Women and Children: The Cutting Edge of International Law

Photo by UN/Myriam Asmani, via World Education Blog

The Grotius Lecture 2014[1]

PREFACE

Sometime at the end of 2011, while I was still the United Nations Special Representative of the Secretary General for Children and Armed Conflict, I met an ambassador from an Asian country just before a United Nations Security Council meeting on children and armed conflict. He told me that I was leaving the United Nations at the right time. “The era of human rights is over, it has been shown up for what it is, a product of western liberalism and now a modern day foreign policy weapon of western imperialism”[2]

A few months earlier I was in the Central African Republic  (CAR) with three generations of women from a family who had been brutally raped by the forces of Jean Pierre Bemba when he entered CAR from the Democratic Republic of Congo in 2002. [3] They were getting ready to go to The Hague to testify against him. They described the events in detail and I could feel their sense of vindication and hope. Even if Bemba was not convicted, they found consolation in the fact that someone recognized the crimes committed against them.

This is then the complexity of human rights in the modern world. Increasingly member states, along with individuals and groups in the global south, challenge both the epistemology and practice of human rights. But despite their efforts, at the grass root level there is a groundswell of support for the idea of human rights, including women’s and children’s rights, as more and more groups begin mobilizing using the discourse and strategy of the human rights movement to fight for equality and social justice.

INTRODUCTION

In the traditional world of international law, issues of war peace and security have always taken precedence over other developments. [4]The Westphalian origins led to a focus on dispute resolution and the establishment of an international order that will enable peace. Even today the media attention of the world remains on the Security Council whose proceedings dominate the discussion of international law and international relations.

However hidden from view away from the drama of the use of force and international peace and security, there has been a quiet, creeping revolution in the area of women’s and children’s rights at the international level which may have far reaching consequences on how we think about international law and its place in the modern world.

I have divided this lecture into three parts:-

  1. First I will try and identify five ways in which women’s rights and children’s rights have impacted on the substance and procedure of international law, especially in the last few decades.
  2. Second, I will try and describe the backlash against some of these developments, leading to a certain paralysis in their contemporary evolution
  3. Thirdly I will attempt to identify a way forward for the future- always keeping the interest of women and children in mind.

Before I proceed, I would just like to bracket my remarks with three short caveats:-

First, International human rights law is often seen as a sub-regime of international law[5]. In the same way, women and children’s rights are a sub-regime of international human rights law with a level of autonomy and integrity relevant to their specialization. Nevertheless, as we will see later what happens in the international arena to the regime of human rights also affects issues relating to women and children and visa versa. Some traditional international lawyers may dismiss all this as issues within the periphery of the periphery but in some ways they have already begun to play a significant role in international relations.

Second, though I have brought the issues of women and children together for the purpose of the lecture, we must recognize that there are strong differences between these mandates. Women are adults and their main quest is for empowerment and equality with men. Though there are similarities between women and children when it comes to matters of protection during war, there are major differences in the quality and nature of their agency and right to participation. I have brought them together because the structures of the two international conventions outlining their rights are similar and they are also issues that receive similar attention from the respective organs of the United Nations. I do not intend in anyway to infantatlize women by making this comparison.

Third, I spent a great deal of my life as a researcher and an academic working for a think tank in Sri Lanka. I was also fortunate to have the experience of being United Nations Special Rapporteur on Violence Against Women and the Special Representative of the Secretary General on Children and Armed Conflict. The tension between the world of ideas and the world of the practitioner is particularly interesting to me as over time I have found that what is ideal is not doable and what is doable may actually compromise one’s ideals.

PART ONE- FIVE WAYS INTERNATIONAL LAW IS IMPACTED

Let me now go into the first part of my lecture:- the five ways in which I think women’s rights and children’s rights have impacted the substance and procedure of traditional international law. Let me list these five ways at the beginning:-

  1. Women’s rights and children’s rights have had a unique impact on the process of creating international law and its relationship to state practice.
  2. More than other issues, the question of women and children’s rights pierces the veil of state sovereignty, the foundation of traditional international law
  3. Women’s and children’s issues have led to a rethinking on how to deal with non state actors within the framework of international law
  4. Since the 1990s, international criminal jurisprudence has developed new and innovative doctrine with regard to crimes against women and children with pioneering efforts by the adhoc Tribunals and the International Criminal Court
  5. The role of NGOs involved in women’s and children’s issues has been unprecedented at the international level, forcing a recognition of civil society and its role in international deliberations

 

The Process of Creating International Law

The first area of impact I believe is in the process of creating international law and standards. Those of us who are old enough to remember the old masters of international law must recall how it was drilled into us that only decades of state practice without objection creates the sense of legal obligation that is the basis of international law.[6] This may be supplemented by treaties which generally tended to be bilateral and concerned issues of peace and security or trade and commercial activity.

Jose Alvarez has documented the revolution that has taken place since the ninteen seventies in the realm of treaty making and the proliferation of international multilateral treaties creating obligations and standards on a whole host of matters- treaties usually negotiated under the auspices of the United Nations.[7] The Convention on the Elimination of Discrimination Against Women and the Convention on the Rights of the Child were also drafted during this period.

However, the Women’s Convention and the Children’s Convention were unique. This uniqueness was not in their multilateral nature but that instead of codifying practice that was in existence, they tried to actually transform the practice. of states at the national and international level . They imposed positive duties on states[8] and even at times tried to transform the behavior of individuals within nation states.  CEDAW article 5 (a) is one such example:-

“State Parties shall take all appropriate measures:-

  1. to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women”.[9]

As is well known about CEDAW for example it truly pushes the frontiers of international law, imposing obligations on issues of equality, protection and transformation at the same time. It includes both political and civil rights as well as economic and social rights. It deals with both the public and the private sphere. Though it is revolutionary it accepts a gradualist approach stating that “appropriate measures be taken without delay”.[10]

This transformative impetus was a product of the intellectual climate of the 1960s and the1970s. and continued with vigor at the international level well into the 90’s. [11]The fact that we had come a full circle from hundreds of years of state practice leading to the creation of international law to an era where multilateral treaties attempted to change state practice and the behavior of their citizens, is one of the unique developments of the latter half of the twentieth century.

The problem with transformative projects, especially those originating at the international level, is the gap between aspiration and implementation. Both the Women’s Convention and the Children’s Convention are the most ratified Conventions in the world. [12]However, the Women’s Convention has so many reservations by a diverse number of states that its value as a normative standard raises some doubts. The CEDAW Committee taking the lead from the Human Rights Committee attempted to reign in these reservations by attempting to claim the right to decide whether a reservation was against the object and purpose of the treaty.[13] On the advice of the UN’s legal counsel they abandoned this effort. [14] The ICJ in its determination on the Genocide Convention argued that universality is an important goal of human rights and humanitarian treaties and that some measure of state flexibility should be allowed as long as reservations do not violate the object and purpose of the treaty. [15]In the area of women’s rights we do have a serious question on how the desire for universality of membership can often trump the integrity and coherence of multilateral treaties.

Nevertheless there is no doubt that concerted international action can change national policy and practice. When I began my tenure as Special Rapporteur on Violence Against Women a year after the UN Declaration on the Elimination of Violence Against Women, I wrote to countries and found that only a handful of countries had addressed the issue of domestic violence in any form. When I left nine years later for my final report I wrote to countries again, this time after a decade of international activism, including at the Beijing Conference. This time every country except Bhutan had passed either legislation or formulated national programmes to deal with this issue.[16]Given the lack of capacity in many states to implement their programmes there may not have been an immediate effect on the ground. In fact during my state visits I noticed that governments presented grand plans to combat domestic violence or trafficking usually drafted with the help of a UN agency. However after that nothing may happen because the criminal justice system may lack capacity and the government may not have the adequate political will. [17]Nevertheless international activism on violence against women resulted in a sea change in attitudes and a growing awareness about the importance of dealing with this once invisible issue.

