A day at the Appeal Court

 By Éloïse Ouellet-Décoste

Perhaps this reduces my credibility as a law student, but yesterday, I attended for the first time a hearing at the Appeal Court. My experience was not quite what I envisioned when I first set foot in law school.

Here is some background on the case I witnessed…

In 2007, the government leased the Boeung Kak Lake and its surroundings for 99 years to Shukaku, a company  owned by a ruling-party Senator. Over the last 4 years, Shukaku has filled the lake and forcefully evicted virtually the  3,500 families living in the area. Minimal compensation was paid to some, but most families received nothing.  Since then, the Boeung Kak community has been fighting to defend its land rights and to receive fair compensation. Over the years, they have staged numerous peaceful demonstration and protests to resist the injustice their community is facing.

On the morning of May 22nd, 2012, as part of a media event, the18 families from the Boeung Kak community gathered on the sand dunes that covered their homes. As one of the family, equipped with a few pieces of wood, attempted to erect poles to mark the locations of their destroyed home, the police arrived at the site, confiscated the wood and disrupted the media event. In support of the 18 families, a group of residents remained on site, singing songs about land rights. At around noon, a mixed force of police and district guards, who sought to disperse them, surrounded a small group of women. This is when 13 women for Boeung Kak Lake were violently arrested.

-The trial-

Less than 3 days after their arrest, the 13 women were at the municipal court. The defense lawyers were refused access to the case file and state evidence, and they were not permitted to call witnesses. Moreover, two communities members who came to the trial to serve as witnesses were arrested outside of the municipal court and placed in pretrial detention until June 15, 2010 when they were released under judicial supervision, but the charges against them are still pending. This expedient and irregular trial was concluded on convictions of  violating articles 34 and 259 of the 2001 Land Law and article 504 of the Penal Code. Article 34 of the Land Law states that any “illegal occupant” of certain property shall be subject to article 259, which provides for imprisonment of one to five years. Penal Code article 504 describes the crime of obstruction of public officials with aggravating circumstances. It allows for six months to one year in prison. The women were all sentenced to two-and-a-half years in prison.

-The appeal-

So here we are. A bit more than one month after the 13 women`s arrest. The appeal is set for 7:30am. Typically, Court hearings don`t start until 9am, but this time the judiciary was hoping that an early start would deter supporters from attending. The case has received a lot of international attention over the past few weeks. One colleague was invented to the Rio Summit to present a video on the Boeung Kak Lake women. And just last week, I translated letters written by the children of the 13 asking Hillary Clinton to free their mothers and very nicely wishing her good health and success in her work. Obviously, the early start did not have much effect on the supporters as more than 500 community members, NGO staff, journalist and friends sought to gather outside the Court armed with t-shirts, headbands, banners and lotus flowers. But the police was there before us and made sure to block all the roads leading up to the Appeal Court, which apparently, on that day, was not a public building. Blocked by police and military, the supporters started singing in support of the 13. I was at the south end of the blockade, where everything went smoothly. But meanwhile, at the north end, the police violently sought to disperse the crowd, resulting in three supporters being hospitalized, including a miscarriage caused by the police`s brutality.

The hearing was slightly delayed and started at 8:30. At about 9:30, I decided I wanted to find a way into the appeal court. So very subtly, I cross the barricade, and by subtly, I mean wearing a t-shirt and a headband that screamed “Free the 15”…Looking very confident, I walk passed the crowd of policeman…and nobody sought to prevent me from going ahead. Arriving at the Appeal Court, there were once again loads of guards blocking the entrance to the courtroom, which was packed with about 40 people, including representatives from USAID, the US embassy, the EU, ONOHCHR, the media and several local and international NGOs. After about an hour, I managed to sneak into the room and strategically placed myself behind an interpreter. The hearing was shocking for anyone who has studied the basics of a fair trial…and apparently, the judges were more humane and attentive than LICADHO`s staff had ever seen, and they see lots of trials! The woman came forth one after the other explaining the events of May 22nd and stating over and over again that they did not commit any violence and that they charges were unfounded. The judge kept on asking the women “well, if you did not do anything wrong, why weere you arrested?”. I thought the whole purpose of trials was to determine whether the accused is guilty, but apparently, in this judge`s mind, if you are arrested, then you must have done something wrong.

The LICADHO defense lawyers had called 4 witnesses to testify, but three of them were prevented by the police from approaching the courthouse. And during her testimony, the only witness heard was threatened by the judge to be fined if she did not answer a question asked by the prosecutor to which she did not know the answer. A few of the women had to leave the room at different time because they started crying or were not feeling well. And once the lawyers on each side stated their desired outcome, one of the women stood up and asked justice to the judge. The judge looked at her, not too sure, and asked her, so what is it that you want. So she repeated. He asked her again, “what do you want?”. She said liberation. And then he said, “so, you want us to drop the charges?”. At this point, it was clear that since the beginning of this case, two distinct languages were being stated. After about 4:30 of hearing, the judges left the room to  “deliberate” or perhaps to eat, by then it was noon, and judges in Cambodia are notorious for deliberating very rapidly after long hearings and coming back 10 minutes later with the ruling on a typed document… During the judges` absence, the courtroom went crazy. Journalist and photographers invaded the small room to take picture and gather a few comments from the women. A mini press conference staged itself in the courtroom. Security guards even had to intervene to prevent photographers from standing on the judges benches to get pictures.

