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Le courage à visage humain – Rencontre avec un proche de victime de disparition forcée

Par Camille Lustière

Crédits – Avocats sans frontières Canada

C’est déjà ma dernière semaine à Avocats sans frontières Canada (ASFC) et le temps est venu de faire le bilan sur mon expérience. Le décor déjà m’a particulièrement plu : Québec est une ville qui a beaucoup à offrir, surtout l’été. La Vieille ville, les chutes de Montmorency, le Festival d’été, je ne me suis pas ennuyée ! Le stage reste l’événement principal néanmoins : pouvoir mettre en pratique les connaissances apprises et découvrir le travail d’une ONG de l’ampleur d’ASFC de l’intérieur a certainement été une expérience formidable. J’ai eu la chance de faire des rencontres intéressantes, mais l’une d’elles m’a particulièrement marquée.

Nous avons reçu dans les bureaux Paolo Estrada, fils de victime de disparition forcée, qui est venu nous présenter un documentaire sur le sujet. La disparition forcée est un crime particulièrement cruel : aux horreurs infligées à la victime se rajoute la douleur de l’inconnu pour ses proches. Il se différencie du kidnapping par l’absence de revendication ou de toute demande de rançon ou d’extorsion et de l’exécution extrajudiciaire par la destruction de toute trace de la personne assassinée. A l’époque des droits humains, l’Etat coupable de ces multiples crimes sauve les apparences. S’il n’y a pas de détention, de témoins ou de corps, il n’y a pas de preuve qu’un acte illégal a été commis.

La communauté internationale reconnait l’horreur de ce crime, et une Convention pour la protection de toutes les personnes contre les disparitions forcées est signée en 2006. L’on retrouve également ce crime dans le Statut de Rome de 1998, au sein des crimes contre l’humanité. La Cour Interaméricaine des droits de l’homme a développé une large jurisprudence sur le sujet, où elle reconnait notamment le droit des proches des victimes à connaître la vérité, et astreint les Etats à enquêter et juger diligemment ces crimes.[1]

En tant que française, j’ai été choquée d’apprendre que c’est une pratique apprise par les militaires argentins d’agents français, qui s’est par la suite diffusée à travers l’Amérique latine.[2] La France n’a toujours pas reconnu son rôle dans la diffusion de cette pratique mortifère, malgré la tentative de quelques députés, au début des années 2000, de mettre en place une commission de vérité.[3]

Le modus operandi est le suivant : des hommes masqués et non-identifiés se saisissent en plein jour de la personne et la jette dans un véhicule non-identifié, sans qu’elle ne soit jamais revu par quiconque. En Argentine, plus de 30 000 personnes en sont victimes pendant la dictature, au nom de la lutte contre le communisme. C’est la « guerre sale » de l’Opération Condor, qui dissémine la disparition forcée à travers le continent, où elle fait des centaines de milliers de victimes.

Au Guatemala, la junte militaire commence à l’utiliser dans les années 1980’ lors du Conflit armé : le bilan est le plus lourd de toute l’Amérique du Sud, plus de 45 000 disparus, en plus de 200 000 morts. Peu de hauts responsables de ces atrocités ont encore été jugés, mais certains progrès ont été obtenus: quatre hauts gradés ont été condamné pour la disparition d’un jeune garçon de 14 ans et le kidnapping et viol de sa sœur.[4] L’affaire « Diario militar » est l’une d’entre elles : en 1999, le Harper’s magazine publie un journal ayant appartenu à un militaire et recensant le sort de 183 disparus, dont le père et l’oncle de Paolo Estrada. La Cour Interaméricaine a rendu en 2012 un jugement favorable aux familles des victimes, toutefois l’Etat guatémaltèque n’a toujours pas condamné aucun responsable.

Parmi les obligations imposées par l’Etat, il y avait celle de préserver et diffuser la mémoire de ce qui s’était passé : devant l’inertie du gouvernement, les proches des victimes ont pris les choses en main, et filmé ce documentaire. En plus de la connaissance des faits, ce film m’a beaucoup touché, en ce qu’il ne montrait pas seulement l’horreur de ce que la junte militaire a fait subir à ces personnes, mais également montré le visage humain de la douleur, les souvenirs qu’elles avaient avec leurs chers disparus.

Rencontrer une personne aussi déterminée et courageuse que Paolo Estrada permet certainement de mieux comprendre l’importance d’avoir des associations comme ASFC pour les appuyer dans leurs combats. Sa détermination face à l’adversité, et avec lui celle de tous les proches des victimes, force le respect et l’admiration. Son histoire mérite certainement d’être entendue et diffusée, en espérant qu’un jour, la lumière sera faite sur le sort des disparus et justice finalement rendue.

[1] Pour exemple, l’affaire Gúdiel y otros (« Diario Militar ») c Guatemala (2012), où Paolo Estrada et d’autres proches de victimes obtinrent un jugement en leur faveur : à ce jour, l’Etat guatémaltèque ne s’est pas encore conformé à cette décision.

[2] Voir le documentaire de Marie-Monique Robin, « Les escadrons de la mort : l’école française »

[3] Hélène Marzolf, « Ces docs qui ont changé le monde 1/5 : ‘les escadrons de la mort : l’école française » Télérama, (10 décembre 2012) https://www.telerama.fr/television/ces-docs-qui-ont-change-le-monde-1-5-les-escadrons-de-la-mort,63450.php

[4] Affaire Molina Theissen, Tribunal de Haut Risque C, jugement du 23 mai 2018

The Times They Are a-Changin

By Tiran Rahimian

In justifying the crimes of Milo in an internal armed conflict in Rome, Cicero pleaded, “silent enim leges inter arma.”[1] Times have, somewhat, and thankfully, changed. The past century alone has witnessed the crystallization of the laws of war, the emergence of a rules-based, human-centric global order, and the rise, and decline, and rise, of international criminal justice. Despite remarkable progress, however, the pertinence of law in the anarchically barbaric realities of war remains to this day contentious, and the objection that law falls mute when collective survival is jeopardized continues to resonate with the cynics and so-called realists of our world. To make matters worse, the rise of inward-looking populist movements in recent years poses yet another challenge to the international legal order, and may very well prove to be its litmus test. In this climate, the work of NGOs such as Human Rights Watch is more crucial than ever, and it was with a sense of both humbleness and awe that I began my internship within its International Justice (IJ) Program.