It has to be said that the political and intellectual climate is different now. Transformative ideas and imaginative projects for the law at the international level are in retreat.  Post Modernists and conservative scholars alike believe that practices should evolve from the community and not be imposed from above. The utilitarian framework of the now dominant law and economics movement in western universities emphasizing efficiency and gradualism[18] has made transformative projects unfashionable.

And yet it could be argued that this return to a conservative, evolutionary framework was made possible because of the dramatic push given by feminists and documents like CEDAW and DEVAW. Once the lines were marked in the sand and awareness raised, one could then afford the luxury of focusing on nuance, context and efficiency.

Piercing the Veil of State Sovereignty

At the time the United Nations was created there was general consensus that state sovereignty would be the foundation upon which the international order would rest.[19] The process of decolonization around the world only accentuated this initial structure. The initial efforts by the UN system with regard to human rights were relegated to the setting of standards [20]and a refusal to deal with developments within countries. Soon, however, the movement against apartheid in South Africa[21], the movement against disappearances in Latin America [22]and the struggle for democracy in Eastern Europe, Latin America and East Asia resulted in a gradual piercing of the veil of state sovereignty. Given these movements one could argue that national sovereignty has two elements- state sovereignty, that is the foundation of traditional international law and people’s sovereignty which one could argue is the main element in the regime of human rights. It must not be forgotten that the United Nations Charter begins with  “We the people”.

Of all the concerns before the international community, no other issues pierce the veil of state sovereignty as much as the issues concerning women and children.  As they attempt to change state practice and even individual behavior, they not only impose positive duties on states but also pass judgment on national attitudes and stereotypes. [23]

In the area of accountability for international crimes and rights violations, again it is the issues concerning women and children that go the furthest. Within the UN system these two issues have the most extensive network of monitoring and reporting. All three pillars of the UN system have monitoring mechanisms with regard to women and children

If one looks at the special procedures of the United Nations Human Rights Council there are 5 related to women and children. The Economic and Social Council oversees two treaties CEDAW and CRC with the largest amount of state signatories and their own very activist treaty bodies. A session before either of these Committees, who have been fully briefed by shadow reports of NGOs, can be a grueling process.

The Security Council that was once averse to any human rights issue being brought before it has, since 1999, accepted three important thematic mandates. The first was Children and Armed Conflict, the second Sexual Violence during Armed Conflict and the third relates to Protection of Civilians. All three are related to issues concerning women and children. The first two have elaborate monitoring and reporting mechanisms on the ground at the field level within countries involving all UN agencies and some NGOs and the Task Force that finalizes these reports is chaired by the Head of the UN system in the country. [24]These reports that go directly to the Secretary General via the Special Representative on Children and Armed Conflict or the Special Representative on Sexual Violence also contain name and shame lists of  states and armed groups that commit systematic violations against children and women. It is envisioned that persistent perpetrators will eventually face targeted sanctions. With regard to the Democratic Republic of the Congo and Somalia, the Sanctions Committees[25] have included crimes against children and women as grounds for the imposition of sanctions. Individuals in the the Democratic Republic of Congo and Cote D’Ivoire have had sanctions imposed against them because of their violence toward women and children.

The involvement of the Security Council on these issues has raised some concerns, especially after the emergence of the doctrine of the responsibility to protect. The power of the women and children’s movement to leverage the Security Council is a new and welcome development, forcing the Council to deal with the consequences of their actions on civilians.  However this new power should be used judiciously. It has already proved useful on the ground but as mentioned later, partnership with national women and children’s groups working at the community level is essential for this to be a true success.

Besides the concern of the three main organs of the United Nations, there are also two full time UN agencies that are fully involved in the issues of women and children. UNICEF the largest UN agency and perhaps its most successful is wholly dedicated to the concerns of children and UN Women created recently amalgamating all UN agencies working on women are fully engaged with the large ambit of women’s concerns.

At the Secretariat there are also two full time Under Secretary Generals, the Special Representative on Children and Armed Conflict and The Special Representative on Sexual Violence During Armed Conflict devoted wholly to issues related to women and children and who report to all the UN bodies and agencies and also conduct field visits to ensure compliance in the area of their mandates.

This extensive and extraordinary network for monitoring and reporting at the international and national level does not really exist for other human rights issues.  Today systematic information is now gathered on a regular basis on violations against women and children without the participation of the member state. With the United Nations Development Programme adopting a “rights up front” policy this year, this system of monitoring will be strengthened and tightened[26].

In the area of women and children, the international system also goes beyond monitoring to the question of punishment. As outlined above, Sanctions Committees have imposed sanctions against persons committing grave violations against women and children[27]. In addition if we look at the cases before international tribunals some of the most important path breaking cases relate to war crimes and crimes against humanity in regard to women and children. The Akeyesu[28] case before the ICTR and the Foca[29] before the ICTY were renown because of their jurisprudence on sexual violence. The ICC decided to make its very first case about the issue of child soldiers, an issue that it felt had universal resonance.[30] To reiterate what I said earlier, the systems of monitoring, reporting and punishment described above with regard to violations against women and children are the most extensive you will find on any issue within the international human rights system.

Piercing the veil of state sovereignty has also taken other unique forms besides monitoring and accountability by international institutions. Since the treaties with regard to women and children are seen as aspirational, many states with a dualist tradition do not translate the provisions into legislation. Increasingly, though, especially in countries with a commonwealth tradition of law, judiciaries are stepping into the breach, appealing directly to international law where national legislation does not exist. The most comprehensive of these interventions was the Visakha case in India where the Indian Supreme Court, drawing on Recommendation 19 of CEDAW basically legislated on sexual harassment. This included a requirement that states companies and corporations that hire over 50 people must have a sexual harassment policy as well as a committee to listen to complaints. This committee should have a majority of women in their composition including an outsider. [31]

Other judiciaries that have drawn directly on international law with regard to women’s issues are Botswana in Unity Dow,[32] the Nigerian Supreme Court in a case involving a cultural practice that permitted incest[33], the Mauritius Supreme Court looking at religious law[34] and the Malaysian Supreme Court on the issue of discrimination due to pregnancy.[35]In fact there is now an on going transnational judicial dialogue on many of these issues and the adoption of the Bangalore Principles by a Judicial Colloquium that included  Justice Ruth Bader Ginsberg of the U.S. and Justice Bhagwati of India on guidelines on how to incorporate human rights norms in judgments in the absence of national action or where national legislation or practice conflict with these standards. [36]

Recent scholars have pointed to the fact that international relations are increasingly reliant on networks of groups whether from civil society, the state or the professions.[37] In the area of judicial incorporation, though many conservative judges still believe in judicial sovereignty, transnational judicial dialogue is increasing awareness and changing the way judges think especially in the area of human rights.

The veil of state sovereignty is also penetrated by UN templates and best practices devised and supported by the technical teams of the United Nations. This is available in a great deal of areas especially those influenced by the United Nations Development Programme and the World Bank and a similar process exists with regard to issues relating to women and children.

This kind of international law is sometimes criticized by international scholars who argue that this type of “technocratic”, “bureaucratic” intervention not only for this type of issue but for all important dilemmas in international relations hides the politics involved and prevents innovation, creativity and ownership at the national level. [38]Nevertheless today UN templates and best practices are in place in a vast number of countries, especially those coming out of conflict situations. With regard to women there is the CEDAW Committee recommendation that 30% quotas of the seats of national parliaments should be reserved for women as this is seen as the critical mass needed whereby women can actually influence the political process.[39] As a result in many of the countries emerging out of conflict with UN assistance such as East Timor and Rwanda, quotas for women in parliament are now in place under national constitutions.

In addition to Constitutions, model legislation is also promoted by the United Nations and other agencies in the area of domestic violence, trafficking, child labor and child soldiers. This is not always implemented. Governments accept formal

obligations often drafted by the best minds in UNICEF or UN Women but national ownership and the political will to implement lag far behind.

Finally at the community level within nation states, international human rights norms with regard to women and children have in some countries pierced state sovereignty claims. Sally Merry has chronicled this with regard to the whole movement to combat domestic violence. [40]She shows how laws and models developed in one part of the world are taken, modified and transformed to suit local conditions. For example in many developing countries, in domestic violence cases, the batterer is also often a victim of social injustice and poverty. Therefore in those societies groups have attempted to focus attention on the treatment for batterers.

