#Act2EndFGM – The relationship between international human rights law and female genital mutilation (FGM)

 

This is the fourth blog in a series written by LLM students on the Human (In)Security course at Edinburgh Law School. This series celebrates the top five blogs selected in a class competition. This blog is by Evelyn Strutynski. Evelyn is  currently reading the LLM in International Law at the University of Edinburgh. She also obtained a Bachelor of Arts degree in Political Science and Law at the Ludwig-Maximilians-Universität München in Germany.

#Act2EndFGM – The relationship between international human rights law and female genital mutilation (FGM)

Over the last decades, much has been achieved to reduce the prevalence of FGM around the world. In 2015, the UN announced new development goals, including the initiative to completely eliminate FGM by 2030. Nonetheless, the procedure still is a highly salient issue. In 2021, more than four million girls are at risk of undergoing FGM and, overall, approximately 200 million girls and women alive today have been subjected to the practice in 31 countries. This blog post will examine the relationship between FGM and international human rights law as well as the global efforts to eliminate FGM.

What is female genital mutilation?

The WHO defines FGM as “all procedures that involve partial or total removal of the external female genitalia, or other injury to the female genital organs for non-medical reasons”. The procedure is predominantly carried out by traditional circumcisers who use scissors, razor blades or broken glass. Increasingly, trained health care providers perform FGM (‘medicalisation’). The WHO has identified four different types of FGM; one of them is called infibulation which narrows the vaginal opening with a covering seal by, for instance, repositioning the labia minora or stitching.

FGM affects girls and women worldwide, the majority of them are cut before their 15th birthday. It is predominantly practised in Africa; furthermore, it occurs in countries in the Middle East and Asia, and in certain communities in South America. The practice is nearly universal in Somalia, Guinea and Djibouti where more than 90% of girls and women have undergone FGM. The practice is cultural rather than religious, since no religion requires it; nonetheless, religion is often used as a justification. Other reasons for FGM are, inter alia, psychosexual, for example, to control women’s sexuality, or sociological/cultural, to guide a girl into womanhood. FGM causes severe health issues; they range from infections, mental health or menstrual problems to the need for surgeries or even death.

FGM photo

Photo by UNFPA/George Koranteng

The relationship between FGM and international human rights law

FGM “violates a number of recognized human rights protected in international and regional instruments”[1]. Kandala and Komba identified five rights that are breached by the practice:[2]

  1. Child rights – Most girls and women undergo FGM before their 15th birthday. Art. 16 of the Convention on the Rights of the Child, for instance, prohibits any interference with the privacy of children; furthermore, Art. 24 (3) urges states to adopt “measures with a view to abolishing traditional practices prejudicial to the health of children”.
  2. Right to health – FGM causes serious health issues, which breaches, inter alia, Art. 12 (1) of the International Covenant on Economic, Social and Cultural Rights. The provision guarantees the right to the highest attainable standard of physical and mental health.
  3. Right of women to be free from discrimination – According to an Interagency Statement, the procedure is a “manifestation of gender inequality that is deeply entrenched in social, economic and political structures” and it “represents society’s control over women”. Hence, Art. 1 of the Convention for the Elimination of all Forms of Discrimination Against Women is applicable, as well as Art. 2, which urges states to fight discrimination.
  4. Right to life and physical integrity – FGM violates Art. 9 (1) of the International Covenant on Civil and Political Rights (ICCPR), which guarantees the right to liberty and security of a person.
  5. Right to be free from torture – FGM might also amount to torture, which is prohibited by, inter alia, Art. 7 of the ICCPR. The Convention Against Torture has a high threshold for torture; this fact might be problematic, as not all FGM procedures legally qualify as torture.[3]

Supporters of FGM point out that the right to culture, religious freedom and the rights of minorities justify the practice.[4] However, the breaches of the aforementioned human rights are more severe, since FGM undeniably harms the bodily integrity of girls and women and intensifies gender inequality. Furthermore, the conflicting rights are not absolute and may be limited[5] in order to protect girls and women. Generally, there is a lack of jurisprudence regarding FGM and human rights[6]; many cases, such as M.N.N v. Denmark or M.J.S. v. The Netherlands, focus on the risk of undergoing FGM in the event of a deportation.

