Africa-based international law projects

(Delighted to welcome back alumna Bonita Meyersfeld, who contributes a 2-part series of guest posts on international law in Africa. Part 2 is below; Part 1, published yesterday, is here.)

Having described the overall work of the Southern and Eastern African Regional Centre for Women’s Law at the University of Zimbabwe, I continue in this post with descriptions of research in progress:
► Makanatsa Makonese (left), a Doctor of Philosophy Candidate, is examining Zimbabwe’s Post-Independence Land Reform Laws and Policies and Their Impact on Women’s Right to Agricultural Land: A Critical Analysis of the Fast Track Land Reform Programme from 2000 and Beyond.
This research seeks to assess the availability or otherwise of a legal, policy, and institutional framework governing the Fast Track Land Reform Programme in Zimbabwe. The focus is on women and their right to access, own, and control agricultural land. The effect over the years of the country’s property laws in general, and land laws in particular, will be critically examined. The goal is to establish whether there have been any efforts during the implementation of the fast track land reform programme to break away -- away from a system that subjugates women in property ownership and toward one that recognises women as equal partners in national economic, social, and political development and transformation.
A primary focus of the research is the recognition that the fast track land reform programme was and is not just about parcelling out land but also about: creating social classes; developing jurisprudence around land ownership and reform in Zimbabwe; and setting up centres and sources of power that are critical in shaping the country in various ways. The position of women in the matrix and the country’s level of compliance with international human rights standards and best practices therefore have to be examined.
The nuance of the work is its engagement in a rights analysis in a context of rights violations; namely, the land grabs and concomitant displacement of landowners.
► Research by Renifa Madenga (left), also a Doctor of Philosophy Candidate, is entitled Using Women’s Voices/Experiences To Interrogate The Efficacy Of The International Criminal Justice System on Rape: The case of Rwanda 1994 Genocide. (credit for photo (c) Robert H. Jackson Center)
Her study explores the lived reality and experience of rape survivors of the 1994 Rwandan genocide. It is sited in the web of fears, needs, relationships, and anxieties that affect survivors of rapes committed during the Rwandan genocide, as well as their interactions with the international criminal justice system at the International Criminal Tribunal for Rwanda.
Using the voices and experiences of survivors and witnesses, the study interrogates the efficacy of the justice system. Its major questions: Does the system acknowledge and condemn the egregious abuses suffered by victim survivor witnesses? Does it recognize and addresse the needs, fears, and aspirations of those survivor witnesses?
The researcher, Madenga, works as an Appeals Counsel in the ICTR Office of the Prosecutor, and chairs that office's 3-year-old Sexual Violence Committee.
► Annette Mudola Mbogoh, another Doctor of Philosophy Candidate, is researching The 2007 Post-Election Violence As A Spring Board For Peace, Reconciliation And Reparation: A Case For The Participation And Involvement Of Women In Mombasa, Kenya.
The study investigates the participation of women in Mombasa in peace, reconciliation, and reparation processes through Kenya's Truth, Justice and Reconciliation Commission. Women suffered gross human rights violations in recurrent electoral violence in Mombasa -- in 1992, in 1997, and in the unprecedented 2007 general elections. (Prior IntLawGrrls posts available here.) Women have been internally displaced, lost their loved ones, their property, and their businesses. They are survivors of physical violence and rape. However, their voices, needs, and concerns have been sidelined in the current transitional justice process in Kenya (flag at right). The Truth, Justice and Reconciliation Commission presents an opportunity for women’s voices, injustices, and stories to be heard, investigated, documented, and redressed in the ensuing reparation programmes.
Against this backdrop, this research investigates the level of participation of women in the unfolding truth commission process, as well as the factors hindering women’s active involvement. It seeks both to document injustices committed against women by virtue of their sex and to identify priority concerns and preferred reparations on the part of survivors. It interrogates the question of truth-telling versus justice. The study highlights the importance of reparations to achieve true reconciliation and the extent to which women’s multiple identities influences their choice between collective and individual reparations. The study explores the politics of representation amongst women in a very polarized and ethnicized community. It furthers the debate on the right to truth, which has been expounded by the institutions of the inter-American human rights system. These arguments are hinged on the new Constitution of Kenya, which enshrines women’s right to equality and representation in legislative bodies through reservation of special seats. Finally, the study recommends implementation of a gender perspective in peace and reconciliation efforts, as is espoused in international instruments such as U.N. Security Council Resolutions 1325 and 1820.
► Under examination by Catherine Makoni is The Impact of the Political Crisis in Zimbabwe on Women’s Right to Protection of the Law: An Investigation into the Handling of Cases of Politically Motivated Rape from 2000-2009.
Makoni's research investigates how cases of politically motivated rape have been dealt with, if at all, within the justice system of Zimbabwe (flag at right). The objective is to interrogate the duty of the state to protect women, and therefore its role to provide sufficient and meaningful redress. The research undertakes an empirical assessment of what assistance victim survivors of rape have received from both state and nonstate actors -- including officials of their own political party, who have undertaken to protect party members from acts of violence and intimidation by the ruling party. The study further seeks to influence responses by all these actors.
Rape was used as a tool for political coercion during the election periods in 2000, 2002, 2005 and 2008. The political crisis had an impact on how cases of politically motivated rape were dealt with at multiple levels. In brief, the State failed in its duty to protect women. The perceived inviolability of the perpetrators, as a result of their perceived political affiliation, determines whether allegations of rape are reported, investigated, prosecuted, and adjudicated. The law as presently formulated is not sufficient to cover the total scope of rape as it occurs when used as a tool for political coercion.
► Rosalie Kumbirai Katsande, a Lecturer at the Centre, is Exploring the Potential of Laws and Procedures Governing Business Entities in Facilitating Women’s Entrepreneurial Development in the Horticultural Sector of Zimbabwe.
Inspiring this research is a passage in Peasants, Traders and Wives: Shona Women in the History of Zimbawe 1870 – 1939 (1996), in which Dr. Elizabeth Schmidt, Professor of History at Loyola University Maryland, writes:

