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Imagine you are on holiday in a neighboring country in one the EU member states. On your way back to your hotel, a fight breaks out on the street, and you are arrested along with anybody else who was unlucky enough to be in the vicinity. You are taken to the police station and thrown into a cell. You try to get information about why you are there and how long you will be kept, and you try to ask police officers to let you make a phone call, but you do not speak the language. The police ask you to sign documents, but you do not understand what they say. What do you do?
On 16 November 2011, your situation got a little bit safer. EU member states approved a draft directive—in effect an EU-wide law— to protect people’s right to information in criminal proceedings. The move marks an important step towards protecting the basic rights of all people accused or suspected of crimes, and ensuring that everybody gets the same protections, no matter where they are in the EU.
Under the new directive, every person who is arrested in any EU country must be informed of their rights in a language they understand. Authorities must give people a “letter of rights” to everybody who is arrested, written in simple, everyday language, listing their basic rights during criminal proceedings.
These basic rights include:
The letter of rights does not create these rights. These rights already exist, in the EU Charter of Fundamental Rights and the European Convention on Human Rights. But this draft directive is hugely important, because people cannot properly exercise their rights unless they know what they are.
To make things easier for the member states, the EU Commission has written a template letter of rights and translated it into all 23 EU languages. Every police station, in every city, in every country across the EU should have copies of a letter of rights stored on their computer so that they can provide it in the correct language. It must be given to every person arrested, whether they ask for it or not.
Until now, the chance that you might be informed properly of your rights if you face criminal charges depended – quite arbitrarily – what country you happen to be in. Some countries only inform people of their rights orally, and some will not provide information unless it is demanded.
Now that it has been approved by the 27 EU member governments, the draft directive will pass to the European Parliament for adoption in the coming weeks, before final adoption by ministers meeting in the Council.
This proposal is the latest step towards the EU Council’s plan to implement comprehensive legislation covering all of the most important rights of defendants in criminal proceedings. The "roadmap" was developed after the Council recognized that not enough has been done at the European level to safeguard these fundamental rights.
The first measure in the Roadmap was the right to translation and interpretation. This has already been agreed to and EU states are in the process of implementing it into domestic laws. The next measure being debated by the EU concerns the right to access a lawyer and communicate with relatives, employers and consular authorities.
The Justice Initiative has blogged previously about the roadmap and about the reforms in some EU countries to protect the rights of suspects and accused. We will continue to monitor and report on these encouraging new developments.
The African Committee of Experts on the Rights and Welfare of the Child (ACERWC) will meet for its 18th Session in Algiers next week (November 27 – December 1, 2011), providing an important occasion for states, civil society organizations, international human and children’s rights organizations and other stakeholders to come together to deliberate on the status of children’s rights in Africa.
The upcoming session follows shortly upon the publication of the Committee’s first ever decision on a Communication filed under its complaints procedure, relating to discrimination in access to nationality for Nubian children in Kenya. The decision’s significance extends well beyond Kenya, however, as it solidifies important principles about children’s right to nationality and their entitlement to equal access to economic and social rights, as guaranteed by the African Children’s Charter, which the Committee monitors. The Committee’s dedication and commendable engagement on these issues deserves recognition from the human rights community in Africa and globally.
Since starting work in 2002, the Committee has withstood perpetual underfunding and logistical limitations that have to some extent prevented it from functioning as efficiently and effectively as it could. Nevertheless, the groundbreaking Nubian children decision should alert actors throughout the world to its ability to serve as a powerful tool to advance the rights of children. It is a strong counterpart to other African rights protection mechanisms, such as the African Commission on Human and Peoples’ Rights and the African Court on Human and Peoples’ Rights, as well as international treaty monitoring such as the UN Committee on the Rights of the Child and the UN Committee on the Elimination of All Forms of Discrimination.
In its well-reasoned analysis, which drew on an impressive variety of international and regional jurisprudence, the ACERWC affirms important principles which are crucial to eradicating statelessness and minimizing discrimination against vulnerable minorities.
Specifically, it upheld the vital norm that the child should acquire the nationality of the State in which she is born, if she or he would otherwise be stateless; and further affirmed that States must proactively take all necessary measures to prevent a child from being or becoming stateless.
Kenyan Nubians have historically been regarded as “aliens” and still have a tenuous citizenship status, preventing them from enjoying many of their rights. This particularly affects Nubian children, who are not registered as Kenyans at birth. They grow up with few life prospects, uncertain as to whether they will be recognized as citizens. Most Nubians live in enclaves of poverty, with no public utilities and limited access to education and healthcare. The ACERWC found that such discrimination leading to statelessness violates African human rights standards.