International response to FGM

A range of international organisations and institutions takes part in the effort to eliminate FGM. For instance, the UN General Assembly adopted Resolution 67/146, which emphasises that FGM is an “irreversible abuse that impacts negatively on the human rights of women and girls”. The UN Secretary-General published a report, which demands that states should, inter alia, implement legislation that criminalises the procedure. Furthermore, the Committee on the Elimination of Discrimination against Women published General Recommendations Nos. 14, 19, 24 with regard to FGM. In 2020, the UN Human Right Council adopted Resolution 44/L.20, which urges States to condemn all harmful practices that affect women and girls, in particular female genital mutilation”.

#Act2EndFGM logo

UN Photo

Are human rights enough?

The universal recognition that FGM undoubtedly breaches international human rights law is an important step in order to eliminate the practice. Because of human rights, FGM is now part of a broader social justice agenda and of an increasing effort to hold governments accountable[7]; additionally, FGM is “viewed through a prism that recognizes the complex relationship between discrimination against women, violence, health and the rights of the girl child”[8].

However, this recognition alone is not sufficient, the law must be implemented and enforced on a national level. Furthermore, since FGM is such a deeply entrenched practice, a deep-seated social change within each community is needed; the Interagency Statement suggests initiatives like ‘empowering’ education, public dialogue or using alternative rituals. Overall, the efforts so far have been at least partly successful, as the prevalence of FGM declines steadily; however, the progress needs to be ten times faster in order to reach the 2030 goal. Population growth and COVID-19 are further impediments to meeting the target.

 

[1] Anika Rahman and Nahid Toubia, Female Genital Mutilation: A Guide to Laws and Policies Worldwide (Zed Books Ltd, 2000), 20.

[2] Ngianga-Bakwin Kandala and Paul Nzinga Komba, Female Genital Mutilation Around The World: Analysis of Medial Aspects, Law and Practice (Springer International Publishing AG, 2018), 190-192.

[3] Ngianga-Bakwin Kandala and Paul Nzinga Komba, Female Genital Mutilation Around The World: Analysis of Medial Aspects, Law and Practice (Springer International Publishing AG, 2018), 192.

[4] Anika Rahman and Nahid Toubia, Female Genital Mutilation: A Guide to Laws and Policies Worldwide (Zed Books Ltd, 2000), 31.

[5] Ibid., 38.

[6] Ibid., 20.

[7] Anika Rahman and Nahid Toubia, Female Genital Mutilation: A Guide to Laws and Policies Worldwide (Zed Books Ltd, 2000), 39.

[8] Ibid.

Human Insecurity: COVID-19 and Women’s Rights

Photo of the authorThis is the first blog in a series written by LLM students on the Human (In)Security course at Edinburgh Law School. This series celebrates the top five blogs selected in a class competition. This blog is by Alexandra Oancea. Alexandra is current reading the LLM in Human Rights at the University of Edinburgh. She is from Brussels, Belgium, and holds an LLB in European Law from Maastricht University, the Netherlands.

 

COVID-19 and Women’s Rights: The Negative Impact of the Pandemic on Women’s Access to Sexual and Reproductive Health Services

As evidenced by previous global health crises such as Zika and Ebola, pandemics exacerbate pre-existing gender inequalities, and the COVID-19 outbreak is no exception to this trend. The United Nations was warning governments as early as April of 2020 that the impacts of COVID-19 were disproportionately falling on women and urged them to adopt a gender-sensitive response to the crisis. In the field of healthcare, as resources are being diverted and lockdown restrictions tightened, women’s access to adequate health services is being heavily threatened. Within this context, this post will disclose how the current pandemic is endangering women’s access to sexual and reproductive health (SRH) services, how this in turn contravenes their fundamental human right to health, and why a gender-sensitive response to the pandemic is therefore required.

