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Responses to Brett and Sara

Brett Campeau:

Your post about Akewesasne and the environment at the Canada-US border raised questions for me. I can think of many ways in which the imposition of the international and provincial borders that divide Akewesasne would cause problems for the people that live in this territory. For one, the act of crossing the border can be time-consuming and is highly guarded by the state. Individuals with criminal records maybe denied permission to cross the border and this may affect many Akewesasne residents given the over representations of indigenous people in the criminal justice system. I am also curious about whether duties are imposed on those crossing the border within Akwesasne territory with goods bought cross-border. I know your post is about the environment but I’m wondering whether you have come across these issues during your internship and whether you have crossed the border within Akwesasne and if you notice any differences between crossing there and at other border crossings.

I would also be very interested to know more about the Akwesasne court. In what ways do the procedures differ from Canadian courts? Are proceedings conducted in an indigenous language? It would be great if you have a chance to observe in the Akwesasne court so that you can share with us a sense of Akewesasne legal proceedings.

Sara Gold:

I appreciated that your post identifies some of the issues with access to justice in the international law setting. Usually when we speak of access to justice we think of local concerns, like self represented parties in family law courts. Your descriptions of how Gladys Justina Escobar Candiotti was treated by state lawyers was very illustrative of the problem of the legal profession’s monopoly on legal proceedings. One way that Escobar Candiotti could have been better prepared is if she would have had her own lawyer. However, as a witness she would not be entitled to a free lawyer nor, from what you described in your post, would she be able to afford one.

One of the observations I have made (in my master’s thesis) is that rather than look at the cost of legal services, the Canadian legal profession has focused on legal aid and self help strategies as a solution to the problem of access to justice. While legal aid is certainly helpful, one must qualify by showing significant need. But, as we know, there is a large gap between those who qualify and those who can afford a lawyer. Plus, in the case you describe with Escobar Candiotti, she would not qualify because she was a witness, not a party, and because she was testifying in an international forum. The self-help strategies, like legal information hotlines or simplified court forms, are also inadequate. Lawyers have created a legal system that presumes lawyers rather than laypeople are the primary participants. To then provide people with more information and expect them to participate equally is quite disingenuous. If lawyers make it too easy for parties to act alone then what would be the point of hiring a lawyer. It is in lawyers’ self-interest to maintain the complexity of legal proceedings and their monopoly. Just as you described in your post, legal jargon and the technicalities of legal procedure are tools to preserve this monopoly.

Green and Blue Bandanas

A group of young activists wearing green bandanas blocks an intersection in MDP.

By Francesca Nardi

I am writing this as my summer in Argentina starts to come to a close. This week is significant not only for me as my internship ends, but also for Argentina and many of those I have met throughout my time here.

From the moment I arrived and started walking around the city, blue and green banners and bandanas caught my eye. At first, I had no idea what they were for, thinking that maybe they were related to the World Cup.

I could not have been more wrong.

Throughout my time here, a national bill that would legalize abortion has been debated and voted on by the lower house of Congress. It passed through Congress in June, and tomorrow it faces a final challenge in the Senate. The debate surrounding this bill has been a feature of my summer in Argentina, and I feel lucky to have been here during such a fascinating time legally and politically.

It would be a massive understatement to say that this bill has been polarizing. Abortion in any context is incendiary, especially in a very religious country that is the birthplace of the Pope, in a very religious and conservative region of the world. There have been widespread protests since I arrived, as well as massive rallies organized by both sides. Men and women wear coloured bandanas, (green signifying support for legalized abortion, and blue signalling opposition) to work, school, and around the city during the day. The graffiti on the walls around the city contains political messages about this issue. Every party on Friday and Saturday nights descends into heated dinner conversation about the future of this bill and what it will mean for Argentina. For some, it represents Argentina moving into the future and joining the rest of the developed world in allowing women to make essential choices about their own bodies. For others, it represents an unacceptable departure from religious and moral values. For some, it simply means recognizing the reality that hundreds of women are dying in Argentina from dangerous underground procedures.