The case was found to be admissible because national proceedings had effectively stalled, making the case an exception to the requirement to exhaust domestic remedies before turning to the Committee. The Committee noted that “the implementation and realization of children’s rights in Africa is not a matter to be relegated for tomorrow, but an issue that is in need of proactive immediate attention and action.”
On the merits, the Committee found Kenya’s actions violated Article 6, the Charter’s provision protecting children’s right to nationality, observing that statelessness is the antithesis of the best interests of the child (protected under Article 4). It clarified that the child’s right to acquire a nationality means “children should have a nationality beginning from birth.” The Committee also found Kenya’s citizenship confirmation procedures unlawfully discriminate against Nubian children in violation of Article 3, leaving them stateless or at risk of statelessness with no legitimate hope of gaining recognition of their citizenship. As a result, Nubian children lack access to adequate healthcare and education, in violation of Kenya’s obligations to provide the highest attainable standard of health and education to all children (Articles 14(2)(a)-(c), (g) and Article 11(3), respectively).
It also made five key recommendations:
1. That the Government of Kenya should take all necessary legislative, administrative, and other measures in order to ensure that children of Nubian decent in Kenya, that are otherwise stateless, can acquire a Kenyan nationality and the proof of such a nationality at birth.
2. That the Government of Kenya should take measures to ensure that existing children of Nubian descent whose Kenyan nationality is not recognized are systematically afforded the benefit of these new measures as a matter of priority.
3. That the Government of Kenya should implement its birth registration system in a non-discriminatory manner, and take all necessary legislative, administrative, and other measures to ensure that children of Nubian descent are registered immediately after birth.
4. That the Government of Kenya to adopt a short term, medium term and long term plan, including legislative, administrative, and other measures to ensure the fulfillment of the right to the highest attainable standard of health and of the right to education, preferably in consultation with the affected beneficiary communities.
5. That the Government of Kenya report on the implementation of these recommendations within six months from the date of notification of this decision, and the Committee will appoint one of its members to follow up on the implementation of this decision.
During its 18th Session, the Committee is scheduled to consider state reports by Cameroon, Niger and Senegal. It will also deliberate on another Communication during a private hearing, and hear a report on child mutilation and trafficking body parts in Southern Africa, presented by the group HumanAfrica. A civil society forum will take place immediately before the Session opens.
When he sees us arrive, Julek breaks into a wide smile and waves us towards his driveway. Rubbing his hands together to warm them against the autumn chill, he leads us up a concrete stairway to his second-floor apartment in the outskirts of Ostrava, an industrial town in eastern Czech Republic.
Julek, now 21, was one of 18 children who took the Czech government to the European Court of Human Rights in 1999, challenging the practice of placing disproportionate numbers of Romani children into “special schools” (now renamed “practical schools”) where they, and children with disabilities, were segregated from their classmates and taught a limited curriculum. Twelve years later, Julek still suffers from being caught up in the practice, painfully aware of the limited job options that his lack of education has left him.
Julek ushers us through the kitchen and into a neat, amber-colored living room, where his two young sons sit on small plastic chairs watching cartoons. In the corner, a small wood burning furnace crackles and warms the house.
His wife, Jitka, fixes us coffee and Julek begins to tell us of his experience. As a child, he had caught pneumonia and missed a lot of classes. Instead of getting support from teachers to catch up on his studies when he got well, he was placed into a special school. There he languished, until his headmaster finally recognized that he belonged in mainstream education. Once he was transferred back, however, the school placed him two grades behind his classmates of the same age. He did not last much longer in formal schooling.
As Julek talks, his four-year-old son, also named Julek, beams as he sits down next to me and proudly plants his prized pet mouse in my hand to hold and pat with him. Three-year-old Roland, leans against his father and happily slurps on a small lollipop that his grandmother hands him as she walks in to join us after finishing work.
Julek and the 17 other children won the case—D.H. and others v Czech Republic—in November 2007. The European Court ordered the Czech government to pay a small amount in compensation to the individual children who were represented in the case, and also to put general measures in place to end the discrimination against Romani children and redress, as far as possible, its effects.
Yet little has changed in the last 12 years since the case first went to court—and Julek worries about his sons’ futures.
“I went to a special school and my brother is still in a “practical” school,” he says. I don’t want my sons to be placed there too.” Jitka vehemently nods her head in agreement.
As we leave, the younger Julek and Roland give my colleague, Jana, a “high five” and wave the rest of us goodbye. We organize to meet Julek again in the morning, when he will travel with us to Strasbourg to deliver the same message to the Committee of Ministers at the Council of Europe—the political body charged with making sure European Court judgments are respected.
