Survivors of Sexual Violence and the African Union: A Model to Follow?

(Delighted to welcome back alumna Doris Buss, who contributes this guest post)

Women’s civil society groups from across Africa met recently with state ambassadors in Addis Ababa, Ethiopia, as part of a now-annual meeting of the Peace and Security Council of the African Union with civil society.
The March 28 meeting included addresses by the various ‘office holders’ below: Margot Wallström (middle), the UN Special Representative on Sexual Violence in Conflict, Litha Musyimi-Ogana (left), the Director of the Women, Gender and Development Directorate of the African Union, and Dr. Mary Chinery-Hesse (right), from the AU’s Panel of the Wise.
But the real force of the meetings came from the “Survivors of Sexual Violence in Armed Conflict”, who had traveled from Côte d’Ivoire, the Democratic Republic of the Congo, Guinea, Kenya, Somalia, South Sudan, Uganda and Zimbabwe. The meeting included time for “first-hand accounts” from the survivors, as well as discussion of different models of civil society initiatives for rehabilitation and community reintegration.
At the end of the event the survivors of sexual violence released a Statement, which is a moving testament to the urgent health needs of sexual violence sufferers in Africa. The Statement makes a number of recommendations relating to health care, including, a call for “comprehensive medical care, including emergency surgery services, and trained medical workers on trauma management” and a recommendation that AU member states “ increase their health budget for our sexual and reproductive health complications and trauma management”.
The frustration of civil society actors in ‘post’ conflict negotiations is also clearly evident in the Statement:

We are deeply saddened by the fact that our violators and their apologists are often seated on these tables deciding our fate. We are therefore not surprised that post conflict processes do not include the concerns and priorities of survivors of sexual violence. Instead, we are often urged to let bygones be bygones and look to the future. We cannot look to the future when we are hurting physically and psychologically, and are unable to pick up the pieces of our lives.

Among the recommendations made is a call for the AU to “adopt sexual violence as a disqualifying criterion for leadership” in line with UN Security Council Resolution 1960.
As an example of civil society and state interactions, this annual meeting between the AU and victims of sexual violence may be a model to consider in other contexts. I wonder, for example, what would happen if members of the Canadian Parliament (or US House of Representatives), agreed to meet each year with a representative group of poor single mothers to hear about their lives and experiences over the past year?

Rape Claimant and the Veil: A Case for the Supreme Court of Canada

(Delighted to welcome back alumna Doris Buss, who contributes this guest post)

The Supreme Court of Canada recently agreed to hear the appeal in a case involving a niqab-wearing woman who is the sexual assault claimant in a criminal case against two male defendants.
N.S., the claimant, wears a niqab, a veil covering the face but not eyes. Now an adult, N.S. claims the two defendants, one a family member, the other a family friend, sexual assaulted her as a child. At the preliminary inquiry, the defendants insisted the claimant remove her niqab while testifying so they could assess her demeanor as part of their defence.
The preliminary inquiry judge agreed, and ordered N.S. to remove her niqab while testifying. She refused and the matter was brought to the Ontario Court of Appeal, which overruled the preliminary trial order that she remove her niqab, but sent the matter back to the preliminary judge for a reconsideration. N.S. requested and has now been granted leave to appeal to the Supreme Court of Canada.
The case of N.S. is generally depicted as pitting freedom of religion against the rights of defendants in criminal trials. At least one of the interveners – Women’s Legal Education and Action Fund – has argued otherwise. LEAF, which intervened at the Ontario Court of Appeal and will likely apply to intervene at the Supreme Court, has argued this case raises issues about access to justice for religiously observant women, and should be seen in the context of tactics that revictimize sexual assault complainants. Ordering a woman to remove her veil, LEAF suggests, is an attempt to “humiliate and intimidate” and “diminish and beat down” the complainant at trial.

