) the aggravating
factors outweigh the mitigating factors, especially as M personally led
attackers to attack large numbers of Tutsi refugees and personally
raped a young Tutsi woman. M knowingly and consciously
participated in the commission of crimes and never showed remorse
for his personal role in the commission of the atrocities; and (30) M
is sentenced to life imprisonment.
The Appeals Chamber upheld the decision except held that, in the
light of additional evidence presented, M was not guilty for the crime
against humanity of rape (count 7) as there was conflicting evidence
as to whether M had committed the rape of N on the date in
question.
n Rape as a crime against humanity and an instrument
of terror
THE PROSECUTOR v DRAGOLJUB
KUNARAC, RADOMIR KOVAC & ZORAN
VUKOVIC
ICTY, Judgment of the Trial Chambers, 22 February 2001, and
Judgment of the Appeals Chamber, 12 June 2002
K, RK and V are Bosnian Serbs who were involved in a Serb campaign
against Bosnian Muslims in the area of Foca between April 1992 until
at least February 1993. One purpose of the campaign was to cleanse
the Foca area of Muslims. In addition to the Muslim armed forces, a
target to the campaign was Muslim civilians, particularly Muslim
women. The general method used was expulsion through terror. The
terror was carried out in multiple ways, including the violent
destruction of Muslim religious symbols. Civilian Muslim men and
women were rounded up in the villages surrounding Foca and the
men and women were separated. Many men were forced to spend
long periods of detention in prison and were mistreated. Some men
were killed on the spot, some even in front of their families. The
women and children were taken to collection points and then
detained at various places, including a high school and a sports hall.
Many of the women were raped, often multiple times and sometimes
in front of many people.
K, RK and V were charged with violations of the law or customs of
war and with crimes against humanit rape, torture, enslavements and
outrages upon personal dignity.
The Trial Chamber held that: (1) rapes were used by members of the
Bosnian Serbs armed forces as a weapon of terror; (2) rape was an
instrument that they could use at any time whenever and against
whomever they wish; (3) the Serb forces had set up and maintained
a detention centre next to the municipal police building from which
girls were taken away on a regular basis to other locations to be
raped; (4) authorities who were meant to protect the victims, such as
local police, turned a blind eye and even helped guard the women
and on occasion joined in their maltreatment; (5) they were guilty of
torture, as a crime against humanity, under Article 5 of the Statute of
the ICTY, and as a violation of the laws or customs of war, under Art
3 of the Statute and recognised by Common Article 3(1)(a) of the
1949 Geneva Conventions; (6) they were guilty of rape, as a crime
against humanity, under Art 5(g) of the Statute and as a violation of
the laws or customs of war, under Art 3 of the Statute; and (7) two
of the defendants (K and RK) were guilty of enslavement as a crime
against humanity, under Art 5(c) of the Statute.
(2004) 14 INTERIGHTS Bulletin
The Appeals Chamber held that: (1) with regard to the common
grounds of appeal under Art 3, the Trial Chamber erred in concluding
that there was an armed conflict and also establishing the nexus of
criminal conduct relating to such a conflict; (2) the prosecutor did not
have to prove that there was an armed conflict in each and every
square inch of the area but exists across the entire territory under the
control of the warring parties. The Court also held that in showing
that there was a nexus between the armed conflict and the criminal
behaviour, it is sufficient to show that the existence of the armed
conflict must have played a substantial part in the perpetrator’s ability
to commit the crime; (3) with regard to the charges of rape, the
appellants submitted that the crime of rape requires force or threat
of force and the victim’s ‘continuous’ or ‘genuine’ resistance; the Trial
Chamber was correct in finding that the central element of rape is
the victim’s lack of consent. The coercive circumstance present in this
case made the victim’s consent to the instant sexual acts impossible;
(4) the appellants asserted that the constitutive elements of the crime
of torture had not been proven beyond all reasonable doubt; and (5)
some acts establish per se the suffering of those upon whom they are
inflicted, and rape is obviously such an act.
n Rape and other forms of sexual violence as genocide
THE PROSECUTOR v JEAN-PAUL
AKAYESU
ICTR, Judgment of the Trial Chambers, 2 September 1998, and
Judgment of the Appeals Chamber, 1 June 2001
A was the bourgmestre of the Taba commune in Rwanda from April
1993 to June 1994. Rwanda is divided into 11 prefectures, which are
further subdivided into communes. Each commune is governed by a
bourgmestre in conjunction with a communal council. The
bourgmestre is appointed by the President of Rwanda and is the most
powerful figure in the commune.
As bourgmestre, A was charged with the performance of executive
functions and the maintenance of public order within his commune,
subject to the authority of the prefect. He had exclusive control over
the communal police as well as any gendarmes put at his disposal.
On 6 April 1994, a plane carrying the President of Rwanda, Juvénal
Habyarimana crashed at Kigali airport, killing all on board. Following
the death of the President, widespread killings, having both political
and ethnic dimensions, began in Kigali and spread to other parts of
Rwanda.
A was indicted on 15 counts based on the allegations that: (1) he
knew of but did not prevent the killing of at least 2,000 Tutsis in Taba
from April to June 1994; (2) he knew of but did not prevent the fact
that female Tutsis seeking refuge at a bureau communal were
regularly taken by the armed local militia and subjected to sexual
violence including multiple rapes, and there were frequent murders
of civilians on or near the communal premises; (3) at meetings A
urged those present to kill accomplices of Tutsi and on one occasion
named three Tutsi who had to be killed, after which there were two
killings; (4) he ordered and participated in the killing of three brothers
and took eight detained men from the bureau communal and ordered
militia members to kill them; and (5) he ordered local people to kill
intellectuals and influential people and on his instructions five teachers
were killed. A was charged with various counts of genocide, incitement
to commit genocide, murder and outrages upon personal dignity.
The Trial Chamber held that: (1) it was proven beyond reasonable
doubt that there was an armed conflict between the Government of
Rwanda and the Rwandan Patriotic Front (RPF) in 1994; (2) for A to
be held criminally responsible under Article 4 of the ICTR Statute, the
prosecutor must prove beyond a reasonable doubt that he acted for
either the government or the RPF in the execution of their respective
conflict objectives; (3) it has not been proved beyond reasonable
(2004) 14 INTERIGHTS Bulletin
doubt that the acts perpetrated by A in the commune of Taba at the
time of the events alleged in the indictment were committed in
conjunction with the armed conflict, nor that A was a member of the
armed forces, or that he was legitimately mandated and expected, as
a public official or agent or person otherwise holding public authority
or de facto representing the government, to support or fulfil the war
efforts; (4) A was individually criminally responsible for ordering and
participating in the killing of Simon Mutijima, Thaddée Uwanyiligra
and Jean Chrysostome, as part of a widespread or systematic attack
against the civilian population of Rwanda on ethnic grounds, which
constituted a crime against humanity; (5) on 19 April 1994, A took
eight detained refugees who were non-combatant civilians and
handed them over to the local militia with orders that they be killed,
and A is criminally responsible for the killing of these eight refugees
and, as such, is guilty of crimes against humanity (murder); (6) the
militia and local population, acting on the orders of A, killed five Tutsi
civilian teachers in April 1994 and A is individually criminally
responsible for the death of these victims, which is deemed to
constitute a crime against humanity (murder); (7) there was a causal
relationship between A’s speeches at a gathering of 19 April 1994,
where he joined a crowd of over 100 people which had gathered
around the body of a young member of the militia and urged the
population to unite in order to eliminate what he termed the sole
enemy, and the ensuing widespread massacres of Tutsi in Taba and
these acts amount to the crime of direct and pubic incitement to
commit genocide; (8) A is criminally responsible for committing
various acts that constitute torture and/or being present while such
acts were committed by others at his instigation or with his consent
or acquiescence and these acts included threats to life and beatings
under interrogation; (9) A is judged criminally responsible under Art
3(g) of the Statute for several incidents of rape; (10) A is criminally
responsible for a crime against humanity (other inhumane acts) for
various inhumane acts including the forced undressing a woman (the
wife of Tharcisse) outside the bureau communal, after making her sit
in the mud and the forced undressing and public marching of another
woman (Chantal) naked at the bureau communal; (11) A is
individually criminally responsible for having ordered, committed or
otherwise aided and abetted in the commission of the acts which
constituted the killing of members of the Tutsi group and the infliction
of serious bodily and mental harm on members of the group; (12) it
is possible to infer genocidal intention on A’s part from his acts and/or
utterances as on several occasions A made speeches calling, more or
less explicitly, for the commission of genocide and it is established that
genocide was committed against the Tutsi group in Rwanda. Owing
to the very high number of atrocities committed against the Tutsi,
their widespread nature throughout Rwanda, and to the fact that the
victims were systematically and deliberately selected because they
belonged to the Tutsi group, the genocidal intent of A can be inferred
beyond reasonable doubt; (13) rape and sexual violence can also
constitute genocide if they were committed with the specific intent
to destroy, in whole or in part, a particular group, targeted as such.
Indeed, rape and sexual violence certainly constitute infliction of
serious bodily and mental harm on victims and are one of the worst
ways of inflicting harm on the victim as he or she suffers both bodily
and mental harm; (14) it was satisfied that acts of rape and sexual
violence were committed solely against Tutsi women, many of whom
were subjected to terrible public humiliation and that these rapes
resulted in the physical and psychological destruction of Tutsi women,
their families and their communities; (15) sexual violence was an
integral part of the process of destruction of the Tutsi people and was
done in a systematic way and was a step in the effort to destroy the
spirit, of the will to live, and of life itself; (16) A committed acts that
constituted the factual elements of the crime of genocide, namely the
killings of Tutsi or the serious bodily and mental harm inflicted on the
Tutsi with the specific intent to destroy the Tutsi group and found
individually criminally responsible for genocide; (17) A is guilty of
crimes against humanity (extermination) for his involvement in the
killing of eight Tutsi refugees as well as five Tutsi secondary school
teachers; and (18) A is sentenced to life imprisonment.
167
The Appeals Chamber: (1) dismissed each of the grounds of appeal
raised by A; and (2) affirmed the guilty verdict entered against A of
all the counts on which he was convicted and the sentence of life
imprisonment handed down.
n Rape as torture
THE PROSECUTOR v ZEJNIL DELALIC,
ZDRAVKO MUCIC, HAZIM DELIC &
ESAD LANDZO
ICTY, Judgment of the Trial Chamber, 16 November 1998, and
Judgment of the Appeals Chamber, 20 February 2001
On 19 March 1996, an indictment was issued against the four
accused ZD, ZM, HD and EL. The indictment related to the events that
took place in 1992 in a prison camp near the town of Celebici in
central Bosnia and Herzegovina. The accused were charged with
grave breaches of the Geneva Conventions of 1949, under Article 2
of the International Criminal Tribunal for Yugoslavia (ICTY) Statute,
and violations of the laws or customs of war, under Art 3 of the ICTY
Statute, in connection with acts allegedly perpetrated within the
Celebici camp.
The Celebici camp consisted of barracks and warehouses covering an
area of about 50,000 square metres with a railway line running
through the middle. The Celebici barracks and warehouses were first
used for the detention of prisoners in the latter part of April 1992 and
the majority of the prisoners who were detained between April and
December 1992 were men, captured during and after the military
operations at Bradina and Donje Selo and the surrounding areas.
ZD is alleged to have exercised authority over the Celebici prison-camp
in his role first as co-ordinator of the Bosnian Muslim and Bosnian
Croat forces in the area, and later as Commander of the First Tactical
Group of the Bosnian Army. EL was alleged to have worked as a guard
at the Celebici camp. HD and ZM were alleged to have worked within
the camp and to have acted in the capacity of commanders, with ZM
being commander, and HD a deputy commander from May to
November 1992, when he replaced ZM as commander.
EL and HD were primarily charged with individual criminal
responsibility pursuant to Art 7(1) of the ICTY Statute, as direct
participants in certain of the crimes alleged, including acts of murder,
torture and inhuman treatment. ZM and ZD were primarily charged
as superiors with responsibility for the operation of the Celebici camp,
pursuant to Art 7(3) of the Statute, for crimes committed by their
subordinates, including those alleged to have been committed by EL
and HD. Several counts in the indictment also charged HD in his
capacity as a superior with command responsibility.