When the Jesuit father A Hartmann visited the Shona Chief Chipanga in about 1891, he asked the chief how numerous the people where including women and children, the chief reportedly answered, 'women are not counted'. He then took a handful of dust from the ground and said, 'that is the woman. Hartman concluded that women were regarded as almost nonexistent.

In her own research project, Katsande explores women entrepreneurs in the horticulture sector of Mashonaland East Province of Zimbabwe. Her work interrogates the appropriateness for the development of business regimes by government authorities for women in rural areas. In an effort to determine the appropriateness of current such regimes, the study traces the economic history of Zimbabwe and shows how women’s economic initiatives have been marginalized by historical processes. Laws designed during colonial governance continue to inform and limit women’s entrepreneurial potential and development.
Historically, state officials discouraged Zimbabwean women from settling in the towns and at the mines. The officials opposed the growth of a permanent and potentially explosive African population in the urban areas, and encouraged women and children to subsidize male wages through agricultural production at rural homesteads. State officials expected rural-based women to bear the social costs of production -- caring for the sick, disabled, and retired workers -- while raising the next generation of labourers. Innovation by women was deeply affected by legislative and policy restrictions.
Against this backdrop, the study considers the current government’s people-centred development approach from an African feminist perspective, which, inter alia, focuses on empowering African women to improve their own lives.
The study reveals challenges to community income-generating projects initiated by the Zimbabwean Ministry of Women Affairs, Gender and Community Development. These are reported to have failed to address women’s economic needs; indeed, they present more of a burden, as they add work on already overworked women.
Women in the areas of study are running potentially viable horticultural ventures. The profitability of these ventures is dependent on agricultural support and training; however, this is not being received. Instead, women in these communities are presented with artificially constructed income-generating projects.

These are some of the impressive projects under way at the Centre. Perhaps of primary importance is the investigation of the realities of individual lives and how to link them into the international human rights agendas through national legal and policy frameworks.

Centre for women's law in Africa

(Delighted to welcome back alumna Bonita Meyersfeld, who contributes a 2-part series of guest posts on international law in Africa. Part 1 is below; Part 2 is here.)