COVID-19 and Women’s Access to SRH Services

While ensuring access to SRH services to women has always been a challenge, COVID-19 intensifies the issue in many ways. As acknowledged by the World Health Organisation, following the outbreak, health systems around the world became overloaded, causing governments and health facilities to prioritise certain health services, while scaling back others. This has led to a reallocation of funding and resources for SRH services to the pandemic response. For example, in countries such as Romania and Slovakia, the breakout of the pandemic led governments to deprioritise abortion services, no longer deemed as essential. Furthermore, the measures imposed by States to limit the propagation of the virus meant that women in various contexts were no longer able to physically access time-sensitive services. Indeed, travel restrictions and stay-at-home orders deprived women

Two women in facemasks

Photo by Tim Douglas

and girls of family planning services, and in countries where abortion is illegal or strongly restricted, prevented women and girls from travelling to neighbouring countries to undergo a procedure.[1] According to Marie Stopes International, a NGO providing contraception and abortion services around the world, the pandemic has prevented 1.9 million women to access their services between January to June 2020. The pandemic also disrupted supply chains, resulting in shortages in contraceptive products and unavailability in pharmacies. Additionally, the pandemic has been leveraged in some countries to limit access to services such as abortion.[2] In Poland and Texas, lockdown was used to introduce abortion restrictions and ban procedures.[3]

These recent developments highlight the lack of attention that is currently afforded to SRH services by governments around the world. This neglect has dire consequences for women’s health: it can lead to a rise in maternal and new-born mortality, unwanted pregnancies, sexually transmitted diseases such as HIV, and unsafe abortions.[4] In addition, a failure to address women’s SRH needs goes against States’ international human rights law (IHRL) commitments, and more specifically their obligation to protect, respect, and fulfil women’s right to health and provide them with adequate access to healthcare.

Access to SRH Services as a Fundamental Human Right

The right to health is protected under various IHRL documents being widely ratified. For example, the United Nations International Covenant on Economic and Social Rights (ICESCR) recognises “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health”. The United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) further reiterates the importance of this right by placing a duty on states to eliminate discrimination against women in the field of healthcare. According to the CEDAW Committee, the body monitoring the implementation of CEDAW, this duty requires states to ensure that women have timely and affordable access to healthcare services, including SRH, and to eliminate barriers in accessing such services. Considering the developments outlined above, such duty seems to have been disregarded by governments when fighting COVID-19. However, while states are allowed to derogate from some of their human rights obligations in emergency situations such as the current pandemic, there are limitations. Under international law, emergency measures must, among others, reflect the principles of equality and non-discrimination. In other words, states are under a duty to provide women with access to SHR services, and this is true even during a global pandemic. Failing to do so would be discriminatory and would run counter to states’ international law commitments. In order to fully observe women’s rights, states therefore need to be mindful of this legal framework when designing measures to stop the spread of the virus. As evidenced below, this will require them to incorporate a gender-sensitive perspective into their COVID-19 responses.

The Way Ahead: A Gender-Sensitive Approach to Tackling the Virus

As declared by the United Nations, “states have a responsibility to ensure that everyone is protected from the virus and its impact” and “this may require special measures and protection for particular groups most at risk or disproportionately impacted”. In the context of women, protecting them requires governments around the world to integrate a gender perspective within their COVID-19 responses, something advocated by the World Health Organisation. This would allow states to better understand women’s needs and the negative impacts they experience during this pandemic. To do so, UN Women recognises the need for governments to issue policies protecting women’s SRH rights. One step in that regard is making sure that SRH services are identified as high-priority categories when deciding which services will be prioritised during the pandemic. Additionally, in order for women to physically access those services despite lockdown and travel restrictions, various measures could be taken by governments. Those include allowing women in need

Women holding a sign reading 'The future is equal'

Photo by Flavia Jacquier

of SRH services to be temporarily exempted from travel restrictions in order to ensure access. Furthermore, legal barriers to telemedicine services and at-home abortion pills should be removed, and their use should be promoted by States.[5] This step has been taken in the United Kingdom where women are now able to receive tele-consultation and to self-administer abortion drugs at home. Another way to promote women’s SRH rights is to remove any unnecessary requirements to access SRH services such as multiple provider authorisation, waiting periods and third-party consent for abortion procedures.[6] Finally, states need to include women at the decision-making table. Indeed, as reiterated by the UNFPA, women are more likely to have less decision-making power regarding the policies and decisions taken to respond to the pandemic, leading their SRH needs to be largely unmet. It is therefore essential for them to be included and to ensure their equal participation in all policy and decision-making regarding the crisis, something that was stressed by the CEDAW Committee in its Guidance Note on COVID-19.