View from the offices of Human Rights Watch on the 35th floor of the Empire State Building

My first few weeks were euphoric. International criminal law had been the bread and butter of my 3L, and the organization’s IJ department comprised some of the foremost experts and brilliant legal minds in that field (evidently explained by the disproportionate presence of McGill law alumni). The work was intellectually stimulating, pedagogically instructive, and above all, fulfilling. But as I went from drafting one memo to another, and attending one UN meeting to another, I became struck with ivory-towerist doubt. There was an unsettling detachment between the refined protocols of lawyering, which reduced the indescribable to the antiseptic confines of legal reasoning, and the solemn suffering of victims on the ground. That I happened to be situated at the 35th floor of the Empire State Building, metaphorically looking down into the arena of human rights violations, certainly didn’t help either. I brought up some of my thoughts with the IJ Program’s highly esteemed Director, Richard Dicker, who helped me alleviate some of my questioning. Remarkably approachable, he combined humility with activist fervor, and expertise with empathy. He taught me to keep the big picture in mind, to appreciate the significance of victim-centric activism, and that the impact of advocacy work need not necessarily be quantifiable or measurable. Comprehensive, effective human rights advocacy, it became clear to me, comprises both activism in the field, as well as ‘detached’ lawyering within courts and intergovernmental organizations­­–both of which are equally indispensable.

As I continued my work and kept on top of the latest developments at the International Criminal Court (ICC)– the only permanent tribunal that holds perpetrators of genocide, war crimes, and crimes against humanity accountable–, I came to another realization: the arena of international justice faces some incredibly thrilling and momentous years ahead. Born from the ashes of the Second World War in the form of the Nuremberg and Tokyo trials, virtually dormant throughout the geopolitical paralysis of the Cold War, and revived in the 1990s through the ad hoc tribunals for Yugoslavia and Rwanda and the adoption of the Rome Statute, the realm of international justice is bracing itself for consequential developments as the ICC ends its adolescent years.

Fun fact: protecting Mr. Trump’s private residence on Manhattan’s Fifth Avenue costs about $308,000 per day for local and federal taxpayers.

For one, we might very soon witness the end of what has been dubbed the issue of ‘US exceptionalism’ in international criminal justice. On November 20th 2017, ICC Prosecutor Fatou Bensouda formally requested judicial authorization to open an investigation into war crimes and crimes against humanity perpetrated in connection with the Afghan armed conflict. The investigation, if sanctioned by the Court’s Pre-Trial Chamber, would represent a feted shift in global justice, marking the first time in history an international tribunal has contemplated crimes allegedly perpetrated by US nationals.

Second, as I have argued elsewhere, the coming months could also mark a climax for decades of gender justice advocacy. The ICC’s potential probe into Afghanistan would be the first instance where the Court is poised to interpret one of the most controversial terms in its statute: ‘gender’. Reflective of political compromises and a tendentious negotiating history, the Rome Statute’s highly disputed definition awkwardly sits somewhere between a sociological and biological conception of gender: “For the purpose of this Statute, it is understood that the term ‘gender’ refers to the two sexes, male and female, within the context of society.” But this constructive ambiguity also leaves room for creative lawyering: as much as the conservative side might emphasize ‘the two sexes’, proponents of a more progressive and wide understanding could weaponize the words ‘within the context of society’, which could potentially extend to members of the LGBTQ.

Je me souviens.

Third, the ICC has been increasingly venturing into the uncharted waters of non-member states, inching closer to an ideal of universality. Of course, absent a referral by the UN Security Council, the Court can only assert jurisdiction where the “conduct in question” was committed on the territory of a member state, or if the alleged perpetrator was a national of a member state. But that hasn’t stopped the Office of the Prosecutor from conceiving ingenious arguments to stretch the Court’s jurisdiction. Regarding the plight of the Rohingya minority in Myanmar, a state not party to the Rome Statute, Fatou Bensouda recently asked the Court to confirm its jurisdiction on the basis that a legal element of the conduct, crossing a border, occurred in Bangladesh, which is a member state. Its preliminary examination of Palestine, and its ongoing investigation into Georgia, similarly probe crimes committed by nationals of non member states, namely Israel and Russia. While, as I have explained elsewhere, atrocities committed in Iraq and Syria remain out of the Court’s reach, recently established investigative mechanisms by the General Assembly and the Security Council have been collecting evidence of these crimes, and the issue of accountability in the fertile crescent appears to be more a question of when and how, rather than whether.

Human Rights Watch’s 1997 Nobel Peace Prize as as a founding member of the International Campaign to Ban Landmines.

To say that these developments will be controversial would be a grave understatement. Times have certainly changed since the days of Cicero, and they will likely continue to change in the decade to come. The road towards accountability is by no means clear, and is certainly rocky. Potential probes into Palestine and Afghanistan would be political dynamite, and accountability advocates have been bracing themselves for when the proverbial excrement hits the fan. At any rate, the arena of international justice faces excitingly tumultuous times ahead, and interning at Human Rights Watch has helped me keep on top of these historic developments.

[1] “Laws are silent among [those who use] weapons” (Cited in Cicero, Pro Milone, 4.11).

Responses to Renaude and Rose

Renaude Morin:

I was struck by the connection between story telling and justice in your post. It reminded me of one of my previous comments about the victims of the Huronia Regional Centre who wanted to tell their stories at trial. Their lawyers considered it a victory to reach a settlement with the Ontario government and pay each victim instead of giving them their day in court. Because of the harm to their dignity from the abuse in the government-run institution the victims saw the chance to tell their stories in open court as a way to heal and reclaim their agency. The nature of class action lawsuits privileges getting a huge settlement (which is how lawyers get paid) over going to trial and allowing victims to testify about their experiences.