I recently attended a workshop at the Southern and Eastern African Regional Centre for Women’s Law (right). Primarily a postgraduate teaching and research institution, SEARCWL focuses on issues related to women’s multiple interconnections and intersections with the law in all its pluralities. It’s run by Professor Julie Stewart (below left) of the Faculty of Law at the University of Zimbabwe.
Among the Centre’s features is a Masters in Women’s Law programme which focuses on using a human rights compliance and implementation framework to assess, promote, implement, and conduct research on the rights of women’s and girls.
I was amazed at the quality of work being done and the far-reaching impact of each student’s work. Each research project was intellectually sound, academically consistent with international developments and grounded in principles of international law.
I came away with a sense that the work being done in this small location in the heart of Harare will probably have some of the most important impacts in bringing international human rights law theory to communities in Africa. Above all, because it is based on a ‘grounded theory of research’ which challenges assumptions in an honest and liberating way, the work being done at SEARCWL really does have the potential to change the application of laws to women’s lived experiences. Topics include:
► Political rape against supporters of a certain political party in Zimbabwe;
► Deficiencies in the prosecutions of gender crimes at the International Criminal Tribunal for Rwanda, a study being undertaken by an ICTR prosecutor;
► Women’s access to water in the “grabbed” land in Zimbabwe; and
► The experience of women in and after ethnic killings in 2007 in Kenya. (prior IntLawGrrls posts available here)
The Centre hosts some of Africa’s finest developing academics, and is a source of scholarly work which integrates the advancing academic theories in international law with the communities that international law academics often theorise about but never actually meet.
Specifically:
► In teaching, researching, reforming, and implementing human rights, law reform and laws as they affect women, the Centre seeks to undertake a holistic examination of all aspects of a problem. Each and every piece of research undertaken must examine the human rights implications of the problem; it must examine the constitutional and legal implications within the laws of the country being researched. A gender perspective (and not a women’s perspective) must be a fundamental part of the research plan, including an analysis of how men and women are affected by the conditions surrounding the identified problem.
► All and any research conducted under the Centre's auspices must be grounded in the realities of the lives of people. To this end, the Centre works on developing theory and methodology in tandem. The best illustration of this is the research and theorizing cycle, which helps students to see where they fit into the intellectual processes, but which also informs how they should move forward in any research process. This is illustrated by the diagram below.
► Most research adopts the international and regional human rights frameworks. Local constitutions and national laws are evaluated for compliance. This framework also allows for comparison between countries in the region and internationally.
The Centre sees nothing exceptional in what it does. It views itself, rather, as using the various capacities of human rights, from aspiration to litigation, to drive forward benefits for women and girls while recognizing the needs of men and boys. In so doing, it tries to build synergies that positively benefit both sexes and both genders.
In tomorrow's post, I will set forth projects through which the Centre endeavors to achieve these goals.

Guest Blogger: Bonita Meyersfeld

It is IntLawGrrls great pleasure to welcome Bonita Meyersfeld (left) as today's guest blogger. Bonita is an associate professor of law at the University of Witwatersrand School of Law in Johannesburg, South Africa. She is also the head of gender at the Centre for Applied Legal Studies and an editor on the South African Journal on Human Rights. Bonita teaches international law, business and human rights and, prior to working in South Africa, was a legal advisor in the House of Lords in the United Kingdom. Bonita obtained her LLB from Wits Law School and her LLM and JSD from Yale Law School and was a visiting fellow at the London School of Economics.
Bonita has written, lectured and presented in Africa, the United States, Canada and Europe in the areas of international human rights law, transitional justice, women’s rights, business and human rights and development.
Bonita has worked as a litigator and legal advisor, advising South African governmental departments on developmental projects, particularly regarding water and gas distribution. She has also worked as gender consultant to the International Center for Transitional Justice in New York and as a legal consultant at Interights in London.
In her guest post below, Bonita blogs today on her excellent new book, Domestic Violence and International Law, which is part of a larger body of her work focusing on intimate systemic violence and international law.
Bonita has selected Helen Suzman (below right, with Nelson Mandela) (credit) as her IntLawGrrls foremother:

I would like to dedicate this blog to Helen Suzman, anti-apartheid activist and politician. Ms Suzman, who died in January 2009, was a rare personality whose commitment to justice and intellectual integrity found her alone in parliament fighting the battle of racial equality against the apartheid government in South Africa. Ms Suzman’s work is notable for being robust at a time when equality and human rights were not popular concepts. She pursued her line of work in the face of personal danger, political opposition and social approbation. The demise of apartheid is due in no small part to her work.

