New forms of combating impunity: the UN “listing” mechanism

Last Thursday United Nations (UN) Security Council adopted resolution 1960 (2010)[1] aimed at combating sexual violence in situations of armed conflict. The before-mentioned resolution encouraged the Secretary-General to include in his annual reports detailed information on parties to armed conflict that are credibly suspected of committing or being responsible for acts of rape or other forms of sexual violence, and to list in an annex to these annual reports the parties that are credibly suspected of committing or being responsible for patterns of rape or other forms of sexual violence in situations of armed conflict on the Security Council agenda. This list would be use as a basis for more focused UN engagement with those parties, including measures in accordance with the procedures of the relevant sanctions committees.

The Secretary-General will be in charge of listing and de-listing criteria for enlisted parties. Additionally, it is established that enlisted parties have to present specific and time-bound commitments to combat sexual violence. These commitments will be tracked and monitored by the Secretary- General.

A similar mechanism of monitoring and reporting was implemented with the adoption of resolution 1612 (2005) aimed at combating the use of child soldiers.[2]

For more information, please check: http://www.hpcrresearch.org/blog/dustinlewis/2010-12-20/new-un-listing-mechanism-aimed-combating-sexual-violence-armed-conflict

Posted in By Jessica Maeda, General | 1 Comment

ECtHR says Ireland’s abortion ban fails to protect women at medical risk

Ireland’s constitutional ban on abortion violates the rights of pregnant women to receive proper medical care in life-threatening cases, the European Court of Human Rights ruled Thursday, harshly criticizing Ireland’s long inaction on the issue.

 The judgment from the Strasbourg, France-based court backed the right of a woman fighting cancer to receive an abortion in Ireland. It will put Ireland under pressure to draft a law extending limited abortion rights to women whose pregnancies represent a potentially fatal threat to their own health.

 Ireland has resisted doing that despite a 1992 judgment from the Irish Supreme Court that said abortions should be legalized in Ireland in all cases where the woman’s life is endangered by continued pregnancy — including by a woman’s threats to commit suicide.

 The 18-year delay has left the abortion rights of thousands of women in legal limbo, obliging many to travel overseas for the procedure rather than rely on Irish doctors fearful of being prosecuted.

 In an 11-6 verdict, the 17 Strasbourg judges said Ireland was wrong to keep the legal situation unclear and said the Irish government had offered no credible explanation for its failure. The Irish judge on the panel, Mary Finlay Geoghegan, sided with that majority view.

 “(Ireland’s failure) has resulted in a striking discordance between the theoretical right to a lawful abortion in Ireland on grounds of a relevant risk to a woman’s life, and the reality of its practical implementation,” the judges wrote.

 Under Irish law dating back to 1861, a doctor and woman both could be prosecuted for murder if an abortion was later deemed not to be medically necessary.

 The court said this law “constituted a significant chilling factor for women and doctors as they both ran a risk of a serious criminal conviction and imprisonment.”

 The Strasbourg court broadly upheld Ireland’s right to outlaw abortion in the overwhelming majority of cases because that law reflects “the profound moral values of the Irish people in respect of the right to life of the unborn.”

 But it found Ireland guilty of violating one woman’s right.

 The lawsuit dates back to 2005, when the Irish Family Planning Association took Ireland’s government to court on behalf of three women who had to travel overseas that year for abortions: an Irish woman who had four previous children placed in state care, an Irish woman who didn’t want to become a single mother, and a Lithuanian woman living in Ireland who was in remission from cancer.

 The judges said the first two women had failed to demonstrate that their pregnancies represented a sufficient risk to their health, but the Lithuanian woman had her right to life threatened. It ordered Ireland to pay her euro15,000 ($20,000) in damages.

 The judges lambasted Ireland’s defense claiming that the woman should have petitioned the Irish High Court for the right to have an abortion in Ireland. They said Irish doctors must be given clear legal guidance on the rules for deeming women eligible for abortions.

 The Irish government said its attorney general, Health Minister Mary Harney and Justice Minister Dermot Ahern were studying the judgment but had no immediate comment.

 European Court of Human Rights judgments are legally binding but difficult to enforce. Members of the 47-nation Council of Europe often take years to respond to court judgments with the legal reforms ordered. An offending nation that refuses to observe a court order could be expelled from the Council of Europe as punishment, but this has never happened.

 The Irish Family Planning Association and an Irish lobbying group, Doctors for Choice, welcomed the verdict.

 “(It) leaves no option available to the Irish state other than to legislate for abortion services in cases where a woman’s life is at risk,” said Niall Behan, head of the association.

 “Doctors can feel vindicated today. For the first time we can feel confident about discussing abortion as an option for women in medical need without fearing prosecution,” said Dr. Mary Favier, director of Doctors for Choice.