Your post also made me think about another area of law in Canada that fails to let victims tell their stories publicly. Most of the time when an individual makes a complaint to their provincial human rights commission the matter is settled by mediation. There is no public record of the dispute and a condition of settlement may be a non-disclosure agreement. I know of an individual with a disability who made a human rights complaint when she was unable to vote in an election at her local polling place because it was inaccessible. In the end the barriers were removed but she was required to sign a non-disclosure agreement. For such a basic right – the right to vote – it astounds me that the settlement with the government should be private. One of the basic principles of our legal system is that it be public. In fact litigants must apply for a sealing order to avoid their court case being in the public record. Yet we have created a procedure for human rights complaints that is completely hidden from the public. We do not know, for example, how many disabled people are being disenfranchised, nor can we use these cases as precedent. These stories of discrimination remain untold.

 

Rose Adams:

I was excited to read in your post about the program for new indigenous law students that is taking place at the U of S this summer. While increasing education for judges and lawyers about Gladue sentencing is important, I am convinced that increasing the number of judges and lawyer who are indigenous is necessary. Law schools across Canada are making more efforts than before to ensure that their student populations reflect the actual Canadian population. My own experience with disability has really heightened my awareness about how difficult it is to fully understand the discrimination that others experience when you have immense privilege. Before my car accident I was aware of my privilege but it was not until I became a wheelchair user and began to experience the city of Montreal as a person with a disability that I fully understood privilege. As we (hopefully) move towards including indigenous legal perspectives and remedies in the Canadian legal system we absolutely must do so under the leadership of those who have embodied experience with what it means to be indigenous.

Abortion Laws and Blue Tape

By Catherine Labasi-Sammartino


During my last month interning at the Center for Health, Human Rights, and Development (CEHURD), I focused on access to safe abortions in Uganda. I am grateful for having been given opportunities to explore this topic in depth, as it was my biggest interest at the beginning of my internship. I engaged with Ugandan abortion laws in my work, including legal research, a community visit to the district of Mukono, and a staff presentation on the Harm Reduction Model as a legal defence for health care providers. Through these experiences I acquired an understanding of the current constitutional and legislative provisions framing access to safe abortions in Uganda as well as the associated social and cultural barriers.

Uganda addresses the issue of abortion under Article 22 of the Uganda Constitution 1995, which protects the right to life of all individuals. Article 22(2) provides that no person has the right to terminate the life of an unborn child except as may be authorized by law passed by Parliament. However, the duty to legislate and legitimize abortion under justifiable circumstances has yet to be fulfilled. Access to abortion is currently dictated by the Penal Code Act under Sections 141, 142, 143 and 212, which criminalizes abortion and penalizes any person, including mothers and health workers, who enables the termination of a pregnancy. Consequently, women risk undertaking clandestine and unsafe abortions without any professional health care out of fear of being prosecuted for murder.

On the other hand, the Uganda National Policy Guidelines and Service Standards for Sexual and Reproductive Health and Rights 2012 recognizes justifiable circumstances for the completion of safe abortions. It states that when a pregnancy threatens a woman’s life and requires the use of a safe abortion, it is admissible. Since the Penal Code Act has yet to be amended to decriminalize justified abortions, it remains inconsistent with the new policy and the intention set in the Constitution. This uncertainty in the law makes it so that women continue to die while conducting clandestine and unsafe abortions and that health workers risk being prosecuted when providing care. Hence, CEHURD advocates for Parliament to amend the Penal Code in order to align it with the Constitution by clearly stating the conditions under which women can legally obtain safe abortions services and under which health professionals can treat them without risking prosecution or stigmatization.

One of the most interesting discussions I participated in regarding access to safe abortions in Uganda was in the context of a Value Clarification and Attitude Transformation exercise (VCAT) led by CEHURD staff as part of a one day sensitization conference with police officers. The exercise was simple and yet effectively created a safe environment for each participant to discuss their perspectives on a variety of questions touching on abortion. Blue tape was placed on the floor to divide the conference room in two equal parts. As the participants all stood on one side of the room, CEHURD staff members explained that they would read a statement out loud and that each individual should move towards the blue line proportionally to their agreement with the statement. Those that fully identified themselves with the given statement were to cross the blue line. Statements included “I have kept someone’s abortion a secret” and “I believe that all women should have access to safe abortions.”

After everyone positioned themselves according to their feelings towards each statement, CEHURD staff gave an opportunity to individuals on both sides of the line to explain their position. Personal stories, political ideas, and religious references were shared and no judgmental or aggressive responses followed. It was a simple mediated conversation that left me surprisingly content and seemingly hopeful. This does not imply that all interventions were ones I agreed with. On the contrary, ideas I consider as distressing, such as that giving all women access to safe abortions would be dangerous because women would surely use this new right to threaten men, were many. I was satisfied by the exercise because of its effectiveness in creating a dialogue where I felt that both sides were actually listening to each other in a way that I had not witnessed in several years. Overall, Uganda’s alarming maternal mortality rate and CEHURD’s incoming cases on women maltreatment have left me impatient to see change in Uganda’s health and legal system. However, I have learned that processes that bring immediate and tangible change in both these systems are practically obsolete. Small and effective exercises that require only an open mind and blue tape, such as the VCATs organized by CEHURD, ought not to be overlooked in the process of changing social mindsets and reducing the maternal mortality rate in Uganda.

“Let your smile change the world”

By Alicia Blimkie

This might sound a bit strange, but I never thought about the Philippines as a “developing country” until I found out that I would be spending the summer in Manila. Growing up in Vancouver and attending Catholic school all my life, I was surrounded with friends and acquaintances who were Filipino. Because it was a place I heard about often, it didn’t seem foreign to me in the way that other developing countries did as I was growing up. I didn’t think about the Philippines as a nation of malnourished children living in shacks, like the one-sided images of Africa that my young brain saw on TV, but as the place where many of my friends were from. When I heard where I would be spending the summer I didn’t give much thought to any culture shock that I would experience until I arrived and the sun, humidity, traffic and bugs welcomed me to the old “Pearl of the Orient”.

A courtyard in the Commission on Human Rights

As part of its obligations under the UN Committee on the Rights of the Child, the Philippines must submit a state report. The national Commission on Human Rights is in the process of compiling information for an alternative report. In partnership with the Ateneo Human Rights Centre (AHRC) and UNICEF, the Commission held regional inquiries throughout the country to gather input on the implementation of the Convention of the Rights of the Child (CRC) from children themselves. I was able to attend the session in the National Capital Region (NCR), which focused on three topics: the children of overseas Filipino workers (OFWs – sorry, lots of acronyms), children with HIV/AIDS, and discrimination against children born to unwedded parents.