The Trial Chamber held that: (1) ZD was not guilty on all counts on
the basis that he did not have sufficient command and control over
the Celebici camp and its guards to find him criminally responsible as
a superior for the crime which they committed in the camp; (2) ZM
was guilty under the principles of superior responsibility for the crimes
committed by his subordinates, including murder, torture and
inhuman treatment as he was the de facto commander of the
Celebici camp and exercised de facto authority over the prison-camp,
the deputy commander and the guards; (3) HD was found guilty on
the basis of personal responsibility for crimes including murder,
torture and inhuman treatment; (4) HD and EL are found guilty under
counts 1 and 2, of wilful killing and murder; (5) HD is guilty of wilful
killing, under count 3 and of murder, under count 4; (6) due to his
participation in a prolonged and vicious beating (at the very least as
an aider and abettor who knowingly facilitated the beating inflicted
by others), EL is guilty under counts 5 and 6; (7) EL is guilty under
counts 7 and 8 for the wilful killing and murder of a prisoner; (8) it is
clear that HD and EL were the perpetrators of heinous acts which
caused great physical suffering to a prisoner that resulted in death
168
and are guilty of wilfully causing great suffering or serious injury to
body or health, a grave breach of the Geneva Conventions of 1949
punishable under Art 2 of the Statute, and cruel treatment, a violation
of the laws or customs of war punishable under Art 3 of the Statute;
(9) ZD and HD are not guilty of wilful killings and murders, as charged
in counts 13 and 14; (10) ZM was in a de facto position of superior
authority over the Celebici prison, and knew or had reason to know
of the violations of international humanitarian law committed in the
Celebici camp, but failed to prevent these acts or punish the
perpetrators thereof and, as such, is found responsible for the wilful
killing and murder of five prisoners; (11) EL is guilty of torture under
counts 15 and 16; (12) acts of rape were intentionally committed by
HD who was an official of the Bosnian authorities running the prisoncamp. As there can be no question that these rapes caused severe
mental pain and suffering, HD is guilty of torture, under counts 18
and 19; (13) HD is found guilty of torture under counts 21 and 22 for
the multiple rapes of a female prisoner, Ms A; (14) EL is found guilty
of torture under counts 24 and 25; (15) HD and EL are not guilty
under counts 27, 28 and 29; (16) EL is guilty of torture and cruel
treatment under counts 30 and 31; (17) ZD and HD have respectively
been found not to have exercised superior authority over the Celebici
prison-camp and, as such, are not guilty of torture or cruel treatment,
as charged in counts 33 to 35; (18) ZM is guilty of torture under Arts
2 and 3 of the Statute, as charged in counts 33 and 34; (19) ZM is
responsible pursuant to Art 7(3) of the Statute for wilfully causing
great suffering or serious injury to body or health, and the inhuman
and cruel treatment of various prisoners; (20) HD deliberately used an
electric shock device on numerous prisoners in the Celebici camp and,
as the use of this device caused pain, burns, convulsions, twitching
and scaring, HD is guilty of inhuman treatment, under count 42 and
of cruel treatment, under count 43; (21) ZD and HD are not guilty of
inhuman and cruel treatment, as charged in counts 44 and 45 due
to the finding that they did not have positions of superior authority;
(22) ZM is responsible pursuant to Art 7(3) of the Statute for inhuman
treatment and the cruel treatment of various prisoners; (23) the
chronic physical deprivation and the constant fear prevailing in the
Celebici camp caused serious mental and physical suffering to the
detainees and clearly constituted an attack upon the dignity of the
detainees; (24) accordingly HD, EL and ZM are guilty, pursuant to Art
7(1) of the Statute, of the offence of wilfully causing great suffering
or serious injury to body or health, under Art 2 of the Statute, and
cruel treatment, under Art 3 of the Statute, as charged in counts 46
and 47; (25) the detention of civilians in the Celebici camp was not
in conformity with the relevant provisions of Geneva Convention IV
and constituted the offence of unlawful confinement of civilians,
under Art 2 of the Statute; (26) it has been shown that ZM was in a
de facto position of superior authority over the Celebici camp and
was the individual with primary responsibility for the continued
detention of civilians in the prison-camp; (27) by omitting to ensure
that a proper inquiry was undertaken into the status of the detainees,
and that those civilians who could not lawfully be detained were
immediately released, ZM participated in the unlawful confinement
of civilians in the Celebici camp and is guilty, pursuant to Art 7(1) of
the Statute, of the unlawful confinement of civilians, as charged
under count 48; (28) the offences of plunder, as alleged, cannot be
considered to constitute such serious violations of international
humanitarian law that they fall within the subject matter jurisdiction
of the ICTY pursuant to Art 1 of the Statute; (29) ZM, HD, EL were
sentenced to seven, twenty and fifteen years imprisonment,
respectively, and ZD was acquitted.
On 20 February 2001, the Appeals Chamber: (1) upheld an appeal
against cumulative convictions based upon the same acts for both
grave breaches of the Geneva Conventions and violations of the laws
and customs of war, dismissing the charges for the violations of the
laws or customs of war; (2) upheld an appeal by HD against one of
his convictions for wilful killings; (3) upheld an appeal by the
prosecution against the inadequacy of the sentencing imposed upon
ZM; and (4) upheld a complaint by ZM that the Trial Chamber had
(2004) 14 INTERIGHTS Bulletin
erred when sentencing by making an adverse reference to the fact
that he had not given evidence at trial.
On 9 October 2001, the case went back to a new Trial Chamber who
determined that: (1) no adjustment should be made for the dismissal
of the cumulative convictions; (2) the 20-year sentence imposed upon
HD should be reduced to 18 years to reflect the quashing of his
conviction on one count of wilful killing; (3) there should be a ‘small
reduction’ given to ZM as a result of the adverse reference by the
original Trial Chamber when sentencing him to the fact that he had
not given evidence at the trial; and (4) an appropriate revised
sentence for ZM was a sentence of imprisonment for nine years.
On 8 April 2003, the Second Appeals Chamber held that: (1) the
appeals against sentence are dismissed; (2) the sentences imposed by
the remitted Trial Chamber on 9 October 2001 are confirmed; (3) the
appellants are entitled to credit for the time they have spent in
custody; and (4) the application by HD to have his appeal against
conviction reconsidered was rejected.
n Rape as a violation of the laws or customs of war
THE PROSECUTOR v ANTO FURUNDZIJA
ICTY, Judgment of the Trial Chamber, 10 December 1998, and
Judgment of the Appeals Chamber, 21 July 2000
F was the local commander of a special unit of the military police of
the Croatian Defence Council known as the ‘Jokers’. He was an active
combatant and had engaged in hostilities against the Muslim
community in the Lasva Valley area. On or about 15 May 1993,
Witness A, a Muslim civilian and non-combatant residing in Vitez,
was arrested by a member of the Jokers and was taken to the
‘Bungalow’, the Jokers’ headquarters. Witness A was detained and F
began to interrogate her about a list of Croatian names and the
activities of her sons. During the questioning, a soldier forced Witness
A to undress and then rubbed his knife against her inner thigh and
lower stomach and threatened to put the knife inside her vagina if
she did not tell the truth. Thereafter Witness A was moved to another
room at the Bungalow and Victim B, a Bosnian Croat who had
previously assisted Witness A’s family, was brought into the room.
Victim B appeared to have been beaten badly. While F continued to
interrogate Witness A and Victim B, the same soldier beat both of
them with a baton on their feet and then forced Witness A to have
oral and vaginal intercourse. F did nothing to intervene or prevent
these acts.
On 10 November 1995, an indictment against F was confirmed
charging him with a grave breach of the Geneva Conventions and
violations of the laws or customs of war. F was charged with three
individual counts: (1) torture and inhuman treatment; (2) the violation
of the laws or customs of war relating to torture; and (3) the violation
of the laws or customs of war relating to outrages upon personal
dignity, including rape.
On 10 December 1998, F was found guilty by the Trial Chamber for
being (1) a co-perpetrator of torture in violation of the laws and
customs of war and (2) an aider and abettor of outrages upon
personal dignity, including rape. He was sentenced to ten years
imprisonment for the first conviction and eight years imprisonment
for the second conviction, to run concurrently.
The Trial Chamber held that: (1) at the material time, a state of armed
conflict existed in Bosnia and Herzegovina and there was a
connection between the armed conflict and the charges against F; (2)
the prohibition against torture has attained the status of jus cogens,
which can be defined as a peremptory norm of international law from
which no derogation is permitted; (3) in a situation of armed conflict,
the elements that need to be shown to prove torture are (a) that there
is infliction, by act or omission, of severe pain or suffering, whether
physical or mental and, (b) this act or omission must be intentional,
(2004) 14 INTERIGHTS Bulletin
it must aim at obtaining information or a confession or at punishing,
intimidating, humiliating or coercing the victim or a third person or
at discriminating on any ground against the victim or a third person,
(c) it must be linked to an armed conflict; and (d) at least one of the
persons involved must be a public official or must at any rate act in a
non-private capacity; (4) as to individual criminal responsibility under
Article 7(1) of the Statute, aiding and abetting under international
criminal law requires practical assistance, encouragement or moral
support having a substantial effect on the perpetration of the crime
and knowledge that such acts assist the commission of the offence;
(5) an accused who is liable for aiding and abetting is responsible as
a co-perpetrator of torture, if he or she participates in an integral part
of the torture and partakes of the prohibited purpose behind the
torture; (6) F’s intention was to obtain information from Witness A by
causing her severe physical and mental suffering and was present in
both rooms where she was interrogated; (7) with regard to Witness
A, the elements of torture have been met and F is a co-perpetrator
by virtue of his interrogation of her as an integral part of the torture;
(8) the elements of torture were also satisfied with respect to Victim
B, as he was physically beaten and forced to watch sexual attacks on
Witness A, a woman whom he knew as a friend and F is liable as a
co-perpetrator; (9) rape and other serious sexual assaults in situations
of armed conflict entail criminal liability of the perpetrators; (10) in
certain circumstances, rape may amount to torture under
international law; (11) it is appropriate to expand the definition of
rape from that used by the ICTR in the Akayesu case and followed by
the ICTY in Elebi – which defined rape in only the broadest terms as
‘a physical invasion of a sexual nature, committed on a person under
circumstances which are coercive’; (12) the objective elements of rape
shall be: ‘(i) the sexual penetration, however, slight (a) of the vagina
or anus of the victim by the penis of the perpetrator or any other
object used by the perpetrator; or (b) of the mouth of the victim by
the penis of the perpetrator; (ii) by coercion or force or threat of force
against the victim or a third person’; (13) while it was not disputed
that Witness A was raped and the elements of rape, and as she
suffered great pain and suffering and also humiliation as they were
committed publicly, there was an outrage upon her personal dignity
and sexual integrity; and (14) while F claims he did not personally
commit the rape, F’s presence and continued interrogation of Witness
A encouraged the soldier and aided and abetted the crimes
committed by the soldier and, as such, F is individually responsible for
the outrages upon personal dignity, including rape, a violation of the
laws or customs of war under Art 3 of the Statute. F’s appeal of his
conviction was denied on all grounds.
n Right to freedom from torture in connection with
deportation - violation of Art 3 of the ECHR
n Right to effective remedy - violation of Art 13 of the
ECHR
JABARI v TURKEY
Judgment of the ECtHR, 11 July 2000
J, an Iranian national, was arrested in October 1997 in Iran for
walking with a married man. In November 1997, fearing that she
would be convicted of having committed adultery, an offence under
Islamic law, and sentenced to be stoned to death or flogged, J fled
to Turkey illegally. Subsequently, in February 1998, J tried to fly from
Istanbul to Canada via France using a forged passport. She was
stopped in Paris and sent back to Turkey where she was arrested for
using a forged passport. No charges were brought against J for the
forged passport but her deportation was ordered. J then lodged an
asylum application, which was rejected by the Turkish authorities
because she did not comply with the law that applications must be
filed within five days of arrival. On 16 April 1998, J was granted
refugee status by the UN High Commissioner for Refugees (UNHCR)
on the basis that she had a well-founded fear of persecution if removed
to Iran as she risked being subjected to inhuman punishment. She
169
lodged an application against her deportation but her petition was
rejected on the grounds that it was not tainted with any obvious
illegality and its implementation would not cause her harm.
On 26 February 1998, J filed an application with the Commission
against Turkey alleging that she would be subjected to a real risk of
ill-treatment and death by stoning if expelled from Turkey and that
she was denied an effective remedy to challenge her expulsion in
violation of Articles 3 (right to freedom from torture or inhuman or
degrading treatment or punishment) and 13. The application was
transferred to the Court on 1 November 1998. On 28 November
1999, the application was declared partly admissible.
The Court held that: (1) Article 3 enshrines one of the most
fundamental values of a democratic society and prohibits in absolute
terms torture or inhuman or degrading treatment or punishment and,
as such, rigorous scrutiny must be conducted of an individual’s claim
that deportation to a third country will expose them to treatment
prohibited by Art 3; (2) it is well established in the case law that
expulsion by a state may give rise to an Art 3 violation where
substantial grounds have been shown for believing that someone
would face a real risk of being subjected to treatment contrary to Art
3 if expelled; (3) the Turkish authorities had failed to conduct any
meaningful assessment of J’s claim and that her failure to comply with
the five-day registration requirement had denied her any scrutiny of
the factual basis of her fears of being removed to Iran; (4) the
automatic and mechanical application of such a short time limit for
submitting an asylum application must be considered at variance with
the protection of the fundamental value embodied in Art 3; (5) the
punishment of adultery by stoning remained on the statute book in
Iran and, therefore, there was a real risk of J being subjected to
treatment contrary to Art 3 if she were to be returned to Iran; (6) the
order for J’s deportation would, if executed, give rise to a violation of
Art 3; (7) given the irreversible nature of the harm that might occur
if the risk of torture materialised, the notion of an effective remedy
under Art 13 requires independent and rigorous scrutiny of a claim
that there is a real risk of a violation of Art 3 occurring and the
possibility of suspending the implementation of the measures; (8)
since the Turkish Court failed to undertake an independent and
rigorous scrutiny of J’s claim, the judicial review process did not satisfy
Art 13; and (9) the finding of violation constitutes in itself just
satisfaction for any non-pecuniary damage and the sum J received by
way of legal aid from the Council of Europe covered adequately any
costs and expenses incurred in connection with the Convention
proceedings.
170
(2004) 14 INTERIGHTS Bulletin
Practice & Procedure
The United Nations Special Rapporteur on
Violence Against Women: Creating Space for
Feminist Intervention or Perpetuating the Notion
of the ‘Universal Subject’?