 In the 1992 case, a pregnant 14-year-old girl who had been raped by a neighbor successfully sued the government to permit her to travel to England for an abortion. The government tried to stop her, arguing it could not facilitate an illegal act, even though she was threatening to commit suicide.

 The Irish Supreme Court ruled that traveling to obtain abortions abroad was legal, and Ireland itself should provide abortions in cases where a continued pregnancy would threaten the life of the woman. Ireland in 1992 passed a law permitting women the right to travel abroad for abortions.

(Published by LA Times – December 16, 2010)

Posted in By Carla Hoe, International Human Rights Law | 1 Comment

Has the International Criminal Court outlived its usefulness?

Check the online pool:

http://www.economist.com/economist-asks/has_international_criminal_court_outlived_its_usefulness

Posted in By Carla Hoe, International Criminal Law | Leave a comment

Brazil and Argentina recognise Palestine as a State

Brazil and Argentina have both recognised Palestine as a State as in the borders before 1967 war.
Uruguay is due to do the same by 2011.
The international press has covered the recognitions. See

http://www.khaleejtimes.com/DisplayArticle08.asp?xfile=data/middleeast/2010/December/middleeast_December100.xml&section=middleeast

http://english.aljazeera.net/news/middleeast/2010/12/201012504256198565.html

Posted in By Carla Hoe, General | 1 Comment

Rio de Janeiro struggles with Drug War

The recent events that took place in Rio de Janeiro made us rethink Brazil’s role in the international arena. Brazil is considered the most developed country in South America, is part of the G-20 and one of the BRICs. However, as it has been demonstrated in the past few weeks, there is a lot of work to be done before Brazil can even be compared to other developing countries and to be a safe host country for the World Coup and the Olympic Games.

Federal and state police, the army and the navy are all involved in the Brazilian government ongoing attempt to regain authority and power in the so-called “Complexo do Alemão”, a territory formed of 25 favelas, more than 30 thousand houses and with a population of 120 thousand people in North Rio de Janeiro. The main objective of this entire operation is to ensure peace and security in the region.

The operation mobilized 100 million Brazilian reais (approximately 40 million euros) and 22,700 men and women from the armed forces (double of the total amount of men and women sent to Haiti by the UN and 1/5 of the total sent by the USA to Afghanistan).

Drug trafficking in Brazil is a serious and material problem that for years governmental officials have been trying to avoid discussing or actually doing something to improve the situation.

Drug traffickers for as long as I can remember know no rule of law in Rio de Janeiro and live in a complete state of parallel power. They have always controlled the favelas and the local communities, thus bringing suffering, despair and violence to such population.

The residents from the favelas are the most vulnerable in Rio de Janeiro, not only because of their economical status, but also because they are subject to barbaric and brutal power. Children and elderly people are recruited to help the drug lords, serving as guards, messengers and mules due to their status of usually not raising any suspicion from the police.

Shocking images revealed that Rio de Janeiro is in fact living a precarious situation, that could be considered as a situation of war. Very little has been done by international organisations present in Rio de Janeiro or even by non-governmental organizations. This can be easily explained by the fear of trying to enter the favelas, which are often not accessible to civilians that do not reside therein.

Undoubtedly this entire operation was essential and necessary to bring into an end, or at least to start bringing into an end the horrible situation of the poorest population of Rio de Janeiro.

There is a massive support by the local communities to the operation, a novelty in the dynamics of Rio de Janeiro’s situation, as the population was always too afraid and terrified to testify or even communicate with the police.

Unfortunately, in Brazil and especially in Rio de Janeiro, there is a persistent culture of corruption and abuse of power by the police. Reports of abuses have already been made by the local communities from Complexo do Alemão, showing that the rule of law can also be weak in the other end of the stick. That, combined with the evident economic and social inequalities, hampers Brazil’s chances to grow and develop. 

It should be highlighted that regardless the nature of the crimes committed by the drug traffickers, and the complete chaotic and anarchic situation North Rio de Janeiro is at the moment, the rule of law must always prevail. Respect for the rule of law and for human rights should not be neglected in view of the circumstances of the case at hand.

The army will stay in Complexo do Alemão at least for another year. Brazilian President elected Dilma Roussef wants the army in North Rio de Janeiro until the Olympic Games. Whatever length of period of time the army stays in the region, we can only hope that both so-called good and evil sides of the story will respect the civilian population and bring some peace at last.