So here I am thinking. Wow, this case has indeed attracted a lot of attention. The convictions cannot be maintained, it is not worth it for the government. But how will it achieve its goal of putting hurdles in the way of land rights activists, and make sure not to loose face, but still release the women. A few minutes later, I had my answer. The judges came back, went on about the right to protest, the fact that the women are mothers and that their families need them, but also that what they did was wrong…blablabla…and then said, they were suspending the sentence to 1 month and 3 days, which meant that the women were to be released that day. But which also meant that the charges were not dropped and the women now have a criminal record for offenses they did not commit.

-The party-

The criminal record did not seem to bother them or the community members. The protest turned into a street party with people swinging and dancing. In the courthouse, all the women started to cry. Some of them got on their knees and bowed to the judges out of thankfulness. Everyone was hugging, smiling, cheering. The women said goodbye lovingly to their prison guards and were taken back to the prison to prepare their release. The community followed them to the prison. Again, about 500 supporters gathered outside of the prison gates waiting for the women to be released. Supporters were dancing. There were drummers, balloons, jasmine flowers, and children playing everywhere. Despite the 7 hours wait between the ruling and the time the women walked out of the prison, the energy outside the prison remained high.

Once again, the party moved, this time to Boeung Kak Lake, where a stage was erected, food prepared and musicians were playing. When I arrived, the women were on stage, making speeches and thanking everyone for their support. The atmosphere was hectic, despite the criminal conviction and despite the fact that now the community is back to square one. One battle was won, the women were released, but it is important to remember that many families still remain arbitrarily excluded from receiving land titles and that the 12,44 hectares of land that was given to the remaining lake families in compensation has not been demarcated yet. Whilst the families of the women can rejoice in being reunited with their loved ones, the community`s fight for their land and their rights continues.

First Weeks at Human Rights Watch

By Will Colish

“Take the subway to 34th street. Get out at any exit and look up.” These were my directions to Human Rights Watch, located on the 34th and 35th floors of 350, 34th Street—that is, the Empire State Building. The architectural landmark and the relatively benign address mirror the two sensations that one might have working in a major human rights organization: brash labourers of justice on the one hand; and peripheral gadflies of human rights abuse on the other.

Neither of these sensations dominates my workday, although they do occasionally come to mind. The office is usually too busy for me to reflect on what I am busy doing. Before my orientation even began on the first day, a senior counsel of the international justice division pulled me into her office and gave me my first assignment: research the steps taken by the Guinean government and the International Criminal Court to address a massacre that took place in 2009. Two weeks into my internship the pace has remained steady. In spite of this pace, every now and then I pop my head out of the books and wonder who reads the Human Rights Watch press releases, attends its film festival, or follows its members on Twitter. Presumably some very important people do. I do not know otherwise how a charitable organization could grow to this size (280 fulltime staff in 16 offices worldwide), do the work that it does with near global reach, or win a Nobel Prize of all things (which it did in 1997 for its work on banning landmines).  Despite the generally hurried pace of my research agenda, I am still struck by moments where I try to orient myself around these two sensations.

These moments of reflection aside, the work commands my attention and eliminates nearly all distractions. It is genuinely interesting research, and I am often confronting challenging legal questions. Recently I was tasked with research related to the ICC’s investigation in Libya. No easily retrievable answer awaited me. The assignment demanded not just thorough research but also creative legal argument.

Je passe la majorité de ma semaine dans les bureaux de Human Rights Watch, mais la ville m’interpelle aussi vigoureusement. Ce n’est pas ma première fois à New York, mais c’est ma première à y vivre. Ce qui me frappe le plus est la gentillesse et la chaleur de sa population. La première journée dans mon bloc à appartements, j’ai connu plus de ses locataires que pendant le 6 ans passé à mon appartement de Montréal. Ça jase sur le perron du bloc, l’un des locataires m’invitant même à aller à la pêche avec lui la fin de semaine dernière. (J’ai dû refuser en raison des vagues de surf, accessibles à partir du métro, sur lesquelles je me suis amusé en contrepartie.) Le métro est souvent bondé mais les gens s’excusent poliment lorsque ça se bouscule et cèdent même fréquemment leur siège.

La ville est probablement unique dans sa capacité à produire de façon régulière des journées quasi-magiques et de façon spontanée. Un ami m’a invité faire une balade en vélo l’autre jour. Nous avons longé le côté Ouest de Manhattan, tout sur une piste cyclable et doté de plusieurs attraits à savourer. La journée s’est terminée avec un excellent repas cubain et un concert en plein air, gratuit, à Brooklyn, prestation offerte par un groupe qui joue un mélange de sons arméniens, beatbox, et moyen orient. Le lendemain, une journée remplies de plaisirs aussi stimulants et imprévus mais complétements autres.

Tout bien considéré, ce stage promet une belle aventure qui s’inscrit bien dans le programme de stage en droits humains de McGill. Ici on m’expose à une multitude de violations de droit de l’homme qui se propagent aux quatre coins du monde, à la réponse d’un ONG tel que Human Rights Watch, et aussi à la place de ce dernier dans une ville qui grouille d’acteurs internationaux importants tel que les Nations unies. Cette convergence de points d’exposé ne mène guère à une vision simple qui les unit; elle invite plutôt des réflexions continues dont je vous ferai part prochainement.

Criminalization of HIV status non-disclosure: what’s the issue?

by Jihyun Rosel Kim 

When people hear the question “should non-disclosure of HIV status be a criminal offence?” their usual response is, “well of course! We shouldn’t hurt people.” When all we see and hear about HIV in the news is so sensationalized to the point that we equate HIV with death and people with HIV with predators, that response is understandable.

