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Influencing the Tide of International Law (in a Tiny, Tiny, Minuscule Way)

2016 Cooke FionaBy Fiona Cooke

I am now one week out from finishing my internship at Avocats sans frontières Canada in Québec City. Although one week isn’t really enough time to look back with any sort of objective perspective on my internship, I do feel able to draw a preliminary conclusion about my time at the organization, and the work that I did.

On the last day of my internship, I had a réunion de retroaction with the supervisor I worked most closely with. She asked me to offer my suggestions on what I felt they could do better, or what sort of things I didn’t like as much about the internship. What I said to her at the time was that I would have liked to have done more “practical” work. I can’t quite recall what inspired this criticism; I vaguely remember a fellow intern being assigned the task of researching the functioning of legal aid in Ontario, and I was envious of that seemingly fascinating assignment. I thought about some of the questions I had been posed – does the state, because of its legitimate monopoly on violence, maintain this monopoly in the context of an armed conflict to which IHL would apply? How does the ICC interact with human rights law, as a criminal court? Is there a justiceable right to peace in international law? These questions, while absolutely fascinating, all felt very theoretical – floating on some higher plane, divorced from context and individuals. I am so grateful for having been assigned them – I now have a much broader and more solid understanding of the various areas of international law, when they apply, and how they interact with each other. However, I didn’t feel like I had witnessed any way in which these areas of law had impacted real peoples’ lives. I remember thinking: my work is interesting to me, and useful to me – maybe not so useful for individual vulnerable people in Haiti, or Mali, or any of ASFC’s other countries in which it works. However, now, with a bit of distance, I’m better able to see the larger picture.

Colombia’s government and the FARC-EP rebels signed the Peace Agreement on June  23rd[1], a momentous occasion that everyone hopes will signal a significant and genuine step towards ending the conflict that has devastated Colombians for decades. The Peace Accord includes unique provisions that foresee punishments alternative to time in prison for the perpetrators of international crimes.[2] The questions on everyone’s mind were: 1) will this fulfill Colombia’s obligation under international law to punish perpetrators of these crimes? – because if it doesn’t, the ICC could step in, and 2) will this satisfy the victims’ right to justice? Are “restrictions of liberty” combined with acts of community service enough of a punishment? Is it a punishment at all? No international tribunals have ever given any punishment other than prison time. This is an innovative test case for restorative justice after international crimes, and the debate is fascinating.

When the accord was signed, ASFC released multiple data fact sheets, explaining the context of the agreement and what it included in terms of transitional justice for victims, as well as a its official evaluation of the peace agreement. While reading these fact sheets, one line struck me – it was a line that summed up the conclusion of one of my first memos I had written for my supervisor. Behind that one short sentence was 3 weeks of intense research, thinking, and learning on my part. It made me think about just how much human effort and passion goes into research by NGOs in order to make informed and careful statements or suggestions that will have an impact on real situations. The research that I had done, alone in my office, lost in the puzzle pieces that are IHL, IHRL, ICJ, and one hundred other initialisms, ended up informing ASFC’s official position on the new Colombian peace agreement. In the end, ASFC came out in cautious support of the agreement, provided its provisions were carried out with genuine intent to bring the perpetrators of crimes to justice. ASFC is an influential organization that others will look to to inform their own opinions, trusting the research that is behind this organizations’ conclusions. And opinions are the motor of international law, it seems – forming opinions will influence what direction the law actually takes. ASFC’s opinion is one of potentially multiple cautiously optimistic takes on the Colombian Peace Agreement that may, eventually, profoundly influence international criminal justice – moving its focus away from punishment and more towards reconciliation and rebuilding societies, and allowing for more flexibility in situations of conflict.

So, I see it now as a snowball effect – the tiny amount of contribution I made by way of my memo has its place in the larger role that NGOs play in international law in influencing both public opinion and the opinions of judges world-wide. That being said, I realize that the point of doing this work is not the personal gratification of seeing its effects in the real world – I just mean to say, there is indeed value in sitting alone in an office, wading through the morass that is international law – without these drops in the bucket, the larger waves would not materialize.