Ambika Satkunanathan
‘…the Violence Against Women (VAW) discourse has succeeded partly
because of its appeal to the victim subject. In the context of law and human
rights, it is invariably the abject victim subject who seeks rights, primarily
because she is the one who has had the worst happen to her…The victim
subject ultimately relies on a universal subject – the subject that resembles
the uncomplicated subject of liberal discourse. It is a subject that cannot
accommodate a multi-layered experience’1
The office of UN Special Rapporteur
on Violence Against Women (SRVAW)
was created in 1994 after consistent
lobbying by women’s groups, and Radhika
Coomaraswamy of Sri Lanka was
appointed as the first Special Rapporteur.
In 2003 she was succeeded by Yakin
Ertürk from Turkey. The nine-year tenure
of the first SRVAW placed many hitherto
ignored issues on the international human
rights agenda and created space for discussion on violence against women, its causes
and consequences. At the same time criticism has been levelled by feminist legal
scholars that the violence against women
discourse and its attendant structures and
tools have contributed to gender essentialism and the creation of a ‘universal’
subject who invariably resembles the
woman of the first world. This article
discusses the contribution of the SRVAW
to international human rights discourse
and considers the impact of her work on
the campaign to eliminate violence against
women in light of these criticisms. This
study highlights the inherent contradictions and obstacles rights groups and
activists encounter when they seek to
ensure that the multiple identities and
experiences of the ‘subject’ are not erased
when engaging with the international
human rights discourse, which has as its
foundation a ‘universal’ legal framework.
(2004) 14 INTERIGHTS Bulletin
Mandate
The SRVAW’s mandate requires her to
‘seek and receive information on violence
against women, its causes and consequences’, to ‘work closely with other
special rapporteurs, special representatives, working groups and independent
experts of the UN Commission on Human
Rights and the Sub-Commission on the
Prevention of Discrimination and
Protection of Minorities and with the
treaty bodies’2 and to ‘recommend
measures, ways and means, at the
national, regional and international levels,
to eliminate violence against women and
its causes, and to remedy its consequences’3. The UN Convention on the
Elimination
of
All
Forms
of
Discrimination
Against
Women
(CEDAW), 1979 and the UN General
Assembly Declaration on the Elimination
of Violence Against Women, 1993 form
the framework for her work.
In carrying out her mandate the
SRVAW has used three procedures: she has
presented reports to the Commission on
Human Rights, undertaken field visits and
received individual complaints. In this
process she has engaged with and sought
information from governments, other
special rapporteurs, specialised agencies,
inter- and non-governmental organisations (NGOs).4 With the aim of enhancing
the gathering of information, the SRVAW
has also developed an Information Form
to encourage individuals and organisations to report specific instances of
violence against women.5 When the
SRVAW receives individual petitions on
specific instances of rights violations she
writes to the state concerned and informs
it of the allegations received. Most often
the state responds by setting out the action
taken in the case, and/or other measures
put in place to address violence against
women. If the SRVAW is not satisfied with
the response she may request the state to
provide further information or make
recommendations as to the state’s action,
in both the particular case and more
generally. The SRVAW’s report is
presented annually to the Commission on
Human Rights.
It is evident from the mandate of the
SRVAW that her role is to highlight the
importance of addressing violence against
women and to persuade states to take
action. The aim is to create space within
the international human rights discourse
for the issue and through engagement with
governmental and non-governmental
institutions to explore and formulate ways
and means to eliminate violence against
women. However, as argued by Ratna
Kapur, the focus of the violence against
women discourse on the ‘victim subject’
can contribute to the perpetuation of the
notion that women are persons without
agency, and unwittingly rob them of the
power to make choices regarding their
lives. Another problem identified by
Kapur is the creation of a ‘universal’
subject, which can reinforce ‘gender and
cultural essentialism in the international
women’s human rights arena’.6 While
acknowledging the validity of Kapur’s
argument, the creation of the role of
SRVAW has undeniably drawn attention
to the seriousness of the issue and
increased its visibility. Although the UN
structure within which the SRVAW has to
function is at best a difficult and extremely
political environment, which mirrors (and
some may argue perpetuates) many of the
existing global inequalities between and
within states, it also provides many opportunities to pressurise governments to accept
the seriousness of violence against women.
The Role of NGOs
The role of NGOs is crucial to this
process as they not only provide additional
and alternative information to the SRVAW
on violations, which enables her to
pressure states to take measures to address
the issue, but they can also ensure that the
171
integrity and particularity of the ‘subject’
is preserved. The Asia Pacific Forum on
Women, Law and Development’s
(APWLD) description of regional consultations it held with the SRVAW underscores the importance of the NGO role in
enhancing the effectiveness of the work of
the SRVAW. The Forum reported:
‘Overall,
APWLD
found
the
consultations useful to women’s groups
working to combat violence against
women, primarily because of the faceto-face and direct access to the SRVAW
it provided. Women’s groups were in
turn able to provide her with critical
information on political realities, sociopolitical contexts and specific cases, not
otherwise as readily available to the
SRVAW office. The consultations also
provided an opportunity for collective
engagement and analysis that encouraged the critiquing and re-examining of
current strategies.’7
The SRVAW contributes to standard
setting and raising awareness about
violence against women. However, while
engaged in this process within the international legal framework of the UN which
lays claim to ‘universality’, the SRVAW
may contribute to ‘the fixing and universalising of identity’8. Hence, it is imperative that any process or structure that
makes interventions on the issue of
violence against women adopts an
approach that takes into account historic,
socio-economic and cultural realities with
the aim of eliminating systemic and
institutional inequality.
In addition, the process should be
based on the understanding that although
women have become increasingly
successful in creating space for themselves
within the very masculine domain of law,
their engagement with the law is vastly
different to that of men. The reports of the
SRVAW illustrate that her engagement in
the rights discourse is based on an awareness of these realities, as she has focused on
the impact of the intersectionality of such
factors as identity, race, ethnicity, class,
age and situation on the causes of violence
against women. Feminist activists and
rights NGOs should continuously engage
with the SRVAW and through support and
constructive criticism help shape her
mandate and work. For example, during
regional consultations after the release of
her report on trafficking in 2000, the
SRVAW was questioned by many women’s
groups as to why she had not included the
diverse views expressed to her prior to the
172
preparation of her report.9 Women’s
groups used the space available to them to
question the SRVAW on aspects they
found to be unsatisfactory in her report. It
not only provided an opportunity for the
SRVAW to respond and explain her
actions but also ‘aided the collective
conceptualisation of trafficking, as well
the strategies to address it.’10 As the
mandate of the SRVAW is broad and the
working methods and processes flexible,
there is space available for interventions by
NGOs and activists within the otherwise
restrictive and bureaucratic environment
of the UN.
United Nations Special Rapporteur on Violence
Against Women, APWLD, Thailand, p.2.
8 Menon, N., ‘Rights, Bodies and the Law’, (1999)
Gender and Politics in India, Oxford University
Press, New Delhi, p285.
9 APWLD, supra note 9, p25.
10 Ibid.
11 Mohanty, C., ‘“Under Western Eyes” Revisited:
Feminist Solidarity through Anticapitalist
Struggles’, Signs: Journal of Women in Culture and
Society 28(2), 2002, p530.
Conclusion
Although UN mechanisms may not
always provide the answers to the
problems of violence against women, they
could be made more effective and sensitive
to the ‘subject with multiple identities’ by
the constant and consistent engagement of
rights groups, activists and NGOs. The
SRVAW is a case in point. While the
SRVAW contributes to standard setting
and awareness raising, the inherent limitations of the office require creative methods
to enhance the effectiveness her work. In
the words of Chandra Mohanty:
‘A transnational feminist practice
depends on building feminist solidarities
across the divisions of place, identity,
class, work, belief, and so on. In these
very fragmented times it is both very
difficult to build these alliances and also
never more important to do so.’11
Rights groups and activists should
therefore through creative interventions
shape and influence the office of the
SRVAW so that it becomes the catalyst for
such engagement and building of solidarity
between women’s groups. n
Ambika Satkunanathan is a
Researcher/Co-ordinator for the
Programme on Constitutionalism &
Human Rights, International Centre for
Ethnic Studies, Colombo.
1
2
3
4
5
6
7
Kapur, R., ‘The Tragedy of Victimization
Rhetoric: Resurrecting the “Native” Subject in
International Post-Colonial Feminist Legal
Politics’, Harvard Human Rights Journal 15, 2002,
pp.2–3.
Ibid.
Ibid.
Ibid, p5.
Available at <ww.unhchr.ch/html/menu2/7/b/
women/womform.htm>.
Kapur, supra note 1, p1.
Asia Pacific Forum on Women, Law &
Development (2003) Standpoint/View Point:
Guidelines for Regional Consultations with the
(2004) 14 INTERIGHTS Bulletin
Practice & Procedure cont.
CEDAW’s Optional Protocol Procedures
Catherine MacKinnon
he Optional Protocol to the Convention on the Elimination of
All Forms of Discrimination against Women1, which came into
force on 22 December 2000, put a new legal tool into the hands of
women, empowering them to claim their internationally protected
equality rights2.
T
If justice inheres in procedures, it has
been long in coming under the Convention
on the Elimination of All Forms of
Discrimination
against
Women
(CEDAW)3. For 20 years, CEDAW’s
substantive guarantees have been marginalised and disregarded, hampered by
multiple reservations4 and enforcement
limited to reporting5. Lack of procedural
mechanisms has constrained CEDAW’s
effectiveness against official acts and
failures to act, and against those interactions of state with non-state action that so
powerfully enforce women’s subordinate
status and treatment6. Laws that discriminate against women remain in effect in
ratifying countries around the world7.
CEDAW’s mandates to promote women’s
equality in political, economic, social, and
cultural life8 are widely ignored. CEDAW’s
efficacy as a force for change – from transforming social and legal norms to initiating
domestic legislative and policy reform to
strengthening forces for equality in civil
society – has been seriously undermined.
If women take it up and use it, the
Optional Protocol could end that. It
encompasses all provisions in CEDAW,
not just those expressly stated in terms of
rights9. Under it, the Committee on the
Elimination
of
All
Forms
of
Discrimination Against Women (the
Committee), the treaty body of elected
experts that interprets CEDAW10, receives
complaints. Two mechanisms are available: individuals and groups can initiate
communications11, and the Committee can
undertake inquiries based on information
submitted to it showing ‘grave or systematic violation’12. States can opt out of the
inquiry procedure but, uniquely among
comparable instruments, the Optional
Protocol permits no reservations13.
(2004) 14 INTERIGHTS Bulletin
Standing to initiate a communication
for ‘victims’14 is confined to individuals or
groups of individuals who claim actual
injury due to CEDAW violations. Others
can act on their behalf15 with their consent,
or if good reasons exist that their consent
should not be required16. The scope of
permitted representation and requisite
consent will be determined by the
Committee, no doubt influenced by the
practices of other treaty bodies with
complaint mechanisms, although enabling
women to claim their rights as women may
call
for
independent
solutions.
Anonymous complaints are not allowed17,
but an unprecedented prohibition on
retaliatory ‘ill-treatment or intimidation’
provides some promise of security18.
Together, these provisions give NGOs a
legitimated role in the complaint process,
expanding the practical possibility of
bringing claims, while at the same time
ensuring that complaints are grounded in,
and hopefully are accountable to, real
people who have suffered real human
rights violations. The compromises behind
these provisions balance legitimacy with
practicality and realism.
Admissibility criteria under the
Optional Protocol leave latitude for
Committee interpretation as well. ‘All
available domestic remedies’, must be
exhausted unless ‘unreasonably prolonged
or unlikely to bring effective relief’.19
Domestic laws against CEDAW violations
often exist but are not effectively enforced,
such as those against domestic violence;
some are largely ineffectual by their
design, such as laws against pornography.
When CEDAW violations are pervasively
tolerated, can formal laws against them be
construed as ‘unlikely to bring effective
relief’? What about groups of women chal-
lenging partial remedies, such as laws that
produce more women in public office but
do not solve their dramatic underrepresentation, or quotas of less than 50 per
cent? What might a complainant be
required to do to exhaust domestic
remedies to complain about lack of legal
remedies for sex discrimination in civil
society in light of Article 2 (e)’s requirement that states parties take all appropriate measures against discrimination ‘by
any person, organization or enterprise’?
Only domestic remedies need be
exhausted, not international ones. Indeed,
the Optional Protocol’s communication
procedure (not the inquiry procedure) is
exclusive20. But will European procedures,
embedded in the laws of each country,
have to be exhausted, or will they be
regarded as conflicting? Perhaps, if a
remedy is incorporated in domestic law, it
is required by, but not preclusive of, the
Optional Protocol, or perhaps it is not
required at all. Exhausting remedies
without exhausting women may prove
challenging or unproblematic.
Communications are examined in
‘closed meetings’,21 with the Committee’s
views transmitted to the parties22.
Inquiries ‘shall be conducted confidentially’; much depends on the level of cooperation of the state party, to whom the
Committee’s views are communicated23.
Nothing makes the fact of a decision to
hold an inquiry necessarily secret,
however, just as nothing formal restricts
disclosures by states parties subject to
inquiries or by others involved in the
process, such as those submitting information requesting an inquiry be initiated. As
confidentiality of inquiries exists for the
benefit of the state party, presumably the
state could waive it, enhancing the visibility and transparency, and with it the
effectiveness, of the proceedings. Decisions
in communications are to be made public
by the Committee, with the state undertaking to facilitate access to them.