In Canada, we think about OFWs in the context of temporary workers who come into the country. As immigration advocates, we focus on their conditions of employment, access to legal remedies, and potential for permanent residence. These are all important, but we tend not to see temporary migrant workers from the opposite perspective, that of the children across the ocean who lose a mother or a father for years on end. At the NCR inquiry, the children spoke of the pain of not having a parental figure to share their life with. Some are abused by the caregivers they are left with in the Philippines. Those who travel with their parents may not be able to access social services, including education, in their destination country. This discussion reminded me of a recently published article in the Globe and Mail.[1] The article spoke of the difficulties of Filipino children who are able to migrate to Canada only years after their parents arrive. It speaks of how gaps in the Canadian immigration system have caused some of the painful separation that I witnessed the children speak of here in Manila. In some ways, Canada and the Philippines are linked by movement of labourers, who should be seen as mothers, fathers, sisters or brothers, rather than just a boost to the economy.

2000 year-old Ifugao rice terraces in Northern Luzon

The second theme discussed was HIV/AIDS. It was shocking for me to discover that the Philippines has the fastest growing rate of HIV infections in Asia. Most of these new infections occur in youth, most of whom are men. A large problem is unwillingness to talk about the issue. It is seen as taboo, linked with sex and drugs. To me, this issue really highlighted the invisible nature of many human rights concerns. Other human rights abuses plaguing the country, such as extrajudicial killings or labour rights, are much more visible and publicized. The danger of taboo subjects that live inside a person is that a child’s life may be irrevocably changed because their parent or teacher was too embarrassed to speak to them about HIV and AIDS.

The final issue was that of children born out of wedlock. For children in this situation, the Family Code declares them “illegitimate”, and they have different rights than “legitimate” children. Many of these children face discrimination socially, as well as legally, despite the fact that a 2016 survey conducted by the Philippine Statistics Authority found that nearly half of all births that year occurred out of wedlock.[2]  One activity at the NCR inquiry involved the children preparing skits. One group acted out a child being mocked at school because she had a different surname than her sister, which one child later revealed was based on personal experience.

Tricycles: a common means of transportation

After zooming in on these issues, it’s useful to take a step back and realize that the NCR inquiry also highlighted something that the Philippines is doing well. Article 12 of the CRC states that children should be able to express their views freely on matters that affect them and should be provided with opportunities to be heard. The Committee on the Rights of the Child praised the Philippines in its 2009 report for its efforts on child participation. The AHRC is committed to fulfilling this Article of the CRC through many of its other initiatives, as well.

Sunset over Makati

While I knew that I would learn about human rights concerns while I was in Manila, I didn’t really anticipate the number of times when I would encounter something that the Philippines was doing better than Canada. Does Canada ask its children – those in poverty or in indigenous communities – whether their rights are being fulfilled? This brings me back to my conceptual difficulty in placing the Philippines in the same box as all other developing countries. Not that it is better or worse than other “third world” nations, but each of these countries is drastically different. I think one thing I have learned here is that development is not a straight line. This is one of those things that’s obvious when you say it, but is very different to actually experience. While the Philippines’ efforts in child participation, achievements in gender equality, and its regionally lauded refugee system place it ahead of many countries, its record is worse on other human rights issues. As much as we need to concentrate on problem areas to develop strategies to fix them, there are also times when we need to take note of human rights successes, or risk getting bogged down in failures. As one child at the NCR inquiry quoted: “Don’t let the world change your smile, let your smile change the world”.

 

[1]https://www.theglobeandmail.com/opinion/article-for-this-generation-of-filipino-canadians-broken-policies-have-left-a/

[2]https://psa.gov.ph/content/births-philippines-2016

Responses to Elisabeth and Eleanor

Eleanor Dennis:

The experience you are getting with a relatively new Constitution in Namibia sounds very rewarding. It does make me think about the age of our own Constitution in Canada and that our Charter of Rights and Freedoms is actually not that old – it went into force in 1982, which is only 8 years older than the Namibian Constitution. Of course there is the important difference that the section of the Namibian Constitution that is equivalent to the Canadian Charter is only one part and the rest covers a multitude of other areas that delineate the workings of government post-independence from colonial powers. I was curious about the wording of the “Fundamental Human Rights and Freedoms” section of the Namibian Constitution in comparison to our Charter so I took a look. There are several key additions – such as the sections explicitly banning the death penalty, torture and slavery. It was also of particular interest to me that the prohibited grounds of discrimination do not include disability. I know that in Canada the disability community fought hard to include disability as a prohibited ground of discrimination and surely Namibia looked to other constitutions as example when drafting its own. Further, as you mentioned in your post, the Namibian courts have looked to Canada’s jurisprudence on constitutional interpretation and have adopted the Oakes test. I wonder if during your research you have come across cases where Namibian courts have read in analogous grounds of discrimination and whether disability is one of those grounds.

Elisabeth Beauchamp:

I really appreciate your discussion on disability and institutionalization in Serbia. In Canada we still are coming to terms with these issues. For example, the Huronia Regional Centre in Ontario, which housed people labelled with intellectual disabilities, only closed in 2009. Recently the individuals that lived there received a class action settlement from the Ontario government. However several of the plaintiffs were dissatisfied with the class action settlement because their lawyers failed to explain that money, rather than a public trial, is the goal of the class action process.

I think your point about the difference between an institution and a group home is profound. Having lived in an institution myself for 8 months (a spinal cord injury community rehab) I had a small taste of the neglect that can take place in an institutional setting. A group home, in my opinion, is vastly superior. It may take time for a culture shift so that people labelled with intellectual disabilities stay with their families (which is still relatively recent in Canada). So I think it is entirely inappropriate to use the UN Convention on the Rights of Persons with Disabilities to criticize the use of group homes. I also found the other criticism you identified very interesting. On one hand, the organization you work for (rightly) opposes institutionalizations but, on the other hand, criticizes overinvolved parents. In my view you can’t let the perfect be the enemy of the good and I really sympathize with your suggestion that the Convention can be used in an unhelpful way to criticize any attempt to reform.