[1] “Colombia & FARC Agree to Ceasefire in Historic Peace Deal, Begin Long Process of Implementation” Democracy Now (23 June 2016), online: http://www.democracynow.org/2016/6/23/colombia_farc_agree_to_ceasefire_in

[2] Helen Murphy, “Colombia’s FARC may face alternative justice, not impunity” Reuters (5 September 2013), online: http://www.reuters.com/article/us-colombia-peace-interview-idUSBRE9840VZ20130905

The limits to legal reform focused on the state: the case of Mali

2016 Squire MatthewBy Matthew Squire

With only a few days remaining of my internship, I am only just beginning to appreciate how much I have learned this summer.  I have had the opportunity now to work on four cases that IHRDA is preparing, several presentations, and countless other research tasks.  One thing especially that has impressed me this summer is the extent to which the organization is aware of the context in which it works, concentrating its work in key areas that appear to have realistic prospects for incremental change.

This awareness of the context is something, however, that does not seem universally shared, especially among governments from the global North working on human rights.  Some work I conducted this summer revolved around family law reform in Mali.  The reform of Mali’s family law was an initiative in which Canada was heavily involved, an involvement I still have issues and questions about.

The limits of state-focused development initiatives?

Canada’s involvement in Mali’s law reform was part of the post-cold war movement in the global North towards sponsoring democratization in the global South.

Following the end of the Cold War, building up civil society became one of the buzzwords of the international development community.[1]  USAID, the World Bank, and other development institutions began including initiatives to build up civil society in the global South as part of their operational plans. [2]  According to Professor Thomas Kelly, the Global North has become convinced that a buoyant NGO sector is key in the development of a strong democracy, both because of role of NGOs in the development of western countries, and because of the role that NGOs could play in moving away from authoritarianism.[3]

Kelly claims, however, that governments and donors from the global North “…had a particular sort of NGO in mind, even if they did not say so.  What they meant was advocacy organizations, led by Western-oriented intellectuals, lawyers, entrepreneurs, academics, and teachers, all devoted to public interest causes such as the environment, human rights, women’s issues, election monitoring, anti-corruption, and other things that we in the Global North tend to applaud.”[4]

In the West African context, Kelly highlights two side-effects of this focus.  First of all, Kelly points to disconnect between NGOs dominated by western-oriented, educated individuals and the populations they purportedly represent.  Second of all, Kelly argues that these NGOs, by being focussed on the state, tend to ignore important forms of African social organization that happen outside of a state context – organizations such as tribal groups, clans, and Islamic religious organizations.[5]

Contrary to Kelly, I believe that such disconnect and such state focus is necessary to a certain degree.  The world, like it or not, is organized today into states.  Many violations of human rights in the African context have been and are being perpetuated by states.  To remedy this thus entails change to the state, and organizations working on these issues, such as IHRDA, do have the possibility to effect change.

Where this disconnect and state focus may be more problematic is in dealing with harm inflicted on individuals by individuals, especially inflicted in the context of traditional practices.  In this context, is a focus on the state really the best way to affect change?

Case study: Mali’s new family code of 2011

Mali: a secular elite, growing influence of religious movements 

Mali inherited the principle of “laicité” when it became independent from France, with both the 1960 and 1992 constitutions proclaiming Mali a “republique laique.”[6]  In contemporary Mali, the elites of society – the bureaucrats, the career politicians, the lawyers, the civil servants – are mostly educated in state-run secular French language schools.[7]  The attitude of these elites to religious leaders is not particularly favourable.  Many of those having completed the French school system see Muslim religious scholars as old-fashioned and regressive, for example.[8]

Recently, however, the laicité of the elites is coming under increasing pressure from Islamic civil society.  Religion has come to play a much larger role in Malian society.[9]  Islam’s important place in the public sphere of Mali originates in the restructuring of the economy that colonisation brought.  In the colonial Muslim-controlled economy centered on colonial towns, conversion to Islam was often a requirement to participation.[10]  This led to conversions and an increased public role for Islam in public day-to-day life in West Africa.  Following independence, the new governments continued to tightly control Islam, as the colonizers did before them.[11]  In Mali, for example, the socialist government of Modibo Keita shortly after independence pushed Islamic organizations underground.[12]  The regime of Moussa Trauré, who came to power in a 1968 coup, attempted to use Islam for political goals, establishing the Malian Association for the Unity and Progress of Islam (AMUPI) in 1980 to control and direct Islamic energies.[13]

After the 1991 coup d’état in Mali, freedom of association was established.  In the democratic spaces that were created, Islamic organizations have taken advantage of the opportunity to finally contribute to public discourse.[14]  Since 1991, despite efforts to retain Mali as a secular state, Islamic associations began to play a much more important role in Malian politics.[15]  With the emergence of new communications technologies, easy access is provided to some Muslim leaders. [16]  In multiethnic but majority Muslim societies like Mali, Islam has come to play a powerful unifying force.