The landmark case involving HIV status disclosure was R. v. Cuerrier.[1] In the case, the Supreme Court established that failure to disclose one’s HIV status could lead to a charge of aggravated sexual assault, which can lead to a maximum of a life sentence in prison. Justice Cory for the majority stated that non-disclosure of HIV status that would lead to a “significant risk of harm” would constitute an aggravated sexual assault. However, he never clarified what exactly would amount to “significant risk,” despite the differing levels of risk of transmission in diverse sexual activities. Justice Cory did, however, stated in an obiter that certain actions such as wearing a condom might be seen as mitigating the “significant risk.”

Since the Cuerrier decision in 1998, science has come a long way for HIV/AIDS. Moreover, research has shown that transmission risks for HIV are generally low, and differ significantly depending on the activity. Generally, the transmission rate of HIV during unprotected vaginal intercourse is 0.1% per act (with recent analysis suggesting a more accurate rate would be 0.08% per act).[2] If a person has an undetectable viral load (below 50 copies of HIV virus per mililitre of blood), the risk of infection is about 1 in 10,000 for unprotected sex acts.[3] Recent studies also suggest that antiretroviral therapy can reduce transmission up to 96% in heterosexual couples, where one partner is HIV-positive and the other is HIV-negative.[4]

Yet, Canadian courts have not kept up with scientific evidence. Due to the unclear guidelines regarding what exactly constitutes “significant risk,” courts have continued to send mixed messages regarding legal duty to disclose one’s status. Some courts have held that a person who did not disclose to a partner but wore a condom is not criminally liable. Other courts have held the opposite view by charging a defendant with sexual assault for non-disclosure without considering the kind of sexual activities.

The conflicting messages from the courts seriously undermine and threaten the rights of people living with HIV/AIDS (PLHs). How can PLHs truly prove that they disclosed to a partner – should they require witnesses or signatures? Should activities such as oral sex and mutual masturbation, which bears almost zero risk of transmission, bear the possibility of a criminal charge, when almost no activity in our lives are truly risk-free? What about the issue of partners, who can blackmail and even abuse their HIV-positive partners by threatening to charge them?

(more…)

Répression et impunité: l’État contre les défenseurs des droit de la personne au Cambodge

  par Éloïse Ouellet-Décoste

Wow, quelle journée! On est déjà samedi, et après une semaine assez intense au travail, à lire des centaines de cas d’abus de droits de la personne ayant eut lieu au Cambodge au courant de la dernière année, j’ai décidé, pour me relaxer, d’aller faire un petit tour au Musée Tuol Seng sur le crime génocidaire et ensuite d’aller voir le film « The Lady » sur la vie de Aung San Suu kyi…Répression, brutalité étatique, détention arbitraire, torture… pas trop de quoi me déconnecter de mon travail finalement.

Travailler pour une NGO qui se spécialise dans la défense des droits de la personne me pousse à avoir une perception un peu schizophrénique de la société cambodgienne. D’un côté, je suis complétement charmée par ce peuple sympathique, rieur et posé, alors que d’un autre côté, je suis confrontée, de par mon travail, à une violence inimaginable, physique et psychologique, perpétré à la fois par l’État, par l’armée, par les compagnies privés domestiques et étrangères, et par les Cambodgiens entre eux. C’est pas trop rose quoi !

LICADHO  est une ONG Cambodgienne, spécialisée, depuis 1992, dans la défense et la promotion des droits de la personne. Plus spécifiquement, LICADHO travaille directement avec les victimes répertoriant les abus et en s’assurant que ceux qui se retrouvent devant la justice aient une représentation légale adéquate. LICADHO travaille aussi de concert avec ses partenaires nationales et internationales afin de suivre l’évolution des droits civiques, politiques, économies et sociaux au Cambodge et de surveiller les actions du gouvernement. Et moi dans tout ça, je travaille à préparer un report sur la situation des défenseurs des droits de la personne au Cambodge. Mon travail consiste à amasser le plus d’information possible sur les abus subis par ceux et celles qui se portent volontairement à la défense des droits des membres de leur communauté.

Très réfractaire aux critiques, le gouvernement du Cambodge se tourne trop souvent vers la violence physique, l’intimidation, et les arrestations et détentions arbitraires afin de faire taire ceux  qui osent parler trop fort. Leaders communautaires, journalistes, avocats spécialisés en droits de la personne, militants environnementalistes et employés d’ONG sont régulièrement victimes d’abus de la part du gouvernement qui a choisi la voie de la répression et du contrôle de la société civile, plutôt que celle de l’engagement réelle envers la population pour améliorer les conditions de vie de tous les Cambodgiens.

De plus en plus, le développement économique au Cambodge se fait au détriment de la population, surtout la majorité plus pauvre. Et qui dit développement économique, dit concessions foncières. Par conséquent, les  conflits reliés à la terre sont à la source de la plus part des abus de droit de la personne, et ceux qui se portent à la défense des communautés victimes d’éviction forcée et/ou d’appropriation de terrain (« land-grabbing ») se trouvent rapidement dans la mire du gouvernement. Notamment, le 26 Avril dernier, Chhut Vuthy, un éminent militant environnementaliste Cambodgien ayant dédié sa vie à la protection des forets et des populations sylvestres, a été brutalement assassiné par la police militaire Cambodgienne alors qu’il recensait des coupes de bois illégales.