For further information about the situation in North Rio de Janeiro and IHL, see Sven Peterke, Urban Insurgency, ‘Drug War’ and International Humanitarian Law: The Case of Rio de Janeiro, in International Humanitarian Legal Studies 1 (2010) pp. 165-187.  <http://docserver.ingentaconnect.com/deliver/connect/mnp/18781373/v1n1/s6.pdf?expires=1291766203&id=60146632&titleid=75006395&accname=Guest+User&checksum=59E765D8CE1649F808FB844E22BD22E1>

For a daily update on the situation in Rio de Janeiro, please check: http://veja.abril.com.br/blog/veja-acompanha/tag/complexo-do-alemao/page/2/

Posted in By Carla Hoe, General | 2 Comments

The Children of the Shining Path

“Safety and security don’t just happen,
they are the result of collective consensus and public investment.
We owe our children, the most vulnerable citizens in our society,
a life free of violence and fear.”
Nelson Mandela

For most Peruvians, the Shining Path (or “Sendero Luminoso” in Spanish)[1] is synonym for fear, suffering and death. According to the Truth and Reconciliation Commission of Peru (“TRC”), they are responsible for the 54% of the almost 70 000 killings that occurred during the 20 years of internal armed conflict.[2]

For two decades, the Shining Path committed massacres, forced disappearances, terrorist attacks and executions, in the attempt of winning the war against the Peruvian government. In 1992 its leader, Abimael Guzmán, was captured and sentenced to life imprisonment. Later on, he called for a ceasefire and offered to negotiate with the government. From this moment, actions significantly decreased, the group was divided and different leaders have unsuccessfully worked for the resurgence of the movement. Nowadays, the group’s focuses on coca farmers and its actions are reduced to a location known as the VRAE (initials for “Valle del Río Apurímac y Ene”, meaning “Valley of the Apurimac and Ene rivers”).

However, in these last days, some images caused an enormous impact on the Peruvian population: different national programmes showed photographs and footage of children brandishing weapons and being trained and indoctrinated in the so-called “Popular schools”.[3]

According to the report, these children stay in childcare until the age of 6. Afterwards, they learn the Marxist Leninist’s discourse and war tactics. For example, the Peruvian Military intelligence believes that after the ambush in Sanabamba (April, 2009) children were in charge of the coup de grace on Peruvian soldiers and took out their eyes as a sign of bravery.

What does International Law say?

Under International Law, the participation of children under 18 is prohibited and the recruitment and use of children under the age of 15 is a war crime. These have been recognized in the Convention on the Rights of the Child (articles 38 and 39),[4] the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (which raised the minimum age for participation in armed conflict from 15 to 18 years),[5] the Geneva Conventions of 1949, the customary law on International Humanitarian Law, the ILO Convention 182 on Worst Forms of Child Labour and the Rome Statute (article 8.2.b.xxvi). Therefore, the International Community recognizes it as a non-negotiable standard on Human Rights.[6]

The continuous use of children by the Shining Path constitutes a flagrant violation of International Law. The preamble to the Convention on the Rights of the Child recalls that, in the Universal Declaration, the United Nations “has proclaimed that childhood is entitled to special care and assistance”. By using them as combatants, human shields, cookers, messengers, among others, they put children in extreme vulnerability. Additionally, while affecting their rights to play and engage in recreational activities appropriate to their age, to receive education, etc., their dignity is being violated, which breaks the fundamental guiding principle of international human rights law.[7] States, therefore, shall ensure to the maximum extent possible the survival and development of the child.[8]

It’s important to recall that the prohibition of recruitment, training and use of children in armed conflicts not only generates responsibility for state actors, but to non-state actors as well.[9] In this way, the Peruvian State is obliged to persecute and to prosecute those who trained the children in the “Popular schools” and used them during hostilities.[10]Furthermore, the ICC is also entitled to persecute and prosecute those who recruited children under 15 (if the admissibility requirements are fulfilled, according to article 17 of the Rome Statute, and if it’s proved that the recruitment and use of children in hostilities is being committed as a part of a plan or a policy).

This being said, it is clear that International Law gives an answer to the Child Soldier problem. In this case, both the State and the International Criminal Court are legally entitled to prosecute those who committed the before-mentioned crime.

Reintegration of Child Soldiers

However, a big question is left unanswered: how to reintegrate these children to the Society? These children, who have been taught to kill and to fight, in some cases by their own parents, have to be reintegrated to the system they reject. How to deal with it? Any transitional justice mechanism could be useful to do so?

Child soldiers have often been called “future barbarians” and “killing machines.”[11] Many child soldiers virtually grow up within an armed movement, like in this case.[12] They may have joined for protection, face an environment where joining an armed group seemed the only choice in life and in some cases, they have been kidnapped and forced to participate in hostilities.