Uniquely among comparable instruments, states must provide a written
response to communications within six
months25. Interim measures are available
‘to avoid possible irreparable damage’.26
As usual with human rights treaties, the
Optional Protocol provides no enforcement power as such. Outcomes are effectuated by voluntary compliance27. The
visibility and legitimacy of the process
becomes particularly crucial when
enforcement depends on the mobilisation
of shame, which relies mainly on public
pressure. Apart from the educational
173
function of the proceedings themselves,
Optional Protocol cases can help bring
attention to issues in the national context,
encouraging domestic change against
systemic discrimination in particular and
supporting civil society initiatives as well
as official ones28. The procedure’s publicity
requirements29 are designed to sustain
these functions. Hopefully they will not
be ignored.
Untried procedures are doubtless
daunting, and women encounter specific
barriers in accessing their human rights.
To date four communications have been
registered30; the Committee has also
accepted and begun work on an inquiry
into the decade-long ongoing disappearances and murders, many of them sexual,
of women in Ciudad Juarez, Mexico, with
virtual official impunity. More cases may
be expected as word spreads that the
Committee is open for business. Inviting
early complaints include the many
discriminatory laws, policies, and practices that blatantly violate CEDAW’s
substantive provisions, such as nationality,
inheritance, and property laws that give
women lesser rights, domestic violence
cases where national law has not provided
an adequate remedy, and labour laws that
categorically exclude labour that women
commonly perform, such as domestic
work. As the jurisprudence develops,
innovative uses may emerge. Victims of
discrimination need not be nationals of
the country they complain against, so a
survivor of trafficking (for example) might
complain against a ratifying destination
country, if she was under its jurisdiction
when the violation occurred. Eventually,
broad reservations that undermine
CEDAW’s universality might be challenged in appropriate cases for incompatibility with CEDAW’s object and purpose.
Human rights cannot depend
exclusively for their implementation on
states – the entities that violate, and permit
violations of, those rights. The new
compliance mechanism offered by the
Optional Protocol encourages action on
the international level by women who have
been harmed by discrimination – whose
numbers are legion – supported by NGOs
in exposing governmental failures and
social patterns of abuse and by lawyers
independent of their governments’ control
and unafraid of their displeasure. As the
process brings international credibility to
equality-seekers, women will bring credibility and vitality, imagination and energy,
to CEDAW, illuminating its applicability
to their lives in diverse cultural settings.
174
By handing women power to complain
against discrimination, the Optional
Protocol at once holds out the possibility
of reinvigorating the international human
rights framework and hope for equality
to women. n
Catherine MacKinnon is Co-Director of
Equality Now’s Lawyer’s Alliance for
Women (LAW) Project31, New York. She
is a Professor of Law at the Universities of
Chicago and Michigan, USA.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
UN Doc. E/CN.6/1999/WG/L.2, 1999 available at
< w w w. u n . o r g / wo m e n w a t c h / d a w / c e d a w /
protocol/op.pdf>.
For further analysis, see Hoq, L.A., ‘The Women’s
Convention and its Optional Protocol:
Empowering
Women
to
Claim
their
Internationally Protected Rights’, Colum. Hum.
Rts. L. Rev. 32, 2001, p677.
UN Doc. A/RES/34/180, 1979.
See Meeting of States Parties to the Convention on
the Elimination of All Forms of Discrimination
Against Women, Declarations, Reservations,
Objections and Notifications of Withdrawal of
Reservations Relating to the Convention on the
Elimination of All Forms of Discrimination against
UN
Doc.
CEDAW/SP/2002/2;
Women,
Charlesworth, H. and Chinkin, C., (2000)
Boundaries of International Law: A Feminist
Analysis, Manchester University Press Melland
Schill Studies, pp.102-113.
Article 18 of CEDAW contains reporting
requirements. CEDAW’s Article 29’s interstate
procedure is highly reserved and has never been
used. For concern over lack of enforcement
mechanisms, see Byrnes, A. and Connors, J.,
‘Enforcing the Human Rights of Women: A
Complaints Procedure for the Women’s
Convention - Draft Optional Protocol to the
Convention on the Elimination of All Forms of
Discrimination against Women’, Brooklyn J. Int’l
L. 21, 1996, p679; Bayefsky, A.F. (2001) The UN
Human Rights Treaty System: Universality at the
Crossroads, Transnational Publishers.
As recognised, for example, in General
Recommendation 19 (11th Session, 1992).
See ‘Words and Deeds: Holding Governments
Accountable in the Beijing + 10 Review Process’
(March 2004) at <www.equalitynow.org>.
Examples include Article 2’s reference to
abolishing ‘customs and practices which constitute
discrimination’, Article 4’s provisions for
temporary special measures to achieve affirmative
action, Article 5’s mandate to modify culture to
equalise women’s status and treatment, Article 6’s
measures against exploitation of trafficking in
women, and CEDAW’s application to ‘private life’,
including marriage and family as in Article 16.
These provisions reach farther than the sex
equality protections of most national and
international instruments.
Procedures are an exception. For travaux, see
‘Division for the Advancement of Women,
Department of Economic and Social Affairs, The
Convention on the Elimination of All Forms of
Discrimination against Women’, (2000) The
Optional Protocol: Text and Materials, United
Nations.
As with other treaty bodies, concerns expressed
include non-lawyer adjudicators and political
influence, both of which are also possible in
domestic courts.
Articles 2-7.
Article 8.
Article 17.
See Article 2.
Article 2. For analysis of pre-ratification debate,
see Sucharipa-Behrmann, L., ‘The Individual
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
Complaints Procedure Provided for by the
Optional Protocol to CEDAW: A First
Evaluation’, in (1999) Development and Developing
International and European Law, Peter Lang,
pp.658–9.
Article 2.
Article 3.
Article 11.
Article 4.
Article 4 (2).
Article 7 (2).
Article 7 (3).
Article 8 (5) (confidentiality and cooperation), 8
(1) and (5) (cooperation invited) and 8 (3)
(transmission).
Article 13; CEDAW Rules of Procedure, Rule 74.
Article 7 (4).
Article 5 (1).
For a view that most laws work this way most of
the time, see Merry, S.E., ‘Constructing a Global
Law-Violence Against Women and the Human
Rights System’, Law & Soc. Inquiry 28, 2003, p941.
For some such effects, see Centre for Feminist
Research, York University, and the International
Women’s Rights Project (2000) The First CEDAW
Impact Study: Final Report, Toronto; Keck, M.E.
and Sikkink, K. (1998) Activists Beyond Borders:
Advocacy Networks in International Politics,
Cornell University Press.
See Articles 12 and 13.
See Annual Report of the 28th/29th Session,
of
the
Working
Group
on
Report
Communications, A/58/38 Annex 9, 2003, and
A/59/38 (Part I), 2004.
The LAW Project is now available through
[email protected] to consult with individuals
or organisations who are interested in using the
Optional Protocol to challenge sex discriminatory
laws or practices in their country, and have
questions or seek assistance.
(2004) 14 INTERIGHTS Bulletin
Practice & Procedure cont.
Promoting Women’s Rights through Ad Hoc
International Tribunals1
Mandiaye Niang
n Resolution 1325 of 31 October 2000 devoted to women and peace
and security, the UN Security Council ‘express[ed] concern that
civilians, particularly women and children, account for the vast majority
of those adversely affected by armed conflict, including as refugees and
internally displaced persons, and increasingly are targeted by combatants
and armed elements…’ The armed conflicts in the Balkans and in
Rwanda in the early 1990s were no exception to this unacceptable yet
continuing systematic practice of targeting these susceptible categories of
the population. Various reports prepared by UN experts2 or issued by
NGOs3 overwhelmingly reflect that women were raped and sexually
assaulted as a means to destroy the group to which they belonged.
I
The UN established the International
Criminal Tribunals for the Former
Yugoslavia (ICTY) and for Rwanda
(ICTR) as one of the international
community’s responses to ending the
impunity of those persons responsible for
genocide and other serious violations of
international humanitarian law. The work
of these ad hoc international tribunals has
acknowledged the plight of women who
were targeted by warring factions even
though they constituted no legitimate
threat to the warring parties.
The ICTY and ICTR Statutes unfortunately contain no provisions for the
direct financial compensation of victims.4
The ad hoc International Tribunals
nonetheless provide other forms of reparations for victims of rape, which are
equally important as financial compensation. The ad hoc International Tribunals
offer victims of rape an important forum
to tell their story and to receive public
acknowledgement and condemnation of
their victimisation.
Victims of sexual violence all too
frequently continue to bear the indelible
marks of their ordeal. Social misconceptions often prevent rape victims from
confiding their grief. In response to these
realities, the ad hoc International
Tribunals have developed special protection methods to make these victims feel
(2004) 14 INTERIGHTS Bulletin
more at ease and confident enough to
testify. For example, the Statute and Rules
of the ICTY and ICTR allow for public
anonymity during testimony to make the
victims feel more secure.5 When this
anonymity is coupled with medical and
psychological support,6 victims are
provided with an environment sufficiently
safe for them to confront their alleged
aggressor.
The ICTY and ICTR have gone
further in the protection of victims of
sexual violence. Specific procedural rules
have been put in place to crush the
negative impact of some of the myths
which usually surround the common
perception of rape and which shift the
focus from the perpetrator to the victim.
Among those misconceptions is the
common belief that rape is often perpetrated with the passive (implied) consent
of the victim,7 the absence of physical
injuries being the strongest evidence from
which to infer consent. Other misconceptions include assertions that claims of rape
are attempts to cover up the victim’s own
provocative or inviting behaviour.
The Statutes of the ICTY and ICTR
and their procedures to some extent go
against these trends. They are premised on
the reality that when women do not offer
any resistance to their rapist it is because
they fear for their lives or are in a situation
depriving them of their normal defensive
reactions. Another premise upon which
the ICTY and ICTR base their decisionmaking is that there is no credible study or
data to suggest that women have greater
propensity to lie than men. Based upon the
foregoing premises, the ICTY and ICTR
have opted in their Rules to attach a
presumption of truthfulness to the
accounts of women who allege to have
been raped or sexually assaulted. For
example, no corroboration of their testimony is required and their evidence alone
may support a conviction.8 The Rules
make it difficult to undermine the credibility of victims of rape on account of
claims of consent9 or their previous sexual
conduct.10
The ICTR has also realised that there
was an important risk of further traumatising victims of rape by exposing them to
hostile cross-examinations. This is particularly true in the Rwandan context where
women are often introverted and unforthcoming on sex-related issues. This has
prompted the establishment of training
programmes and seminars by the ICTR
Registrar’s Gender Adviser to sensitise all
actors in the judicial process as to the best
way to elicit evidence from victims of rape
without adversely impacting the witness.11
Rape has been considered a war crime
or crime against humanity under
customary international law as well as
under relevant international conventions
long before the inception of the ICTY and
ICTR.12 Nevertheless it was a major
advance for the Security Council to codify
rape as a crime against humanity in the
ICTY/R Statutes and as a violation of
Geneva Conventions, common article 3 in
the ICTR Statute. Human rights activists
and particularly NGOs in support of
women’s human rights rapidly realised the
International Tribunals’ potential for
advancing the law on rape with respect to
each of the three serious international
crimes, and decided cases have developed
this. The crime of genocide also offered an
opportunity for the development of new
jurisprudence on gender-based crimes,
which contain no specific reference to rape.
The Akayesu case13 gave full vent to the
undertaking of that venture. In the course
of the trial new evidence on rape unfolded.
The Prosecutor, encouraged by the
Women’s Coalition for Human Rights,
requested leave from the judges to amend
the indictment and introduced therein
allegations of rape as a form of genocide.14
A conviction was eventually entered on
175
that count.15 This pronouncement was a
breakthrough, as for the first time in
history rape was recognised in international law as constituting genocide when
committed with the specific intent of
eradicating an ethnic entity.
Rape being now part of each of the
three major crimes in international law,
the next step was to widen its scope so as
to embrace the various situations where
women may be affected without necessarily having been subjected to sexual
intercourse. The Musema judgment
crossed this threshold by equating rape
with any form of sexual violence:16
‘The essence of rape is not the particular
details of the body parts and objects
involved, but rather the aggression that
is expressed in a sexual manner under
conditions of coercion…
The Chamber considers …forced
penetration of the mouth as a humiliating and degrading attack on human
dignity and largely for this reason
included such conduct in its definition of
rape even though State jurisdictions are
divided as to whether such conduct
constitutes rape. The Chamber further
notes, as the Furundzija Judgement
acknowledges, that there is a trend in
national legislation to broaden the
definition of rape. In light of the
dynamic ongoing evolution of the understanding of rape and the incorporation
of this understanding into principles of
international law, the Chamber
considers that a conceptual definition is
preferable to a mechanical definition of
rape. The conceptual definition will
better accommodate evolving norms of
criminal justice.’
Systematising the prosecution of rape
would now be the finishing touch to win
definitively the battle for the full acknowledgement of rape as an egregious and
unacceptable practice. The ICTR records
do not seem impressive at first glance,17
which has not pleased the NGOs at the
forefront of the battle for the promotion of
the rights of women. NGOs have made
attempts to take over the responsibility of
the Prosecutor and have requested the
judges to order insertion of rape charges in
the indictment whenever evidence was
available.18 Although sympathetic to their
cause, the judges could not uphold such a
stand as it would have amounted to an
impermissible infringement upon the
Prosecutor’s independence.19
176
The ICTR’s Prosecutor does not lack
sensitivity on issues of rape. The misunderstandings encountered with NGOs as
to the opportunity to prosecute on rape
charges may derive from a different assessment of the quality of the evidence. NGOs
have sometimes only a remote and hazy
perception of the evidence of witnesses
and would encourage prosecution even
where there is the slightest chance to gain
a conviction. As the architect of the case,
the Prosecutor must be more selective in
his approach.