As Sally Merry’s research points out international standards often do respond to an important need in the community. The articulation of this need in human rights language gives it legitimacy particularly because countries have accepted these obligations. The standards and the conclusions of UN treaty bodies become rallying tools for activists and individuals fighting for equality and social justice. This dynamic between international standards and local activists is perhaps the most exciting part of this chapter on recent developments in international law.

David Kennedy has often criticised human rights groups who attempt to work with international standards. [41]He argues that over time they have developed an entrepreneurship/professional model of work, relying on donor funding and distancing themselves from the subjects of their concern.

This is for the most part unfair since professionalization does not necessarily mean less activism or genuine concern. However, there is also a modicum of truth in his comment on professionalization and the nexus between donors and some NGOs. In the 1980s, donors were far more responsive to the actual needs of countries and the actual project demands of NGOs and research groups. Today they come with set agendas that are sometimes unhelpful in fighting for issues of human rights and social justice in a given context. It is important that human rights organizations listen to this criticism if they are to maintain legitimacy both at the national and international level. Donors too must rethink their recent strategies that are counter-productive and conceived in capitals far away from the real world in which women and children actually live.

Non State Actors

Traditional international law is built on the foundation of state responsibility. However over time there has been a growing concern about the impunity enjoyed by non-state actors who also violate the rights of others. The 1980s and 1990s saw a vigorous campaign against impunity of non-state actors both through recourse to individual criminal responsibility under international humanitarian law and by seeking to address these issues within the framework of human rights.[42]

The impetus began with the issue of disappearances where state actors donning civilian attire were responsible for extrajudicial killings in Latin America. The state would avoid liability by claiming that private actors committed these acts. The celebrated Velasquez decision of the Inter American Court finally responded to this terrible state of affairs by arguing that States have a due diligence duty to prevent, prosecute and punish private perpetrators who violate the rights of others.[43]

The women’s movement seized on this language in its effort to make violence against women a human rights issue. All UN documents dealing with violence against women articulate state responsibility for private actors with the requirement that states have a due diligence duty to prevent, prosecute and punish those who commit crimes against women.[44] There has been a great deal of discussion about what this due diligence entails. [45]The main thrust of all the arguments have been aimed at ensuring that the criminal justice system respond to the issues with adequate training, resources and commitment. In addition there have been arguments that there should be an adequate support system for the victim.

There have also been efforts by feminist jurists to make non-state actors who commit violence against women directly responsible for these crimes under international law much like the individual criminal responsibility doctrine under humanitarian law. Professor Rhonda Copelon wrote a much quoted article equating domestic violence to torture, an international crime for which there is individual criminal responsibility. [46]International cases before the adhoc tribunals and the ICC have also underscored the importance of recognizing individual criminal responsibility for crimes against women and children. The Security Council in considering targeted measures against individuals has also strengthened this policy.

Though international individual criminal responsibility for war crimes and crimes against humanity is very needed, excessive criminalization of crimes within nation states may cause problems. One of the foremost theorists of human rights Sir Nigel Rodley warned the women’s movement in the 1990s about the pitfalls of this trajectory. [47]Human Rights is a doctrine that has been primarily a watchdog of the state. He argued that the new approaches to fight violence against women leads to an unhealthy partnership between women’s rights groups and the criminal justice system. He warned that the fight against impunity might end up as something else.

Twenty years after the initial movement one must confess that there is some truth in that warning given to us by Sir Nigel. Certain areas of violence against women such as trafficking and sexual violence have become movements that are more about the punishment of individuals rather than the rights of victims.  Celebrity after celebrity, politician after politician are now becoming shrill and demanding immediate action translated as punishing the perpetrator. The prosecutor is now in the forefront of these issues not the human rights activist. In India during the aftermath of the horrific gang rape of a paramedical student, certain women’s groups called for public castration and the death penalty- not very human rights friendly demands.[48]

There is concern that what began as a women’s human rights movement may turn into a law and order punitive movement. David Garland has written extensively on the American Penal State of recent years and the emergence of an ideology based on punishment and victims rights. [49]Victims’ rights should not be dismissed. It is very important that the violations be acknowledged and victims’ claims taken care of but it is also important to ensure that the response is not within a framework of personal retribution and revenge and within the confines of human rights and the rule of law. Excessive criminalization also takes away from other possible approaches such as restorative justice that combined with punishment may be more appropriate in certain contexts.

International Criminal Law

The creation of the International Criminal Court saw for the first time the clear articulation of sexual violence in all its forms as a war crime and a crime against humanity. Until then the grave breaches provisions of the Geneva Conventions led to a great deal of ambiguity, debate and prosecutorial creativity since they did not specifically mention sexual violence. This dramatic development in international criminal law was made possible as a result of the constant lobbying of a broad group of women’s rights activists drawn from the north and the south.

Since the 1990’s with the creation of the Special Tribunals for Former Yugoslavia and Rwanda and the International Criminal Court, international criminal case law has developed at a rapid pace. Interestingly much of the jurisprudence that is being produced has been in the area of issues related to women and children.

For the first time there is now an international definition of rape, following a great deal of discussion. [50] The definition attempts to signal the importance of recognizing the gravity of the crime and the powerlessness of women in the context of armed conflict while also protecting the rights of the defendant. Rules of evidence, in particular Rule 96 of ICTY have also been developed that are state of the art setting clear guideline for what type of evidence may be produced during rape trials.[51] Procedures for the protection of victims and witnesses were also new, innovative and comprehensive at least in the planning stage. [52]All these developments may in turn actually influence rape proceedings at the national level.

The ICC also for the first time defined what it was to be a child soldier- what it means to conscript, enlist or use children to participate actively in hostilities. Using a broad case by case approach, the Court focused not so much on the functional role of the child but on whether he or she have been exposed as potential targets with consequential risk.[53]

For international lawyers concerned with women’s rights and children’s rights these are interesting and exciting developments in the field of jurisprudence. The formulation of international definitions and standards may have demonstrative effect and influence national law when national courts have to determine similar questions with regard to the protection of women and children from violence.

International Civil Society

Until the 1990s, NGO participation at multilateral institutions was a very limited affair pertaining primarily to the lobbying of states with a few select NGOs being given the right to participate in proceedings. The Commission on the Status of Women, the Women’s Convention and the World conferences that took place on women’s issue along with the work of the Children’s Committee changed all that. These two areas became pioneers in envisioning a more active role for NGOs. For example both the CEDAW Committee and the CRC Committee entertain “shadow reports” prepared by NGOs on compliance by particular member states. These reports are taken very seriously and are often the basis for questioning member states and in formulating conclusions and recommendations.

Kathryn Sikkink describes the network of women’s NGOs drawn from northern and southern countries that pushed for violence against women to be included in the human rights agenda of the United Nations.[54] Till the 1990s violence against women was a taboo subject and only issues involving discrimination primarily in the workplace and in the family were discussed at the international level.  CEDAW for example has no mention of violence against women and it was only introduced as Recommendation 19 in the early 1990s.  An extraordinary movement of women across regions and cultures fighting against domestic violence, trafficking and systematic rape brought the issue of violence against women to the World Conference on Human Rights held in 1993. They were so convincing that by the end of the year the United Nations General Assembly had passed the Declaration on the Elimination of Violence Against Women and within the year the UN Human Rights Commission created the post of Special Rapporteur on Violence Against Women. This same network expanded and worked tirelessly on issues relating sexual violence during times of armed conflict  in the 1990s resulting in the statute of the International Criminal Court having one of the most comprehensive definitions of sexual violence contained in any international legal document.

In the case of children and armed conflict, again it was humanitarian NGOs working in conflict areas that pushed hard on this issue forcing the United Nations General Assembly to request Graca Machel to convene a study in the 1990s.  Immediately after that report the General Assembly created a full time Under Secretary General post for a Special Representative on Children and Armed Conflict. They also kept a close watch on the developments that followed.