The Application of International Law to Systemic Intimate Violence

I am very grateful to IntLawGrrls for the opportunity and space to contribute this guest post discussing my work on systemic intimate violence and international law. The following discussion is based on my book, Domestic Violence and International Law, and the international law dialogue held yesterday at Chatham House on this subject.

The application of international law to domestic violence raises both intuitive and intellectual questions. Is there a right to be free from domestic violence in international law? If there is such a right, what is its substance? And wherever there is a right, of course, we search for the corresponding legal obligation. How do we categorise that obligation in international law and to whom does this obligation apply? Finally, the most intuitive and human of all questions, how can the broad – and by definition – global network of international law possibly assist people in the most intimate and private contexts of their lives?
I address these problems in the book Domestic Violence and International Law. The book emanates from the tragic uniformity of domestic violence stories by women around the world. Equally disquieting is the uniformity of the state’s non-response. In the face of severe acts of domestic violence, including battering, breaking, burning, raping, hacking forced sexual encounters with third parties, threats of harm, verbal denigration and murder, the state is silent. The remedies that exist in the public world simply fail to permeate into the private sphere to attenuate intimate harm.
In this discussion, I will consider firstly whether there is an authoritative right in international law to be free from domestic violence and, if so, what the substance of that right should be. I then consider the corresponding state obligation. And finally I address the most intuitive question, namely, how can international law benefit victims and survivors of systemic intimate violence?
Assessing the existence of a right in international law is difficult. There is no central law-making authority. According to the statute of the International Court of Justice (art 38), there are four sources of international law, namely, treaties, customary international law, the law of (so-called) civilised nations and finally, the jurisprudence of courts and tribunals and the writings of respected scholars. In the book I analyse these sources of law and conclude that, on a strict, black letter legal analysis, it is not clear that there is an authoritative principle in international law that states have an obligation to prevent domestic violence; however, I argue that we are in the amorphous process of norm crystallisation. We are on an irreversible trajectory towards an obligation in international law on states to protect victims and survivors of domestic violence.
This is evident from the following developments in international law. The first is the work of the special rapporteur on torture, who categorises domestic violence as a form of torture, prohibited under the Torture Convention. The second is the landmark ruling by the Inter-American Court of Human Rights in the ‘Cotton Field’ case, in which the Court held that Mexico was in breach of the Inter-American Convention on Human Rights and the Convention of Belem do Para for failing to investigate the disappearance and murder of women over a period of 15 years. Many of these deaths and mutilations were linked to domestic violence. There are also intense developments in Europe. In 2005 the Council of Europe Task Force to Combat Violence against Women, including Domestic Violence (EG-TFV) was established. This has led to developments regarding the adoption of a Europe-wide treaty regarding violence against women and domestic violence (the second draft of a CoE convention against violence against women has been distributed). The final important development is the decision of the European Court of Human Rights in the case of Opuz v Turkey (which has previously been discussed on this blog here), where the Court held that Turkey’s failure to respond to twelve years of domestic violence amounted to a violation of the right to life (art 2 of the European Convention); a violation of the right to be free from torture and ill-treatment (art 3 of the European Convention); and a violation of the right to non-discrimination on the basis of sex (art 14).
If we are to take steps to formalise an authoritative international law obligation on states to prevent and respond to domestic violence, it is important to specify the details of the right and the corresponding duty. As regards the right, I propose that not all forms of domestic violence should trigger the provisions of international law. Rather, it is a specific type of violence, what I refer to as systemic intimate violence, which warrants the application of international law. Systemic intimate violence consists of five co-existing elements. The first element is severity – the harm must be severe and can consist of both physical and non-physical violence. There are two important points to make here. I am not suggesting that severity of harm is a test for all forms of domestic violence. Rather it is severity of harm that is an element for systemic intimate violence under international law. This is uncomfortable but necessary. International law regularly distinguishes between degrees of harm (torture v ill-treatment; genocide v murder; mass rape v rape) and it is a form of prolonged, severe harm that triggers in global network of law. If domestic violence is attended to by the state, then in essence the right to protection has been fulfilled. What we examine in international law is where prolonged, severe harm is unaddressed. The test for severity in international law is an objective one (A v United Kingdom) and we ask whether the humiliation to the victim is so intense that a reasonable person would be outraged (Prosecutor v Aleksovski). The following stories of torture, compared to stories of domestic violence, are informative:

I was lying on the floor, two guards held my legs while another kicked me in the testicles. I would lose consciousness and come to, I lost consciousness four times. They hit me around the head, there was blood. They would beat me unconscious and wait until I came round: ‘He’s woken up, and they would come in and beat me [again].