Julek hopes that by telling his story, it will help people realize the magnitude of the problem with this practice, and propel change. He also knows change takes time—he’s been waiting 12 years—but realizes that his children don’t have that luxury. He wants them to have a better chance in life than he was given and hopes that the Committee of Ministers can help him give them that.
A good first step would be that the Committee ask the Czech government to provide fresh statistics, according to ethnicity, gender and disability, of children in “practical schools” and mainstream education. A second would be to require the Czech government to provide concrete examples of changes on the ground for children as a result of their National Action Plan for Inclusive Education. (Concerns exists that the plan’s implementation has stalled).
To achieve lasting change, the Czech government must begin to make steps to transform the way its education system treats Romani children. One specific advance would be to put support structures in place to ensure Romani children can succeed in mainstream schools. It’s also vital that the Czech government starts to combat the pervasive bullying Romani children suffer in mainstream schools, which leaves parents despairing and deciding to keep their children in the “safer” environment of “practical” schools. The government must undertake a major sensitization campaign with families and teachers in mainstream schools to underscore why inclusion is good for everyone.
To date, those key steps haven’t taken place—and without them, Julek’s dream of seeing his boys grow up in an inclusive, supportive school environment still remains elusive.
In 2009, the Open Society Scholarship Programs awarded EARTH University a grant to support promising undergraduate scholars from Haiti and Mozambique. The following post is part of our blog series featuring their voices.
Carina Théodore: I grew up in a suburb of Port-au-Prince and my grandmother lives in a distant village where she owns land. As a child, I would stay with her from time to time. I saw how her fields produced sugar, avocado, mango, yams, bananas, and plantains. This is how I became interested in different ways of producing food.
Even before I came to EARTH, I knew the villagers in Haiti were not utilizing the resources at hand for producing food. In Haiti they use only charcoal as a source of cooking food, and for this reason, they cut down all the trees. There is no culture of respect for nature. Whatever government laws and regulations exist are routinely ignored.
I am studying agriculture because I want to help my people become aware that they can get higher productivity and reduce poverty. In Haiti, the land is depleted. There are enough local ingredients for natural fertilizer, but the villagers are not exploiting them. I had to come here to learn how to take advantage of the things they have to enrich the soil. Right now, the farmers do not use animal manure. I also learned about preserving natural resources and waste classification and recycling. I will go back and train my grandmother. She can train the rest of the farmers in her village.
There is no comparison between the environment in Haiti and the surroundings here at EARTH. The soil is the same hue, but here the vegetation is full of color, and even the green is different. I miss Haiti a great deal. It is my country. It is my land. It is my home. I have been here only a year, and I don’t think I will ever change my life’s narrative for this new place. For me, everything is in my country.
After I graduate, I want to continue studying. But eventually I want to work in Haiti’s mango industry. I would like to establish my own company producing mangoes. The local market does not supply all the demand. I want to produce the mango and extract the pulp. It is a good idea to export it.
As told to Chuck Sudetic.
November has been a good month for women in Malawi. Parliament finally recognized that women have the right to inherit from the marital estate. In the past, after the death of her husband, a woman and her children were often left with nothing, no matter the length of the marriage and contributions to the estate. In addition to losing the family home, widows had to contend with the husband’s relatives descending to grab property—silverware, bedding, clothes, everything. The new Deceased Estates Act protects the spouse’s and children’s share in the estate. Moreover, the Act makes property grabbing an offense, liable for a fine of MK1 Million (USD 6,250) or imprisonment for up to three years.
This victory was not without struggle. Women in Law in Southern Africa (WLSA)—Malawi, a premier women’s rights group, has been fighting for 12 years to reform inheritance laws in Malawi. Last year, a bill requesting an amendment of the inheritance laws reached Parliament only to then be rejected. Members of the largely male Parliament expressed discomfort with the idea that a wife and children should have an automatic share in the estate after a husband’s death. They argued that their inheritance should be entirely up to the husband’s will. Otherwise, wouldn’t women start killing their husbands in order to access property?
Unfortunately, Malawi Parliamentarians are not alone in these sentiments. According to UNICEF, women perform 66% of the world’s work and produce 50% of the food, but only earn 10% of the world’s income and own about 1% of property. As the Center on Housing Rights and Evictions (COHRE) has noted, throughout sub-Saharan Africa, “[i]n in many cases, subsequent to the HIV/AIDS related deaths of male partners or disclosure of their HIV/AIDS status, women are divested of their marital property, inheritance rights, livelihoods, and at times even their children, by relatives who forcibly evict them from their homes.”