In concluding the above five areas where the issues concerning women and children have impacted international law and procedure, one has to reflect on why multilateral fora are more responsive to these issues and not others. Children’s issues especially draw a broad consensus at the United Nations. Perhaps these issues play to “nobility” in the self-image of nation states and their citizens as the protectors and rescuers of vulnerable women and children. No state wants to go on record as being against them. It is this discomfort that is often exploited by the more experienced UN officials and NGO activists to push the agenda forward in a sustained and deliberative manner.

PART TWO:- THE BACKLASH

I would like to now move onto to the second part of the lecture, which will attempt to understand some backlash against the human rights movement in general, and women’s rights and children’s rights in particular that began at the turn of the century. I will discuss three aspects:- first the impact of Kosovo, Iraq , Afghanistan and the doctrine of humanitarian intervention on third world perceptions of human rights including women’s and children’s rights. Second I will discuss the attempt to place the issue of sexuality on the international agenda and the repercussions for women’s rights and finally I will say a few words about the backlash to international mechanisms of accountability as many of these mechanisms are dealing with women’s and children’s issues.

Humanitarian Intervention

The tremendous growth of human rights in the 1990s and the emphasis on women’s rights and children’s rights in particular was unprecedented and was possible because of the end of the cold war and the removal of dictatorships in Latin America. With a large number of countries from Latin America and Eastern Europe coming into the United Nations supporting the human rights agenda, there were proliferation of human rights mandates and state acquiescence in the growth and expansion of human rights.

Kosovo, September 11 and the War on Terror dramatically changed this atmosphere. These developments coupled with the new doctrine of the Responsibility to Protect [55]brought in the prospect of humanitarian intervention through the military use of force to protect civilians, chief among them women and children.  In Afghanistan the protection of women was often articulated as one of the main reasons for military action. These developments deeply worried countries of the global south where it was felt that human rights issues and the protection of civilians might become a cover for a new form of imperialism. The protection of women and children that in the 1990s received universal support even in the Security Council is now facing a measure of resistance.

This prospect of humanitarian intervention has also rekindled the strident discourse of state sovereignty that had been in abeyance in the years following the end of the cold war. Many countries of the global south, especially those with an unattractive human rights record, and led by nationalist elites that still remembered colonialism, have begun to reassert the doctrine of state sovereignty which they claim is the pillar of international law. They again point out that the concept of human rights in its present form is the product of the European Enlightenment, and were adopted without the participation of most third world countries. [56]They also assail the selectivity and double standards when it comes to human rights which when combined with arrogant posturing usually have colonial overtones. [57]

Whatever the original philosophical roots of human rights, most countries consent to the framework when they sign the United Nations Charter and when they enter into treaties. With regard to women and children, the overwhelming ratifications despite reservations signal the fact that states consent and aspire to reach the goals set out in these Conventions. We are not talking about self-evident Kantian principles but a regime based on consent in line with the thinking of philosophers such as Richard Rorty. [58] Whatever the philosophical misgivings and intellectual challenges, states do consent to things so that they can do practical business in the public sphere. Therefore consent surely is a valid basis from which to expect compliance regardless of the specific history of a nation state.

In addition it must be remembered that the first time the United Nations acted using a human rights situation was in response to the call of people from the south- in the case of apartheid in South Africa and disappearances in Latin America. [59]American legal scholars focus on Helsinki Watch and Human Rights Watch as the originators of international human rights [60]but the truth is that within the United Nations it was apartheid and disappearances that first forced the Human Rights Commission at that time to move beyond the passive stance of standard setting to monitoring, reporting and action. To ignore this history is to belittle the struggle of so many people and groups around the world.

As for double standards at the international level there are very few honest intellectuals who would contest this claim and there is no doubt that double standards do exist. A great deal needs be to done to face this issue squarely. However the response to this dilemma cannot be to paralyze the entire international system.  Double standards even exist in national systems, especially in those countries fighting double standards at the international level, but the answer cannot be to set criminals free and encourage widespread impunity. The humanitarian approach appears to be the most pragmatic one- a case-by-case approach where it is believed that justice for one person is better than justice for none. Though at the macro level the argument of double standards appears forceful, it is never an answer for the individual demands of victims, many of whom I have met in person and whose suffering and need for remedy far outweigh purely intellectual claims searching for an elusive global balance of power

The prospect of humanitarian intervention has also rekindled the suspicions of post- colonial legal scholars who now dominate the academy in the global south. This challenge is particularly important because it is fought out in the realm of culture that has so much implication for the rights of women and children in particular. As more progressive young people in the global south, who once joined human rights movements in large numbers, are now drawn to this post colonial framework the momentum to fight cultural practices that are violent toward women and children has begun to fade or is left to people who deal with these issues outside a rights framework from the viewpoint of the developmental state.

Though many postcolonial scholars accept human rights as strategic in some contexts, they generally reject the human rights framework as part of the “liberal” “imperialist” project especially when it comes to cultural practices. Rejecting universalism, they look for solutions at the local community level. Dismissing grand meta-narratives that essentialize the human condition, they argue that these narratives prevent local initiatives and creativity that are more community oriented.  They argue that human rights discourse especially attempts to monopolize the discourse of dissent and resistance- a discourse that places the individual over the community.[61]

The community is a very important site for individuals especially in Asia. If true transformation is to result it has to be at the level of the community thus further emphasizing the need and importance of community activism.  However the strategies used have to be mindful of the particular history. The reification of the community can be a cause of concern for anyone who works on women’s and girls issue. Communities may be the most oppressive structure that women and girls face in their lives. Communities may have an ideology of subordination with regard to women and girls, may effectively control their emotional and sexual expression and in some instances may also sanction violence against them.[62] Romanticizing the community, even if it is for fighting the good battle against imperialism, is always problematic. The best strategies for the dilemmas posed by the word “community” still have to be worked out by local level activists.  In this context some of the gains made by scholars and women’s rights activists seeking to reinterpret Muslim law to be in line with human rights standards is an encouraging development.[63]

There are two strands to the post-colonial legal scholars’ anti imperialist anti liberal stance, both of which have enormous implications for women and children. The first emphasizes the matter of tone- the arrogance of former colonial masters, their othering of non- white people and the lack of respect for non-western cultures and traditions. They see the tone as emanating from the political hegemony that these powers enjoy at the international level.  Many Muslim women aggravated by this tone and attitude will don the veil as an act of resistance even though in their daily life they may lead contemporary lives.[64] I have seen people in the global south turn off the television when some Hollywood celebrity appears on CNN in a shrill voice talking about rape in Africa.

The second strand is more complicated and is a question of ontology. This strand rejects the dominance of the European Enlightenment and the sacredness of the power of reason. These scholars wish to highlight the nuances and the epistemology involved in violations against women and children in particular cultural contexts. Supported by anthropological literature, they argue that western demonizing of these cultural practices is without a true understanding of their symbolism or role in a particular culture.  For e.g.:-Sylvia Wynter has written a comprehensive article on  female circumcision and the worldview that gave rise to it.[65]

Perhaps one of the more interesting interventions was by Gayatri Spivak, the icon of the post-colonial sub-altern movement, who has written interesting articles on the practice of Sati or widow burning in India.[66] The British banned Sati in the late nineteenth century without consulting the local population. Spivak along with leading Indian intellectuals such as Lata Mani,  Ashis Nandy and Veena Das, who do not condone Sati as it is practiced today, argued that the British banned it through racist eyes and without understanding the ontological foundations of Sati that are rooted in Hindu concepts, of truth and self sacrifice. The glorification and worship of a Sati was often cited as the value the society placed on this act of self-sacrifice.  As an example Spivak puts together a story from the archives of a Princess from Rajasthan making a case as to why she should be permitted to commit Sati, a voice that appears to have a great deal of agency and clarity of purpose.[67] She argues that that the action of the British without involvement of the local population was a classic case of “white men saving brown women from brown men” [68]with portrayal of Indian women as abject victims without agency awaiting rescue from their imperial masters.