The International Tribunals’ prosecution policy has focused on high profile
figures, most of whom incur essentially
command responsibility for the acts of
their subordinates. The successful prosecution of such persons will require other
proof than the sole credible evidence of
rape. Therefore, it may often be important
to be cautious when embarking on a
venture where the outcome might be a
setback for the victims and might thereby
further their trauma. The Appeals
Chamber of the ICTY and ICTR, in
reversing a conviction of rape in Musema20
sent a clear signal that sympathy for the
victims is not a free ride to successful prosecution. The best way to acknowledge the
plight of victims of rape in the judicial
forum is to ensure that by presenting a
strong case the alleged perpetrators for
this horrendous crime do not get away
with their crimes. n
7
8
9
10
11
12
13
14
15
16
17
18
Mandiaye Niang is the Special Assistant
to the Registrar of the International
Criminal Tribunal for Rwanda.
1
2
3
4
5
6
The opinions expressed in this article are the
author’s and do not necessarily represent those of
the ICTR or the UN.
Reports of the Special Rapporteur for Rwanda of
the United Nations Commission on Human
Rights, S/1994/1157, annex I and annex II.
See ‘Rwanda: “Marked for Death”, Rape
Survivors Living with HIV/AIDS in Rwanda’ at
<www.amnesty.org.uk/svaw>.
ICTY/R Rule 106 however provides that a
judgment convicting the accused may serve as a
legal basis for a victim to bring an action before a
national court to obtain compensation without
having to re-litigate the findings already made in
respect of the responsibility of the convicted
person.
ICTY/R Rules 53, 69, 75 and 79 provide for the
possibility to withhold from the public and, to a
certain extent, from the opposing party, the
identifying particulars of a witness who requires
protection.
ICTY/R Rule 34 dictates that the Registrar set up
a Victims and Witnesses Unit. The Unit is required
to
provide
physical
and
psychological
rehabilitation, especially counseling in cases of
rape and sexual assault.
19
20
Report of the Gender Adviser to the Registrar of
the ICTR (Elsie Effange-Mbella) following the
seminar held on 14 May 2004 in Arusha in which
Judge Mary Davis from the US discussed myths
surrounding rape.
This does not mean that every testimony of the
kind will be taken at face value. Such testimony
must successfully pass the test of crossexamination and the judges will still exercise the
shrewdness expected of them in evaluating any
evidence.
ICTY/R Rule 96 excludes the consent of the victim
as a defence of estoppel when there is a direct or
indirect threat to the victim. The threat may arise
only out of the perception of the victim. The same
exclusion applies if the victim believed reasonably
that if she did not submit another person might be
put at risk.
Rule 96 declares inadmissible such a defence.
The seminar referred to above is part of this new
endeavour.
For example the Geneva Conventions of 1949
make reference to rape as a prohibited act.
The Prosecutor v Akayesu, Case No. ICTR-96-4-T,
2 September 1998 (see p164 of this issue).
Ibid. para. 417.
The Genocide Convention refers to, ‘causing
serious bodily or mental harm to members of the
group’, as a means to commit genocide when
carried out with the intent to destroy a protected
group in whole or in part. It was held in Akayesu,
supra note 13, para. 707, that rape was perpetrated
against Tutsi women with this objective in mind.
The Prosecutor v Musema, Case No. ICTR-96-13T, 27 January 2000, paras. 221–9 (see p166 of this
issue).
Rape was not systematically charged in all cases
before ICTR. Rape charges appear in the following
cases besides Akayesu and Musema: The
Prosecutor v Juvenal Kajelijeli, Case No. 98-44AT; The Prosecutor v Muhimana, Case No. ICTR95B-T; The Prosecutor v Nyiramasuhuko et al, Case
No. ICTR-97-21-T; The Prosecutor v Laurent
Semanza, Case No. ICTR-97-20-T; The Prosecutor
v Elizeyer Niyitegeka, Case No. ICTR-96-14-T;
The Prosecutor v Sylvestre Gacumbitsi, Case No.
ICTR-01-64-T. It should also be noted that The
Prosecutor v Kayishema and Ruzindana, Case No.
ICTR-95-1-T, para. 446, describes sexual
mutilation and death of a woman.
The Prosecutor v Ntagerura et al, Case No. ICTR99-46-T; Decision on the Application to File an
Amicus Curiae Brief According to Rule 74 of the
Rules of Procedure and Evidence Filed on Behalf
of the NGO Coalition for Women’s Human Rights
in Conflict Situations, 24 May 2001.
Ibid, paras. 21, 24.
Musema v The Prosecutor, Case No. ICTR-96-13A, 16 November 2001, para. 193 (see p166 of this
issue).
(2004) 14 INTERIGHTS Bulletin
Case Developments
Defending Reproductive Rights through
International Litigation: Coerced and Forced
Sterilisation in Peru and Slovakia
Christina Zampas
ne of the most fundamental aspects of achieving women’s equality
and ensuring global progress toward just and democratic societies is
ensuring that women have self-determination over their bodies, including
the right to decide whether and when to have children. Yet, in most
countries around the globe, women are still denied their reproductive
rights. For example, many lack access to quality maternal healthcare,
contraception, and safe, legal abortion. Women have also been coercively
sterilised or compelled to use contraception.
O
International litigation can play a
crucial role in protecting and promoting
reproductive rights and in ensuring appropriate remedies for victims. International
and national judicial bodies have fundamental roles to play in holding governments accountable for their actions or
inactions, as well as in ensuring that
human rights norms are interpreted and
enforced to protect reproductive rights.1
Where national level judiciaries fail to
protect women’s reproductive rights, advocates should consider an international
litigation strategy to hold their governments accountable for reproductive rights
violations.
The Inter-American and European
human rights systems have each dealt with
member state interferences in women’s
right to decide the number and spacing of
their children. A case settled last year
against Peru at the Inter-American
Commission on Human Rights (IACHR)
and a case currently pending before the
European Court of Human Rights
(ECtHR) against Slovakia show how international tribunals can be used to address
these reproductive rights violations and to
improve women’s fundamental right to
reproductive self-determination.
(2004) 14 INTERIGHTS Bulletin
Reproductive Rights
Jurisprudence: Sterilisation
Inter-American Commission on Human
Rights: Maria Mamérita Mestanza
Chavez v Peru, Case No.12.19
Facts
Maria Mamérita Mestanza Chavez, a
33-year-old rural Peruvian woman, was
coerced into agreeing to sterilisation by
government healthcare workers and was
repeatedly denied follow-up medical care
when complications ensued. The coercive
practices of government healthcare
workers in pressuring the victim to
undergo surgical sterilisation included
telling the victim that she would ‘stay
poor’ if she continued to have more
children, and that she needed to be ‘cured’
of having more children. In 1996, officials
from the Encañada District Health Center
threatened to report Chavez and her
partner to the police if she did not undergo
sterilisation, falsely telling them that
having more than five children was a
criminal offence punishable by a fine and
imprisonment. Finally, Chavez’s partner,
not Chavez herself, agreed to have her
undergo the procedure. The surgery was
performed without a prior medical examination and she did not sign a consent
form until the day after the surgery, when
medical personnel did not read the form to
her even though they knew she was illiterate. Chavez was discharged the same day
as the operation, despite vomiting and
severe headaches. As her condition
worsened, her partner repeatedly went to
the medical facility to seek help. Without
examining Chavez, doctors dismissed her
complications as harmless side effects of
anesthesia. She died from post-surgical
medical complications a week after her
surgery, leaving behind her longtime
domestic partner and their seven children.
Rights
Human rights groups filed a petition
with the IACHR in 1999, after domestic
remedies in Peru failed. A final settlement
before the IACHR was agreed in 2003.
Petitioners claimed that the government, through its health personnel,
violated the victim’s fundamental human
rights under various provisions of the
American Convention on Human Rights
(ACHR) and the Inter-American
Convention
on
the
Prevention,
Punishment and Eradication of Violence
Against Women (the Belém do Pará
Convention) 1994.
The petition alleged violations of
Chavez’s right to life and bodily integrity
because she was not given a medical examination prior to surgery. The petitioners
claimed that the state agents put Chavez’s
physical health at risk by performing
unnecessary surgery without her informed
consent and without a pre-operative
examination, thereby violating her right to
health and to free and informed consent.
She also was treated in a cruel, inhumane
and degrading manner by Peruvian health
service employees who refused necessary
post-operative care, despite her partner’s
requests for medical help.
Petitioners also alleged that the
victim’s case was part of a systematic
practice of forced sterilisation targeting
low-income women under Peru’s National
Reproductive Health and Family Planning
Program in force at that time. They cited
evidence that the Program favoured
surgical sterilisation over other contraceptive methods and required regional government healthcare facilities to establish sterilisation quotas under risk of penalties. The
family planning policy was also applied in
a discriminatory manner when health officials bypassed Chavez and gave her
partner the sole power to decide whether
Chavez should undergo sterilisation, an
invasive, life-changing medical procedure.
Resolution
In August 2003, the IACHR secured a
friendly settlement with the Peruvian
government in which the government
177
recognised its responsibility for the violations, including discriminatory and
coercive sterilisation, and agreed to
various remedial measures. The government acknowledged that its agents had
violated Chavez’s rights to life, physical
integrity and freedom from inhumane
treatment, to equal protection, and to be
free from gender-based violence.
The government agreed to investigate
and punish those responsible for the
events in question, including healthcare
personnel and the members of an investigative commission named by the government that originally had found no liability
for the health personnel who attended the
victim. The government also committed to
investigate the case’s handling by the
Office of the Attorney-General and other
judicial branch officials for failing thoroughly to investigate the original
complaint filed by the victim’s husband.
The settlement agreement also provides
for monetary compensation for emotional
and consequential damages to the victim’s
partner and seven children, including
rehabilitative psychological treatment,
permanent health insurance and payment
for purchase of a house.
Finally, the government committed to
modify discriminatory legislation and
policies on reproductive health and family
planning and to implement promptly the
recommendations of the Human Rights
Ombudsman in Peru on public policies
relating to reproductive health and family
planning, including improving preoperative evaluations of women being sterilised;
requiring training of health personnel in
reproductive rights, violence against
women, human rights, and gender
equality; implementing measures to
ensure that women give genuine informed
consent, including enforcing a 72-hour
waiting period for sterilisation; ensuring
compliance with government regulations
requiring adequate health facilities for
surgical sterilisation; and creating a procedure to ensure timely handling of patient
complaints within the healthcare system.
The government has complied with some,
but not all, of the settlement agreement’s
terms and the IACHR and human rights
organizations continue to monitor its
implementation.
European Court of Human Rights: Ginová
and Others v Slovakia, Case No. 15966/04
Several human rights groups have
documented practices of forced and
coerced sterilisation of Romani women in
178
hospitals in eastern Slovakia2 (including
the Center for Reproductive Rights and
the Centre for Civil and Human Rights’
report Body and Soul: Forced Sterilization
and Other Assaults on Roma Reproductive
Rights). In July 2004 three Romani
women filed a case against the government
of Slovakia in the ECtHR after the
government failed to conduct a fair and
impartial investigation into coercive
sterilisation practices.
Facts
The complainants’ case documents
clear and consistent patterns of failure by
government healthcare providers to
obtain informed consent to sterilisation.
Providers often obtained consent from
women in situations of duress, for example
after they have entered a facility to give
birth, and are in severe pain, or are already
on the operating table. Providers sometimes sought consent while women were
under anesthesia and therefore incapable
of giving informed consent. In some cases,
women who could not read were asked to
sign consent forms with no explanation of
their contents; they were only told that
they must be sterilised or else they or their
baby would die in the next pregnancy. In
many cases, there was not even the façade
of consent and women were unaware that
they had been sterilised until after the fact.
Two of the three complainants in Ginová
were sterilised when they were minors,
without their or their parents’ consent and
in violation of Slovak law. Neither they
nor their parents were given any information on sterilisation prior or subsequent to
the procedure. One of the women only
found out three years later when she
looked at her medical file and discovered
that the doctor had performed sterilisation. The third of the three complainants
was not told that she had been sterilised
until the day of her release from the
hospital when she was asked to sign a form
and was told that she must sign it because
she had been sterilised. None of the three
women was given any information on
follow-up care.
The Body and Soul Report and the
complainants’ case also reveal a failure by
Slovak government healthcare workers to
provide complete and accurate medical
information in a respectful and professional manner, and a tendency to give
simplistic, incomplete and misleading
explanations to patients. The Report and
case also show widespread failures by
healthcare personnel to provide thorough
and accurate information on the full range
of available contraceptive options, as well
as on the implications and side effects of
sterilisation.
Rights
Many of the practices revealed in Body
and Soul violate Slovak law and regulations on sterilisation, and on fundamental
human rights guaranteed by the ECHR
and other international treaties to which
Slovakia is bound. In the case filed, the
women’s claims include violation of their
right to be free from inhumane and
degrading treatment since they suffered
actual bodily injuries and intense physical
and mental suffering as the result of the
non-consensual cessation of a basic bodily
function that fundamentally changed their
lives. The women also claim that the intervention and the acts of medical personnel
deprived them of their right to bodily
integrity, to human dignity, and to be free
from humiliating and degrading treatment, including the failure to provide
them with health information and to
engage them in the process of informed
decision-making about a vital aspect of
their reproductive health. The women also
claim a violation of the right to private and
family life under the ECHR for forced
medical
intervention,
which
also
interfered with one of the most intimate
aspects of private life – whether or not to
bear children.