The Spring Melt: A Time of Drastic Change

By Pouya Dabiran

I have been at the Yukon Human Rights Commission (“YHRC”) for two months now. I’ve been hesitant to write this blog entry. I didn’t want it to be just a microphone for my own crazy adventures and experiences – of which there has been plenty. I also however, had fears of trying to speak about the reality here with any sort of authority, of which I have none. I will try my best to write a composition of both my experiences, and what I have been told by others. In doing so, I hope to shed light on Whitehorse and the Yukon, without masking it in the viewpoint of what a southerner thinks it is.

I arrived here after the most visually mesmerizing plane ride I’ve ever had the privilege of being on. I witnessed the British Columbian coast, south and north, all while my plane chased the midnight sun. It felt as if I was flying west, as the sun wouldn’t set – but I had to remind myself I was flying north, to Whitehorse. I landed around 11pm, with the sun still on the horizon.

The next day, my exceptionally kind landlords drove me around Whitehorse and introduced me to the city. Whitehorse is mostly built into the river valley of the Yukon River. Having lived most of my life in Toronto and Montreal, it certainly felt like a small town. However, after two months here, I see it as a small town with big city syndrome. It has all the charms you expect from a small town – the kindest and most generous people, small shops with history – while having all the amenities you expect from a big city. I’ve never once felt there was something I needed or wanted that I couldn’t find – unless it was Sunday and the buses weren’t running.

We drove into Miles Canyon and up to the view point. While I was already struck by the towering mountains surrounding the river valley during my two days there, I was completely overwhelmed by the vast wilderness in front of me. It was an ocean of trees, and instead of plankton, fish, dolphins and whales being hidden by the water – ants, porcupines, elk, and bears were hidden by the trees. A few weeks later, I was told by my landlords that I had been a breath of fresh air for them, because while the Yukon was still transitioning from its winter white to its summer green, my amazement with the surroundings reminded them how beautiful it really was. And it really is.

During the next four weeks, the Yukon was having its spring melt: the half-meter thick ice sheets which covered parts of the river and its banks disappeared completely within two weeks; flowers bloomed on plants you wouldn’t think flower; snowy mountain peaks lost most of their snow. As the environment was undergoing a drastic seasonal change, the town was also coming alive. Patios sprung up. Runners and bikers could be seen everywhere. International bike relays across mountain passes and international borders (Kluane Chilkat International Bike Relay) took place. The Yukon River Quest took place – the world’s longest annual paddle race, crossing through five First Nations. For a city of nearly thirty thousand people, it seemed to have the heart and energy of thirty million.


International Bike Relay: Anxiously Waiting to Start my Leg


Throughout this time, I was working at the YHRC. I had to learn the Commission’s vast procedures, how to take inquiries, how to help draft complaints, and how to conduct my own investigations. I had to learn a vast amount of skills in a short period of time.

This isn’t to say I didn’t also have to learn a substantial amount of law during my time here. The vast amount of law created by human rights tribunals and boards, in relation to different areas of law – employment, services, landlord and tenancies, and others – provide for a broad and sweeping area of law with numerous intersections. The very real difficulties in translating complex legal human rights issues into something practical and fair on the ground is nothing short of a significant challenge. Reading about the case law, from the Supreme Court defining a test for the duty to accommodate, to tribunals applying it to a myriad of different and complex situations, has given me a new appreciation for the important and delicate task of balancing various rights and duties which administrative commissions and tribunals perform on a daily basis. The impact on lives – both on an individual level, and on a systemic scale – can’t be understated.

I had the luck of working at the YHRC in the year they hosted the annual CASHRA conference – The Time is now: Change and Innovation in Human Rights Today. I had the opportunity of learning from those working at the cutting edge of human rights, both in law and other disciplines. What I appreciated most was the Northern context infused into the conference.

During the lighting of the Sacred Fire, I had the opportunity to learn from three Elders of the Vuntut Gwichin, Kwanlin Dün, and Champagne Aishihik First Nations about the fire, its tradition across different Nations in Canada, and their lineage, culture, and history about the fire, its tradition across First Nations in Canada, and their lineage, culture, and history. While they spoke, it was quiet around the fire. Their words carried a heavy weight, along with some light-hearted humor at times. One of the Elder’s grandson was present as well. At one point, they explained to us how, as children, they do not ask questions. Instead, for years and years they listen, learning as much as they can. Once invited to ask questions, one of us at the fire asked why this was so. The Elder explained that to ask a question is itself an act of judgement. The question defines the parameters of the conversation, and limits what can be said.

This stuck with me throughout the conference, and still is on my mind. It seems antithetical to how I was brought up – to ask questions whenever they came to my mind (albeit respectfully, without interrupting someone). That to learn is to actively engage, and to actively engage is to ask those questions. I was taught in my first year of law school during my Integration Week course, that key to a negotiation is determining your own interests and the other parties’. The way to do so, is to listen attentively, and then repeat to the party what you understood, following up with questions for clarity. Thinking about what the Elder had said, this act is also judgement, as it defines the conversation on your – the listener’s – terms. It takes ownership of both the listener’s interests, and the speaker’s, and works to find a solution off this newly defined framework. By restating someone’s words as your own, you are losing part of what was said. It seems paradoxical to encourage learning through an action which seems to encourage the loss of knowledge in translation. It is also at odds with the goal of negotiations, which is to devise a mutually benefiting arrangement – to grow the pie, and not just divide it.

About a week earlier, we had had a visitor from Human Rights Watch at our office. She was researching food security issues in Canada’s North. While Whitehorse has its challenges – for example, I was told by my landlords in my first week to expect perishable grocery items to last around half the time they do down south – it is incomparable to fly-in northern communities like Old Crow, and a large proportion of northern communities in Nunavut and the North-West Territories.

The topic of greenhouses as a solution came up. Our Director swiftly noted that while they can be useful to a limited degree, they are far from being a sufficient solution. It struck me, because coming from the south, all I had ever heard about greenhouses had been that they are the solution. Certainly, there have been useful greenhouses built in the North. However, I began to wonder who those successes were for – for us southerners, to feel as if we contributed and fixed their problems – or for the actual people the greenhouses were meant to serve. There is something to be said in paying attention to the means as much as the ends. Perhaps if we truly listened, we would all get to a better future faster, together.