-- Chechnyan survivor of torture by the Russian Army

From the moment Rodi Adalí Alvarado Peña married a Guatemalan army officer at the age of 16, she was subjected to intensive abuse, and all her efforts to get help were unsuccessful. Her husband raped her repeatedly, attempted to abort their second child by kicking her in the spine, dislocated her jaw, tried to cut off her hands with a machete, kicked her in the vagina and used her head to break windows.

-- Guatemalan Woman

[F]irst they would beat you and then you would have to lie down on the floor and crawl to them. You would have to say, “Request permission to crawl.” Me personally, they beat me on the knees, with clubs, and on the kidneys.

-- Chechnyan survivor of torture by the Russian Army

He was sittin’ on the bed. Had his .357 Magnum. He said, ‘June, you get down on this floor right now. You crawl to me.’ And when I got to his feet he took that pistol and hit me right alongside of the head. I thought I was gonna die. I still got the knot from it. He said, ‘if you even act like you’re gonna run I’ll blow your brains all over this wall.’

-- American Woman

The theme of severity of harm that is so intense that it would outrage the reasonable person, is evident.
The second element is that the violence usually operates on a continuum. The exigency of harm may not be in individual incident but in prolonged frequency of events. This is particularly important in domestic violence where violence is cyclical and individual acts seem benign but actually occur along a continuum of control and impotence. The notion of a continuum of harmful incidences was confirmed by the ICTY, noting that it was “sufficient to show that an act took place in the context of an accumulation of acts of violence which, individually, may vary greatly in nature and gravity”(Prosecutor v Kunarac). This element also featured in the Opuz decision: “Although there were intervals between the impugned events… the overall violence to which the applicant and her mother were subjected over a long period of time cannot be seen as individual and separate episodes and must therefore be considered together as a chain of connected events.”
The third element of systemic intimate violence is that intimacy. This is an important element for several reasons. The intimacy of helps to ‘disappear’ the violence, preventing the abused from reporting it and the authorities from recognising it. The reality, however, is that the highest rate of violence against women occurs in private relationships. Privacy presents an additional problem: the constitutional right to privacy traditionally is understood as a negative obligation to refrain from interfering with one’s private affairs. However, the ECtHR (Bevacqua and S v Bulgaria and Opuz v Turkey) and the CEDAW Committee (Yildirim v Austria; Goekce v Austria) have recognised that the right to privacy is also a positive obligation to secure the private realm so that individuals may flourish. Privacy cannot be understood merely as a right to be left alone; it is linked affirmatively to the right to liberty, the right to autonomy and self-determination.
The fourth element is group vulnerability. This is not to say that women have some essentialized element of vulnerability and weakness but rather that the legal system, to which women look for assistance, often is inert. Women as a group are affected by domestic violence more than any other group (such as children, the elderly, the disabled, men and non-human animals) and the greatest cause of death and disability among women aged 15-44 worldwide – more than HIV, TB and malaria – is domestic violence.
The final element is that of state failure. In the face of extreme or continued violence, in the private realm, occurring repeatedly against a particular social group, the state is unable or unwilling to respond. This is evidenced by the sad cases of Kontrova v Slovakia and Opuz v Turkey, where the claimants in both cases suffered years of severe physical and non-physical violence, resulting in the death of their children and mother, respectively.
These are the elements of systemic intimate violence.
The next step is to identify the principles of state responsibility in international law and how they might apply in the context of systemic intimate violence. The principles of state responsibility are codified in the International Law Commission’s Draft Articles on the Responsibility of States for Internationally Wrongful Acts. In order to determine whether a state has committed an international wrongful act, there must be (i) conduct and (ii) wrongfulness. A state can be responsible for both positive acts and for omissions or a failure to act. In the Corfu Channel case, the ICJ held that Albania had known that there were mines in its territorial waters and had failed to notify third parties about this danger. As a result, Albania had committed an internationally wrong act, not because it had laid the mines but because it has failed to warn third parties about their presence.
If the state fails to act where it has an international legal obligation to do so, the wrongfulness test asks us to consider what steps a state ought to have taken to fulfill this legal duty. The approach adopted in international law is the so-called due diligence standard. The principle, originally enunciated in the case of Velasquez Rodriguez v Honduras and fortified by the UN special rapporteur on violence against women, holds that an illegal act, committed by a private person, can lead to international responsibility of a state, not because of the act itself, but because of the lack of due diligence to prevent the violation or respond to the harm.