Being here during this time has turned every assumption I had about the abortion debate in Latin America completely on its head. Reading about the debate in Latin America, I always assumed that the opposition to abortion was fueled predominantly by men and by the Machismo culture that is so pervasive. I have been startled to realize that there are lots of women, including lots of young women who oppose legalizing abortion. Among my female friends, almost all of whom are lawyers or in their final year of law school, approximately half oppose legalizing abortion in Argentina. This realization has prompted some of the most interesting and challenging dinner conversations I have ever had with young women and friends my own age, and has served as such an important reminder that I am here to learn and to listen, not to impose my views or perspectives on the people I meet here.

It has been inspiring to see so many young people mobilizing to make their voices heard, on both sides of the debate. Argentina has a long history of a highly engaged political culture and consciousness and I feel lucky to have been here to see that in action. Regardless of what happens during the vote tomorrow, being here during such a time of dialogue and mobilization for change has been eye-opening both within my work and outside of it. I will be watching this debate closely, even once I am back home.

It is crazy that I leave in two days. Somehow this summer has been simultaneously nothing like what I expected, and exactly what I needed at the same time. I absolutely fell in love with Mar del Plata, and will be so sad to say goodbye to this beautiful city I have called home for the past three months. This opportunity has been so beautiful, and I will carry the lessons and the friends from my summer in Mar del Plata with me back to Canada with me.


For anyone curious about this debate: https://www.nytimes.com/video/world/americas/100000006031377/argentina-a-nation-divided-on-abortion.html?rref=collection%2Fsectioncollection%2Fworld&action=click&contentCollection=world&region=stream&module=stream_unit&version=latest&contentPlacement=5&pgtype=sectionfront


Cast of a Show Election: Villains, enablers, and heroes

By Emilie Duchesne

It took me maybe five minutes to fall in love with Phnom Penh. I stepped out of the airport after my day-and-a-half redeye, thinking I was too exhausted to feel anything, and it woke me right up. At first it was the lack of traffic control. When you aren’t used to it, it’s hard to overstate how exhilarating it is to ride in a tuk-tuk at rush hour, with motos weaving in between cars and around street vendors. Being Canadian, and used to all the action being indoors, the next thing that struck me was how little is enclosed. Most restaurants and shops are open to the street, many ground-floor houses double as shops, and big groups of people eat street-food at tables a few feet from traffic. There is so much people-watching to be had that you couldn’t possibly catch it all.

I remember finding it jarring to see propagandistic Cambodian People’s Party signs on every street, but they quickly become invisible. Campaigning started today for the sham election, and I had my way blocked by a parade of twenty or so cars, trucks, and floats with CPP supporters yelling and waving banners. While I watched with interest, the people around me continued their conversations or took out their phones. Anything can seem normal after thirty-three years.

Some people had hoped this would be the last year of Hun Sen. The last national election nearly went to the opposition, and they made even more gains in local elections last year. But winning the popular vote in a military dictatorship can turn out to be a tactical mistake. Six months before I arrived, the CPP stopped tolerating dissent in any form. First, in November, they had the opposition party dissolved by the Supreme Court. Over 100 party members were banned from politics for five years and many others, including leader Kem Sokha, were jailed on spurious charges. In the months that followed, the CPP has systematically destroyed the independent media with forced closures and targeted arrests, and self-censorship is now pervasive among the independent journalists who remain in the country. The CPP has also recently passed a series of legislative amendments criminalizing free speech and authorizing intensive government surveillance of NGOs and the social media accounts of the general public. People have been targeted seemingly at random, creating a climate of paranoia. In one case that I researched, two former Radio Free Asia journalists, Oun Chhin and Yeang Sotherain, were charged with espionage and producing pornography after Oun, who was out of a job after the forced closure of Radio Free Asia’s Cambodian branch, set up a karaoke production studio in a guesthouse. When he called his friend and former colleague, Yeang, to testify that he had not been “spying”- which the CPP have re-defined to mean “telling the international community about the crackdown”- they arrested Yeang, too.