“Para los pobres, no hay justicia”

By Sara Gold

“There is no justice for the poor”.[1]

All throughout my legal education, I have encountered this statement. In my Law & Poverty class, we examined the many ways laws have contributed to poverty. We discussed how often those in the most precarious of situations find themselves without legal representation due to the expensive fees of lawyers and the various limitations on legal aid in Quebec. When volunteering at McGill’s Legal Information Clinic, I spoke to clients facing hardship who were limited by a confusing and inaccessible justice system. And – at a public hearing during my internship this summer at the Inter-American Court of Human Rights [2], I encountered this statement again – this time directly expressed by a grieving mother who had lost her son.[3]

The Court in session on May 25, 2018.

On March 20, 1999, Walter Munárriz Escobar disappeared after being supposedly detained by police in Lircay, Peru. Although Peru posited that he was released, the Inter-American Commission argued that there was no documentary evidence of that release, that the testimonies brought forward by the State alleging to the release of Munárriz Escobar did not meet the Court’s minimum standards of credibility, and that there was evidence that Munárriz Escobar was subject to physical and verbal abuse while in the custody of the State.[4] Almost twenty years had passed since he disappeared, with the inadequate investigations of the State yielding few results.

During the hearing, I observed the many ways justice is limited for the poor.

First, I watched Munárriz Escobar´s mother, Gladys Justina Escobar Candiotti, testify to how the disappearance of her son changed her and her family´s lives. She declared the above statement in response to an interrogation by one of the judges – this was her first time speaking in a Court – she was never given the opportunity to testify to her son´s disappearance in Peru. She claimed that her family was economically worse-off since he had helped provide for them since her husband had passed. She described her limited access to justice given the many institutional, procedural and legal barriers she encountered throughout the entire process.

Second, as the hearing progressed, I watched the representatives of Peru question Escobar Candiotti. They spoke quickly, in legalese, and showed little empathy. They formulated their questions using complicated words and by making reference to procedural irregularities she knew nothing about. It was clear that Escobar Candiotti did not understand all of their questions.[5] Their inaccessible use of language is another way justice limits the poor – this mirrored the incomprehension I often witnessed parties experience during court visits in Montreal. I thought about whether any guidance was provided to the State representatives on the manner of questioning victims in the courtroom. I wondered if the Court could intervene.  Article 52(4) of The Rules of Procedure of the Inter-American Court of Human Rights indicates than they can.[6]  However, it still remains unclear as to whether this can apply to the victim´s comprehension of a question and to what extent the Court can intervene. Witnessing this part of the hearing reaffirmed my belief that justice is limited for the poor if legal proceedings are tainted with jargon and if legal actors fail to ensure that non-legal actors are fully aware of the nature of proceedings directly affecting them.

Third, I listened to Escobar Candiotti make her closing statements, and emotionally appeal for her son´s remains, declaring that all she wanted was “justice”, “justice to feel closure, justice so that her other children could also feel closure”.[7] The President of the Court directly responded to her plea in pronouncing that “this court administers justice, Inter-American justice”.[8] Witnessing this made me think about how the Court has successfully helped provide a space for so many to achieve justice. The point of public hearings is to allow victims to speak out publicly and to allow for the acts of States and their agents to no longer be shrouded in secrecy. Yet, so many individuals remain left behind. This is exemplified in the statistical data on the activities of the Inter-American Commission on Human Rights (IACHR).[9] In 2017, the IACHR received 2494 petitions. 473 were opened for processing and out of those, 17 were submitted to the Court for adjudication.[10] While cases must first be processed by the Commission, and while they may be resolved before making it to the Court, and while the Court definitely does not have enough resources to hear every case, these circumstances do not preclude the reality that many victims of human rights violations in the Americas are left without the opportunity to even make it to the preliminary stages of the Inter-American system. Only State parties and the Commission can refer contentious cases to the Court. Many are left without the opportunity to seek justice.

My experience so far in Costa Rica has been wonderful. I have been privileged to meet extremely kind, intelligent and inspiring individuals. I feel extremely lucky to be here. However, I won´t forget that day. I keep thinking back to Gladys Justina Escobar Candiotti, and to the Court´s role, and my role within and beyond this internship, in working towards a world where justice is an opportunity for all.

My colleagues and I during the session on May 25, 2018.

[1]See 49:48 of Caso Munárriz Escobar y otros Vs. Perú (Audiencia Pública 25-05-2018). Found here: http://www.corteidh.or.cr/galeria-multimedia-en.html

[2] The Inter-American Court of Human Rights is the judicial organ of the Inter-American human rights system. With the Inter-American Commission on Human Rights (IACHR) and under the umbrella of the Organization of American States (OAS), it contributes to the protection of human rights in the Americas.  It is located in San José, Costa Rica. It holds hearings on a part-time basis. For a quick explanation of the Court, please see: http://www.corteidh.or.cr/tablas/abccorte/abc/6/index.html

[3] Public hearing of Caso Munárriz Escobar y otros Vs. Perú (Audiencia Pública 25-05-2018), held at the Inter-American Court of Human Rights on May 25, 2018.

[4] Please see: http://www.corteidh.or.cr/docs/tramite/munarriz_escobar_y_otros.pdf

[5] See 36:50 and 38:14 of Caso Munárriz Escobar y otros Vs. Perú (Audiencia Pública 25-05-2018). Found here: http://www.corteidh.or.cr/galeria-multimedia-en.html

[6] Article 52(4): “The Presidency shall have the faculty of deciding the pertinence of questions posed and of excusing the party being questioned from answering, unless the Court deems otherwise. Leading questions shall not be admitted”. Please see:http://www.corteidh.or.cr/sitios/reglamento/nov_2009_ing.pdf

[7] See 57:46 of Caso Munárriz Escobar y otros Vs. Perú (Audiencia Pública 25-05-2018). Found here: http://www.corteidh.or.cr/galeria-multimedia-en.html

[8] See 58:20 of Caso Munárriz Escobar y otros Vs. Perú (Audiencia Pública 25-05-2018). Found here: http://www.corteidh.or.cr/galeria-multimedia-en.html

[9] Under the American Convention on Human Rights, cases can be referred to the Court by the IACHR or a Member State. The Court is a measure of last resort; cases can only referred to the Court by the Commission once the State has failed to comply with the recommendations made by the Commission in their process.