How does this apply to cases of systemic intimate violence? The test can be summarised as follows: (i) did the authorities know, or ought they to have known, at the time of the existence of a real and immediate risk to the life or well-being of an identified individual from the criminal acts of a third party; and, if so (ii) did the state fail to take measures within the scope of its powers, which, judged reasonably, might have been expected to avoid that risk. This test can be answered in the affirmative in the Kontrova case, where the state knew about the history of violence against the complainant when the complainant reported that her estranged husband had taken their children. The state refused to act until the passage of 48 hours. During this time the complainant’s estranged husband shot and killed their two children and then himself.
The final question is how there can be any benefit in international law for people who experience systemic intimate violence. I propose a theory of non-coercive compliance, which, based on the work of Professors Koh and Reisman, focuses on the impact of international law through norm infiltration. International law is a standard-setting spectrum, to which states can aspire and on which individuals can rely. Fuelled by international actors, NGOs, international bodies and trans-national organisations, international law can effect global change in intimate settings. Specifically, international law human rights law has two functions. The first is an expressive value: international law gives a name to harm that previously fell outside established legal principles and draws a conceptual boundary around such conduct, prohibiting it. Secondly, international law has an implementing capacity, compelling state to modify their laws in accordance with the international standards.
These values of international law are best evidenced in respect of enforced disappearances. Traditionally, the legal remedies of habeas corpus and extra-judicial killings were not available to the families of the kidnapped political dissidents because the state denied involvement. It was only with the development of the concept of enforced disappearances and the lobbying at the international level, that the nuanced nature of this harm was properly understood and an appropriate legal response fashioned. Today the UN working group on enforced disappearances has clarified roughly 1,763 cases.
These benefits are also evident in respect of systemic intimate violence. An analysis of the CEDAW Committee’s reports from 1984 to present day reveals an interesting pattern. Prior to 1992 domestic violence is rarely mentioned in states’ reports to CEDAW or in the CEDAW committee’s responses. After 1992, however, domestic violence becomes the key feature of states’ reports and of the committee’s response. What happened in 1992? This period saw the greatest global call at the time regarding violence against women and the responsibility of states to prevent domestic violence. It culminated in the General Assembly Declaration on the Elimination of Violence against Women.
I analysed three states’ reports to CEDAW before and after 1992, namely, Nicaragua, Sweden and Mexico. In respect of each state the same pattern applies. Prior to 1992 there is no mention of domestic violence. After 1992 the states begin the process of describing law reform, policy creation and the allocation of funding to the problem of domestic violence. So international law not only facilitated a dialogue regarding domestic violence against women at international law but it led to significant legal changes at the national and municipal level.
This is not to overstate international law. Rather it demonstrates that international law works best when viewed as a forum for the creation of norms and standards that, through a process of norm creation and infiltration, can alleviate harm in the most intimate part of one’s life.

Go On! State Responsibility & Intimate Violence

(Go On! is an occasional item on symposia and other events of interest)
Our readers in the United Kingdom and environs might be interested in the following event, at London's Chatham House, on international law and intimate violence:
The Principles of State Responsibility and Systemic Intimate Violence, Wednesday, 22 September 2010, 17:00 to 18:30.
Featuring:
► Professor Bonita Meyersfeld, University of the Witwatersrand, South Africa, School of Law and Head of the law school's Gender, Centre for Applied Legal Studies, who will: argue that systemic intimate violence is an appropriate concern for international law; survey important recent legal developments at the UN, European, inter-American, and Pan-African levels; and discuss her new book on this subject, Domestic Violence and International Law (2010).
► Gauri van Gulik (left), Women's Rights Division, Human Rights Watch, who will respond from the perspective of a practitioner working on these issues.
To register, e-mail amartin@chathamhouse.org.uk, stating your name and professional affiliation. Members should include their membership number.