I arrived in the middle of a strange lull; on the one hand, everything is falling apart, and on the other, there is very little for anyone to do. NGOs and activist groups have observed the plight of people such as Chhin and Sotherarin who have been persecuted for nothing, and now have a well-grounded fear of being shut down, deported, or jailed. The threat of jail means something more in Cambodia- it’s not just loss of freedom, it’s confinement to filthy and severely over-crowded conditions, especially in Cambodia’s notorious Prey Sar men’s prison. While the wealthy can bribe their way to relatively luxurious conditions, in the average cell there are a hundred people to one toilet and the men sleep shoulder-to-shoulder on the ground. The overcrowding problem has in large part been brought on by the war on drugs, a hugely ineffective and ill-executed strategy inspired by the American war on drugs.[1] LICADHO’s prison team monitors 18 of the 28 prisons, interviewing the prisoners to ensure their rights are not being violated and providing them with medical care, but there is simply not enough money or doctors to provide what should be a social service, if the government had any interest in that sort of thing.

And then there are the quieter but equally horrible everyday effects of a dysfunctional government: corrupt pay-to-care police, corrupt pay-to-win judiciary, no public healthcare, no social security, substandard public schools, and the list goes on. The NGOs function as a sort of decentralized bureaucracy, attempting to fill in the gaps, but the uneven quality of NGOs and lack of a coordinating mechanism makes this impossible. The government has no incentive to improve the state of things because Chinese investment will keep pouring in either way. The country keeps getting richer on paper, but it isn’t trickling down. The basic agreement between Cambodia and China is that China provides lots of no-strings-attached aid, by contrast with international aid, which is contingent on respecting human rights standards. In exchange, Chinese businesses get to build developments wherever they want, leaving evicted Cambodians and environmental destruction in their wake. In the words of my tour guide at Angkor Wat, who turned out to be a fascinating person: “why does China only give money to bad guys? Because the bad guys are easy to control.” Most recently, Hun Sen granted a cheap 99-year lease to China to develop a massive resort on Cambodia’s valuable and ecologically sensitive coastline. It will cover a full 20% of the coast, and will include its own airport, leading some to question whether China has effectively been granted sovereignty over a huge parcel of Cambodia.[2] This is only one of many land concessions that have been granted to foreign interests, mostly China and Vietnam.[3]

Before I showed up here, I was preoccupied by the question of how to get rid of Hun Sen. Practically speaking, what would the international community need to do- sanction the textile industry, cut off aid? Would the human costs be too high, and would these methods even work? It seemed like a logical question to me. If you’re faced with a hydra, everyone knows you don’t cut off one of the heads- you have to stab the heart.

Now that I am here, it seems obvious that I was asking the wrong question. Of course the international community could do something. I don’t know the best method of intervention, but I am not a political strategist. What I do know is that when the World Bank cut funding to Cambodia in 2011, largely in response to protests by Phnom Penh’s evicted Boeung Kak lake community, the government finally gave the community the compensation they had demanded. However, the World Bank went back on its promise not to end the funding freeze until the government had addressed the land grabbing problem.[4] They reinstated funding even though land grabbing remains the single most prominent political issue in Cambodia. One of my tasks at LICADHO is to keep a record of the land protesters who come to the capital to protest, and I quickly found myself getting confused between all the different but often related conflicts. In total, 23 communities representing more than 2,400 families across 11 provinces came to Phnom Penh in June alone; this does not include various communities that chose to take their complaints to provincial authorities instead.[5]

Engagements like this on the part of the international community are par for the course in Cambodia- a short burst of interest, and then nothing. Despite various condemnations of the opposition party’s dissolution and much discussion, so far aid has not been cut and trade agreements remain intact.[6]

This international disinterest is especially depressing considering that Cambodia’s problems have been created to a large extent by other countries’ foreign policies since at least French colonial times, and arguably far longer. Today, the biggest player is China, but historically Cambodia has been caught between the “tiger and the crocodile” of Vietnam and Thailand, and during the Vietnam war Cambodian civilians were heavily bombed by the United States.[7] The rise of the Khmer Rouge- like so many other human rights atrocities- has been persuasively linked to American interventionism in the region.[8] The concept of sovereignty seems entirely empty in a context such as this, where the self-interested meddling of foreign elites carries so much more influence than the democratic will of the people. The rest of the world is by far more responsible for Hun Sen than Cambodians, who have never elected him in a fair election, but they don’t see it that way. The United States has not paid any reparations, and instead is still asking Cambodia to repay loans used to feed refugees whose homes were destroyed by the bombing.[9] China is still happily munching away like Cambodia is a snack to tide it over between Africa and the Middle East. And the EU has bigger fish to fry- in the words of my colleague, “there is always something even worse happening somewhere, and they aren’t doing anything there, either.”