However, the above-mentioned proposed measures merely constitute short-term ways to alleviate the issues women are facing during this pandemic, and it is still essential for States to engage in larger-scale reforms. In fact, the inequalities discussed in this post were already prevalent pre-COVID-19 and were simply exacerbated during the pandemic. In this way, the current situation reinforces the call for government to not only adopt a gender-sensitive response to the current global health threat, but also to develop a well-developed system to fight similar crises in the future in a way that is mindful of women’s experiences. Only this approach, which ensures the inclusion of women and acknowledges the different ways they experience the pandemic, can ensure that States will design measures impacting both men and women in an equal and non-discriminatory way, in accordance with their obligations under IHRL. While promising gender-sensitive practices are emerging, they are far from being uniform, and as lockdown measures and COVID-19 restrictions remain the norm around the globe, it is essential for States to take more active steps to acknowledge and respond to women’s specific needs.

 

[1] Julia Konowrocka, ‘Let’s Talk About Sexual and Reproductive Health and Rights Not Fully Implemented Before Covid-19 & Suspended during the Pandemic’ (Equinet, 14 September 2020) <https://equineteurope.org/2020/lets-talk-about-sexual-and-reproductive-health-and-rights/> accessed 26 February 2021.
[2] Center for Reproductive Rights, ‘Sexual and Reproductive Rights During COVID-19: Response and Beyond’ (June 2020) 2.
[3] Audrey Lebret, ‘Covid-19 pandemic and derogation to human rights’ (2020) 7(1) Journal of Law and the Biosciences 14.
[4] United Nations Population Fund (UNFPA), ‘Covid-19: A Gender Lens’ (March 2020) p. 7; Organisation for Economic Co-operation and Development (OECD), ‘Women at the core of the fight against Covid-19 crisis’ (2020).
[5] Amnesty International, ‘Exposed, Silenced, Attacked: Failures to Protect Health and Essential Workers during the COVID-19 Pandemic’ (2020).
[6] Center for Reproductive Rights (June 2020) 1.

A Cosmopolitan Approach to the Chilean Constitution-Making Process

Constanza Nuñez

 

This post is by Constanza Nuñez, a Ph.D. candidate at University Carlos III of Madrid (Spain). LL.MM in Advanced Human Rights Studies (University Carlos III Madrid). Researcher at Human Rights Center (University of Chile). You can follow Constanza on Twitter @cnunezd.

 

History in the making

On October 25th 2020, in a historical referendum, the Chilean people decided by an overwhelming majority to vote in favour of a new constitution that will replace the Pinochet’s constitutional legacy. Chileans also voted that a wholly elected constitutional convention should enact the new constitution. The Constitutional Convention that will draft the new constitution will have gender parity composition and have reserved seats for indigenous peoples. Both of these positive measures contribute to Chile taking a more cosmopolitan approach to constitution-making.

Protestor holding a sign that reads 'nueva constitutión ahora!!!'

photo by www.jpereira.net

The referendum was the result of a long process of social mobilization and protests. One of the meaningful slogans of the social movement was ‘until dignity becomes custom’. Although dignity is an abstract concept (with multiple debates around its meaning), its linkage with fundamental rights is clear. Dignity is at the basis of human rights and constitutes an essential pillar of democratic political organization. The Chilean social movement demanded the guarantee of dignity should be the foundation of their political architecture and that it link to the development of a social and political system that respects, protects, and fulfils fundamental rights. This aims to counter a shared diagnostic of the government’s treatment of its citizens that is characterized by ‘abuse’, ‘inequality’ and ‘humiliation’. Also, it puts the existence of power imbalances that endorse unjustified relationships of domination at the centre of the problem. The abstract recognition of dignity in a Constitution, however, is not enough. It is necessary to build a social, legal, and political system that puts human rights and their guarantee (a concrete manifestation of dignity) at the centre of the creation of a new social contract between the citizens of Chile.