Women’s economic disempowerment is particularly problematic in the shadow of AIDS. Not only has AIDS magnified suffering from discriminatory inheritance laws, but realization of women’s property and inheritance rights is critical in addressing the epidemic. Women’s inability to own, dispose of, and inherit property creates economic dependence on men, trapping women in abusive relations where they are less empowered to protect themselves from HIV infection or seek treatment. Women face increased vulnerability upon a husband’s death and may be forced to participate in widow inheritance (where the woman herself is “inherited” by the husband’s relatives), polygyny, or high-risk work to survive. Impoverished women also have reduced capacity to cope with the disease.
Advocates throughout Eastern and Southern Africa are coming together to fight this abuse. In 2009, WLSA Malawi and the Federation of Women Lawyers (FIDA)—Kenya founded WIN (Women’s Inheritance Now!), a network of legal practitioners and human rights activists who have come together to advance women’s property and inheritance rights in the context of HIV and AIDS in Eastern and Southern Africa through the sharing of information, experiences, and strategies (Please see http://winafrica.org/ for additional information.).
Now that the law recognizes women in Malawi, the next step is education. Malawi’s women will only benefit if judges and communities are educated about the new law. Next week (the week of November 28), WIN is hosting a web forum at http://winafrica.org/ with a series of e-chats with judges from Kenya, Malawi, and Tanzania on women’s property rights and intersection with HIV/AIDS. An important milestone has been reached, but the struggle for justice continues with a focus on implementation.
It has now been confirmed that the two remaining Libyan suspects wanted by the International Criminal Court (ICC), Saif al-Islam al-Qaddafi and Abdullah al-Senussi, have been detained by national authorities. What happens now?
Under international law, Libyan officials are required to surrender the two suspects to The Hague. However, members of the Transitional National Council (TNC) have stated their intention to hold the two accused in custody for trial in Libya. Resolving this apparent clash of jurisdictions will be the first and critical step for the new Libyan regime in demonstrating their commitment to international justice.
The way out of this dilemma is provided for in the terms of the ICC Rome Statute itself. Although not a State Party to the ICC, Libya is mandated to cooperate with the Court by the terms of the UN Security Council Resolution 1970. The arrest of the Saif and Al-Senussi activates the obligations to surrender them to the Court according to the terms of Articles 59 and 89 of the ICC Rome Statute. Under these provisions, national courts are to hold proceedings to verify the identity of the suspects and the validity of their detention for surrender to The Hague “as soon as possible”.
Should Libya fail to cooperate with the Court by surrendering the suspects, the judges may inform the Security Council of this under Article 87(5)(b) of the Rome Statue. The ICC prosecutor could also inform the Security Council of a failure to cooperate. The Security Council has a broad array of political responses at its disposal, including sanctions, but it also has the power to suspend ICC proceedings under the terms of Article 16 of the Rome Statue or otherwise pass a new resolution regarding its initial referral to the ICC.
Libya can also seek postponement of the ICC’s request to surrender Saif and Al-Senussi to the Court. First, under Article 94 of the ICC Rome Statute, the Libyan authorities could demonstrate that there is a risk of interfering with a separate and ongoing national investigation or prosecution, so long as Libya shows that the case in question is “different from that to which the request relates”. In such circumstances Libya and the Court are to agree the length of time required for the postponement before reverting to the requirement to implement the request. Secondly, under Article 95, Libya may postpone surrendering the suspects to The Hague if there is an admissibility challenge before the ICC which is pending a determination by the ICC judges under Articles 18 or 19. An admissiability charge would argue that there is no need for ICC action on the grounds that the matter in question is being dealt with properly in Libyan courts.
To make an admissibility challenge, Libya must first demonstrate that it has standing before the ICC to lodge such an admissibility challenge. Libya can do so under Article 19 by showing that it is already investigating or prosecuting the case against the two suspects wanted by the ICC. Libya must make such an admissibility challenge “at the earliest opportunity”. Therefore, all of the options open to Libya to proceed with the cases in Tripoli as opposed to The Hague require first showing that there are national investigations underway.
In order to make a successful challenge to admissibility of the cases before the ICC, Libya would then need to satisfy the terms of Article 17 of the Rome Statue by demonstrating that it is willing and able to carry out independent and impartial investigations or prosecutions. In considering this test, the Court will consider the capacity of the national justice system, and whether it is in “a total or substantial collapse or unavailability” such that it is not possible to obtain the necessary evidence or otherwise carry out legal proceedings. It is at this stage that the Court may consider the potential for application of the death penalty in Libya. The death penalty was expressly excluded from the potential sentences the ICC is able to enforce, and the practice of other UN tribunals demonstrates that the risk of implementing the death sentence is a bar to the transfer of an accused to national courts.