On March 29

On this day in ...
... 1993, Catherine Callbeck (left) became the 1st woman in Canada to lead a political party to general election victory, when the Liberal Party of Prince Edward Island, which she'd led since becoming the province's Premier that January, won in provincial balloting. Born in the same province in 1939, Callbeck had taught business school before being elected a legislator in 1974. Battles with public employees would make Callbeck's premiership an unpopular one, and she would resign in 1996. She's been a member of Canada's Senate since 1997.

(Prior March 29 posts are here, here, here, and here.)

On March 28

On this day in ...
... 1983, the Council of the European Communities prohibited the importation of seal-pup skins and related products pursuant to Council Directive 83/129/EEC. (photo credit) This ban on white pelts from baby seals, taken by means of a Canada hunt, did not end controversy, however; in recent years the European Union outlawed all importation. Just last month, officials said Canada intends to challenge the recent, total EU ban in the World Trade Organization.

(Prior March 28 posts are here, here, here, and here.)

On March 24

On this day in ...
... 1921 (90 years ago today), Mary Ellen Spear Smith (right), an English-born onetime schoolteacher who'd immigrated to Canada 30 years earlier, was sworn in as Minister without Portfolio in the government of British Columbia. She thus became the 1st woman cabinet minister in the British Empire. Three years earlier, Smith had become the 1st woman Member of the Legislative Assembly by winning a by-election to replace her husband, who'd been Finance Minister in the Liberal government. (photo credit) A suffrage leader and executive in the Canadian Red Cross, she'd run on the slogan "Women and children first." Spear Smith was re-elected in 1920 and again in 1924, was a proponent of first Mothers' Pensions and Female Minimum Wage Acts, and became the 1st woman Speaker in the British Empire. In 1929, she served as Canada's delegate to an International Labour Organization conference in Geneva. She served as President of the Liberal Party of British Columbia until she died in 1933.

(Prior March 24 posts are here, here, here, and here.)

On March 10

On this day in ...
... 1796 (215 years ago today), a daugher, Julia, was born in Fredericton, New Brunswick, Canada. At age 17, she wrote "a sentimental, moralistic melodrama" entitled St. Ursula's Convent, or The Nun in Canada. (image credit) After her marriage, Julia Hart published the book in 1824, thus becoming the 1st native-born Canadian to write a novel published in Canada. She wrote 2 additional novels, the latter of which never was published. Hart died in 1867 in the town where she was born.

(Prior March 10 posts are here, here, here, and here.)

On February 24

On this day in ...
... 1887, in British Columbia, Canada, Vancouver lost its city charter for having failed to quell rioting against immigrants. The day before, an anti-Chinese meeting provoked hundreds of people to march -- notwithstanding snowy weather -- to an encampment, raze it, and drive out its inhabitants in an anti-Chinese riot. "The Chinese didn’t return to Vancouver until the Attorney General in Victoria introduced An Act for the Preservation of Peace within the Municipal Limits of the City of Vancouver and brought 36 constables from Victoria to Vancouver." (credit for 1892 Vancouver Public Library photo captioned "Immigrants Mah Shou Hing and Lee Dye," pictured alongside this account of the 1887 riot)

(Prior February 24 posts are here, here, here, and here.)

On February 15

On this day in ...
... 1973, in Havana, Cuba and Canada signed an Agreement on Hijacking of Aircraft and Vessels and other Offenses. The pact, which took effect upon signature, provided that each state would would prosecute hijackers or return them to the country where the hijacking took place. It followed a series of hijackings, after which Canada "had had enough"-- no longer could hijackers expect asylum if they arrived there.

(Prior February 15 posts are here, here, here, and here.)