Today, compared with politicians and governments, Malians have a high degree of trust in religious and traditional leaders.[17]  In addition, this increasingly active, and trusted, Islamic civil society is advocating for a more public role for religion, in direct opposition to political elites.[18]  It is not surprising that, in this context, a 2009 Family Code reform project conducted without the engagement of Islamic civil society failed.  As Thomas Kelly commented on a similar reform of the Niger Family Code, “a legislative reform effort aimed primarily at increasing women’s standing in society opened up a field for conservative religious forces to mobilize popular discontent by entering the civil society sector – with its freedom of expression and of association – and offering a vision of Islamic cultural autonomy as an alternative to political dependence on the West.”[19]

2009 Family Code reform failure

Mali, unlike most African countries, has ratified almost all the major international human rights treaties.  International donors, among them Canada, have been funding a series of comprehensive reforms to Mali’s legal system since the country’s transition to democratic rule in the 1990s to, among other things, improve women’s rights protections.[20]

In 2009, with almost unanimity, the national assembly of Mali adopted a new family code.  This new code continued a stipulation from the post-independence that marriage was “laique”,[21] eliminated a 1962 provision that required women to obey their husbands,[22] raised the minimum age of marriage to 18 years old for both men and women (the previous minimum age for women was 15, 18 for men),[23] and provided for a legislated regime to cover successions.  This regime covering successions provided for the equal treatment of men and women in inheritance, as well as equal treatment between legitimate and illegitimate children.[24]  The previous legal regime established that married couples would refer to their own religious or customary law to determine who would get what.[25]  Under Islamic traditions, women generally inherit only half of what men inherit, and children born outside of marriage do not have any automatic rights to a succession.  The code, however, did allow for citizens to use their religious or customary law to cover successions, but to do this, they would have to create a testament with the aid of a notary.[26]

This 2009 code, despite the overwhelming support of elected members of the national assembly, was never promulgated into law.  The 2009 code was overwhelmingly rejected by the principal Islamic organizations in Mali.  Islamic organizations claimed that the 2009 vote in the national assembly was a sign of the enslavement of the government to international aid money and the international movement to liberate women. [27]   Islamic organizations signalled the need to preserve Islamic values against an onslaught of western imperialism.[28]  Faced with this opposition, the Malian president Amadou Toumani Touré refused to sign the code into law and, with the aid of a commission composed of parliamentarians and representatives of Islamic organizations, a new code was drafted.  On December 2, 2011, the National Assembly adopted the new code.  This code was promulgated into law shortly after.[29]

The 2011 family code

The 2011 family code retained the 1962 provision that required wives to obey their husbands.[30]  It also lowered the age of consent for girls to enter into marriage to 16 years old, without the consent of her parents required.[31]  The 1962 code had, in contrast, allowed girls under 18 to be married only with the consent of both parents.[32]  In exceptional circumstances, the code allows for the marriage of 15 year-old girls, so long as her father gives his consent.[33]  Compare this to the 1962 code where both the father and the mother had to give consent for the marriage of a 15 year old girl.[34]  These provisions are clearly in violation of regional and international human rights mechanisms which require that the minimum age of marriage should be 18.

The new 2011 family code also established that marriage is no longer “laique”, as the 1962 and 2009 codes provided.[35]  It legalizes religious marriages in the country, something that was of great concern to women’s rights campaigners.  The new code effectively creates two legal regimes covering marriage, one requiring the full consent of both parties in front of an officer of the state, with fines and prison sentences established if he or she violates the code, and another for religious officials that is entirely absent of such provisions.[36]   As traditional and religious marriages in Mali are normally performed without either of the future spouses present, and given local customs and conditions, especially in rural areas, that encourage marriage in childhood, this new code effectively legalizes and legitimizes forced and child marriages, a violation of regional and international human rights mechanisms.