Aside from Libya, the accused and the prosecutor also have the right to request the judges to rule on admissibility, although in Saif’s case, there are indications that he has already sought to have his case tried in The Hague. So it is extremely unlikely that he will argue that his case is inadmissible before the ICC and should be heard in Libya. The Security Council and those who have submitted applications to the Court to be recognized as victims in the official proceedings could also file observations directly with the Court regarding any admissibility challenge. The ICC investigations are suspended pending the Court’s determination on admissibility.
It also appears that the prosecutor of the ICC may defer an investigation of his own volition. This is implied by Article 19(11) of the Rome Statute which provides the prosecution with options for obtaining information on local court proceedings “If the Prosecutor, having regard to the matters referred to in article 17, defers an investigation”. In this regard it is instructive that the ICC prosecutor recently stated that he was travelling to Libya to meet with TNC officials to deicide “when and how” proceedings will take place. An arrest warrant “shall remain in effect until otherwise ordered by the Court” according to Article 58(4) of the Rome Statute, although it could be open for the prosecution to withdraw the arrest warrant.In the past this has only taken place upon proof of the death of an accused.
A final option that may be under consideration is moving the ICC trial to Tripoli. Under Article 62 of the Rome Statue, it is possible to decide to hold trials outside the seat of the Court in The Hague. In the past, the judges in the situations concerning Kenya and the Democratic Republic of Congo have sought submissions in this regard, although in both instances it was decided to proceed in The Hague due to infrastructure and security concerns in the countries in question.
In a groundbreaking decision, the European Court of Human Rights ruled that forced sterilization is a violation of the European Convention on Human Rights (specifically Article 3, which prohibits torture or inhuman and degrading treatment, and Article 8, which protects the right to private and family life). This long-awaited judgment in the case of VC v Slovakia is a step forward for efforts to bring justice to the potentially thousands of Roma women who were sterilized without their consent in Central and Eastern Europe. The extent of the abuse was first exposed in detail in the 2003 report, Body and Soul: Forced Sterilization and Other Assaults on Roma Reproductive Freedom in Slovakia.
VC, a Romani woman, was forcibly sterilized in a state hospital in Eastern Slovakia during a cesarean section. While she was in the height of labor, hospital staff insisted that she sign a consent form for sterilization, without informing her about what the procedure entailed. She was only told that a future pregnancy could kill her and was pressured to immediately undergo the procedure. VC did not understand what she was agreeing to but fearing for her life, she signed the form.
After learning that the sterilization was not medically necessary—and that the hospital staff violated her rights by not providing her with full information on the implications of the procedure—VC filed a civil lawsuit in Slovakia. The pursuit of justice at home failed, and in 2007 she filed a complaint against Slovakia at the European Court of Human Rights.
In its decision, the court noted that sterilization is never a life saving procedure and cannot be performed without the full and informed consent of the patient even if doctors believe that future pregnancy may pose a risk to the woman. The court wrote:
According to the Government, the applicant’s sterilisation was aimed at preventing a possibly life-threatening deterioration of her health. Such a threat was not imminent as it was likely to materialise only in the event of a future pregnancy. It could also have been prevented by means of alternative, less intrusive methods. In those circumstances, the applicant’s informed consent could not be dispensed with on the basis of an assumption on the part of the hospital staff that she would act in an irresponsible manner with regard to her health in the future.
The court found that the hospital staff acted without respect for human dignity and human freedom by not giving VC the time and information necessary to make a free and fully informed decision. The court wrote, “the way in which the hospital staff acted was paternalistic, since, in practice, the applicant was not offered any option but to agree to the procedure which the doctors considered appropriate in view of her situation.” It recognized that “the sterilization procedure grossly interfered with the applicant’s physical integrity” and that medical personnel acted “with gross disregard to her right to autonomy and choice as a patient.”
While the court alluded to the complicity of the state in grave human rights violations against Roma, it disappointingly did not address whether such conduct was a violation of the right to non-discrimination (Article 14). By not doing so, the judgment falls short of addressing the crux of the problem: that VC experienced these abuses because she is a Romani woman. The court rejected the government’s arguments in defense of its practice, which were based on negative stereotypes of Roma, but failed to call these arguments discriminatory. For example, the court explicitly rejected the government’s argument concerning VC’s failure to undergo regular check-ups and neglecting her health during pregnancy. This is a common stereotype that the government shamelessly exploits to justify “special treatment” of Roma—in other words, to allow for sterilization without consent.