Le gouvernement Cambodgien est entrain d’émettre des concessions foncières au travers du pays à un rythme alarmant. Il y a actuellement plus de 2 millions d’hectare (la superficie totale du pays de environ 18 millions d’hectare) de terre sous concession privé et, de ce nombre, 700 000 hectares ont été concédés l’an dernier! Bien que l’article 44 de la Constitution restreint le droit de confiscation des biens des citoyens  à l’intérêt publique et prévoit que toute confiscation sera compensée antérieurement de façon juste et équitable, la plupart des propriétaires découvre la vente de leur terre par le gouvernement à une compagnie privé lorsque les bulldozers arrivent pour détruire leur maison. Et côté compensation, lorsqu’il y en a, elles sont plus souvent qu’autrement inadéquate. Ainsi, de plus en plus de famille cambodgienne sont victime d’éviction forcée ou/et d’appropriation de terrain (« land-grabbing). Et lorsqu’il s’organise pour résister à ces injustices, la police et l’armée sont déployées pour réprimander leurs manifestations et arrêter les leaders sous de fausses accusations.

Le cas de Boeung Kak Lake exemplifie bien cette réalité.  Boeung Kak était un lac dans le nord de Phnom Penh jusqu’à ce que le gouvernement le concède à une compagnie privé pour y développer un quartier résidentiel et commercial de luxe. Le lac a été remplit de lac  et, pendant ce temps, les 4,000 familles habitant le secteur ont été expulsées et leurs maisons détruites ou inondées de sable. La communauté se bat début 2007 pour protéger leurs terres et empêcher un développement irresponsable sur un point d’eau essentiel à l’absorption des pluies durant la mousson. Le mois dernier, 15 militants (14 femmes et 1 homme) ont été arrêtés durant une manifestation pacifique et font actuellement face à la justice sous une série de fausses accusations, tel que menace de mort, insulte, diffamation et obstruction face à des fonctionnaires. Elles ont été condamnées en cour municipale à 2.5 ans de prison. Leur appel aura lieu mercredi prochain, le 27 juin. Inutile de dire que ça grouille actuellement dans les bureaux de LICADHO pour préparer leur défense et apporter le support nécessaire à leurs familles. J’espère pour le mieux, mais on m’a dit de m’attendre au pire. Semblerait-il que je vais avoir la « chance » de voir en action un système judiciaire profondément corrompu dans un pays où le principe de « l’État de droit » est au mieux une illusion, sinon simplement une insulte au concept même de la démocratie.

P.s. Voici un excellent vidéo qui fait état de la violence dont font face les communautés victimes d’éviction forcée et de « land-grabbing »

http://www.licadho-cambodia.org/video.php?perm=33

The Myth of a Durable Solution

By Molly Joeck

Refugee Law Project is spread across three rectangular-looking buildings on a short red dirt road in Old Kampala, across from a primary school with a sign affixed to its fence that reads, “Virginity is good.”

These buildings are like labyrinths once you enter, with winding hallways and offices of every size and shape piled upon one another. After a month, I still don’t know my way around every corner of all three buildings. I’m only beginning to feel like I understand where all the doors and hallways in my building lead, and how I can use the back door to go print a document without making my way through the main hallway, where I am bound to encounter a client seeking a follow-up appointment, waylaying me and causing me to forget why I’d left my office in the first place.

At the beginning of the week, when new clients are received and assessed, the courtyard outside the main building, and even the street below (not the sidewalk, for there are no sidewalks), are bustling with refugees and asylum seekers. Winding my way through these crowds of people to my office in the mornings, I can hear old men and young women, toddlers and teenagers, families and friends, chatting to each other in French, Somali, Lingala, Kinyarwanda, English, Amharic, and any number of other languages. The liveliness of it is both inspiring and overwhelming. The diversity of RLP’s clients and their backgrounds means that I am never bored, but the daunting reality of how many people are in need of assistance weighs heavily on my untried shoulders.

My office is on the second floor of the main building. I am in a unit called Durable Solutions, which is just one piece of the puzzle that is the bigger department, Legal and Psychosocial Services. In my first week here, having read through some documents explaining the mandate of the Durable Solutions Unit (or DS), I felt like I would be right at home. DS provides client-based legal services that fall squarely within the domain of refugee law, which I have studied and worked in more than any other field of law in the past three years. Though the disparate nature of the problems asylum seekers face means that we address a myriad of problems, the main mandate of DS is, as its name indicates, to find, facilitate and implement durable solutions for refugees.

Durable solutions refers to the aspirational notion that a long-term solution should be sought for refugees, rather than the temporary, precarious reality that so many of them live. This seems particularly important in the Ugandan context, where, unlike in Canada, accepted refugees have no avenue towards any sort of permanent resident or citizen status in their country of asylum, short of marrying a Ugandan citizen.

What are these durable solutions for which my unit is named? There are, in theory, three: repatriation, local integration or resettlement.

Though I have only been in Uganda for one month, my skepticism for the first two of these solutions is already firmly established. The majority of the clients I see have fled the DRC, Somalia, or Rwanda. Without knowing a lot about the issues specific to each of those countries, it is not hard to guess that refugees from these source countries are not very warm to the idea of being repatriated, which means return to their countries of origin. I have not yet had one client ask about the option of repatriation, and a quick survey of my colleagues who have been here for much longer than me revealed that, though once in a blue moon a client might come along who is curious about repatriation, that is the exception rather than the rule.

The fear of return among many refugees, which makes them so hostile to the suggestion of repatriation, certainly seems to me to be well-founded. Life in Uganda is not easy for refugees- tens of thousands of them live in camps, a life I can hardly fathom, where the local dish posho (milled maize cooked into a rubbery cake) is the daily sustenance, and life is restricted to a tiny plot of land with very little freedom of movement. Those who live in Kampala struggle to scrape together enough shillings to rent some sort of abode and feed and clothe their families, making them very vulnerable to attack, theft, and other forms of urban violence. If the situation were more stable in these refugees’ home countries, they would be able to return to a place where they understood the language, where their culture is not the minority, where their families would be nearby. However, their resistance to repatriation is founded upon a deep-rooted fear of the violence and repression that these source countries are still mired in.