The last recorded case of Sati took place in the late 1980s._The Roop Kanwar case brought all these arguments to the fore. However there was little doubt that Roop did not really enjoy the agency of the Rajasthani princess, that she was always surrounded by her brothers in law and there appeared to many that there was an element of coercion and deep vulnerability. The Indian state reacted firmly passing strong legislation, initiating prosecution and even including a provision that watching a sati was a crime. There has been no recorded case of Sati since. [69]

Having studied this case in detail as Special Rapporteur on Violence Against Women I find Spivak’s arguments rich and  intellectually challenging but am also concerned that in the contemporary world and the way power is wielded within the family in South Asia today any attempt to justify or exempt certain forms of Sati will result in the deaths of many women. While I have great deal of respect for the critique provided by these sub-altern scholars and authors, I am a disturbed as a practioner by the consequences in the real world of what their words seem to suggest.

With the revival of state sovereignty arguments and the dominance of post colonial thinking in the academies of the South, along with a great deal of effort placed on fighting imperialist hegemony, it may now be an appropriate time, after nearly seventy years of independence, to unpack what we mean by imperialism.  It is important to revisit this because in an era called the end of history [70] where parliamentary democracy and a capitalist economy are accepted as given, the frontline issues become those of culture and religion. These are precisely the issues that affect women and girl children the most. The battle for and against imperialism is often waged today on the bodies of women.

There is no-one in the global south today who wants to strengthen colonial systems of political subjugation, economic exploitation and psychological oppression as articulated by Fanon. That is a given. There is also growing recognition that today not all expansionist intentions come from western countries and it is increasingly a multipolar world especially in Asia. [71]It must also be recognized that colonialism and imperialism are also terms of bluster, a way in which nations and societies attempt to obfuscate grave injustices of their own making by forging superficial solidarity with those who oppose imperialism just for the sake of it.

Slogans such as “white men saving brown women from brown men” may have been important rallying calls at independence but they hide a much more complicated story.  A great deal of colonialism was rapacious and brutal but even during the height of colonialism there were many white men and women, archaeologists, educationists, philosophers who did yeoman’s service to resurrect and rebuild third world societies. In my own country, Kumari Jayawardena has chronicled how brave white women left their home country as educationists, health workers and religious personages to set up schools and educate women.[72] Today practically all the leading girls schools in the country were those set up by these women. HCP Bell, a British archeologist, gave his whole life and passion to restoring the ancient cities of Sri Lanka, clearing out the jungle and meticulously recording each item.[73] These are now our pride and joy. The theosophists led by James Olcott and Anna Blavatsky helped spark a major revival in Hinduism and Buddhism in South Asia and their work is sometimes seen as contributing to the foundation of modern day religion in these societies and in rekindling self-respect among South Asians.[74]

The efforts by Samuel Huntington on the political right and third world scholars on the political left to erect unbridgeable cultural and civilizational barriers among traditions and cultures while throwing a fist at universalism does not really do justice to the ruptures, the syntheses, and distortions that are actually taking place in the real world.  As we know today, societies at every level are becoming more cosmopolitan. Culture and cultural practice are always being contested and are constantly changing. Erecting these barriers also trump genuine attempts at finding commonalities and creating equal partnerships across cultures and societies.  In fact if the work of modern day international scholars is anything to go by, their ideas run counter to what is actually happening at the local, national and international levels. For example Anne Marie Slaughter has a thesis that the new international order is not the UN Security Council but networks of people following common goals and interests across nations and cultures whether it be judges, professionals, crime enforcement personnel, climate change activists, anti racism groups, or those working on issues of human rights and social justice.  These networks are powerful, reinforcing and based on partnership across cultures and societies.[75] This is not limited to liberal causes- even anti globalization movements demanding economic justice are sustained by these networks.

The early movements for women’s rights and children’s rights were successful and achieved so much because they were able to build these coalitions and partnerships between northern and southern countries. September 11th has had a chilling effect on many of these collaborative efforts in the area of human rights. It is important to recover certain aspects of that early phase of solidarity where we learnt so much from one another and acted individually and collectively to fight for the rights of women and children. Rejecting universality in an era of globalization is to become the proverbial ostrich with one’s head stuck in the sand. One accepts that universalism must be based on equal respect and equal partnership but those partnerships are essential and as Slaughter claims the lifeblood of the present international system.

Sexuality

In addition to the general backlash against human rights that has affected women’s rights and children’s rights since 2001, there have also been particular developments within the respective fields that have led to a slowing of momentum with regard to the activism on these issues at the international level.

For the most part the international women’s movement was united around the issue of discrimination in the 1980’s and violence against women in the 1990s. However, in the early 1990s pathbreaking writers such as Judith Butler began to question the category of what constitutes “woman” from the perspective of gender identity. [76]Arguing that gender categories are more fluid than biological, many western NGOs and academics began placing the issue of sexuality on the international agenda. Most feminists even today believe that sexuality is at the root of many issues relating to women from discriminatory cultural practices to violence against women. In addition there is the international sensitive issue of sexual orientation.

The issue of sexuality first came up at the International Population Conference in the 1990s and then at the World Conference of Women held in Beijing in 1995 where member states recognized some measure of sexuality within the sphere of reproductive rights and accepted the notion of “reproductive autonomy”.[77] However, there was a desire to go further, to recognize sexual rights independent of reproduction and to allow for the protection of sexual minorities.

This emphasis on sexual rights by western feminists was not well received by most countries of the global south, many of them strong believers in the catholic and islamic traditions. Their conservative positions were supported by the change of administration in the United States which was deeply suspicious of reproductive rights This combination resulted in push back not only on sexual rights but also on some aspects of reproductive rights, so much so that European member states and UN agencies were afraid to call for a world conference in 2005 as expected, afraid there would be a roll back of hard earned gains.

This polarization continues and because of suspicion on both sides, the women’s agenda is not moving forward rapidly. All negotiations at the Commission on the Status of Women from violence against women to millennial development goals are now long and arduous, when unanimity was once easy and simple to achieve. There was a glimmer of hope this year when in the wee hours of the last night of negotiations in March 2014, member states agreed to make gender equality a stand alone goal for the next millennium.

Accountability

The area where the backlash since 2001 is clearly articulated by member states is in the field of accountability of nation states and individuals for human rights violations, war crimes and crimes against humanity. This includes questioning the work of the International Criminal Court, the Human Rights Council and the recent thematic work of the Security Council on women and children.

The horror of Rwanda and the Former Yugoslavia has receded into the background and arguments for state sovereignty are on the ascendant. Where moral outrage about what was happening to children in Liberia, Sierra Leone and the Congo united the world, after Iraq, Afghanistan and Libya and the fear that accountability will be selectively used has led to expressions of discomfort. Certain African leaders indicted by the ICC have also run campaigns throughout Africa against the Court. Many African states have signed the ICC and often use it as away of dealing with their brutal rebel forces.[78] [79]A recent opinion piece in the New York Times by Mahmood Momdani and the former president of South Africa Thomas Mbeki argued that accountability is not necessary and is in fact counter productive in African civil wars. All solutions should be through negotiations and dialogue. [80]

Since most of the mechanisms of accountability at the international level deal with and are crucial to the vindication of the rights of women and children this particular type of backlash will have a negative impact on the actual victims of war.

My last years as the Special Representative on Children and Armed Conflict witnessed this unfold at the Security Council in the aftermath of the intervention in Libya. Open debates and resolutions on the thematic mandates on women and children which once received the full endorsement of the Council were now subject to a great deal of scrutiny. The negotiations again became long, ardous and watered down. Suspicion had replaced comity even in the area of women and children.

However, as I said at the beginning of my speech, despite these developments among intellectuals, heads of state and the institutions of the United Nations, there is a groundswell of interest and support for international accountability especially among victims of crimes.  For example women victims who spoke to me about reconciliation without justice in Rwanda would ask “do they expect me to live next door to the man who gang raped me and killed my husband and sons?” [81]The desire for justice runs deep and cannot be dismissed so easily in favor of only dialogue, otherwise new conflicts fuelled by revenge will emerge in the future. Closure to conflict will only come when there is recognition of suffering and injustice and a collective decision not to repeat past mistakes.