One judge dissented, arguing that the court should also have ruled that Slovakia violated VC’s right to non-discrimination. Judge Mijovic wrote:
Finding violations of Articles 3 and 8 alone in my opinion reduces this case to the individual level, whereas it is obvious that there was a general State policy of sterilisation of Roma women under the communist regime (governed by the 1972 Sterilisation Regulation), the effects of which continued to be felt up to the time of the facts giving rise to the present case…. The fact that there are other cases of this kind pending before the Court reinforces my personal conviction that the sterilisations performed on Roma women were not of an accidental nature, but relics of a long-standing attitude towards the Roma minority in Slovakia. To my mind, the applicant was “marked out” and observed as a patient who had to be sterilised just because of her origin, since it was obvious that there were no medically relevant reasons for sterilising her. In my view, that represents the strongest form of discrimination and should have led to a finding of a violation of Article 14 in connection with the violations found of Articles 3 and 8 of the Convention.
The VC v Slovakia ruling is the first of its kind issued by the European Court of Human Rights, but there are multiple similar cases pending. These cases can have a major impact in the lives of women who have had their fertility taken away from them. The court’s recognition of forced sterilization as a severe human rights abuse will hopefully bring some sense of justice to victims, as it has to VC. A court finding of discrimination would send a strong message that governments can no longer use racial stereotypes to defend abuse masquerading as medicine.
Last month Ellen Johnson Sirleaf, the first democratically elected female president in Africa, was awarded the Nobel Peace Prize, together with Liberian peace builder and social worker Leymah Roberta Gbowee and Yemeni activist Tawakul Karman. The three women were honored for “their nonviolent struggle for the safety of women and for women’s rights to full participation in peace-building work.”
For the two Liberians, the Nobel Prize is an important acknowledgment of the role they play in promoting the inclusion of women in post-conflict reconciliation and reconstruction. It represents the huge progress that countless individuals and organizations around the world are making to promote and entrench women’s participation in all aspects of nation building.
Ellen Johnson Sirleaf’s election as president of Liberia in 2005 was a milestone for the role of women in public life in Africa. In her inauguration speech, she said her priority was to "empower Liberian women in all areas of our national life." In pursuit of this goal, she established a nongovernmental, community-based development organization, MESUAGON, which works toward improving the plight of women and girls—especially single mothers—through basic skills training, literacy, and farming.
She also launched the Liberia Education Trust. The organization’s primary objective is to construct 50 schools as a means of increasing girls’ enrollment, train 500 teachers—with a focus on female teachers as a way of encouraging girls’ enrollment and retention—and award 5,000 scholarships to girls. The Open Society Foundations' initial support was instrumental in leveraging additional funding for the organization’s work in post-conflict Liberia. The Liberia Education Trust–Monrovia continues to benefit from the support of the Open Society Initiative for West Africa (OSIWA) and its Education Support Program. We recently funded a reading-enrichment program for girls in primary school who hail from poor and disadvantaged backgrounds.
The Sirleaf Market Women’s Fund, established in Sirleaf's name, is geared towards improving the economic and social status of women traders and their immediate families and communities. Over 600 market women have benefited from the fund's micro-credit program, and more than 500 have been taught how to read and write. The Sirleaf Market Women's Fund and the Liberia Education Trust both have national and international boards who are primarily women and who have made distinct efforts to contribute to the welfare and advancement of women’s rights and empowerment in Africa.
Less known globally, Leymah Gbowee championed peaceful sit-in protests in Monrovia involving thousands of women. During the negotiation of the Comprehensive Peace Agreement in Ghana in 2003, she led hundreds of women—mostly refugees—to force then president Charles Taylor and the other warring factions to attend the peace talks, barricading the exits to prevent them from leaving the conference room until a peace agreement was signed.
Leymah’s community-driven efforts with the Liberia chapter of the West Africa Network for Peacebuilding motivated her to partner with Thelma Ekiyor, former head of the Open Society Initiative for West Africa spin-off the West Africa Civil Society Institute, and Ecoma Bassey Alaga to establish the Women Peace and Security Network Africa (WIPSEN). Based in Accra, Ghana, WIPSEN has been active in promoting women’s participation in peace building in the subregion. Gbowee was hailed for mobilizing women “across ethnic and religious dividing lines to bring an end to the long war” that had raged for years in Liberia and for ensuring “women’s participation in elections.” Recently, with support from OSIWA, WIPSEN deployed the West African Women’s Elections Observation team to monitor the Liberian elections.