Global principles in constitution-making

Dignity is a concept that allows us to connect the Chilean context with the transnational social movements that, in recent years, have grown in the transnational public sphere. The idea that we share a common social, economic, and political system that is based on unjustified relationships of domination is a cross-cutting argument in the movements around the globe. The global character of our shared problems is clear in the existence of a common oppression system that endorses domination under mechanisms that combine economic domination (neoliberal globalization), gender domination (patriarchy), race domination (neocolonialism) and ecological domination (the exploitation of natural resources). In this context, transnational social movements are united by a universalistic cry for dignity and by a demand for the end of domination. There is an emerging global conscience of shared vulnerability that connects the fight of the Chilean people with the struggle for rights around the globe. Their fights are the fights of us all.

Protestors waving the Chilean flag and holding signs that read 'nueva constitutión ahora!!!'

photo by www.jpereira.net

The Chilean constitution-making process is also a matter of global interest because it has developed in a context that is particular to global constitutionalism. There are multiple threats emerging to rule of law, human rights, and democracy under the pressure of populism and authoritarian constitutionalism. Chilean constitutionalism can provide new perspectives to those questions that have not yet been answered in comparative constitutionalism studies. A preliminary contribution has been made through the constitutional convention with gender parity, which is the first experience of such a kind inglobal constitutionalism. One of the unique elements of this constitution-making process is its historical background, which demands answers to global challenges that other constitution-making processes have not faced. As humankind, we must confront global warming and the question about the existence of the human rights of future generations. Furthermore, there are other debates that modern constitutionalism has not provided full answers to yet, for example, how to address transnational migration or recognise the contributions of global feminism. The Chilean constitution must face those challenges and at the same time address its internal struggles for rights and democracy. In this context there emerges a question about how to respond to these challenges, from the local to the global?

This question highlights that the Chilean debate is a unique opportunity to restate the centrality of the ‘trinity of global constitutionalism’ (democracy, rule of law and rights) in a context of a crisis of those values, and it will allow constitutionalism an opportunity to provide an interpretation of those values from a global interdependence perspective giving new constitutional answers to contemporary challenges.

These elements – an emerging global consciousness about common oppression and global challenges to constitutionalism – situate the Chilean constitution-making process in a cosmopolitan context; this is a process that concerns all of humanity. Their debates are also our debates and their answers will impact our answers. The diagnostic about a context of interdependence and a common vulnerability is a challenge for the Chilean constitutional convention and for the international community. It is necessary to promote discourses where we persuade States and the international community to find solutions that are outside of the black-box model of modern constitutionalism, demanding a dialogue between the local and the global, providing a transformative view to overcome the global structure of injustice. These challenges highlight that the legitimacy of the new Chilean Constitution will be important not only within the deliberative conditions of the local debate, but also within global forums concerned with ‘how the national constitution is integrated into and relates to the wider legal and political world’, as suggested by Kumm. In this context, the Chilean constitution-making process must assume a ‘relational sovereignty’ perspective.

Hope in the Chilean process

The Chilean constitution-making process must be approached with hope but not naivety. The neoliberal legacy of Pinochet’s constitution will not end immediately with a new democratic constitution in the context of global interdependence. Nonetheless, there is an open road that global constitutionalism must be aware of and that must be followed with interest. Confronting new sovereignist nostalgics, this is an opportunity to think in terms of possibility, to imagine new institutional Cosmopolitan alternatives for Chile and for the world, and that is a hopeful perspective.

 

The Spanish version of this blog can be found at https://mundosur.org/una-mirada-cosmopolita-para-el-proceso-constituyente-chileno/.