PART THREE:- REFLECTIONS ON THE WAY FORWARD

Given the impasse that currently holds sway on many of these issues at the international level, how do we move forward? I am going to suggest three areas:- first finding the Correct Balance between Moral Outrage and Local Nuance in our advocacy. Second to focus for the next few years on efforts at the national level and to work toward ownership of these issues and strategies by diverse communities and finally to begin to work in a more sustained manner on economic and social rights.

Finding the balance between Moral Outrage and Local Nuance

The most important necessity today is to win back the full support of the global south for issues relating to human rights in general and women and children in particular. The first step is in the area of advocacy and to find the correct balance between moral outrage and the understanding of nuance and context. Nothing upsets third world people more than the arrogant tone, to see a galaxy of western celebrities, politicians and their wives assisted by the sensational sound bites of the 24 hour news cycle pass quick judgment on countries and cultures of the south.

And yet, one must be honest. As I have experienced in over two decades of advocacy, it is moral outrage that moves the system. It is moral outrage that shames governments and individuals and they do change course. It is also moral outrage that compels donors to give money to causes. All of us in the field of advocacy have deployed moral outrage to raise awareness on important issues.

However moral outrage to be effective cannot be selective and must involve issues of both the north as well as the south. [82] It must also be channeled through important national partnerships. Moral outrage on its own and the rescue of particular individuals will not change matters in the long term unless one simultaneously works for national and community ownership of the policies and programmes that combat terrible practices.

In addition, moral outrage unless tempered by reality can lead to very complicated situations. Many laws have been passed on the upswing of moral outrage-  for example the laws against trafficking in many countries and the recent Indian law on rape. What are the actual consequences of these laws prompted by outrage but passed without careful deliberation? Very little empirical research on their impact actually exists.

Let us take the area of trafficking where many strong laws exist today. The framework proposed and led by US and Swedish activists with the active involvement of the US state Department is punishment based.[83] The assumption is that you criminalize the trafficker, penalize the client and ”rescue” the victim or sex worker. Punish and rescue is the effective slogan. Though this sounds noble, no-one stops to ask why one of the girls rescued by Nicholas Kristoff actually went back to her brothel.[84]

My experience with trafficking in Poland, Nepal and India is that there are the really horrendous cases of abduction and sexual slavery that have to be stopped at all cost. There has to be punitive regulation of some sort to deal with the worst manifestations. However, it was very clear that the vast majority of women I interviewed wanted to migrate because of certain conditions at home-whether it be poverty, domestic abuse or community oppression. The desire to migrate is then exploited by unscrupulous elements. It is true that some women migrate to do domestic work and then end up as sex slaves. It is also true that other women migrate and work factory shifts during the day and do sex work at night to supplement their income in the urban underground.

The important aspect to recognize is that it is the woman or girl’s desire to migrate that is at the root of the problem. Therefore there is a close connection between migration and trafficking. Draconian laws set up without this understanding fundamental fact may only further victimize the individual concerned. It is important today to conduct empirical research into the application of these laws so that we may find the right formula that stops the terrible abuse of women but also protects women’s freedom of movement and the right to migrate to other countries in search of a better life.

When we discuss issues relating to trafficking, migration of domestic workers, sex entertainment work, mail order brides, or female factory workers we are dealing with the survival strategies of women. We do not want to put them into a situation where we take away all these strategies without adequate policies and programmes in place to give them other opportunities to pursue livelihoods and make a better life. Punishment of the perpetrator alone will not suffice. Laws and regulations in pursuit of honest and idealistic visions may be done in good faith but without careful deliberation and fine tuning their impact on actual women could be devastating.

Consolidation of rights gained- Moving to the national level

As the international system is in a holding position with regard to the rights of women and children, the most important imperative today is to work toward national ownership of international standards. Legislation and judicial construction as described above are important, but as said earlier it is at the community level where it is important to make a difference.

The research by Sally Merry [85]pointing to how international standards and practice with regard to violence against women were internalized and transformed to meet the actual needs of the community is perhaps a starting point. This again involves working with local level community groups and responsive state actors at the national, regional and local level.  We must now move the activism from the international level, to the national and from the national to the local if these standards are to make any impact on the actual lives of women.

When we speak about national ownership, one does not mean ideas and strategies conceived in the west and imposed without reflection on the south. Ownership implies a dialectic:-international norms intrude into the domestic sphere, leading to discussion, dialogue and contestation out of which will emerge practices and programmes most relevant to the local community, This dialectic is crucial to avoid the charge that these are norms that have no resonance or acceptability at the local level. Such a dialectical process of ownership will also ensure effective implementation by parties who were privy to its elaboration.

Economic and Social Rights

To win back the global south we must also begin to focus on issues that are most relevant to them- the economic and social rights of women. This is particularly important in the light of the rapid globalization that is taking place.

Gayatri Spivak in one of her more telling comments states that “the significant difference (in this era of globalization ) is the use, abuse, participation and the role of women”.[86]

As globalization results in greater inequality within countries, many people are left behind especially poor women, single women, and minority women and their children. Recent discussions about rising inequality must factor in the problems faced by women and children and the rights they enjoy under international conventions.

In addition globalization has produced all kinds of new forms of employment for women from call centers, to work in the beauty industry as well as factory work in free trade zones. Women are also migrating in larger numbers to find work outside their home usually as domestic aides or nurses. Again responses to these developments differ. There are those who wish to prohibit or extensively regulate these exploitative practices. Others argue that though some regulation is necessary it should not be prohibitive since women do get an opportunity to work, to leave feudal structures and to receive a measure of economic independence.

What is needed is the empirical evidence on which regulation should be based.  It is important to research what is actually happening on the ground to women to see if any regulation is needed- one that prevents and protects them from abuse but which also allows them to choose their own work and lifestyle. The era of norm creation must now lead to an era of empiricism to see the impact of all these laws and standards on actual women.

An appeal

Finally as a way forward I would like to make an appeal to the progressive intellectuals of the global south. After September 11th  and the excursions into Iraq, Libya and Afghanistan, many of them have become very defensive and their justifiable outcry at the behaviour of western powers in those wars has led to a distrust of the international system and to cynicism and paralysis in the real world. In this frame of mind they are willing to cede the powerful discourse and practice of human rights that helped fight apartheid in South Africa, disappearances in Latin America, dictatorship in Eastern Europe and East Asia, to the west as the exclusive possession of western liberalism.

Having been in the field I know how powerful human rights discourse is not only as a tool of mobilization but also as a means of raising self respect among vulnerable and oppressed people. Given universal ratification of the United Nations Charter and so many ratifications of international human rights treaties, it is also a common language across states and cultures. It is today the language through which you are able to speak to the world and help create the networks, alliances and partnerships outlined by Anne Marie Slaughter. This is not to rule out other discourses but to accept the fact that human rights is a powerful tool in the arsenal for social justice.

When we consider ceding human rights discourse as the sole possession of the west perhaps we should remember Nietzsche, another disgruntled member of the anti liberal club of the masters of suspicion. Nietzsche dismissed all talks of “rights” as “ressentiment”:-  morality talk which is a challenge to the “noble” and the “select”  by the weak and the oppressed.[87] It is the latter heritage, human rights as the voice of the weak and the oppressed, dismissed by Nietzsche, that we must recapture and if necessary reform.

MALALA

In conclusion let me say there is a silver lining for all of us who have worked on issues relating to women and children at the international level. At the moment the United Nations is reviewing the millennial development goals that were set as we emerged into the twenty first century. The most spectacular development has been in the area of girl’s education[88]. Girls are not only entering schools in large numbers but in a few countries in Latin America, the Caribbean and some parts of Asia, they dominate all the major faculties of the university- except perhaps engineering. [89]Whether these gains will translate into employment gains given the glass ceiling and the dual burden of motherhood and employment has yet to be seen.