Guest Blogger: Jayne Stoyles

We are delighted to welcome Jayne Stoyles (left) as today's guest blogger.
Jayne is a lawyer, the first Executive Director of the Canadian Centre for International Justice, and an Ashoka Canada Fellow. A decision issued recently in a human rights case in which CCIJ has submitted a friend of the court brief forms the core of her guest post below.
Prior to joining CCIJ, Jayne served for several years as the Program Director of the NGO Coalition for the International Criminal Court in New York, a global network of 2,000 NGOs that helped bring about the establishment of the Court and that was twice nominated for a Nobel Peace Prize during her tenure. She: was also a Senior Adviser to the Institute for Global Policy in New York on issues of human security, UN reform and international justice; provided International Humanitarian Law training for the Red Cross; and taught international law at Carleton University in Canada.
Jayne has spent time in Africa, Latin America, and a First Nations community in northern Canada with a variety of volunteer placements, including working with Centro de Derechos de Mujeres in Honduras on updates to the criminal code from a gender perspective. She is the 2010 winner of the Walter S. Tarnopolsky Human Rights Award and of the Lord Reading Law Society Human Rights Award, was named one of Ottawa’s Top 50 People in 2008 by Ottawa Life Magazine, and has been featured in Canadian legal magazine The Precedent and in the on-line Charity Village Spotlight. She has just accepted a position on the Board of Directors of the International Institute for Criminal Investigations, an international organization of professional investigators, lawyers and academics dedicated to the training and deployment of professionals for the investigation of atrocities. Jayne regularly speaks, writes and provides media interviews about the making of the ICC and international justice issues from a Canadian perspective.
Like Pam Spees, Valerie Oosterveld, and Mary Hansel before her, Jayne would like to dedicate her IntLawGrrls contribution to the beloved Rhonda Copelon.

Heartfelt welcome!

Sovereign immunity in Canada

(Thanks much to IntLawGrrls for inviting me to contribute this guest post on several important developments in human rights litigation in Canada)

One of the things that always strikes me in working with torture survivors and victims’ families is how consistently people say they want to help prevent others from experiencing the same trauma. They want something hopeful to result from such dramatic pain and loss, and often see the pursuit of justice as one of the means to achieve this.
That was certainly the message from Canadian-Iranian Stephan Kazemi as he digested the outcome of a key decision in his lawsuit against Iran for the torture and death of his mother, Zahra Kazemi (left). He could see that while the decision is a victory in terms of his own ability to proceed, it closes the door to most other cases in Canada for torture suffered overseas and undermines his broader goal.

Zahra Kazemi was a photojournalist from Montreal, Canada,, whose work sought to shed light on political and human rights issues, often highlighting the strength of women in situations of poverty and oppression. In 2003, she traveled to Iran during a time of demonstrations against the government, and with a press card took photographs of family members outside the notorious Evin prison who were seeking information about those thought to have been falsely imprisoned.

As a result, Zahra was herself detained, brutally raped and beaten. Her son in Canada, an only child in his twenties at the time, sought her return for treatment in Canada. This was denied, and she died of her injuries. No one was ever held accountable in Iran for Zahra’s torture and death. After other possible avenues to redress had been exhausted, a lawsuit was filed against Iran in Quebec Superior Court, on behalf of Zahra’s estate and of her son Stephan. The first hurdle in the case was the need to address the claims of the Government of Iran and the three named individual officials that they were immune from the lawsuit because of Canada’s State Immunity Act (SIA).

Passed in 1982, the SIA was intended to provide assurance to other governments that they would not be sued in Canada as they carried out their official or “sovereign” duties. A strong argument can be made that acts that are in clear contravention of international law – such as torture – cannot be considered “sovereign”. The SIA uses a restrictive approach and contains two exceptions to immunity – for commercial activities and for injuries suffered inside Canada. Unfortunately there is currently no exception in the legislation for torture or other serious violations of international human rights. The intervention of the Canadian Centre for International Justice, for which I serve as Executive Director, as a friend of the court in the Kazemi case was an attempt to remedy this.

The Quebec Superior Court took almost a year to issue its judgment on the state immunity issue. When it finally came in late January, it was a very mixed result. The court permitted Stephan's individual claims to proceed on the basis of the existing exception written into the SIA that eliminates immunity for injuries suffered inside Canada. It found that the nervous shock Stephan suffered as a result the mistreatment of his mother could fall under this exception. His individual part of the case will proceed and it will certainly be significant – the first trial of its kind in Canada.