And local integration? I have trouble understanding how this can even be on the list of durable solutions in a country like Uganda where, by definition, refugees are in a temporary situation by virtue of their status. Should UNHCR decide that the danger that refugees fled in a certain source country is no longer present and invoke the cessation clause of the Refugee Convention (as it has in the case of Rwanda), refugees can be faced with the suspension of their status, and the possibility of powerful pressure to “voluntarily” repatriate. Not to mention the discrimination and exclusion refugees can face in Uganda for both practical reasons, such as language, as well as cultural reasons. Local integration is not a durable solution.

Which brings us to resettlement- the pot of gold at the end of the rainbow for many refugees. While I would characterize my daily tasks at RLP as diverse, it is true that the vast majority of the clients who come to see me want only one thing: resettlement. I have spent hours and hours explaining that the criteria for resettlement are very rigourous, that many who apply are refused, that the process takes years, that a short-term solution should be thought of first…that, that….but all too often it feels like my explanations fall on deaf ears. For these refugees know that, in reality, resettlement is the only way to a truly durable solution. Defeated by the thought of eking out a meagre existence in Kampala or, worse, in a camp, and traumatized at the thought of returning to their country of origin, the only way out they see is resettlement to a third country.

This is the hardest part of my job- facing person after person, women, men, Rwandese, Somalians, and trying to explain gently that their dream of building a life in a country free of violence and persecution is, at least for the moment, unattainable. Or facing someone who has been through the gruelling process of resettlement- interview after interview, and years of waiting, only to be told they have been rejected because the date they gave for their brother’s death does not synch with the account given of that event by their sister, or cousin, or brother, and trying to explain that re-applying is not really an option, that there is no way to appeal, that there is really nothing to be done.

I can’t help but feel like there is no durable solution. The unit I work in should be renamed, perhaps. “Short-term solutions,” or “Long-term aspirations,” or “Unrealizable dreams.”

“You’re going to see the worst of up here. Don’t forget there is a lot more going on.”

2012-Chris-DurrantBy Chris Durrant

It was one of my first nights in Iqaluit, and I was waiting at a bar to meet up with my fellow intern. People up here are friendly (I love how often children say hello to me as I walk by on the street) and so it was not long until I was talking to someone, and telling them what had brought me to Iqaluit. And as I quoted above, my interlocutor hit on one of the downsides of the legal profession: it deals mainly in pathologies. Consequently, for my first blog post, I don’t want to touch on the social problems and legal challenges I’m being exposed to working at Maliiganik Tukisiiniakvik Legal Services. Instead, I’m going to present my top eleven list of awesome things that I’ve done  or have happened since I arrived a month ago.

11. Walking through a Victoria Day snowstorm.

10. Getting invited out by one of my co-workers for one of her favorite weekend activities: Building a fire out on the land, and making tea.

9. Finding what I think is part of a polar bear jaw, and subsequently being informed I would be haunted for taking it off the land.

8. Jogging in the morning through the tundra on ‘The Road to Nowhere’

7. Moving into the official residence of the Commissioner of Nunavut (i.e. the territorial equivalent of the Lieutenant-Governor). (I’m housesitting).

6. Climbing to the top of a small tower to look at a nest of raven chicks, while their parents dive-bombed me.

5. Watching a co-worker cut up an arctic char in the office for the Wednesday potluck, and getting to chew on a piece.

4. Having a beer and a musk-ox burger at the Storehouse pub on Friday with co-workers.

3. Walking through a June the 9th snowstorm.

2. Walking across the frozen bay and hearing the groans, creaks, cracks and bubbling as the tide went out underneath the ice.

And number one: Representing a client in a bail hearing!

Yes, something with law content claims the top spot. While working for the provider of the territories’ legal aid services is putting me in contact with some sad situations, it is also an amazing opportunity in an amazing workplace. I’ll tell you all about it next post.

Warm wishes from the 63rd parallel,

Chris

 

 

University Libraries as Fieldwork?

From Edward Béchard-Torres

It will take a long time to adapt to Cameroon. Everything is so different. I know that other interns have felt the same way, and often resort to metaphors to relay their experiences. Here’s another: it has been a bit like jumping into a very cold lake for the first time. At first there’s a sense of being totally overwhelmed. Reacting to that sense of boulversement, one may feel a strong urge to return to what is familiar – back into the canoe, in the case of the cold lake. But after one’s body begins to adapt, the world appears less intimidating. The different-ness ceases to be overpowering, and the sense of being overwhelmed is replaced by an appetite to explore a new and exciting environment.

Now at that last stage of the now familiar emotional arc, I find myself confronted by a problem other interns are surely facing as well. Cameroon is a very interesting place for someone interested in law, human rights and development. But attempts to probe deeper into issues that might intrigue a foreign law student are thwarted by a dearth of available and reliable information.

Yesterday, for instance, I was told that bar exams are held irregularly in Cameroon, such that a recent law graduate can wait up to five years or more before being given the opportunity to join the legal profession. “Is the bar trying to limit the supply of practicing lawyers – maybe to keep the costs of legal services artificially high?” No one had any idea. “The Ministry of Justice has a lot of influence with the Bar. There may be some political considerations that trickle down”, says one of the lawyers with us. She had no idea what those political considerations might be, though.