Although the Nobel award to the three women is a victory for the voices of marginalized women across the world, it nevertheless points to the immense challenges that women continue to face. This is particularly evident in Africa, where the role of women in the public as well as the private sphere remains ambiguous. While women’s activities in the formal and informal economy are widely recognized as a driving force of growth, they nevertheless continue to be marginalized in decision-making roles in the fields of governance and politics as cultural prejudice and stereotypes remain deeply rooted. There is no doubt that women’s participation is critical in conflict management and reconciliation, as the work of President Sirleaf and Leymah Gbowee has clearly shown; however the immense resources that women can bring to peace-building processes remain largely untapped.
In its citation the Nobel Committee noted, “We cannot achieve democracy and lasting peace in the world unless women obtain the same opportunities as men to influence developments at all levels of society.” This is so true in West Africa, where gender inequality remains a significant challenge that has constrained the development of open societies. Our work aims to address this challenge by expanding the participation of women, youth, and other citizens in decision-making processes, and supporting initiatives to engage women in governance. Among other things, we must encourage the development of vibrant, forward-looking women’s leadership and provide for the exchange of experiences and knowledge between women leaders. Without this the struggles of these three women for an open society will not be fully realized.
The International Criminal Tribunal for the Former Yugoslavia (ICTY) in The Hague held two days of discussions this week devoted to examining its global legacy. The following text is drawn from remarks delivered by Alison Cole on behalf of the Open Society Justice Initiative:
In 2012, the ICTY and the International Criminal Tribunal for Rwanda (ICTR) will both be approaching their 20th anniversaries; the International Criminal Court (ICC) will mark its 10th anniversary; the Special Court for Sierra Leone (SCSL) will complete its trials; and the Extraordinary Chambers in the Courts of Cambodia (ECCC) will be in the midst of its second case against senior leaders of the Khmer Rouge regime. Each institution operates in a very different and unique context. However, there are similar legacy themes, particularly the issue of the strengthening of the rule of law.
With respect to the ICTY and the ICTR, both tribunals led the way in forging a new path to justice in the 1990s, picking up from the international criminal law precedents established at Nuremburg. Both tribunals faced the issue of being established outside the country over which they had jurisdiction; and both came to appreciate the need to take additional efforts outside the courtroom to ensure the judgments would resonate in the local context. The ICTY pioneered outreach for international justice and peer-to-peer capacity building with local justice officials. The ICTR also conducted trainings and worked particularly closely with local civil society intermediaries.
Indisputably, one of the most far reaching and landmark achievements of the ICTY and the ICTR has been the development of the law regarding gender crimes. Prior to the establishment of the ICTY, the characterization of rape as a war crime remained debated in some quarters. Now it is fully established that rape may constitute a war crime, a crime against humanity, and an instrument of genocide.
The tribunals have further recognized rape and other forms of sexual violence as means of torture, forms of persecution, and indicia of slavery, in addition to other crimes such as inhumane acts. They have articulated progressive definitions of rape, and the heart wrenching cases before these tribunals have galvanized a global movement recognizing sexual violence as an instrument of war and oppression.
A further critical legacy impact of the ICTY and ICTR has also been the role they played in paving the way for the other international and hybrid tribunals that followed.
The first of such subsequent tribunals, the SCSL, currently has particularly pressing legacy issues to address. The SCSL will be the first international court to close, with trial proceedings expected to terminate with the final judgment concerning Charles Taylor, anticipated for early next year. The SCSL has had the advantage of having all but one of their trials held in Sierra Leone itself, with more ready access to the national institutions in order to enhance its legacy impact, compared to the ad hoc tribunals which were based outside of the country concerned. However, the Open Society Justice Initiative issued a recent report regarding the legacy of the SCSL and identified key steps that remain to be taken to secure the legacy of the Court, in particular through ensuring the judgments are analyzed to find ways in which they can be utilized in local courts.
It is important to highlight that the SCSL has also made valuable contributions to the rule of law regarding gender crimes. Building upon the precedents established at the ICTY regarding enslavement, the SCSL was the first court to convict for sexual slavery, as provided for in its Statute. The SCSL also considered the scope for addressing new emerging fact patterns under the so-called residual category of crimes against humanity, namely other inhumane acts. The Sierra Leone civil war involved militia forcing women to engage in conjugal relationships, which the judges found to constitute a crime against humanity as an other inhumane act of forced marriage. This precedent has been followed at the Extraordinary Chambers in Cambodia where the co-investigating judges charged the accused in Case File 2 with forced marriage.
It is a similarly critical time for the Cambodia court regarding the Khmer Rouge to consider its legacy. With the largest courtroom in the world, sitting some 500 observers, the court made remarkable efforts over the course of the first trial against Duch (head of S-21 detention center) to bring people from all over Cambodia to watch the trials – over 20,000 people were in attendance. Now with the court starting its second trial with nearly 4,000 victims participating, and with serious questions over the status of the two remaining investigations, the Khmer Rouge court must ensure its legacy by conducting fair and independent trials and investigations.