However, the claims by the Estate of Zahra Kazemi were dismissed on the ground that the abuses Zahra suffered were only in Iran; she never suffered an injury in Canada. The court upheld immunity in those circumstances, rejecting arguments that immunity should not be permitted for torture and other serious human rights violations. The paradoxical result of the court's approach is that relatives in Canada of persons tortured or killed abroad may have a remedy while the persons who were actually tortured often will not.

Yet while the judgment is disappointing, there is still hope:

► Aspects of the case could be subject to appeal, and decisions about that will be made in the coming weeks.

► The judgment is also a clear invitation to Canadian Members of Parliament to act by passing a bill that is currently before them, intended to clarify that there should never be immunity for torture, war crimes, genocide or crimes against humanity. Bill C-483, a private member’s bill, was re-introduced in Parliament on March 3, 2010 by Liberal MP Irwin Cotler (right) with the support of MPs from the other three parties that hold seats: the Conservatives, New Democratic Party and Bloc Quebecois. The bill would deny immunity to countries and officials alleged to be responsible for torture, genocide, war crimes and crimes against humanity by creating a new exception to the general rule in the SIA that foreign governments cannot be sued in Canada. The exception would remove the key barrier to lawsuits involving allegations of these violations of human rights and humanitarian law, and create an important precedent as the civil courts of other countries also grapple with the issue of state immunity.

Further developments in the Kazemi case will be important to watch, as will progress on the parallel efforts at law reform through the legislature. It is my very deep hope that Stephan Kazemi will have the opportunity to offer this final tribute to the tremendous courage his mother demonstrated through her work and art.

On February 10

On this day in ...
... 1983, governmental officials signed an agreement that permitted the United States to test, in Canada, its military equipment, including cruise missiles, which may carry nuclear warheads. As a result, "protest demonstrations broke out in numerous cities" in Canada, "and a women's peace camp was established near the cruise test range in Cold Lake, Alberta." (map credit)

(Prior February 10 posts are here, here, and here.)

On February 9

On this day in ...
... 1916 (95 years ago today), Britain began conscripting men between 18 and 41 years of age to fight in the conflict that it had entered nearly 2 years earlier. A million persons already had volunteered, but more were needed due to heavy losses. (The July 1916 Battle of the Somme would claim 20,000 British lives on the 1st day alone.) By the time World War I ended, more than "4.5 million Britons served in arms (in addition to over three million troops from the British Empire)." Many in the latter group arrived only after significant resistance in their home countries, as described, e.g., here (photo credit) and here.

(Prior February 9 posts are here, here, and here.)

On February 4

On this day in ...
... 1973, teams of inspectors known as the International Commission of Control and Supervision began monitoring a truce in the U.S.-Vietnam War, pursuant to an agreement reached a few days earlier at peace talks in Paris. The commission included delegates from Hungary, Poland, Canada and Indonesia. Sporadic fighting would continue, ending "with the fall of Saigon in April 1975 and the reunification of the country under communist rule."

(Prior February 4 post is here, here, and here.)

Write On! Transnational law/Toronto

(Write On! is an occasional item about notable calls for papers.)

The Osgoode Hall Graduate Law Students Association, made up of LL.M. and Ph.D. candidates, seeks papers for its conference entitled No Boundaries: Transnational Law and a New Order of Global Governance, to be held May 9-10, 2011, at Osgoode Hall Law School, York University, Toronto, Canada.
Anchoring the conference -- slated to examine whether transnational law has included the ways states behave -- will be keynotes by Law Professors Jan Dalhuisen (King's College London) and David Hunter (American University).
Specifically welcomed are

papers that engage in questions of 'boundaries', particularly those with a focus on models of governance and transnational law. We are interested in a broad range of work dealing with the financial markets (commercial, banking and financial law), environmental protection, administrative law, corporate governance, corporate social responsibility, tax, e-commerce, intellectual property, women's studies, trade, human rights, crisis and emergency planning, labour and employment, health, disability, historical conceptions of regulation and governance, reflections upon the nature and operative conditions of governance, the relationship between state sovereignty and regulatory authority. Papers with an interdisciplinary focus and from graduate students in other disciplines are strongly encouraged.