Many of the conversations I have had with local community activists, students, lawyers, professors and other local residents have only spawned questions. What do you mean a person found squatting on private property could be imprisoned for a three-year term? Is that what happens in practice? An illegally occupying family has to pay for the bulldozers that raze their settlement and evict them from occupied property? Where can I find that in writing? How is that enforced? These go unanswered.

I had to be at two local university libraries for other reasons, but part of me hoped that I could find troves of local Cameroonian publications that could distill, frame and explore the questions and issues that work “in the field” had left unanswered. The irony that I had come to Cameroon for “fieldwork” in a “grassroots” organization and yet was secretly thrilled at the prospect of spending the day reading in a library had not escaped me.

And the libraries did not disappoint. On the way there, while plundering down one of Yaoundé’s busy market streets – driving against the traffic to avoid the field of car-sized potholes – the taxi driver informed me that a walled community for the handicapped lay just down the road. Curious, I pressed him for more information, but, of course, he had little more to say about it.

Having arrived, I was greeted by a warm librarian at the “bourgeois” Université Catholique de l’Afrique Centrale, located on a campus dominated by a central cathedral and so meticulously groomed I could have forgotten I was still in the messy and spontaneously settled Yaoundé. He led me into the small private library, where fifteen students, spaced out across an open seating area, poured over political writings and legal treatises of European origin. It is packed, I am told; students will begin writing exams next week. He was grateful that I had come, and hurried to bring me to the materials that I needed. I will have to go back though; students are not allowed to leave with any items from the library, not even to use the photocopying machines across the path!

Philippine Sex Workers: between a cross and a hard place

by Melissa Austen
A familiar Lou Reed tune cools Burgos Street’s sticky air like a Venice Beach summer breeze—the song’s ‘70s birthplace. “Shaved her legs and then he was a she. She said, ‘Hey babe, take a walk on the wild side.’” 

The lyrics saunter onto the street from a sit-down bar. The bar is popular for its Western continental brunch buffet.  Mainly older, expat men, Filipino girls and baklas fill its seats. Bakla is a local term denoting those who are physically male, but identify and dress as female. Baklas are not a wild sight in conservative Metro Manila. An increasing number of baklas, along with local women and minors, wait along Burgos Street, the Red Light District’s hub, for clients. Their work is a 24/7 operation; a shop whose revolving door remains, for the most part, unguarded. I spent the first three weeks of my stay in the Philippines on Burgos Street.

Coincidentally, my first assignment at the AHRC was to write a petition about a criminal law targeting women sex workers. My task was to investigate how to challenge the constitutionality of Section 1 of RA 10158, which criminalizes sex work conducted by women. Specifically, I examined how our lawyers can establish that Section 1’s targeting of women sex workers is discriminatory under the Philippine Constitution. I was also instructed to recommend for the court to read out the word “women” from Section 1’s criminalization of “women prostitutes.”

There are some advantages to this proposed solution. Reading out the word “women” from Section 1 would make the criminalization of prostitution less arbitrary in its modern application. Many baklas and other transgendered persons, in addition to some men, engage in sex work in the Philippines. Males working under the red light are a blind spot in Philippine law. Section 1 does not capture them, so men are given the green light under Philippine law to engage in sex work. Women alone, because of their sex, are vulnerable to criminal charges for sex work. Reading out “women” from Section 1 would render all sex workers—regardless of their sex—indictable.

Section 1 of RA 10158’s arbitrary criminalization of women sex workers is, of course, unjust and sexist.  For this reason, the Philippine Legislature would likely agree that this law requires revision. Reading out the word “women” from Section 1 would actually support this law’s legislative purpose to criminalize sex work. It is thus possible that the court will find Section 1 to be unreasonably discriminatory toward women under the Philippine Constitution.

For me, things get sticky during the discussion (or lack thereof) on reading out Section 1 in its entirety. The result would be decriminalizing sex work in the Philippines, a paradigm shift that would not go unchallenged. A likely and important critic is the Catholic Church, a prominent actor in many areas of Philippine society. The Church is vested with heavy political clout. For many of my colleagues, the Church’s probable opposition to decriminalization provides a sufficient reason to oppose decriminalizing sex work.

My colleagues’ cultural and religious concerns are valid, and I take them seriously. I also take seriously my role as an intern: I am here to help my organization fulfill its human rights agenda to the best of my ability. As a new visitor, I do not know how to best respond to safety and legal issues facing sex workers in the Philippines. However, many groups against decriminalizing sex work are not responding to all angles of the sex work problem. I wish to see the public weigh its discomfort about decriminalizing sex work against the adverse effects of criminalization on sex workers.

A concern for the well-being and safety of sex workers has led some countries recently to decriminalize sex work. Women and children involved in sex work are vulnerable to rape, murder, AIDS, and other sexually transmitted infections. In the Philippines, over a third of Filipino women sex workers interviewed in 1998 reported that they have been subject to violence or harassment, most commonly from the police, but also from city officials and gangsters. There are no recent figures on violence against sex workers, illustrating the lack of resources given to researching dangers posed to this marginalized group.

Decriminalizing sex work in the Philippines will not fully protect sex workers from violence and illness.  However, sex workers could benefit from a less stigmatized status when seeking social services and accessing the law. Moreover, decriminalization would shift the police’s role from punishing sex workers to protecting them. Those for and against decriminalizing sex work in the Philippines probably agree that improving sex workers’ safety is desirable.