Finally, the question of whether the ICC has a legacy impact remains to be considered to determine what steps a permanent institution would need to take in order to enhance its contribution to the local setting in which it operates. There are many questions to be answered such as the extent to which positive complementarity contributes towards the ICC’s legacy and how the prosecutor can best manage decisions on preliminary analysis situations or investigations that are closed.
It is remarkable to recall that the ICC Rome Statute was being negotiated in 1998, at the very early stages of international awareness of the law regarding gender crimes. Perhaps one of the most tangible legacy impacts of the ICTY and ICTR are the detailed provisions in the Rome Statute specifying prohibitions against rape and sexual violence. The groundbreaking gender cases before the ICTY and ICTR led to the ICC recognizing not just rape, but sexual slavery, enforced prostitution, forced pregnancy, and enforced sterilization in its statute, as well as gender based persecution and trafficking in women and children - including these crimes in the Rome Statute is a truly amazing achievement.
Although far from adequate, and there is much more to be done in redressing gender crimes and the offensive stereotypes surrounding sex crimes, the groundbreaking jurisprudence from the ICTY, ICTR, and SCSL will be instrumental in interpreting the Rome Statute and ending impunity. Indeed, all but one of the situations before the ICC include gender crimes in its charges.
Dr. John May will never forget the kid. The kid was just 18 years old, and was HIV positive when he was arrested and charged with theft in Haiti. He then spent the next two years in pretrial detention, awaiting a court hearing. He was held, often without food, in an overcrowded cell where he had to fight for space to lie down. Eventually, the kid contracted drug-resistant tuberculosis from a fellow inmate. At age 20, the kid died in prison. He had never been convicted. In fact, he had never seen a judge, or even been to court.
The kid has become a permanent presence for Dr. May, an internist and an expert in the provision of healthcare for people held in detention. He is also the founder of Health through Walls, a group which supports the development of proper healthcare in prisons in the developing world. It is working on projects in Africa and the Caribbean to help control and prevent the kind of tragic outcome that took the life of the kid, fighting the illness and disease that can flourish in overcrowded or poorly managed pretrial detention facilities.
Every day, all around the world, millions of people spend time in pretrial detention. While they wait, charged but not tried, for their day in court, they are exposed to health-threatening conditions—conditions which are sometimes worse than those faced by inmates serving prison sentences after receiving guilty verdicts.
With over 10 million people moving through holding facilities every year, communicable diseases present in often overcrowded cells pass easily from detainee to detainee. Then, when people are released back to their communities, diseases such as HIV/Aids and TB can be passed on to their friends and families.
To people working in prisons this isn’t news. What is new is the focus on the issue now coming from both the medical and criminal justice communities. Reducing the number of people in pretrial detention is a logical way to reduce this epidemiological effect, especially when one takes into account that pretrial detention is supposedly only allowed as an exceptional measure under international and national laws and standards.
What’s missing is political will. Government agencies are hard to convince, as people accused of crimes don’t get much sympathy from the authorities—even if they are supposedly innocent until proven guilty—and human right arguments seldom hold sway. Nor will anecdotal evidence suffice. Hard data is needed to document the extent of the problem and to develop solutions that could prompt governments to act.
A new publication, Pretrial Detention and Health: Unintended Consequences, Deadly Results, takes a first step. Dr. Joanne Csete, of the Mailman School of Public Health at Columbia University, reviews the scant existing literature on the link between excessive and unnecessary pretrial detention and negative consequences for public health. She makes a number of recommendations for health professionals that suit both developing and developed countries, such as pursuing research on the issues, providing technical support to prison authorities, and pushing for more donor funding.
The impetus to bring about policy changes will also be boosted by the kind of broad alliance this report represents, an alliance between health professionals and those who are trying to improve the mechanisms of national justice systems.
Medical staff who care for the health of prisoners and detainees may traditionally not have much interest in how the justice system itself works. But a functioning bail system, or early access to a lawyer, can reduce overcrowding in prisons and lock-ups. Fewer people held in detention means fewer people exposed to life-threatening diseases such as HIV/Aids, hepatitis C or tuberculosis, and healthier communities.
The report argues: “Health professionals, including university-based experts, should be mobilized to provide leadership in this area—through their research and teaching, practice, technical assistance, membership in professional societies, and solidarity with prison health professions.”
Health professionals, it concludes, "are a crucial voice in advocacy for reduction in the use of pretrial detention as well as the realization of the health rights of the detained”.