It is therefore not surprising that Malala, the feisty young lady from Pakistan has become the icon of this development. Some within Pakistan have argued that she is being manipulated by western powers and she must guard against becoming solely a media figure and a superficial celebrity. But in my fieldwork in the Somalian refugee camps in Kenya or among girls in Afghanistan, I found that Malala is not alone and girls all over the world are clamoring for education.  In Afghanistan I met a girl called Aisha whose house had been bombed by US warplanes, and whose girls school had been attacked by the Taliban. She was undeterred. She was going back to school and she told me with steely determinations that she was going to be a teacher.  I found the same steel in a girl’s school outside Jalalabhad under threat from the extremist forces. They were celebrating since one of their own had got into medical school. Another told me she was going to go into politics and run for governor.

As the generation of women around the world who first raised issues of discrimination and violence against women begin to grow weary and retire, it is this next generation of feisty, articulate, self confidant young women especially from the global south who will finally take these issues forward. We can only wish them well.

EPILOGUE

I would like to conclude today by dedicating this lecture to my mentor Neelan Tiruchelvam and his wife Sithie Tiruchelvam. Neelan was a prominent lawyer, an academic who often visited at Harvard Law School and a politician.  He was also a builder of institutions for civil society activists and free- thinking academics. Sithie was a leading corporate lawyer and a human rights activist who was also a deeply moral and caring person fully and actively involved in the issues of our time.  She became the center of gravity for many individuals deeply concerned with social issues and critical artistic expression.

As you know Sri Lanka lived through many decades of civil war. While fighting raged in the battlefield, the intellectual atmosphere in Colombo was often vicious and vituperative. Extremists on both sides, as well as enabling elements within the Sri Lankan government, attempted to silence all other voices especially those who stood for pluralism, human rights, social justice and peace.

In this toxic atmosphere, Neelan and Sithie provided a space for a whole generation of scholars from all ethnic groups both in Sri Lanka and South Asia, to exchange ideas and debate some of the most crucial issues of our times at the national, regional and international level. Neelan gave leadership at the workplace and the conversations continued in Sithie’s nurturing living room. Those were exciting times and pioneering research was conducted as lawyers, anthropologists, social scientists and artists gathered at the institutions that Neelan founded to exploit the creative space provided by him and his colleagues. Interns and scholars from around the world, some giants in their field, some just beginning their scholarship, flocked to enjoy the atmosphere, the debate and the repartee that often took place at the Thatched Patio of the International Centre for Ethnic Studies.

In the end Neelan paid with his life for his humanity and moderation when the Liberation Tigers of Tamil Eelam assassinated him in 1999.  Sithie bravely continued his work but just a few weeks ago she too passed away.

Both Neelan and Sithie died broken hearted- seeing the Sri Lanka they loved being torn apart, not only by brute physical force, but by ideologies of violence and hate that have deeply damaged our minds and our hearts.  In a hundred years time when the history of Sri Lanka is finally written by objective dispassionate observers, Neelan and Sithie will have a central role in that narrative as some of the few passionate individuals who kept alive the traditions of humanity and dignity in a war torn Sri Lanka- traditions that we now seem to have lost along the way.

THANK YOU.


[1] I want to thank Suriya Wickremesinghe, Kumari Jayawardena, Tony Anghie, Vasuki Nesiah, Neloufer de Mel, Vijay Nagaraj, Sonali Dereniyagala, Ambika Satkunanathan, Asanga Wellikela, Malathi de Alwis, Sabrina Eusaffely, Jose Alvarez, Philip Alston, Grainne de Burca, Nikki Lacey, David Garland, Sally Merry, Madhuri Sharma for their advice, comments and criticisms. However the point of view expressed in this speech is strictly my own.

[2] Personal Communication, July 12th 2012

[3] Jean Pierre Bemba Gombo (Bemba) was the head of the Movement for the Liberation of Congo. (MLC). The MLC went into Congo in 2002 and has been accused of committing war crimes and crimes against humanity. Bemba has been indicted by the ICC:_ Prosecutorv Jean Pierre Bemba Gombo, ICC-01/05-01/08

[4] See for full description. O. Schacter, International Law in Theory and Practice, Kluwer Law International, 1995

[5] S. Sheeran, “The Relationship of International Human Rights and General International Law:- Hermeneutic Constraint,or Pushing the Boundaries?” In S. Sheeran and N. Rodley ed. Routeledge Handbook of International Human Rights Law, Routeledge, p. 80

[6]  See O. Schacter, chapter one

[7] J. E. Alvarez, “International Organizations as Lawmakers”, legal.un.org. (2005)

[8] Article 4 of the Convention on the Elimination of Discrimination Against Women, (CEDAW) 1979

[9]  Article 5 of CEDAW

[10] Article 2 CEDAW

[11] During the 1990’s especially after the wars in Bosnia and Rwanda there was a great deal of activism around issues related to women and armed conflict and children and armed conflict.  Many women were crucial for this activism though their perspectives greatly differed- Catherine McKinnon who helped develop the legal concepts in this area and Charlotte Bunch, Jessica Newirth, Sunila Abeyesekere, Sylvia Pimental, Heisoo Shin, and Florence Butegwa who were the leading international advocates.

[12] There are 187 Ratifications of CEDAW and 193 ratifications of the Convention on the Rights of the Child (CRC)

[13]see J. Riddle, “Making CEDAW Universal:- A Critique of CEDAW’s Reservation Regime under Article 28 and the Effectiveness of the Reporting Process” in 34 Geo. Int’l. L. Rev. 605 (2002-2003)

[14] see Riddle

[15] ICJ, Advisory Opinion on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, (1951)

[16] Report of the Special Rapporteur on Violence Against Women to the United Nations Human Rights Commission, 2003 Annex 1

[17] In a visit to an unnamed country I was informed on arrival that a comprehensive trafficking legislation was adopted and a high powered task force had been set up two years earlier. When I met with the Committee they informed me rather meekly that this was the first time they had met.

[18] For an interesting discussion of feminist viewpoints on the Law and Economics Movement see M. A. Fineman et. al ed. Feminism Confronts Homo Economicus, Cornell University Press 2005

[19] Oscar Schacter

[20] The two major International Covenants, the Covenant on Civil and Political Rights and the Covenant on Economic Social and Cultural Rights were the main focus of work at the United Nations Human Rights Commission.

[21] In 1967 the Economic and Social Council called on the United Nations Human Rights Commission to become “interventionist” with regard to apartheid in Res 1235 XL11,42, UNESCOR Supp. (No.1) at 17 (1967)

[22] In 1980 in response to what was taking place in Chile, the United Nations Human Rights Commission set up the Working Group on Disappearances. The initial mandate was for one year.

[23] In Vertido v. Philippines, the CEDAW Committee goes into a detailed analysis of the attitudes and prejudices of the Philippine judges. CEDAW/46/D/18/2008

[24] A comprehensive description of these systems is contained in the report by Ambassodor Jean Marc de la Sabliere, called “Security Council Engagement on the Protection of Children in Armed Conflict:- Progress Achieved and the Way Forward”, Office of the Special Representative on Children and Armed Conflict, July 2012

[25] see above

[26] UNDP Rights Up Front Action Plan (2013)

[28] See Akayesu, ICTR-96-4-T

[29] See Kunarac et al case, IT-96-23 and IT-96-23/1

[30] See The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06

[31] See Vishakha and Others v. State of Rajasthan and Others, AIR 1997 SC 3011

[32] See Unity Dow v. Attorney General of Botswana [1992] L. Rep. Commonwealth, 623

[33] See Muojekwu v. Ejikeme [2000] 5 N.W.L.R. 402

[34] See Bhewa v. Government of Mauritius [1991] LRC (Const)

[35] See Noorfadilla Binit Ahmad Saikin v. Chayed Bin Basirun and Others, [2012] 1 MLJ 832

[36] See P.N. Bhagwati, “Bangalore Principles”, 14, Commonwealth Law Bulletin, 1196 (1988)

[37] See Anne-Marie Slaughter, “International Law in World of Liberal States”, 6 European Journal of International Law, 503 (1995)

[38] See David Kennedy, The Dark Sides of Virtue: Reassessing International Humanitarianism (Princeton University Press 2004)

[39] See General Recommendation No. 23 (16th session, 1997)

[40] Sally Engle Merry, “Rights Talk and the Experience of Law: Implementing Women’s Human Rights to Protection from Violence, Human Rights Quarterly, Volume 25, Number 2, (2003) pp. 343-381

[41] David Kennedy, “The International Human Rights Movement: Part of the Problem”, 15 Harv. Hum. Rts. J. 101 (2002)

[42] The violence against women movement and the discussion around war crimes and crimes against humanity highlighted the issue of the responsibility of non state actors in discussions at the international level especially in the 1990s.