[10] For 2017 statistics, see:  http://www.oas.org/en/iachr/multimedia/statistics/statistics.html

Rivers and Borders: Environmental Protection in Akwesasne Mohawk Territory

By Brett Campeau

The Mohawk community of Akwesasne is connected by rivers and divided by international and provincial borders. It sits at the confluence of three rivers—the Raquette, the St. Regis, and the mighty St. Lawrence—which serve as highways, trade routes, and reliable sources of fish. Akwesasne also sits at the intersection of three settler jurisdictions—Ontario, Quebec, and New York State—giving rise to jurisdictional issues that complicate Mohawk efforts to protect the rivers from harm.

The health of the rivers, and their ability to provide healthy food, has been degraded by heavy industry, hydroelectric development, and the construction of the St. Lawrence Seaway. These developments continue to have adverse effects on the environment, restricting the ability of Akwesasro:non to fully engage in fishing and other subsistence harvesting activities. Although heavy industry has largely disappeared from the shores of the St. Lawrence River, its legacy persists in local wildlife and the contaminated riverbed, with enduring health consequences for Akwesasro:non and other local people.

Akwesasro:non have won partial compensation for these environmental harms, but they continue to fight for enhanced environmental cleanup and a leadership role in environmental management. These efforts are complicated, however, by the complex jurisdictional arena.

Akwesasne Conservation and Compliance Officers on patrol in the St. Lawrence River

The international border divides Akwesasne into two parts: the St. Regis Mohawk Reservation (in the United States) and the Akwesasne Indian Reserve (in Canada). The Canadian reserve lands are further divided into three districts: Kana:takon (or St. Regis Village) and Tsi Snaihne (or Snye) in Quebec, and Kawehno:ke (or Cornwall Island) in Ontario.

The Akwesasne Justice Department, under the Indian Act band council government in Canada, has sought to exercise Akwesasne jurisdiction in environmental protection. Legislative development and enforcement efforts are making significant progress in this area, despite ongoing capacity issues and the reluctance of settler governments to cooperate.

Akwesasne has an acute interest in the management and conservation of fish and their habitat. It aims to exercise its jurisdiction in this area by enforcing its own environmental laws. It is currently updating a 1989 Wildlife Conservation Law and drafting a new water law, which should improve its ability to protect the rivers and wildlife on Akwesasne Lands.

The rivers of Akwesasne have been negatively impacted by industrial pollution from both Canada and the United States. Decades of dumping from now-shuttered factories—including the Domtar pulp mill in Cornwall (Ontario) and the General Motors and Reynolds Metals/Alcoa facilities in Massena (New York)—has resulted in the accumulation of polychlorinated biphenyls (PCBs), heavy metals, and other pollutants in the ecosystem. Efforts to dredge up, remove, or cap contaminated river sediments have been somewhat successful, but pollutants continue to circulate in the ecosystem and affect human health.

The health risks of consuming contaminated fish must be weighed against the cultural value of subsistence harvesting in Indigenous communities. Akwesasne governments advised Akwesasro:non to restrict their consumption of locally caught fish when the health risks emerged, but some consumption still occurs; fish remain an important component of the diet of many Akwesasro:non. Fishing also helps to reaffirm the connection between Akwesasro:non and the natural environment, thus serving an important cultural role in the community.

The author on a ride-along with Akwesasne Conservation and Compliance Officers

The constraints of the Indian Act have not stopped Akwesasne from exercising its inherent right to govern its lands and waters. Akwesasne Laws are being applied to protect the rivers and wildlife on Akwesasne Lands, despite jurisdictional uncertainties regarding enforcement powers and the authority of the Akwesasne Court—established in 2016—to adjudicate legal issues.

The Akwesasne Court has been tacitly accepted by the Canadian federal government, but full formal recognition from Canada, Ontario, and Quebec remains elusive. Apart from the 2013 Iatathróna Raotiientáhtsera ‘Couples Property’ Law, which uses the Akwesasne Court to adjudicate matrimonial real property issues, no Akwesasne Law with an explicit Akwesasne Court role has been formally approved by the federal government. Inter-governmental agreements are needed to formalize the Akwesasne Court’s jurisdiction and clarify its relationship with the courts in Canada, Ontario, and Quebec. Internal review and appeal processes will ideally capture most legal challenges, but Akwesasne Laws will need to be respected (and potentially enforced) by outside courts as well.

Akwesasne Conservation and Compliance Officers have been actively enforcing Akwesasne Laws, despite many of these laws—originally formulated as Indian Act bylaws—being formally disallowed by Indian Affairs pre-2000. Akwesasne Laws are now developed and enforced under Akwesasne’s inherent authority as a self-determining and self-governing First Nation. The federal government has not seriously challenged these laws or Akwesasne’s authority to enforce them, suggesting tacit approval. In addition, Akwesasne enforcement efforts have not been opposed by outside enforcement agencies. The Akwesasne Officers are beginning to gain the support of their provincial, state, and federal counterparts.

I recently observed Akwesasne enforcement efforts in a “ride-along” with Akwesasne Conservation and Compliance Officers. We spent a Saturday in June on the St. Lawrence River enforcing the 1989 Wildlife Conservation Law, including a requirement for non-Akwesasro:non fishermen to carry an Akwesasne fishing permit. We approached several boats with fishing lines in the water, but none of them—on this day—had their permit. Most of the fishermen pleaded ignorance and complained about the unclear jurisdictional boundaries. These are Akwesasne waters? I didn’t know. The officers did not write any tickets, but they invited the fishermen to buy the $10 year-long permits from them or at a local marina.

Akwesasne Laws encouraging responsible fishing are just one element of the community’s efforts to protect the rivers and wildlife. Although their relationship with outside courts and enforcement agencies remains somewhat murky, Akwesasne Laws have the potential to significantly improve ecosystem and community health. And with the authority of Akwesasro:non and their elected governments behind them, they are likely to gain the recognition needed for deepened environmental cooperation with settler governments.

Wiyasiwewin Mikiwahp

By Rose Adams

Tansi/Ai’!