Scotland Poised to Deliver Maximal Protection of Children’s Rights

This post is 1 of 2 by Dr Kasey McCall-Smith examining the UNCRC (Incorporation) (Scotland) Bill. The first highlights some of the key features of the Bill that will push for a better future for the children of Scotland. Dr McCall-Smith serves on the Expert Advisory Group on UNCRC Incorporation convened by the Children and Young People’s Commissioner Scotland and the Scottish Alliance for Children’s Rights (Together). @KMSonIntlLaw

 

Key Features of the UNCRC (Incorporation) (Scotland) Bill

After a decade of advocating for incorporation of the UN Convention on the Rights of the Child (UNCRC) in Scotland, there is much to celebrate following Deputy First Minister John Swinney’s introduction of the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill (‘Incorporation Bill’ or ‘Bill’) in Scottish Parliament on 1 September 2020. The Bill proposes direct, maximalist incorporation through transposition of the UNCRC to the extent possible under Scotland’s current devolution settlement. It makes good on the 2019 pledge by the First Minister to incorporate the UNCRC into Scots law before the 2021 elections. The Bill signals a massive forward step by Scotland to deliver UNCRC Article 4, which requires States Parties to ‘undertake all appropriate legislative, administrative, and other measures for the implementation’ of the UNCRC. If the Bill passes through Scottish Parliament relatively unchanged, Scotland will become the leader among the devolved nations of the UK in terms of children’s rights protections and also provide a strong signal to the rest of the world about its commitment to promote and protect children’s rights. This post examines some key features of the Incorporation Bill while the next post highlights where further improvements would be welcomed.

The ‘Maximalist’ Approach

For those who have worked many years to realise the potential of the UNCRC to stimulate law and culture change in Scotland, the Incorporation Bill delivers and remains true to the Government’s commitment to take a ‘maximalist’ approach. The Bill directly incorporates the UNCRC by reference and in Schedule 1 lists the relevant articles with some notable redactions from the original treaty text seen necessary to accommodate devolved competences. Not only does it directly transpose the bulk of the UNCRC articles, it further includes two of the optional protocols to the Convention (Optional Protocols on Children in Armed Conflict and on the Sale of Children, Child Prostitution and Child Pornography), it keeps open the possibility to easily add further articles of the Convention and protocols in the event of further devolution or ratification by the UK of the Third Optional Protocol on an individual communications procedure (s5).

Clarifying who is a child

Of the almost 5.5 million people in Scotland, just over 1 million meet the UNCRC Article 1 definition of a child as individuals aged 0 to 17 according to the Mid-2019 Population Estimates. Scotland has long struggled to maintain a clear definition of who is ‘a child’ qualifying for enhanced legal consideration in terms of both participation rights and protection due to its mixed approach of referring to ‘children’ as those under 16 and 16-17 year-olds as ‘young people’ depending on the subject-matter of a particular law. The Incorporation Bill adopts the UNCRC definition and confirms that all under-18s will have recourse to the UNCRC as incorporated. The Bill therefore excludes any room for modifying the definition under other Scots laws.

Respect and Protect

The UNCRC Incorporation Bill introduces a more comprehensive range of duties with which the variable arms of the Scottish Government will be required to comply. Firstly, the Bill requires all public authorities – including Scottish Ministers, courts, local authorities, health authorities, Children’s Hearings panels, etc (see s16) – to act compatibly with the UNCRC (s6). Secondly, section 11 of the Bill requires Scottish Ministers to develop, publish and review a ‘Children’s Rights Scheme’ detailing the arrangements they are putting in place to ensure they comply with their duties under section 6. The Bill further subsumes the Children and Young People (Scotland) Act 2014 duty on Scottish public authorities to publish reports on how they are ensuring compliance with the UNCRC. The change of language from ‘respecting’ under the 2014 Act to ‘ensuring’ is significant and should guarantee greater attention to implementation than ever before.

Enforcement

Under section 7 of the Incorporation Bill failure of a public authority to act or acting incompatibly with the UNCRC will give rise to a legal claim and enable the UNCRC to be raised in any legal proceeding (s7). Legalising the justiciability of children’s rights under the UNCRC is arguably the crowning achievement of the Bill. However, justiciability will only matter if the rights are promoted and reinforced through education, resources and culture change. Simplifying the understanding of the role of the UNCRC in law and how to access these rights will be essential to ensuring access to justice.