The women are also alleging that
racial stereotypes, prejudice and hostile
attitudes from society towards persons of
Roma origin are prevalent among medical
care personnel and that these attitudes
played a decisive role in the illegal sterilisations performed on them. Racial prejudices and intolerance against Roma in
Slovakia are widespread and are
connected with a popular fear about high
Romani birth-rates and society’s,
including politicians’, calls for regulations
to curb Roma fertility. A number of international agencies and non-governmental
organisations have identified and
published reports about this discrimination. In the light of these reports, as well as
evidence concerning the women’s personal
experiences with medical personnel, the
complainants also claim that their ethnic
origin was a decisive factor in the abuses
perpetrated against them, violating their
right to non-discrimination.
Resolution
The ECtHR has not yet decided
whether it will admit the case. In a final
application, the Romani women will ask
for compensation for physical and mental
suffering and that the proposed changes to
the sterilisation regulation, which are
(2004) 14 INTERIGHTS Bulletin
being proposed in a law, are adopted,
including procedures which guarantee
patients’ full and informed consent.
Conclusion
Sterilisation practices and related
violations that target Romani women in
government healthcare facilities in
Eastern Slovakia are similar in many
respects to those in Peru. They both
involved government sterilisation services
characterised by a lack of counseling on
available family planning options;
coercive tactics to obtain ‘consent’ to sterilisation; failure to obtain informed
consent from patients; ill-treatment of
patients by healthcare providers; and
discriminatory targeting of low-income
and minority women. The initial refusals
of both governments to accept responsibility for these violations illustrate some of
the challenges to redressing reproductive
rights violations at the national level.
The right to decide the number and
spacing of one’s children free from
coercion, discrimination and violence is
central to ensuring that women’s human
rights are respected. The use of
international litigation as a strategy to
ensure that laws, policies and practices
reflect human rights norms is crucial to
guaranteeing reproductive rights, thus
improving and advancing women’s status
in society. By holding governments
publicly accountable for reproductive
rights violations and by requiring legal
and policy changes, international litigation has the potential to generate meaningful and long-standing changes in
women’s lives around the world. n
Christina Zampas is the Legal Adviser for
Europe at the Center for Reproductive
Rights, New York, and has been leading
the Center’s advocacy and litigation work
on the forced and coerced sterilisation of
Romani women in Slovakia.
1
2
Reproductive rights are confirmed in the
Programme of Action of the International
Conference on Population and Development (1994),
Cairo, Egypt, UN Doc. A/CONF.171/13, para.7.3.
They encompass the right to healthcare and the
right to reproductive self-determination.
Zoon, I. (2001) On the Margins: Slovakia-Roma
and Public Services in Slovakia, Templeton, M.N.
(ed.), Open Society Institute, New York, pp. 62–6;
Helsinki Watch (1992) Struggling for Ethnic
Identity: Czechoslovakia’s Endangered Gypsies,
Human Rights Watch, United States, pp. 19–32.
Most recently, in (2003) Body and Soul: Forced
Sterilization and Other Assaults on Roma
Reproductive Freedom in Slovakia, Center for
Reproductive Rights and the Centre for Civil and
Human Rights, Poradňa.
(2004) 14 INTERIGHTS Bulletin
News & Developments
New Gender Equality Directive: Will the
European Union Dare Legislate to Achieve
Equality of Women and Men outside the Field of
Employment Law?
Cécile Gréboval
new Directive on gender equality has been eagerly awaited since the
year 2000. The proposal put forward by the European Commission
(the Commission) contains positive provisions, although it is rather
limited in scope. The Council of Ministers is looking for a compromise
on the issue of insurance.
A
In November 2003, the Commission
put forward its proposal for a Directive,
‘implementing the principle of equal treatment between women and men in the
access to and supply of goods and
services1’. This proposal is based on
Article 13 of the EC Treaty, and unanimous adoption is therefore required in the
Council of Ministers.
The Limited Scope of
Application
In December 200 the Nice Council of
Ministers gave the Commission the
mandate for ‘adopting before 2003 a
Directive, based on Article 13 of the EC
Treaty, on promoting gender equality in
areas other than employment and professional life.’2. However, by spring 2003 the
initial horizontal approach chosen by the
Commission, covering a broad range of
areas, was abandoned due to very strong
opposition from so-called ‘key stakeholders’. It appears that some decisionmakers and many of the industry stakeholders were opposing any further
European action on gender equality.
The proposal for a Directive, finally
adopted by the Commission, includes only
the area of goods and services. This limited
scope of application is particularly
striking when compared to the ‘race
Directive’3, which covers (apart from
employment and training) social protection, social security, healthcare; social
advantages, education, access to goods
and services and housing. Given the structural discrimination against women in all
areas; the innumerable political commitments to gender equality; the strong
Treaty provisions; the existing European
gender equality policy and legislations and
international texts signed by all EU
member states, it is a great disappointment
that the draft proposal does not cover at
the very least the same areas as the ‘race
Directive’.
Positive Provisions of the
Proposed Text
The Commission’s proposal includes
positive provisions inspired by Directive
2002/734 and consistent with the European
Court’s case law, including: the inclusion
of an article on positive actions, the definition of direct and indirect discrimination
on grounds of sex, as well as of harassment
and sexual harassment; and the prohibition
of the incitement to discriminate and the
provisions on remedies and enforcement.
The Question of Insurances
The main opposition to the Directive
has come from the insurance sector
because the text covering the supply of
services would prohibit the use of actuarial
factors broken down by sex in the calculation of insurance premiums. However, as
stressed by NGOs and decision-makers
supporting the Commission’s proposal,
prohibiting unequal treatment between
women and men in this area is primarily a
matter of principle and of political choice.
The fundamental principles and rights
upon which the EU is based pose limits to
contractual freedom; gender equality is
one of those fundamental rights and
should be fully respected by all actors in
society.
179
Furthermore, the debate has to be
placed within the wider framework of
women’s situation in the labour market
and in relation to pensions. The gender
pay gap and other forms of discrimination
combined with breaks in employment for
women already put them at a disadvantage. On top of that, the use of sex-based
actuarial factors provides a lower pension
for women than men for the same level of
contributions.
Member states were divided on the
issue of insurances during the Social
Affairs Council that took place on 1 June
2004. While a number of them support the
ban of the use of sex as an actuarial factor
in insurance and related financial services,
all are the target of an intensive lobbying
of the insurance industry, which since the
beginning of the discussions has not
shown any willingness to move from its
initial position to block the Commission’s
proposal.
An Opportunity for the
Enlarged EU to show its
Commitment to Gender
Equality
The Dutch EU Presidency announced
its aims to reach a political agreement
before the end of its term of office in
December 2004. European women will
continue to demand a quick adoption of
this crucial text so that commitments made
over the years finally become reality. n
Despite the narrow scope of
application of the current proposal, it will
allow for significant progress for gender
equality. It should also be seen as the first
of a series of European legislative
proposals that will over time address other
areas of discrimination against women.
1
2
3
4
5
COM. (2003) 657 (5/11/2003).
European Social Policy Agenda annexed to the
Conclusions of the Nice European Council
(7–9/12/2000).
Council Directive 2000/43/EC implementing the
principle of equal treatment between persons
irrespective of racial or ethnic origin (29/06/00).
Directive 2002/73/EC of the European Parliament
and of the Council of 23 September 2002
amending Council Directive 76/207/EEC on the
implementation of the principle of equal treatment
for men and women as regards access to
employment, vocational training and promotion,
and working conditions, Official Journal L 269,
05/10/2002, 15–20.
A5-0155/2004, Rapporteur: Christa Prets.
Cécile Gréboval is Policy Coordinator of
the European Women’s Lobby, Brussels.
The European Parliament, following
the opinion of the Women’s Rights
Committee adopted a positive report5 on
the Directive on 30 March 2004. Women’s
organisations across Europe and NGOs
have mobilised in support of the
Commission’s
proposal
since
the
beginning of the adoption process.
180
(2004) 14 INTERIGHTS Bulletin
Book Reviews
FREEDOM OF SPEECH AND INCITEMENT AGAINST
DEMOCRACY
Eds. David Kretzmer and Francine Kershman Hazan
Kluwer Law International, 2000, 274pp, ISBN: 90-411-1341-X
n 4 November 1995, Yigal Amir, a Jewish law student, assassinated
Israeli Prime Minister Yitzhak Rabin. Amir said he killed Rabin
because Rabin wanted ‘to give our country to the Arabs’. The murder
followed months of vociferous anti-government rhetoric after Rabin’s
signing of the Oslo Accords. This collection of essays, edited by Kretzmer
and Hazan, uses this incident to explore the question: when does a
perceived threat to the public, or to democracy itself, justify limiting free
speech in a democratic society?
O
The book’s 11 essays were originally
presented at a conference hosted by the
Center for Human Rights of the Hebrew
University in December 1996. In light of
the Second Intifada and in the context of
the ‘Global War on Terror’, its subject
matter has a renewed and broader significance. The book is divided into five
sections that explore the interface
between free speech, the advocacy of
violence, and the legitimate protection
of a democratic state.
Section 1 begins by considering the
boundaries of freedom of expression in a
democratic society. Anthony Lewis
presents a concise and engaging history
of freedom of speech in the US, from the
strictures of the US Sedition Act, 1798 to
the current strength of the First
Amendment. He accepts Roger Errera’s
suggestion1 that Americans have ‘an
inveterate historical optimism’, that
countries with more tragic experiences
of unbridled hatred lack, but concludes
that confident free societies must argue
against ‘evil counsels’, not outlaw them.
Frederick Lawrence, looking more
closely at US free speech principles,
takes a similarly libertarian view. He
argues that too much focus is given to
the ‘consequences’ of speech, rather
than the intention of the speaker. If one
focuses on consequences alone, he
argues, then the scope of freedom of
speech will change with the political
context, which may lead to its restriction
when it is most needed.
Jochen Frowein, former vicepresident of the European Commission
of Human Rights, presents the less
permissive European approach. He
argues that incitement against democracy should not be protected when the
violent overthrow of the democratic
structure is advocated in a ‘serious and
deliberate manner’. In contrast to the First
Amendment, European human rights
jurisprudence, ‘will not accept preparation
for totalitarianism’.
Section 2 examines aspects of free
speech theory relating to when a democratic society should act against speech that
advocates violence. Frederick Schauer
examines the causal relationship between
speech and harm. He accepts that it is
inherently difficult to provide empirical
evidence of causation between speech and
violence, but concludes, using statistical
analysis, that it is likely that free speech
principles and policy do affect the consequences of speech. Susanne Baer challenges the accepted liberal theory of free
speech and the ‘marketplace of ideas’.
Adopting an approach based on the work
of Catharine MacKinnon (see her article
in this Bulletin), she argues for focus on the
victim’s perspective.
Section 3 examines the law of incitement. Larry Alexander analyses the US
Supreme Court decision in Brandenberg v
Ohio, which produced the current test of
the advocacy of ‘imminent lawless action’.
He concludes that a speaker should not be
answerable for the actions of ‘responsible’
individuals. Albin Eser looks at the incitement provisions in German criminal law
and makes comparisons with other jurisdictions, finding similar trends as to proximity between the act of incitement, the
threatened interest, and the degree of
danger required.
The largest contribution to the work is
from Kremnitzer and Ghaayim, of the
Hebrew University of Jerusalem. Their
paper originated as a formal proposal for
the replacement of the Israeli sedition law
with a more specifically defined law of
incitement. In taking a more limited
approach to protected speech than the US
or European models, their conclusions
181
reflect the political context of the Middle
East. This is implicit in their conclusion
that the main danger of speech, ‘lies in the
creation of a psychological atmosphere
conducive to both criminal activity and
delegitimisation of the socio-legal order’.
In section 4, US lawyer George
Fletcher argues that greater attention
should be given to private civil remedies,
rather than criminal law, to respond to the
defamation of political leaders. He
dissects New York Times v Sullivan, the
first time the US Supreme Court decided
that defamation could fall foul of the First
Amendment, and highlights the flaw in
making public figures exempt from
defamation claims.
The final section broadly considers
whether the law is, in any event, an effective tool to control incitement against
democracy. Dieter Oberndorfer considers
Germany’s controversial attempt to fight
incitement against democracy through
constitutional provisions, so called
‘militant democracy’. He concludes that it
is difficult to assess whether this strategy
has restrained political extremism, but,
tellingly, that it is doubtful whether such
provisions could protect ‘a democracy
without democrats’. Finally, Alon Harel
examines the legal tests adopted by the
Israeli Penal Law for the restriction of
speech: the intention/meaning test and the
test of materialisation of harm.
Kretzmer and Hazan do not seek to
invite particular conclusions. Rather, they
have chosen contributors with a broad
spectrum of different views and
approaches. One consequence of this,
however, is that whilst the five sections of
the book are broadly complementary, the
book lacks an over-arching legal and theoretical framework to put the various
contributions in context. This will not be
problematic for scholars in this field, but
readers approaching this area for the first
time may be left more confused than
enlightened.
In this regard, one significant and
disappointing omission is the lack of reference to the free speech principles of international law and how they interact with
and inform national law. Kretzmer
suggests that appropriate legal arrangements should be seen according to the
relevant political, social and legal culture.