In addition, another very controversial provision from the 2009 code was altered.  Islamic organizations complained that the lack of notaries in Mali effectively required individuals to manage their succession using the provisions of the Code.[37]  As such, the 2011 reverses the 2009 code by establishing the default succession regime as religious or customary law, only allowing those whose religion or custom is unknown or those having made a testament with the aid of a notary to make use of the egalitarian provisions of the code.[38]

The way forward? 

In Mali, foreign donors from the global North, Canada included, backed a wide-ranging series of reforms to Mali’s legal system to improve rights for women, without engaging all stakeholders in the project.  In the end, this project resulted in a legal regime where women now have less protection than they had under the 1962 code.

What is the way forward?  Thomas Kelley comments on the issue: “…having supported the implementation of structures that permit, even encourage, open, society-wide debate about the nature of justice and governance, it is impractical, and frankly unseemly for westerners to attempt to intervene when we disapprove of the principles and structures that our ostensible tutees have devised.” [39]

In a 2011 publication by the NGO Focus on Land in Africa, the authors suggest to advocate’s for women’s rights that legal change should not outpace social change: “Advocates for women’s rights must be willing to invest time in understanding local norms and their rationales, working with women and their communities to envision the changes that are important to them, and devising workable solutions to achieve those ends. While such an approach may be iterative, slow and fraught with set-backs, it is also less prone to fierce resistance or conflict and is more likely to appropriately serve women’s interests.” [40]

 

 

[1] Thomas Kelley, “What!  That’s Not What We Meant by Civil Society!: Questioning the NGO Orthodoxy in West Africa” (2010-2011) 36:3 Brook J INT’L L 993 at 995.

[2] Ibid at 996.

[3] Ibid at 999.

[4] Ibid at 1001.

[5] Ibid at 1001-1002.

[6] Alex Thurston, “Towards an ‘Islamic Republic of Mali?’” (2003) 37:2 Fletcher F World Aff 45 at 47.

[7] Ibid at 61.

[8] Benjamin F Soares, “Islam in Mali in the Neoliberal Era” (2005) 105:418 African Affairs 77 at 84 [Soares 2005].

[9] Tone Sommerfelt, Anne Hatloy, & Kristen Jesnes, “Religious reorientation in Southern Mali – A summary” (2015), Fafo, online: <http://www.fafo.no/~fafo/images/pub/2015/20424.pdf> at 7.

[10] Robert Launay & Benjamin F Soares, “The formation of an ‘Islamic sphere’ in French Colonial West Africa” (1999) 28:4 Economy and Society 497 at 506 [Soares and Launay].

[11] Kelley, supra note 1 at 1006.

[12] Thurston, supra note 6 at 49.

[13] Ibid.

[14] Kelley, supra note 1 at 1005 – 1006.

[15] Thurston, supra note 6 at 50.

[16] Soares and Launay, supra note 10 at 515.

[17] Ibid.

[18] Soares 2005, supra note 8 at 86.

[19] Kelley, supra note 1 at 1008.

[20] Benjamin F Soares, “The Attempt to Reform Family Law in Mali” (2009) 49:3/4 Islam in Contemporary West Africa 398 at 416 [Soares 2009]

[21] Ousmane Koné, “Le controverse autour du code des personnes et de la famille au mali: enjeux et strategies des actuers,” (September 2015), Université de Montréal (Doctoral Thesis), online : < https://papyrus.bib.umontreal.ca/xmlui/bitstream/handle/1866/13576/Kon%C3%A9_Ousmane_2015_these.pdf?sequence=2&isAllowed=y> at 4.

[22] Boubacar Haidara, “Les formes d’articulation de l’islam et de la politique au Mali,” (2015), HAL (Doctoral Thesis), online : <https://halshs.archives-ouvertes.fr/tel-01319122/document > at 340.

[23] Ibid at 337.

[24] Koné, supra note 21 at 129.

[25] Ibid.

[26] Ibid at 129-130.

[27] Ibid at 33.

[28] Ibid at 34.

[29] Ibid at 3-4.

[30] Portant Code des personnes et de la famille, Law No 11-080/AN-RM, 30 December 2011, online : < http://www.demisenya.org/wp-content/uploads/2013/03/mali-code-personnes-famille-2-decembre-2011.pdf> art 316 [Code 2011].