Following incorporation, all under-18s will be able to raise claims alleging that a public authority has contravened the incorporated UNCRC articles (s7) and all legislation raised before the courts will require interpretation in line with the treaty. This significant change in the protection of children’s rights will guard against the inconsistent interpretive references to the UNCRC that currently permeate Scottish jurisprudence.

As introduced, not only will Scottish courts have an obligation to determine breaches of the UNCRC, under section 20 courts may make a ‘strike down declarator’ against laws predating the commencement of the act. This will aid in rectifying existing laws that directly or indirectly run contrary to the UNCRC. Additionally, section 21 enables courts to deliver a ‘declarator of incompatibility’ for proposed legislation, thus protecting children’s rights before a conflicting law is adopted. If the Incorporation Bill passes through Scottish Parliament with these judicial capacities intact it will represent a new era in the protection and fulfilment of children’s rights in Scotland, with enforcement potential unparalleled in the rest of the UK.

An Unprecedented Opportunity for Scotland’s Children

The proposed UNCRC Incorporation Bill is poised to reshape the way in which government actors and courts use the UNCRC as a tool to respect, protect and fulfil children’s rights in Scotland. The only way for the Bill to deliver comprehensive, enforceable rights protections for children is through a multi-layered implementation approach with a long-term vision. When passed, the final Bill will set in motion further audits of existing law and the development of comprehensive policy guidance. Incorporation will not magically deliver the tripartite respect, protect and fulfil approach to children’s rights overnight, however, incorporation of the UNCRC can, and eventually will, be the touchstone for securing a better life for children in Scotland.

To read the second post on the Bill, click here.

Off the Record: 9/11 Military Commission in its 7th Year

This is the third post in a blog series by Dr Kasey McCall-Smith which examines some of the contentious legal issues raised in the US v. Khalid Shaikh Mohammad, et. al. military commission proceedings against the five men charged with various war crimes and terrorism in relation to the 11 September 2001 attacks on the US. The series is a continuation of her project ‘Torture on Trial’ which was funded by a grant from the Royal Society of Edinburgh and is supported by the Edinburgh Law School.

Whatever Happened to the Alleged 9/11 Terror Plotters? 9/11 Military Commission in its 7th Year

The largest criminal justice trial in US history is currently taking place on Naval Station Guantánamo Bay. For the most part, the general public has no idea. Apart from consistent media coverage by a small handful of journalists, including Carol Rosenberg (formally of The Miami Herald and now with the New York Times) and John Ryan of Lawdragon, the US public and the formerly vocal academy have forgotten that five men, Khalid Shaikh Mohammad, Khallad bin Attash, Ammar al-Baluchi, Ramzi Bin Al-Shibh and Mustafa al-Hawsawi, are charged with conspiracy to commit various war crimes and terrorism in relation to the September 11th attacks under the Military Commissions Act 2009 (MCA) in United States v. Khalid Shaikh Mohammad, et al. (9/11 case). In previous blogs I have explained the choice of venue for the detention facility, law of war detention, details on some of the detainees, and addressed issues relating to torture. This series looks in more detail at specific issues in the trial and why controversial legal stand-offs may not go away.

The first incarnation of the military commissions were replaced by the MCA following the US Supreme Court decisions in Hamdan v. Rumsfeld and Boumediene v. Bush. The MCA applies to alien terrorist suspects and members of al Qaida, defined as alien ‘unprivileged enemy belligerents’, rounded up from 2002-2008, though recently there has been talk of the potential use of the statute to detained ISIS fighters.

 

The MCA sets out its applicability to offences before, on and after 11 September 2001 and raises questions about the long-standing principle of no ex post facto laws and the creative addition of ‘conspiracy’ to accepted war crimes definitions. The statute combines different and overlapping issues of military law, constitutional law and international law. Observing the 9/11 hearings, the failure to thoroughly evaluate the relationship between these different legal systems is proving problematic in every aspect of the trial’s slow progress. The only clarity lies in the fact that legislative responses to 9/11 were walled off from the realities of the outrageous conduct of the CIA during its Rendition, Detention and Interrogation programme.