Demobilization and reintegration of child soldiers is often portrayed as hopeless. Yet, different studies (like the 1996 UN Study  on the Impact of Armed Conflict on Children[13]and the World Bank Study on Child Soldiers: Preventing, Demobilizing and Reintegrating) demonstrate that children and youths involved in armed conflict can re-engage positive social relations and productive civilian lives. It is not easy, however, and depends crucially on the political will and resources to include child soldiers in peace agreements and demobilization programs and to support their reintegration into family and community.[14]

The International Community has organized different projects in order to reintegrate child soldiers. Organizations like the Coalition to Stop the Use of  Child Soldiers, UNICEF and the World Bank have planned activities based on prevention, disarmament, demobilization and reintegration (which includes economic and livelihood support and in some cases providing psycho-social support).[15] There is even an interesting proposal which suggests reintegrating child soldiers through sports.[16] It is important that these programmes consider local, social and cultural conceptions of children and youths, their role in society and stages of development and responsibility.[17] Most importantly, they should be inclusive, recognizing and including child soldiers in all stages.

In conclusion, the child soldiers’ problem should not only be seen as a military and legal problem. It is a complex situation that should imply a well-organized response from the State, by defending these children, prosecuting those who committed the crime and organizing reintegration programmes that would assure the accomplishment of these children´s rights for their present and future.

To watch the report “The Children of the Shining Path” (“Los Hijos de Sendero Luminoso”) from the Peruvian programme “Panorama” (Spanish only):

If you are interested in the Child Soldier problem, please visit:

http://ihl.ihlresearch.org/index.cfm?fuseaction=page.viewPage&pageID=2111

UN World Map of Child Soldiers:

http://www.un.org/works/goingon/soldiers/childsoldiersmap.html



[1] The Communist party of Peru, known as the Shining Path, is a subversive organization that in 1980 started an internal armed conflict against the Peruvian State. The Truth and Reconciliation Commission of Peru has stated that for the years this conflict lasted, the Shining Path committed serious crimes considered as crimes against humanity. The number of victims of this group is up to 31,331 people. Final Report of the Truth and Reconciliation Commission. Chapter 1: the Armed Actors. In:http://www.cverdad.org.pe/ifinal/pdf/TOMO%20II/CAPITULO%201%20-%20Los%20actores%20armados%20del%20conflicto/1.1.%20PCP-SL/CAP%20I%20SL%20ORIGEN.pdf (Spanish only).  The Shining Path believed that by imposing a dictatorship of the proletariat, inducing Cultural Revolution, and eventually sparking world revolution, they could arrive at pure communism. In: http://www.peru-travels.com/informations/history/history.php

[2] According to the TRC, the internal armed conflict began in 1980 and ended in 2000.

[3] This material was obtained from the Peruvian armed forces, after a confrontation with the terrorist group.

[4] The UN Convention on the Rights of the Child is the most widely ratified human rights treaty in history.

[5] Today, two-thirds of the world’s countries have ratified this treaty, known as the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict. However, 61 countries have not ratified the treaty and made clear their absolute commitment to ending the use of child soldiers. In: http://www.child-soldiers.org/coalition/action-appeals

[6] In: http://www.unicef.org/crc/

[7] Committee on the Rights of the Child. General comment No.8 (2006), par. 16.

[8] Article 6.2 of the Convention on the Rights of the Child.

[9] More about Human Rights obligations of Non-state actors, read: CLAPHAM, Andrew. Human Rights obligations of Non-state actors. Oxford, New York: Oxford University Press, 2006.

[10] Susana Villarán, major of Lima, demanded President Alan García to defend the children in VRAE.http://www.rpp.com.pe/2010-11-22-villaran-estado-debe-defender-a-los-ninos-reclutados-por-sendero-noticia_312879.html Legislative Decree(DL) 1094 included war crimes (enlistment or recruitment of children under 18 among them) in the Peruvian Military Justice Code. This decree was severely criticized as war crimes should be considered in the ordinary Criminal Code.

[11] VERHEY, Beth. Child Soldiers: Preventing, Demobilizing and Reintegrating. In: http://www.worldbank.org/afr/wps/wp23.pdf

[12] In: http://elcomercio.pe/peru/672852/noticia-intervencion-social-indispensable-evitar-que-ninos-sean-adoctrinados-sendero-luminoso

[13] In: http://www.unicef.org/graca/a51-306_en.pdf

[14] VERHEY, Beth. Op.cit.

[15] In: http://www.child-soldiers.org/childsoldiers/ddr

[16] In:http://www.sportanddev.org/learnmore/sport_and_peace_building/reintegration_of_child_soldiers_through_sport/

[17] VERHEY, Beth. Op.cit.

Posted in By Jessica Maeda, International Criminal Law, International Human Rights Law, International Humanitarian Law | 4 Comments