Human rights work in an autocracy is draining, frustrating, and tragic, and yet meaningful work does get done. It is really something to watch the people who do this work and to speak them about why they do it.

What do you do when you can’t kill a hydra? It turns out that you do whatever can be done, including slicing the same heads over and over to momentarily stop them from eating people. The progress is slow, and there is personal sacrifice almost universally.

I met one woman, a lawyer at another NGO, who was threatened by the government and forced to quit her job. She quit working for a year and then returned and continued representing the people the government wants to shut up- land activists, human rights defenders, and people who have had their land illegally grabbed. She loses almost every single case because judicial independence is non-existent in Cambodia. It’s a testament to her ingenuity that she still manages to win occasionally. But as any lawyer knows, winning and losing trials isn’t the biggest part of the job; it’s supporting clients through difficult decisions in through a careful, researched appraisal of the options. She can’t always, even often, get people a win when they deserve it, but she can make sure they understand their procedural rights and their options. And there are little wins, mostly cases that are dropped for lack of evidence when she pushes for this at the pre-trial stage.

This lawyer and her assistant, who has been failed at the Cambodian equivalent of the bar twice now because of corruption, are two of the people I admire most in this world. They both knew that they were signing up to be discriminated against when they decided to do human rights work, and they have been. They decided to do it anyway. Lawyers everywhere face the choice between selling out and doing good work, but in Cambodia that choice is starker and more lasting.

I also want to tell you about a colleague of mine. His family fell into poverty when he was young, and he put himself through university by working as a nighttime security guard and then by working fulltime. He chose to work in human rights, knowing the salary would be modest, and he regularly works 50+ hour weeks, which is a lot even for LICADHO staff, who are in general the hardest-working people I have ever met. Most of his salary goes toward his little brother’s university fees. He told me some friends who graduated with him work in government, which entails very little work and making a comfortable living off bribes. He would never judge them, and said he see it as people doing what they need to do to get by. Thinking of myself, and the temptation I’ve felt at times to sell out, I asked if he had ever considered it. He hadn’t. He told me he loves his job and considers himself lucky to love what he does. He also told me he would continue even if he didn’t- the work is too important to stop.

[1] https://www.phnompenhpost.com/national/drug-law-passed-critics-cry-foul

[2] http://www.atimes.com/article/a-chinese-colony-takes-shape-in-cambodia/

[3] http://www.licadho-cambodia.org/land_concessions/

[4] https://www.reuters.com/article/cambodia-worldbank/world-bank-stops-funds-for-cambodia-over-evictions-idUSL3E7J920D20110809 ; https://www.cambodiadaily.com/news/world-bank-loan-of-100-million-angers-boeng-kak-activists-128160/

[5] https://twitter.com/licadho/status/1014802083201970176

[6] https://euobserver.com/opinion/142321

[7] https://en.wikipedia.org/wiki/Operation_Menu

[8] https://www.jacobinmag.com/2015/04/khmer-rouge-cambodian-genocide-united-states/ ; https://en.wikipedia.org/wiki/Allegations_of_United_States_support_for_the_Khmer_Rouge

[9] https://www.npr.org/2017/05/30/530683478/u-s-demands-cambodia-repay-loan-from-vietnam-war-era

Final Days, Final Thoughts

By Caroline Schurman Grenier

As my internship comes to an end, I have so much to say yet I am struggling to put my thoughts into coherent sentences to produce a decent blog post. A form of writer’s block if you will which just makes my challenge sound so much more glamorous, don’t you think?