Whilst to some extent this is true, counterterrorist measures post 9/11 have highlighted the importance of states’
respecting international human rights law
THE GLOBALIZATION OF HUMAN RIGHTS
Eds. Jean-Marc Coicaud, Michael W. Doyle and Anne-Marie
Gardner
The United Nations University, 2003, 208pp, ISBN: 92-808-1080-4
he recent spate of international crises and interventions in Kosovo,
East Timor and Iraq is asserted to have permanently changed the
international landscape. As noted by the UN Secretary-General,
fundamental assumptions about the supremacy of state sovereignty have
been shattered while individual sovereignty has been bolstered by a
‘renewed and spreading consciousness of individual rights’. Following an
introduction by Michael Doyle and Anne-Marie Gardner which
considers the compatibility of and inherent tensions between
international relations and human rights, this compilation of six essays
seeks to highlight some of the key conceptual challenges to the
imperatives of justice through the lens of the civil and political rights and
economic and social rights debate. The book is accordingly divided into
three parts which respectively address the particularities of this debate at
the national, regional and international levels.
T
Part 1 considers the theoretical and
practical construction of human rights at
the domestic level. Ruth Gavison undertakes a philosophical analysis of the
complex relationships between these sets
of rights and argues that they are
indivisible and equally required for the
182
fulfillment of basic human dignity. Given
the peremptory nature of human rights as
a set of moral and pre-legal norms that
justify the imposition of duties on others
and exist independently of social or
institutional endorsement, Gavison states
that the moral, political and empirical
and principles in protecting free speech
rights when they are threatened, both
nationally and globally. The book might
also be criticised for its narrow geographical scope; its primary focus is free speech
law in Europe (Germany), the US and
Israel (reflected by the book’s contributors
who are all from academic institutions in
these jurisdictions). Only Eser, and to
some extent, Kremnitzer and Ghaayim,
look elsewhere.
However, this is not a universal guide,
rather its strength lies in its exploration of
the legal theory, jurisprudence and legislation of the jurisdictions on which it
focuses. It is an interesting, relevant and
challenging contribution to the debate,
even if one is left unsure as to what degree
of restriction on speech, if any, is desirable
or, indeed, whether law alone could have
saved Rabin. n
Paul J. Green is a legal volunteer with
INTERIGHTS and an assistant solicitor
at law firm Elborne Mitchell, London.
1
No reference given.
determination of which rights may be
considered as human rights is the legitimate concern of municipal legal systems.
Gavison concludes that the classification
of rights must be subject to institutional
checks and balances and conducted on a
case-specific basis rather than deriving
from the nature of rights or by reference to
a ‘forum of principle’.
Through a comparative examination
of the drafting processes and final texts of
the constitutionally entrenched Bill of
Rights found in both Canada and South
Africa, Claire Archbold seeks to demonstrate that regardless of the unique
tensions and stage of political development of particular societies, it is possible
and desirable to adapt and incorporate
international human rights norms into
national law without diminishing their
fundamental nature. Archbold argues that
this process provides a powerful and essential contribution to the exercise of nationbuilding and to the development of a
national human rights culture.
Part 2 looks at the practice of human
rights at the regional level and probes the
question of how to deal with the inevitable
contradictions between the persistence of
(2004) 14 INTERIGHTS Bulletin
deeply rooted cultural traditions and the
universal nature of Western-influenced
international human rights norms. In his
paper, James Mouangue Kobila compares
and contrasts the evolution and practical
realisation of specific civil and political
and economic and social rights in the
developed nations of the North and the
developing nations of the South. Kobila
principally focuses his attention on the
purported lack of respect for human rights
in nations of the South. He provides an
outline of some of the complex obstacles
impeding implementation of human rights
and makes suggestions for their eradication. Kobila concludes that where there
are conflicts between regional practices
and international human rights standards,
the latter must ultimately prevail.
Tatsuo Inoue confronts a number of
claims promoted by Asian values
discourse and suggests that its defensive
denial of the universality of civil and political rights in the Asian context not only
inappropriately abuses and manipulates
Western normative languages, it also
renders the discourse self-defeating.
Further, the discourse is dangerous
because it reinforces the Orientalist stereotypical polarisation of Asian and Western
identities. Inoue relies on the traditional
argument that as a result of limited state
resources, adequate protection of human
rights in Asia requires the initial
prioritisation and reconceptualisation of
civil and political rights over economic
and social rights. This will in turn, he
argues, facilitate internal reconciliation
and the fair and principled accommodation
of the unique conflicts, multiple identities
and
pluralistic
traditions
within
Asian societies.
Part 3 looks at the implementation of
human rights and distributive justice at the
international level. In light of the global
propagation of human rights discourse,
Pierre de Senarclens considers the indivisibility of universal human rights norms
and the prospects for their protection due
to the competing pressures of globalization and the ideological and political
differences of nations. De Senarclens
underscores the thus-far ineffective
attempts by international organisations
such as the UN and NGOs to curb the
overwhelmingly destructive impact of
globalisation, transnational corporations,
and the policies of international financial
institutions. He argues that these effects
necessitate an improved understanding of
political economy and widespread
national and international reform, regulation and supervision of existing institutions and organisations. Moreover, De
Senarclens asserts that the institution of
(2004) 14 INTERIGHTS Bulletin
these reforms and the protection of human
rights are ultimately dependent on the
shared mobilisation of political forces to
fight mass poverty, the encouragement of
improved national and international
governance, stabilisation of the political
order and the strengthening of state sovereignty to secure socio-economic regulation and distributive justice.
Henry Shue presents an exploratory
essay on the transnational duties we all
bear toward the economic rights of
everyone else. Shue disputes the contrary
theses of principled communitarianism
and causal ineffectuality and suggests that
despite geographic and relational
distance, human beings are interconnected
through a complex web of transnational
institutions. He argues that our default
duties are borne out of the fact that we
tolerate, benefit from and perhaps even
actively support a single asymmetrical
global economic regime that creates and
perpetuates radical inequality. Although
concrete suggestions are not offered, Shue
reminds us that in opposing this global
regime, we must take up the opportunity
to avoid inflicting harm on others because
in the end, we are all accountable for the
future we help to create.
In his conclusion, Jean-Marc Coicaud
briefly re-evaluates the compatibility of
international order and human rights then
moves beyond the debate to consider the
extent to which the international community is committed to individual sovereignty. Coicaud suggests that there is little
protection of individual sovereignty at the
international level as a result of
competing, politically driven tensions
among fundamental normative principles
and between the inclusivity of international solidarity and the exclusivity of
nationally rooted individual sovereignty.
Coicaud concludes that the principled and
multifaceted role of international organisations is critical to the achievement of
international justice.
noticeably absent from this volume are
more practically oriented discussions such
as the consequences for individual rights
of counter-terrorism measures and
privatisation and deregulation, the impact
of transnational corporations on state
sovereignty and human rights in host
countries (which provided the impetus for
the Secretary-General’s Global Compact
initiative), political appropriation of the
term ‘human rights’ to justify armed interventions as well as increasingly relevant
issues such as debt-forgiveness, reform of
the international human rights system and
the movement for recognition of collective
rights being pursued in the UN Permanent
Forum on Indigenous Peoples.
That being said, within the context of
the debate on civil and political rights on
the one hand and economic, social and
cultural rights on the other, this compilation provides a useful overview of the
rights debate and some of its core tensions
through an exploration of their normative
and political complexities at the national,
regional and international levels. Perhaps
most importantly, the book reaffirms the
importance and continued relevance of
viewing human rights as an indivisible,
holistic body of principles and norms that
must be collectively protected and implemented in order to achieve a true sense of
justice for all. n
Heather Northcott is a human rights
consultant currently working in New York.
Individually, these papers successfully
achieve their stated objectives. However,
readers may be disappointed that a
volume entitled The Globalization of
Human Rights is ‘more of an attempt to
clarify the rights debate’ than an exploration of global issues that currently
inform human rights discourse. In
focusing on the well-established, if still
sometimes controversial principles of
international human rights law, academics
and human rights practitioners will find
that the book offers little that is new.
General issues related to globalisation are
to a limited extent addressed in the
contribution by De Senarclens. However,
183
PRIVACY AND THE PRESS
Joshua Rozenberg
Oxford University Press, 2004, 288pp, ISBN: 0199250561
his book examines how the British legal system has attempted to
merge the traditional law of confidentiality with the modern concept
of privacy, particularly with the implementation of the Human Rights
Act (HRA), 1998, in 2000. The author’s explicit intention is to entertain
readers with some of the more interesting celebrity cases and inform an
audience of non-legal specialists on the conflicts between privacy and the
press. As the author is a legal journalist, it should not be too surprising
that he believes that such conflicts in Britain should generally be resolved
in favour of the media.
T
There is currently no law in Britain
that protects personal privacy. This often
leads to conflicts between freedom from
intrusion and freedom of speech – between
privacy and the press. The HRA has
impacted significantly on the domestic
concept of privacy and accordingly the
author discusses the HRA in detail. The
book’s theme centres around one significant question: how do we reconcile
freedom of expression, guaranteed by
Article 10 of the European Convention on
Human Rights (the Convention), with
respect for a person’s private and family
life, protected by Article 8 of the
Convention?
At the outset, the author discusses the
traditional law of confidentiality, which
has been revised and adapted over
centuries to suit society’s needs. The foundation for this law is the 1848 case of
Prince Albert v Strange where a publisher
was sued for the unauthorised publication
of pictures of the Royal Couple. Since
then, the courts have built on this decision,
developing legal principles to protect
personal privacy. But these principles are
still classified under confidentiality rather
than privacy.
The author then moves to a discussion
of several celebrity cases that have given
judges the opportunity to stretch and
mould the current laws regarding privacy
and confidentiality. The first privacy claim
after the HRA became effective was
Douglas v Hello! Ltd1, where actors
Michael Douglas and Catherine ZetaJones sued Hello! magazine for publishing
unauthorised photographs of their private
wedding ceremony. The judge concluded,
that ‘we have reached a point at which it
can be said with confidence that the law
recognises and will appropriately protect a
right of personal privacy’. However, an
advance in the creation of a law of privacy
184
was stifled by the decision in another case.
In Wainwright v Home Secretary2, a
woman who was strip-searched by prison
officers in a manner that did not follow the
prison regulations, brought an action for
invasion of privacy. The court concluded
that there was no law of privacy despite
the judge’s comments in the Douglas case.
subsection of privacy rather than
chronology. It would be difficult for
readers to ascertain the current status of
privacy law in Britain, though perhaps this
is part of the author’s intention, as a way
of illustrating the complex nature of this
area of law. Although the book is written
for non-specialists, it does expect the
reader to have more than a basic understanding of the legal system both in
Britain and within the EU. It is an entertaining and thought-provoking book for
readers with an interest in personal
privacy and freedom of expression. n
Kathleen Marshall is a former intern at
INTERIGHTS from University of Oregon
Law School, USA.
1
2
[2001] All ER 289, p9.
[2001] EWCA Civ 2081.
The author then moves to a discussion
of the conflict between respecting private
life and upholding free speech. He raises
the pertinent question of how judges
should strike a balance between respect for
private life and freedom of expression.
Proportionality is the key to settling the
issue: ‘[T]he means used to impair the right
to freedom of expression must be no more
than is necessary to accomplish the legitimate objective of respect for private life.’
Although the author acknowledges that
free speech can never be an absolute right,
he believes that any restrictions must be as
limited as possible. On the other side is the
right to respect for private and family life,
which is subtly different from the right to
privacy. The courts have decided that the
right to respect for private life was not
necessarily
breached
by
invading
someone’s property even though there
could be a right to privacy while walking
down the street.
Privacy is a fast-developing area of
law. Technological advances such as email
are requiring judges to apply existing law
to new situations involving breaches of
confidence. The author is very clear in his
opposition to the development of a
Privacy Act in Britain, believing it would
be both dangerous and wrong. Any reader
of this book should remember that the
author is a legal journalist and therefore
writes with some degree of bias. It is occasionally difficult to follow the development of the law as the book tends to use
case illustrations based on a particular
(2004) 14 INTERIGHTS Bulletin
ARREST AND DETENTION POWERS IN ENGLISH AND
TURKISH LAW AND PRACTICE IN THE LIGHT OF THE
EUROPEAN CONVENTION ON HUMAN RIGHTS
M. Bedri Eryilmaz
Kluwer Law International, 1999, 431pp, ISBN: 90-411-1269-3
n the 1970s biopic, Midnight Express, Oliver Stone depicted a Turkish
justice system rife with corruption and privation, and shorn of human
dignity, in what has remained an enduring image in the minds of
Westerners of Turkey’s tenuous respect for the rights of suspects.
I
How much the West’s image of Turkey
comports with its modern realities is
Eryilmaz’s question, and given the very
real possibility of its 70 million people
finding a home within an enlarged
European Union, one of major significance. It is a prospect that deeply divides,
if not scares, Europeans who find it impossible to imagine a political structure that
could accommodate peoples with such
vastly differing levels of development and
political cultures.1 ‘For some,’ explains
John Darnton, ‘the question boils down to
an often fruitless attempt to fix Europe’s
natural boundaries. For others it becomes
an effort to define what it means to be a
European’, that turns on such intangibles
as ‘the Renaissance, Enlightenment and
definitions offered centuries earlier by
Dante and Voltaire.’2
The enduring perception of Turkish
illiberalness confounds idealists who pine
for a Europe stretching from the borders
of liberal democracy to the borders of
secular Islam. This explains the instant
appeal of studies, such as this one that put
Turkey’s ‘Europeanness’ in issue. Because
if we accept ‘Europeanness’ as not so
much a state of mind, as an assumption of
the same moral space, then pitting popular
perception (and political rhetoric) against
actual practice offers immediate practical
benefits. On the other hand, a nagging
concern hovers over this study in the
seeming sacrifice of accuracy for
advocacy, in the author’s deep longing to
overturn the shortchanging of Turkey in
the international reputation stakes.