According to the Senate Intelligence Committee Study on CIA Detention and Interrogation Program (SSCI Report), it is well documented that Khalid Shaikh Mohammad was subjected to combinations of ‘enhanced interrogation techniques’, so-called EITs, equating to torture designed to exercise total control over the victim. Notably, he suffered periods of sleep deprivation lasting up to 180 hours and was ultimately waterboarded 183 times. The other four defendants were similarly treated. Bin Al-Shibh was subjected to EITs for approximately 34 days and kept in social isolation for almost 2.5 years. Bin Attash and al-Baluchi were subjected to EITs over a period of months. The CIA waterboarded al-Hawsawi and further subjected him to such brutal bodily treatment that he suffers irreparable physical damage. In short, US agents subjected each of them to a sustained and systematic programme of torture in direct violation of US and international law.

The illegal actions by the US were defended by the then Bush Administration as necessary to national security. When rumours and then evidence of ill-treatment began to leak out of US military bases abroad, international civil society and US civil rights groups called for the US, as well States working in concert with the US, to maintain detention and treatment standards demanded by the law. In particular, the customary Law of War and standards outlined in the Geneva Conventions as well as the Convention Against Torture were frequently invoked. Yet as the first detainees arrived in Guantánamo on 11 January 2002 these well-established rules appeared to be the furthest thing from the US government’s mind. For anyone watching as the first goggled and shackled jumpsuit-clad men dropped to their knees in the Cuban heat it was clear that this would be a long game. Of the approximately 780 men that were detained in Guantánamo since it opened the doors to the now defunct Camp X-Ray (pictured below), only 40 remain. One man (Balhul) is serving his sentence following conviction by military commission, 26 are known as ‘forever prisoners’ and eight are currently under charge, including the 9/11 defendants. The 9/11 charge sheet alleges that the defendants committed conspiracy, attacked civilians, and committed murder in violation of the Law of War, intentionally caused serious bodily harm, hijacked an aircraft, and committed acts of terrorism resulting in the deaths of 2.976 along with countless injuries. Following their arraignment on 5 May 2012, intentionally causing serious bodily injury was struck from the charges in the early months of the case. From the outset, issues regarding public access to the trial were raised. Limited public access to close circuit broadcast sites was offered to families soon after the litigation commenced. Though now only a trickle of viewers attend the 40 second delayed live-streams at Fort Meade, Fort Devens and Fort Hamilton. The roster of media and civil society observers at Camp Justice, too, can only be described as small when compared to the original outpouring of attention on the detention activities in Guantánamo.

In its 7th year of pre-trial proceedings, the 9/11 case is bogged down in a range of issues (see subsequent posts) that challenge the rule of law to its very core. How to reconcile the defendants’ status as both alleged terrorist war criminals and torture victims? Does US ‘reinterpretation’ of war crimes definitions square with the law of war? Can an appropriate balance between the alleged crimes and victimhood be achieved? Will the victims of 9/11 ever get the justice they deserve and, if so, at what cost? Seventeen years after the horrendous acts that markedly shifted western governments into a new era of aggressive national security pursuits, it seems that only time will tell. At the conclusion of the 35th round of hearings, we are left only with questions. 

Human Rights Act Repeal and Devolution: Quick Points and Further Resources on Scotland and Northern Ireland

Can the UK’s Human Rights Act be repealed? What would the process need? Is it even possible? What are the legal implications?

Christine Bell, Professor of Constitutional Law at Edinburgh Law School, Assistant Principal Global Justice and Director of the Global Justice Academy, offers this review of the current debate on repealing the Human Rights Act, and points readers to other available resources.

In the past few days repeal of the Human Rights Act, and in particular its devolution implications have attracted a lot of attention.  Today, a new report is launched from a legal expert seminar in April 2015, on the legal implications of repeal of the human rights act (see below).  The report provides the full chapter and verse, but here are a few quick points on the devolution implications, with further more detailed and reasoned resources below.

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