The causes of sex work are just as important to examine as the effects. Surveys of women working as erotic masseuses indicate that 34 percent of these women described their choice of work as necessary to support poor parents, 8 percent to support siblings, and 28 percent to support husbands or boyfriends. More than 20 percent of respondents said that the job was well paid, but only 2 percent said it was easy and enjoyable work. Poverty and familial responsibility, coupled with a lack of economic prospects, are key drivers for poor women to enter the Philippine  sex industry.

I would like to see more discussions in the Philippines on whether sex workers, induced by poverty to enter the sex industry, ought to be punished by the criminal law. Reading out “women” from Section 1 would better carry out the Philippine Legislature’s intent to prohibit sex work in its entirety. Yet the public policy merit of this law has yet to be evaluated on some important fronts. A key front is child welfare.

The relationship between poverty and sex work is particularly stark in the context of child sex workers. The Philippines ranks fourth among nine nations with the most number of children trafficked for prostitution. Pills and condoms are unknown among many child sex workers. Child sex workers commonly drink small amounts of Tide, believing that detergent bleach will prevent STI-transmission. First-line responders say that poverty, peer and family pressure lead most children to sex work. These minors are particularly vulnerable to sexual exploitation because many of them lack knowledge of their vulnerabilities.

The criminalization of sex work in the Philippines is especially dire at this moment. A bill to reduce the age of criminal responsibility to twelve may pass this year. I attended the House of Representatives during the bill’s second passing. If this bill is passed, then child sex workers as young as twelve can be trapped behind bars, beyond the reach of rehabilitation centers. This possibility seems odd since both sides of the decriminalization debate would probably agree that child sex workers require rehabilitation.

In many ways, these children are already locked up by their psychological trauma. Often, children in rehabilitation ”want to change but can’t get out of the system. They feel caged and trapped,” explains Dr. Norietta Calma of the Philippine General Hospital’s Child Protection Unit. Still, therapy can help prostituted children face the truth and finally ”forgive themselves.”  If we view child sex workers as requiring emotional and physical healing, then the question of whether sex work is an illness plaguing poor youth needs fleshing out.  This question is mired with legal implications.

I do not have an answer to this complicated question. All of my expressed concerns are issues I wish to see debated in the Philippines. I situate myself outside this debate.

One truth is clear, though: Philippine sex workers are subject to violence and danger in their workplaces with little or no protection. Women sex workers—and, if the AHRC’s petition is successful, all Filipino sex workers—are caught between a cross and a hard place in the Philippines’ muted debate on decriminalizing sex work.

If the new crime bill passes, then children ages twelve and up will be tacked onto the debate. Sex work in the Philippines is not just a wild, moral problem: it is a grave social crisis with far-reaching health, criminal and social consequences. These consequences require further evaluation by critics and supporters of sex work criminalization.

The Various Natures of Costa Rica

By Anne-Claire Gayet

5 juin 2012, me voici à un mois et cinq jours après mon arrivée au Costa Rica, et deux semaines après le début de mon stage à la Cour interaméricaine des droits de l’homme.

Before starting my internship at the Inter-American Court of Human Rights, I had the chance to travel a little bit in Costa Rica. This trip has allowed me to familiarize myself with Central America, being my first time in the region. It has also given me the chance to know more about Costa Rica of which I knew few things before my stay here, except that it hosts the Court and that it was the first country to have abolished its army, in 1949.

I was amazed by Costa Rica´s luxuriant nature, its generally warm climate – so enjoyable after a winter in Quebec – and the tropical rains in the afternoons. I fell in love with the local fruits: it is wonderful to pick coconuts directly from the trees, find mangos on the ground, buy excellent pineapples for a very good price (2 or 3 for 1000 colones or approximately 2 dollars, etc.), discover new fruits like guavas. I met nice Ticos (the people from Costa Rica), often through the accommodations where we stayed. On a more personal note, travelling outside San José has allowed me to feel more comfortable and less insecure in Costa Rica: numerous warnings received prior to my stay here had made me somewhat uneasy and caused me to be cautious both regarding my belongings and the people I would meet.

Travelling and meeting with Ticos also gave me a sense of some issues in Costa Rica. I observed, for example, marked demographic, social and cultural differences between the Pacific coast and the Caribbean one. I first observed a difference through the denigrating reactions of Ticos from the Pacific coast when I told them I was planning to travel to the Caribbean coast. When I arrived in Cahuita, I noticed the large presence of Black people, contrary to elsewhere in Costa Rica. Mainly of Jamaican origin, many of them spoke Pidgin English. The music in the bars – so loud that everyone in the streets could hear it – had a clear reggae influence. The food offered was also of Caribbean inspiration (with the traditional sauce with coco milk). The Caribbean coast offers clearly another aspect of Costa Rica.

The current demographic and cultural differences between the Caribbean coast and the rest of Costa Rica today reflect the history of exclusion of the Black people in Costa Rica. Until 1949, Black people were prohibited from going to the West of Costa Rica.   Trains from the Caribbean coast to San José had to stop at Siquirres in order that the Black technicians and drivers would get off the train, to be replaced by “White” workers.  Although abolished a few decades ago, this segregation seems to have left scars as far as I can observe after a few weeks in Costa Rica.

I was glad to start the internship after knowing a little bit more about Costa Rica. Since I arrived at the Court, I have started to work on a team composed of two lawyers, and another legal intern from Seattle. As we mentioned in our training session before departure, as interns we arrive in an environment where there is already work in progress, with specific deadlines and challenges. Actually, the lawyers informed us that it was a particularly tense moment for them, as the next session of the Court would take place from June 18th to June 29th and as they had to transmit to the Judges the projects of decisions before the session. They also informed us that our team would mainly focus on three cases until the end of August, either building on the work of previous interns or investigating new areas of the cases.