On May 5th, I arrived in Saskatoon, at the heart of the Canadian prairies. I had never been to Western Canada before, so the flat lands of Saskatchewan felt very exotic to me. Two days after my arrival, I began my internship at the Native Law Centre, at the University of Saskatchewan. (On another note, the University of Saskatchewan’s campus is gorgeous but incredibly large – I still get lost in it. And to my bewilderment, I have heard some UofS students complain that it is too small. They should see some of the McGill buildings, squeezed between office towers in downtown Montreal!) The Native Law Centre, a department within the College of Law that has its offices in the Law Building, was founded in 1975 by College of Law Dean Dr. Roger C. Carter to “facilitate access to legal education for Aboriginal peoples, to promote the development of the law and the legal system in Canada in ways which better accommodate the advancement of Aboriginal peoples and communities, and to disseminate information concerning Aboriginal peoples and the law.”[1]

I quickly found out that the time at which I came to the Centre was special for two reasons. The first one jumped at me minutes after I set foot in the Centre: it was the first day of the NLC Summer Program, an intensive, 8-week Property Law course to prepare the 52 future Indigenous law students to attend law school in the fall. There was a whole welcoming committee for them and opening ceremonies and lunches followed for the week. The second reason was more of interest to me (not that I don’t like law students and free lunches): the Centre was ongoing a restructuring and revitalising process, which meant that many initiatives of the Centre began around the time that I arrived. Most importantly, as a means of Indigenizing it, the Centre was given the Cree name Wiyasiwewin Mikiwahp, meaning law lodge or law tipi, while I was there.  I was assigned to do a few things (summaries, research…), but mainly to one of the new projects, the Gladue Awareness Project.

Of course, I had learned about Gladue and its application to the sentencing of Indigenous offenders in my criminal justice class, but I was under the impression that it was applied almost all the time an aboriginal offender was to be sentenced. When it comes to Saskatchewan, I was wrong. It is difficult to get numbers as to how many Gladue reports have been made in the province, but we have heard numbers ranging from 5 to 30 (30 seems to be the more realistic one). However, regardless of the amount of Gladue reports that have been written, the high incarceration rates of Indigenous offenders that the Gladue decision is meant to prevent are very much present in “the land of living skies”. It is estimated that Aboriginals constitute about 77% of the adult inmate population in Saskatchewan, while they represent about 16% of the total provincial population.[2] I was shocked by this: I wanted to understand why so many Indigenous people would be denied their freedom in Saskatchewan, more so than in other provinces, especially when considering the indecently high amount of dangerous offender designations among them. These numbers of course cannot be solely attributed to under-application of the Gladue and Ipeelee decisions. They speak of bigger problems, echoed in the two Supreme Court judgments: the inter-generational trauma created by residential schools, colonialism, lack of housing and overcrowded dwellings, substance abuse, FASD, loss of culture and family structure, and, most of all, lack of resources. But before tackling these problems, it is crucial to tackle their application to sentencing. Nevertheless, it becomes difficult to find ways to apply the Gladue factors to modify a sentence, when there is no programming available to place offenders in. I will address this in another post.

The Gladue Awareness Project aims to educate justice personnel and Indigenous communities as to the application of the Gladue and Ipeelee decisions, but also to create discussion as to how the issue of the over-incarceration of Indigenous offenders can be addressed. One of the ways the NLC did this was by developing materials – booklets and pamphlets – that educate about Gladue and that are to be distributed to courtrooms and Indigenous communities all over Saskatchewan. The main way though, is by preparing interactive seminars on Gladue that are currently and will be presented throughout Saskatchewan to those who participate in the criminal justice system. The discussions and solutions, suggestions proposed will be included in a final report, written by the Gladue Awareness Project Officer, Regina lawyer Michelle Brass. My role in this project has been to assist Michelle (a Saulteaux lawyer specializing in Indigenous and Environmental Law and an all-around amazing person) with editing the booklets and pamphlets, researching information and Saskatchewan cases and coordinating the seminars. I also got to help out at two of the seminars, which I will discuss in another post.

My experience so far in this project has been very eye-opening. I have learned a lot of things about project management and the application of the Supreme Court decisions by the Saskatchewan courts, but the most important things I have learned have been about the disparities that exist within a single country – my country. I did not think I would be shocked by the Indigenous realities in the Prairies, since I myself come from an Inuit community in Northern Quebec. However, while my community and other Inuit and James Bay Cree communities have certain social and justice programs – including a lot of Gladue reports and alternative justice measures – in place because of Land Claims Agreements, that is not the case in Saskatchewan. The optimism of the Supreme Court seemed out of touch with the reality of the Prairies.

Nevertheless, I also had a lot of positive experiences learning about First Nations and Métis cultures in Saskatchewan. Being Inuk, I did not know much about First Nations and Métis cultures, which are very different from Inuit culture. During the first weeks of my internship, I got to see grass dancers, a tipi raising and a traditional Plains Cree pipe-smoking ceremony that took place during the naming ceremony for the Centre. I got to sit in on a customary adoption seminar, during which First Nations elders discussed their experiences and the customary laws surrounding the practices. I also got to visit the traditional buffalo-hunting grounds of the Plains Cree and learn about many of their traditions (hunting, different properties of plants, tipi making, hoop dancing…) at the Wanuskewin Heritage Park just outside of Saskatoon. Most importantly though, I got to speak with people (students, professors, employees of the Centre…) from all over the country, which made me learn about their respective Indigenous cultures that I would have probably never heard of, had I stayed in Québec.

Grass dancer at the naming ceremony at the Wiyasiwewin Mikiwahp Native Law Centre

Tipi raising – the before

Tipi raised – the after

Before I end this blog post, I would really recommend that you (the reader of this blog post) go check out the art of Cree artist Allen Sapp from Red Pheasant First Nation (just an hour and a half North of Saskatoon) C’est mon coup de coeur de la Saskatchewan!

[1] Wiyasiwewin Mikiwahp Native Law Centre, “Native Law Centre”, (9 July 2018), online: <https://www.usask.ca/nativelaw/>.

[2] R v Halkett, 2016 SKPC 65, at para 61, [2016] S.J. No. 321 [Halkett].

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