Certainly this study offers insights.
Eryilmaz takes a decidedly innovative and
pragmatic approach to the question of
‘Europeanness’ by comparing police
practice in Turkey – a putative human
rights violator – with England – a
supposed prototypical example of liberal
justice. This leads him to conclude that
widespread perceptions that these cultures
stand at opposite ends of the compliance
spectrum in areas of arrest and detention
(2004) 14 INTERIGHTS Bulletin
are unfounded. Rather, both are far from
the standards delineated under the
European Convention on Human Rights
(the Convention), the supposed common
denominator of values we may call
‘European’. Each state departs from
Convention standards, specifically, with
respect to acting on reasonable suspicion;
bringing suspects before a competent legal
authority; informing suspects promptly of
the charges before them (a particular
problem in England); informing suspects
of the facts of arrest and detention;
warning suspects as to the legal effect of
maintaining silence; presuming innocence
until proven guilty; providing legal assistance to suspects; and freeing suspects
from torture, inhuman, and degrading
treatment (a particular problem in
Turkey). Hence Eryilmaz calls for law
reform under the Convention both in
England and Turkey, and for widespread
education and training to counter police
ignorance of, and resistance to,
international standards.
In this, Eryilmaz’s methodology seems
sound. By focusing on the primary actors
and instruments governing compliance
with arrest and detention standards,3 he
sheds light on an apparent irony: that
despite England’s unenviable record of
breach of its Convention obligations, its
citizens persist in their belief that their
rights are best secured by domestic law,
whilst Turkey languishes under the belief
that it has the worst human rights record
that could be held by a Convention
member. Comprehensive research has
failed to validate either perception. In
short, England enjoys the benefit of
doubt, Turkey its cost – an irony embodied
in the non-self-executing nature of treaties
in England whose domestic standards are
presumed above international standards;
and in the self-executing nature of treaties
in Turkey whose laws seek legitimacy by
assuming (rhetorically at least) international standards. And here lies the book’s
innovation. Eryilmaz’s study is the first to
analyse whether Turkey’s letter and
practice of arrest and detention provisions
compare favorably with those in the West.
But on closer consideration, this
methodology lacks rigour. As to
American, English, and German law
(which Turkey closely follows), Eryilmaz
relies on secondary library and (typically
specious) Internet-based sources, and as to
English compliance, on various research
reports on police respect for rights of
suspects. But deprived of the same sources
in Turkey, there he relies on primary data
collected from personal ‘inside’ and
‘outside’ observations of 26 provinces,
21 police stations (15 rural and 6 urban),
3 gendarmerie stations, and 2 antiterrorist departments. And here lies the
problem. His bifurcated method deprives
him of a common set of indices and thus
of a scientifically valid method of
measuring practices across cultural
spheres. By employing a non-standard
method and set of independent variables
in the English and Turkish cases, we are
presented with two data sets that may shed
light in each case, but which shed no
comparative light and deprive us of a
means of measuring the relative frequency
and gravity of certain police practices.
This incompatibility problem is
reinforced by the all-too generous faith
Eryilmaz places in his observations of
local police practices in Turkey. Relying
heavily on his ‘insider’ status – flowing
from his position as Police Academy
lecturer – he assumes local police chiefs are
largely honest about such sensitive issues
as the number of suspects who exercise a
right to silence; the number of suspects
who request the right to inform relatives;
the number of suspects doctors examine;
the amount of time suspects are detained;
whether suspects are apprised of their
rights before interrogations; whether
suspects pay a price for their silence; and
the frequency of the use of torture,
inhuman, or degrading treatment.
Eryilmaz finds his answers for Turkey
in police records, contemporaneous police
notes, and first-hand observation, which
we, the reader, might find unreliable. For
one, he freely admits his inability to
observe practices in south-east Turkey
where emergency powers are in operation.
He dismisses ‘emergency powers’ rather
than analysing the situation, for example
through NGO reports, in assessing
Turkey’s respect for affording suspects’
rights.4 Moreover, the author’s very insider
status may lead officers to shy away from
185
the honesty he readily assumes: he
acknowledges police fears of outside
observation without acknowledging that
he as an insider may just as easily generate
concerns of in-house sanctions or peer
group pressure that may affect observable
behaviour. Similarly, his inside observation of arrest, detention, and interrogation
practices may affect observable behaviour
as any observer naturally affects the
behaviour of anyone observed: a phenomenon popularly known as the ‘Hawthorne
Effect’, whereby officers realising they are
being observed may be led, by the mere
observation, to consciously or unconsciously adjust their otherwise violent
behaviour.5 In this, the reader would be
well advised to consider the relative reliability that studies on Western compliance
enjoy, for example, the relative ease of
access of ordinary citizens to law courts,
which provide a powerful check on police
abuse (by holding officers, superiors, and
governments civilly and criminally liable),
as well as important measures of the
frequency and severity of such practices
(by examining actions filed). This reliability gap in observable data, between
England and Turkey, further undermines
comparative analysis.
At the same time, the reader may
tolerate such shortcomings in light of the
challenges in comparing cultures so vastly
set apart. Certainly we can appreciate the
author’s warnings, despite his sentimental
leanings, against easy acceptance of
prevailing stereotypes. We can also
support his call for further comparative
studies that, for example, move beyond the
dependent variable of arrest and detention
to a fuller picture of rights afforded
persons in a justice system, from arrest to
adjudication to incarceration; or to a
fuller picture of human rights compliance,
overall, as including rights and opportunities afforded women, children, and ethnic
minorities. In encouraging researchers to
take a broader, more sophisticated
snapshot of comparative differences in
human rights compliance lies the real
value of this ambitious, though
burdened, study. n
1
2
3
4
5
See Darnton, J., ‘Union, but Not Unanimity, As
Europe’s East Joins West,’ The New York Times, 11
March 2004, pA12.
Ibid.
Namely, the Police and Criminal Evidence Act of
1984 and Prevention of Terrorism Act of 1989
under English law, and the Constitution of 1982,
Code of Criminal Procedure of 1929, Police Powers
and Duties Act of 1934, and Anti-Terrorism Act of
1991 under Turkish law.
Given the increasing use of emergency powers,
security legislation, and law enforcement measures
by governments to quash the rights of citizens, in
the face of perceived emergencies. See generally
‘Rights at Risk: Amnesty International’s Concerns
Regarding Security Legislation and Law
Enforcement Measures’, Amnesty International,
AI Index: ACT 30/001/2002, January 2002; Report
of Irene Khan, Secretary General, ‘11 September –
The End of an Era for Human Rights?’, Amnesty
International, International Secretariat, 17
October 2001; General Assembly responses to
Security Council Resolution 1373 (2001) call ‘on
states to work together urgently to prevent and
suppress terrorist acts’.
Found over a series of Depression-era studies of
Chicago’s Hawthorne works of Western Electric,
the phenomenon involves the rewards one reaps
when one pays attention to people, the thought
that the mere act of observing people spurs them
to better job performance, independent of any
variables like pay raise, rest pause, and the like.
Christopher J. Piranio is a Ph.D.
candidate in political philosophy at
St. John’s College, Cambridge
University, UK.
ECONOMIC, SOCIAL AND
CULTURAL RIGHTS IN PRACTICE
The Role of Judges in Implementing Economic, Social and
Cultural Rights
Edited by Yash Ghai & Jill Cottrell
Published by INTERIGHTS
Economic, Social and Cultural Rights in Practice is a fascinating exchange that will
contribute to the widening debate on this pivotal area of human rights law. The book
features essays written by leading experts from five major international legal systems
debating the issue based on experiences within their respective countries - Canada,
India, South Africa, UK and Hungary - with a view to drawing conclusions about
how the judiciary can better implement ESCR. The contributions provide insights
into the methods, specificity and limits of judicial enforcement. They explore the
interdependence of civil and political rights and ESCR, and the permeation of the
latter into interpretations of the former.
The book includes a comprehensive list of relevant international decisions on ESCR
and a full bibliography of publications discussing ESCR. It is an invaluable tool for human
rights lawyers, judges and other advocates keen to take part in the debate on how this allimportant body of rights should be implemented.
Economic, Social and Cultural Rights in Practice is available in English from
INTERIGHTS at a retail price of UK£20 / US$38. Please contact Erica Ffrench at:
[email protected] to order your copies
186
(2004) 14 INTERIGHTS Bulletin
INTERIGHTS’ News
Evidence of Force Unnecessary to Prove
Rape in Important Win Against Bulgaria
Vesselina Vandova
n 4 December 2003, the European Court of Human Rights found
Bulgaria to have violated the European Convention for Human
Rights (the Convention) in the case of MC v Bulgaria in which
INTERIGHTS had made a third party intervention in support of the
applicant’s position. The case concerns the criminal investigation of the
rape of the 14-year-old MC. The investigation found insufficient evidence
that MC had been compelled to have sex with the two alleged
perpetrators, and subsequently the proceedings were terminated as the
use of force or threats had not been established beyond reasonable doubt.
In particular, no resistance on the applicant’s part or attempts to seek help
from others had been established.
O
MC complained before the Court that
Bulgarian law and practice do not provide
effective protection against rape and
sexual abuse, as only cases where the
victim resists actively are prosecuted. She
submitted that Bulgaria has a positive
obligation under the Convention to
protect the individual’s physical integrity
and private life and to provide an effective
remedy. She also complained that the
authorities had not effectively investigated
the events in question.
The Court found a violation of Article
3 (prohibition of degrading treatment) and
Article 8 (right to respect for private life).
The Court held that under Articles 3 and 8
of the Convention, member states had a
positive obligation both to enact criminal
legislation to effectively punish rape and to
apply this legislation through effective
investigation and prosecution. In particular, the positive obligation requires the
penalisation and effective prosecution of
any non-consensual sexual act, even where
the victim had not resisted physically.
In its judgment, the Court observed
that, historically, proof of the use of
physical force by the perpetrator and
physical resistance on the part of the
victim was sometimes required under
domestic law and practice in rape cases in
a number of countries. However, it
appeared that this was no longer required
in European countries. Based on the
amicus
curiae
submissions
by
INTERIGHTS, the Court observed that
in common law jurisdictions, in Europe
and elsewhere, any reference to physical
force had been removed from legislation
and/or case law. Although in the case law
and theory of most European countries
influenced by the continental legal tradition, the definition of rape contained
references to the use of violence or threats
of violence by the perpetrator, it was lack
of consent, not force, that was critical in
defining rape.
The Court also noted that the member
states of the Council of Europe had agreed
that penalising non-consensual sexual
acts, whether or not the victim had
resisted, was necessary for the effective
protection of women against violence and
had urged the implementation of further
reforms in this area. In addition, the
International Criminal Tribunal for the
former Yugoslavia had recently found
that, in international criminal law, any
sexual penetration without the victim’s
consent constituted rape, reflecting a
universal trend towards regarding lack of
consent as the essential element of rape
and sexual abuse. As INTERIGHTS had
submitted, victims of sexual abuse – in
particular, girls below the age of majority
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– often failed to resist for a variety of
psychological reasons or through fear of
further violence from the perpetrator. In
general, law and legal practice concerning
rape are developing to reflect changing
social attitudes requiring respect for the
individual’s sexual autonomy and for
equality. Given contemporary standards
and trends, member states’ positive obligation under Articles 3 and 8 of the
Convention requires the penalisation and
effective prosecution of any non-consensual sexual act, even where the victim had
not resisted physically.
The Court considered that the
Bulgarian authorities should have
explored all the facts and should have
decided on the basis of an assessment of all
the surrounding circumstances. The investigation and its conclusions should also
have been centred on the issue of nonconsent. The Court found that the
effectiveness of the investigation of the
applicant’s case and, in particular, the
approach taken by the investigator and the
prosecutors fell short of Bulgaria’s
positive obligations under Articles 3 and 8
of the Convention – viewed in the light of
the relevant modern standards in comparative and international law – to establish
and apply effectively a criminal law system
punishing all forms of rape and
sexual abuse. n
Large-print versions and
electronic versions of all
the articles are also
available from
INTERIGHTS
please contact us using
the following details:
INTERIGHTS
Lancaster House
33 Islington High Street
London N1 9LH, UK
Tel: +44 (0)20 7278 3230
Fax: +44 (0)20 7278 4334
Email: [email protected]
Website:
www.interights.org
Vesselina Vandova is the Legal Officer
(Central and Eastern European
Programme) at INTERIGHTS.
INTERIGHTS is an international human rights law centre. Based in London, the organisation focuses on the protection of human rights
through legal remedies. Our activities include: providing legal assistance in selected cases before tribunals such as the UN Human Rights
Committee, the African Commission on Human and Peoples’ Rights, the European Commission and Court of Human Rights and the InterAmerican Commission on Human Rights; filing amicus curiae briefs in cases raising important issues concerning the interpretation of fundamental rights before national and international courts; advising on legal matters and remedies under international human rights law; assisting
lawyers and human rights organisations in litigation before international, regional and national human rights tribunals; providing practical
assistance to local civil liberties organisations and lawyers on international and comparative human rights law relevant to cases in their national
courts and tribunals; and providing information on recent developments of human rights law through INTERIGHTS’ Bulletin, our website
www.interights.org, the Commonwealth Human Rights Law Digest and other publications. INTERIGHTS is non-partisan and apolitical. It
is a UK registered charity and holds Consultative Status with the United Nations’ Economic and Social Council, with the Council of Europe
and with the African Commission for Human and Peoples’ Rights. A non profit-making organisation, INTERIGHTS is a company limited
by guarantee and its main sources of funding are grants from foundations and donations.