So far, I have read in depth the different writings of the cases, from the Inter-American Commission on Human Rights, the victims and the State, and done specific research on two of them. One investigation was related to the duty to consult Aboriginal people in case of exploitation on their lands, in the jurisprudence of other Latin American countries and the Commonwealth. My small exposure to Aboriginal cases in Canada while at McGill has been helpful!  I had to summarize the different criteria developed by the SCC related to the duty to consult, in order to support a possible decision of the IACHR.

My second main task was related to the issue of forced displacement in another case. I had to write a memo on whether or not there has been a violation of article 22 of the American Convention on Human Rights (on the freedom of movement and residence) for a group of people who left their village after a bombing, and who returned there only a few weeks or months after.

Our job will likely be different in the coming weeks, as the atmosphere and the work in the Court seem to very much influenced by the sessions of the Court. I look forward to it!

Working at the Court is also the chance to meet persons from different countries of Latin America, the US and even France. Lunch breaks and post-work events are an excellent opportunity to learn about others’ lives, personal and professional aspirations, and to reflect on my own choices and plans. À suivre!

A Single Hair Above the Grass’ Roots – An Introduction to La CONGEH

by Edward Béchard-Torres

After a two-week introduction, I know enough about my host organization to draw a sketch. La CONGEH – whose acronym roughly translates to “the Coalition of Non-Governmental and Community-Based Organizations working in the domain of Human Establishments” – acts as general coordinator, network, research center and occasional spokesperson for its member organizations, rumoured to amount to some thirty in total.

The Coalition has as its lodestar the attainment of secure and adequate housing for all Cameroonian residents. Its approach is holistic, multi-disciplinary and multi-layered, and is particularly oriented towards the most vulnerable segments of the population. That said, much of its work consists in providing local residents with information – particularly legal information – and advocacy, directed towards both community members, traditional leaders, and political stakeholders.

The organization, in other guises, also conducts research on property and housing-related issues. The organization has examined, for instance, the channels by which low-income families come to possess land, the formal and customary law of succession and its impact on married women as well as a study on the quantification of the psychological, social and pecuniary loss suffered by families following a forced eviction.  Lastly, the organization works as broader spokesperson, both to potential sources of funding and to a larger development-oriented community.

Human Rights as an End, Not Necessarily as a Means

While some imagined human right to housing and property may act as an ultimate objective, a clarion call, and even a marketing pitch, there does not appear to be much workable or useful human rights law or mechanism for the Coalition to make use of. Secure property and adequate housing remain to be achieved by other means: influencing government policy, transforming community attitudes, providing health-related services or spreading commercially useful practices. Because poverty acts as one of the most important barriers to adequate housing, some of the Coalition’s member organizations devote themselves to simply raising household incomes.

Les Cases Sociales

At the center of la CONGEH’s operation sit seven Cases Sociales, a term which translates (poorly) to “Social Spaces”. We might know them as community centers. The notion of the Case Sociale, I have been told, is a modern iteration of the institution of the Baobab tree, a tree whose base and shadow served as a center of debate, dispute resolution and community gathering in traditional villages. In its modern iteration, they are small offices rooted in different neighbourhoods in Yaoundé and in the surrounding rural area.

The offices serve as the principal distributors of la CONGEH’s informational services and advocacy. I have had the chance to visit only one – la Organisation Nationale des Promoteurs du Progrès (“ONPP”). The office is holed at the backend of a dirt road in Messa Carrière, a dense neighbourhood of mostly informal settlements, bordered by a communally-managed cornfield that grows from the remains of an evicted neighbourhood. That day, the ONPP had organized an HIV screening campaign – children line up to be tested while the event organizers try to rope in passers-by. Next week the ONPP will host a session on micro-credit; the week after it will host a session on dying and sowing material for sale; the week after that it will hold a session on interior decorating.

Human Rights Advocacy as Missionary’s Work

 The Coalition does offer some traditional legal services, most notably legal information related to property and housing rights. It has accompanied community members to Court and does, on occasion, offer references to lawyers better positioned to handle litigious matters. But much of the Coalition’s focus remains centered around reformulating attitudes around land and housing, and around HIV/AIDS and women’s welfare in particular.

This campaign hopes to bring a human rights worldview to bear on actions of community leaders and community members. And the human rights discourse is not the only source of arguments tapped. A small stack of unfolded pamphlets lined up against a wall had been intended for distribution in low-income communities. The pamphlets are intended to inform community members of the discrimination and housing-related vulnerability faced by women in Cameroon.

On the pamphlets, one slide sketches a local community leader informing women – both married and un-married – that they will possess no rights to their own houses until their name is entered on the formal title to property. Another features a husband ejecting his wife from their shared home – she is HIV-positive, the slide informs, and her new homelessness will be a burden, added to her need to find work, food, control her illness and take care of her children. One last slide features a woman arguing with her partner, who similarly intends to eject her from their home. Surely, the wife argues, the effort and affection with which she cared for the home, making it a livable space, should give her some right to it. Much of the Coalition’s work is of this nature: modern, human welfare and human rights-oriented proselytizing.

These have been some of my first – and perhaps mistaken – impressions, and these will be the spaces that I will continue to watch.

Blog authors are solely responsible for the content of the blogs listed in the directory. Neither the content of these blogs, nor the links to other web sites, are screened, approved, reviewed or endorsed by McGill University. The text and other material on these blogs are the opinion of the specific author and are not statements of advice, opinion, or information of McGill.