Despite my constant wondering if I would make it to the end, I did it. I have completed my internship at the Institute for Human Rights and Development in Africa in Banjul. What have I learned over the summer? More than I could have imagined.

I learned that transitional justice is much easier to write about in academic journals than to implement in real life.

I learned that it’s so very frustrating to have ideas and goals for a project when there is not enough money to put those same ideas and goals into tangible change.

I learned that it’s ok to change your mind, which to me is one of the most important realization I have come to over the course of my internship.

I took a class on restorative justice during the last year of my undergraduate degree and found it fascinating. It was my favorite class, the readings were incredible, and the discussions awoke in me a vehement desire to learn more. I aced the final and I thought to myself: “If I get into law school, this is what I want to focus on”.

Oh how the mighty have fallen.

Isn’t it wonderful to be 22 and to be convinced you have found your calling in life? Well, time goes on, and you turn 23 (a small time frame but after all we change more between 18 and 25 than at any other time in our lives, frontal lobe and all) and you realize maybe it’s not for you.

I started to work at IHRDA just months after the Truth Reconciliation and Reparation Commission Act was passed. I don’t believe in flukes so it was meant to be for me to be here at this time. Former president Jammeh was urged out of office in December 2016 following a vicious 22 year dictatorship and the population wants to be heard and wants financial reparations for their sufferings. It means that The Gambia is still at the brainstorming stage, gathering ideas on how to implement the commission and to apply for funding. It’s the drawing board stage where you try and downplay the chaos of beginnings. They’re doing great at that. Newspaper articles are written on the matter, there are many roundtable discussions where the guests range from ministers to EU delegates to civil society members. But it’s always easier to gather men in suits in boardrooms and draft reports than to go on the streets or in the villages and ask citizens, “and what would you like in this process? What are you looking for?” I did not follow Gambian news as closely as locals but from what I gathered, there is lots and lots of talk but so very little real action on the grounds.

I’m forever grateful to have gone behind the scenes of the academic papers, to understand that the needs of the people are rarely met, that there is hope, but unfortunately hope does not pay for the societal changed needed. The TRRC could still very well take place and could be successful but it will need to learn from the mistakes of other West African states who have undergone a similar process. Gambians pride themselves on their uniqueness and on the uniqueness of their situation, but even unique people must learn from those they deem to be not so unique.

I did not only learn about transitional justice. I learned about the African human rights system in depth. There is so much that has been done but there is so much left to do. There are very little enforcement mechanisms in African courts when decisions are rendered. The African Court, the court with the highest enforcement mechanism, has been ratified by only a handful of African countries. The mountain to climb seems insurmountable to me, but I have been lucky enough to be in a work environment where my colleagues don’t feel the same way. They trust they are doing their part, they want to fight the beast of injustice and although they may not live to see substantive change in African human rights law, they will pave the way which will hopefully allow the next generation to enjoy the fruits of their labor. They love their work and even if they know it is not producing the change they would like to see, they will keep fighting for what’s right.

It’s been an honor to witness such passion and perseverance in my workplace.

Do I not care about human rights law merely because I don’t want practice it? Please do not be so naïve.

I do care deeply about human rights and transitional justice and I greatly admire the men and women who dedicate their lives to such a noble career. There is a spark in their eyes when they engage in ardent discussions on the topic and that spark will stay with them throughout their career. It’s not the same as the interest of a young student reading about something she finds “super interesting”. This is their life, this is their passion.

Living in The Gambia is in itself a tremendous learning experience. I recommend to anyone who feels lost and confused to let yourself feel even more lost and confused and to strip yourself of your sources of comfort, allow yourself to reflect and watch the reflection change your life.

Will I be the next Amal Clooney? Doubtful.

Does that make my experience less pertinent? Does it make my internship useless? Of course not.

Thank you to IHRDA for the work experience and to the Smiling Coast of Africa for the life experience.

Human rights law may not be for me. So what is for me?

Time will tell.


For the moment this is the only picture that accepts to upload on my blog post. It’s pretty random, am aware.

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”.




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.

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