[31] Ibid, art 281.

[32] Code du mariage et de la tutelle, Law No 62-17/AN-RM, 3 February 1962, online : < http://jafbase.fr/docAfrique/Mali/CodMariage.pdf> art 11 [Code 1962]. 

[33] Ibid, art 284.

[34] Code 1962, supra note 32 art 11.

[35]Code 2011, supra note 30 art 20.

[36] Code 2011, supra note 30 art 283-287, art 299, art 300-305.

[37] Koné, supra note 21 at 134.

[38] Code 2011, supra note 30 art 751.

[39] Kelley, supra note 1 at 1009.

[40] Kelsey Jones-Casey, Anna Knox, & Zoey Chenitz, “Women, Inheritance, and Islam in Mali,” (2011), Focus on Land in Africa, online: < http://www.focusonland.com/fola/en/countries/brief-women-inheritance-and-islam-in-mali/>.

 

Did Science get lost for a second at Toronto City Council vote on Supervised Injection Sites?

2016-KohutRachelBy Rachel Kohut

During the final weeks of my internship at the Legal Network, I got the chance to witness Toronto City Council pass three supervised injection sites. It was an enlightening experience to say the least, and definitely not what I was expecting. What was supposed to be an hour at City Council watching the motion pass, quickly turned into a whole morning.

Research, community consultations and careful planning had been thoroughly undertaken before these three proposed sites were brought before city council, with these recommendations ultimately brought forward to City Council by the Board of Health. Day of, the Medical Officer of Health for City of Toronto was present for any lingering questions. Turned out, there were many. I was admittedly a bit shocked that so many people had so many lingering questions, and that many of them were seemingly entirely off point. It was as if they only skimmed a few documents the night prior. All of a sudden, the conversation became about methadone treatment, instead of about safe injection sites.

Toronto City Council Chambers

Toronto City Council Chambers

Three Councillors voted against the proposed supervised injection sites: Giorgio Mammoliti, Christin Carmichael Greb and Stephen Holyday, as they were not swayed by the arguments presented to the Council Chamber. They questioned the efficacy of the sites, further arguing that the sites would be ‘enabling’ and ‘dangerous’. Mammoliti made a motion to change the location of the sites to hospitals, pharmacies and medical clinics to make them more safe. This was rejected by Council.

This last minute hail mary pass that caught me off guard. There were many other opportunities to raise these concerns beforehand, whether at community centres where consultations were held, or at discussions with the Board of Health. Why weren’t these concerns raised them, particularly given the technical nature of the subject matter?

Interestingly, once Mammoliti’s motion was tabled, he didn’t stay in his seat for long. He immediately shimmied to the top of the chamber, where the press was eagerly waiting to question him. But the discussions in the lower part of the Council Chamber didn’t stop. In other words, Mammoliti wa voicing his plight about the safety and efficacy of supervised injection sites to various news outlets at the top of the Chamber, while those in the lower part of the Council Chamber who were elected to represent the voice of Torontonians were continuing the discussion.

It quickly became apparent that this was a last minute media ploy more than anything, which got me thinking about the role of the press. Everyone has the right to know what is happening at City Council and media plays a big part in communicating discussions to the public. But did it really have to be that second?

Medical Officer of Health for City of Toronto, Dr. David McKeown, answering questions from councillors.

Medical Officer of Health for City of Toronto, Dr. David McKeown, answering questions from councillors.

What further struck me about this process was the role of the Medical Officer of Health in the discussions. Having previously worked at the Chief Public Health Office at the Public Health Agency of Canada, I am aware that the role of medical officers in decision- and policy-making is often murky at best, but it is hard to disagree with the fact that they are brought in for their technical medical knowledge and opinion.

As I watched David McKeown thoughtfully and patiently fielded questions from councillors who obviously didn’t read up on supervised injection sites, and what it meant for the city, I could only imagine what was running through his head. Maybe he was just as frustrated as me to witness councillors not seizing the opportunities to become better informed when they are presented, and instead turning around to create opportunities for public confusion and personal gratification. This moment for clarification rapidly spiralled into a moment of public health education 101, with science struggling to hold its own for a moment in the mix.

Thankfully the motion passed and if all goes well in Toronto’s application for a federal exemption, the city will soon have three supervised injection sites. But wow, what a whirlwind to get there.

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