Abstracts should be submitted no later than February 21, 2011 (another website said February 7, so get them in sooner rather than later.) Details on submission, the conference, etc., here.

On January 20

On this day in ...
... 1899, about 2,000 Doukhobors members of a "mystical Christian sect" who had been persecuted for their beliefs in czarist Russia, landed in Halifax, Nova Scotia, en route to western Canada; 5,400 would make the same voyage shortly thereafter. Sponsoring the 1st group was Count Leo Tolstoy, author of the epic Russian novel War and Peace (1869). "Today there are between 30,000 and 40,000 Doukhobors in Canada, and another 30,000 in Russia." (credit for photo of Doukhobor women farming in Alberta "while their husbands are away working for cash on railway construction")


(Prior January 20 posts are here, here, and here.)

On January 17

On this day in ...
... 1861 (150 years ago today), despite freezing weather, hundreds rallied in Montreal to protest a Toronto court's acquiescence to American demands for the return of an escaped slave accused of killing a man. The accused, John Anderson (left), was among the estimated 20,000 escapees who'd fled to Canada since the 1850 enactment of a strict U.S. requiring northern states to return slaves. (photo credit) On appeal, another court would permit Anderson to remain in Canada.


(Prior January 17 posts are here, here, and here.)

On December 20

On this day in ...
... 1924, Judy LaMarsh was born in Chatham, Ontario, Canada. She served in the Canadian Women's Army Corps during World War II, earned her law degree from Osgoode Hall at the University of Toronto, and joined her father's law practice at Niagara Falls. In 1960 she was elected to Canada's House of Commons. Eventually she became the 2d woman to serve as a Cabinet Minister. "[C]ontroversial," LaMarsh was Minister of Health and Welfare when a national pension plan was introduced. LaMarsh set up the country's Royal Commission on the Status of Women, on which we've posted. In 1967, while Secretary of State, she presided over Canada's Centennial celebrations. (credit for portrait of Secretary LaMarsh in maple-leaf-festooned gown she wore during the Centennial year) After retiring from politics, she wrote Memoirs of a Bird in a Gilded Cage (1969). LaMarsh died of cancer in 1980, at age 55.


(Prior December 20 posts are here, here, and here.)

On December 7

On this day in ...
... 1970 (40 years ago today), at Canada's House of Commons in Ottawa, the nearly 500-page Report of the Royal Commission on the Status of Women in Canada was presented. The 167 recommendations in the report (left) -- on, for example, maternity leave, contraception, family law, child care, and pensions -- "were based on fundamental principles which assumed that equality of opportunity for Canadian men and women was possible, desirable and ethically necessary." (photo credit) Many, but not all, of the recommendations eventually would be implemented.


(Prior December 7 posts are here, here, and here.)

On December 3

On this day in...
... 1985 (25 years ago today), Le Vieux Québec was declared a UNESCO World Heritage Site at the 9th session of the World Heritage Committee in Paris, France. According to this website,

Old Quebec is the only North American city with its old ramparts, bastions, gates and defensive walls still intact. The city was founded by French explorer Champlain in the early 17th century. By 1750, it has become the largest town in the then French colony of Nouvelle-France ("New France"). Today it is one of the best preserved fortified colonial cities in Canada.

This old part of the city (above) was the 1st place in North America to win UNESCO recognition.

(Prior December 3 posts are here, here, and here.)

'Nuff said

(Taking context-optional note of thought-provoking quotes)

Reena SenGupta [right], a London-based consultant, says she used to see foreign-owned legal research operations in India where beds, not desks, greeted the visitor; such was the keenness to dispel the impression that law was being practised.

-- Unsigned Economist article on "Law and globalisation." The article discusses the very high hurdle to the admission of foreign lawyers in India following Bombay High Court decision issued last December -- as well as barriers that exist in many other countries, including Canada. (Hat tip to my California-Davis colleague Jack Ayer, doyen of Underbelly blog.)