[43] See Velásquez Rodríguez Case, Inter-Am.Ct.H.R. (Ser. C) No. 4 (1988), Inter-American Court of Human Rights (IACrtHR), 29 July 1988

[44] See generally Declaration on the Elimination of Violence against Women, A/Res/48/104, 1993

[45] see  The Due Diligence Project” launched after the 58th Session of the Commission on the Status of Women, March 7. 2013

[46] Rhonda Copelon, “Recognizing the Egregious in the Everyday: Domestic Violence as Torture,” 25 Colum. Hum. Rts. L. Rev. 291(1993-1994)

[48] See for example the news report “Delhi Gang rape- People Demand Castration for Accused,” newsxlive, Youtube

[49] David Garland, “Penalty and the Penal State”, Criminology, Vol 51, issue 3, August 2013

[50] [50] See Akayesu, ICTR-96-4-T, Delaliæ et al, IT-96-21-T, Furundžija case Case No. IT-95-17/1-T, Kunarac et al case, IT-96-23 and IT-96-23/1, Article 7(g) of the ICC Statute specifically prohibits rape and includes ‘sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization or any other form of sexual violence of comparable gravity’ as crimes against humanity.
See also
Article 2(g) of the Statute of the Special Court Sierra Leone

[51] ICTY Statute Rules of Procedure and Evidence, Rule 96, UN Doc T/32 (March 14, 1994

[52] see S. Garkawe, “Victims and the ICC Three Major Issues:,” International Criminal Law review, Springer, 2003

[53] See The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06

[54] See Keck, Margaret E., and Kathryn Sikkink. “Activists beyond borders: Advocacy networks in international politics.” (1998), Finnemore, Martha, and Kathryn Sikkink. “International norm dynamics and political change.” International organization 52, no. 4 (1998): 887-917.

[55] Responsibility to Protect as spelled out in the Outcome Document of the 2005 United Nations World Summit, A/RES/60/1/para 138-140

[56]A. Anghie, “International Human Rights Law and a Developing World Perspective”, in S. Sheeran and N. Rodley ed. Routledge Handbook of International Human Rights Law,  Routledge, 20013

[57] M. Momdani, Saviors and Survivors:- Dafur, Politics and the War on Terror, Three Rivers Press, 2010

[58]R. Rorty, Contingency, Iron and Solidarity,, Cambridge University Press, 1989

[59] see above footnotes

[60] Samuel Moyn, The Last Utopia, Human Rights in History, Harvard University Press, 2012

[61] See in particular the writings of the sub-altern movement- Gayatri Spivak, Partha Chatterjee, Ranajit Guha who also draw on the works of Foucault, Derrida, and other post modern and post structural scholars in the west.

[62] See Nicole Pope, Honor Killings in the 21st Century, London, Palgrave McMillan, 2011

[63] See the scholarly work of A. An’Aim and the reports of the Special Rapporteur on the Right to Culture Farida Shaheed.

[64] see S. Bilge, “Beyond Subordination vs. Resistance:- An Intersectional Approach to the Agency of Veiled Muslim Women”, Journal of Intercultural Studies, Vol. 31, Issue 1 2010

[65] Sylvia Winter, “Bridging Society, Culture, and Law: The Issue of Female Circumcision:” Genital Mutilation” or” Symbolic Birth?” Female Circumcision, Lost Origins, and the Aculturalism of Feminist/Western Thought.” Case W. Res. 47 (1997): 501-1659.

[66] See Gayatri Chakravorty Spivak, “Can the subaltern speak?” in Colonial Discourse and Post-Colonial Theory: A Reader ed. Patrick  Williams and Laura Chrisman (Hertfordshire: Harvester Wheatsheaf, 19994)

[67] Gayatri Chakravorty Spivak, “The Rani of Sirmur- An Essay in Reading the Archives in History and Theory”, Vol. 24, No. 3, Oct. 1985

[68] Gayatri Chakravorty Spivak, “Can the subaltern speak?” p. 93

[69] See The Commission of Sati (Prevention) Act, 1987,

[70] Francis Fukuyama, The End of History and the Last Man. Simon and Schuster, 2006.

[71] The role of China today and its search for natural resources, its monopoly and commissions with regard to infrastructure projects and its interactions with authoritarian developing country states and politicians has yet to be analysed in detail

[72]Kumari Jayawardena, “The White Woman’s Other Burder:- Western Women in South Asia during British Rule”, Routledge (1995)

[73] Bethia N. Bell etal HCP Bell:- Archaeologist of Ceylon and the Maldives, Archetype Publicatons, 1993

[74] Helene Petrovina Blavatsky et al., Five Part Series on The Theosophists, Kessinger Publishing LLC, 2004

[75] See Anne-Marie Slaughter, A New World Order, Princeton University Press, 2009

[76] See Judith Butler, “Subjects of sex/gender/desire.” Feminism and Politics (1998): 273-291, See also: Judith Butler, “Imitation and Gender Insubordination,” Women, Knowledge, and Reality: Explorations in Feminist Philosophy (1996): 371.

[78] President Museveni signed the ICC primarily to deal with the Lords Resistance Army

[79] Presidest Bashir of Sudan and President Kenyatta of Kenya have often urged the African Union to boycott the ICC

[80] Thomas Mbeki and Mahmood Mamdani, “Courts Can’t End Civil Wars,” The New York Times, February 5th, 2014

[81] Personal Communication, Kigali 1995

[82] The non regulation of US drones over Yemen and Pakistan Guantanamo etc… still remain open symbols of double standards despite the change of administration in the US.

[83] US State Department Trafficking in Persons Report focuses on laws and punishment as a way of assessing the compliance of states with trafficking norms

[84] Nicholas Kristoff, “Back to the Brothel”, New York Times Op-ed, January 22nd 2005

[85] Sally Engle Merry, “Rights Talk and the Experience of Law: Implementing Women’s Human Rights to Protection from Violence, Human Rights Quarterly, Volume 25, Number 2, (2003) pp. 343-381

[87] Nietzsche deals with this at length in The Geneology of Morals but an excellent article on the subject is Bernard Regnister, “Nietzsce on Ressentiment and Valuation”, Philosophy and Phenomenological Research, Vol LVII, No 2, Jan. 1997

[88] See the website of UN women with regard to Millenial Development goals.

  • sajeeva samaranayake

    Radhika states:

    “David Kennedy has often criticised human rights groups who attempt to work with international standards. [41]He argues that over time they have developed an entrepreneurship/professional model of work, relying on donor funding and distancing themselves from the subjects of their concern.

    This is for the most part unfair since professionalization does not necessarily mean less activism or genuine concern.”
    In my view Kennedy is spot on – as far as this country is concerned. How can you build a dialogue when you come to the grass roots level with a load of pre-conceptions, SOP’s and workplans developed in Colombo? This is the crux of the matter. The other point is this: why isolate children and families from their families and communities when it is those extended families and kinship networks that sustain them in the long term? By abstracting individuals from the group settings and then ignoring the group, identity based human rights approaches have actually rendered the individual victims more vulnerable.
    Identity is temporary. Change is the truth. Working with changing and changeable humanity should be the work of human rights. But this has now been forgotten.
    This is why human rights practice must now scrape the bottom of the barrel and seek the refuge of criminal law. Since when did criminal law support equality and social justice? It is just a state mechanism (now borrowed by the ICC) that uses the victim for its own agenda of power play. At the end of the day the criminal remedy is just a form of revenge. Certainly the most civilized form we have concocted. It is useful alright – but I fail to see how human rights can claim any credit from the prosecution of an offender. This is an abdication of the true work of human rights which is to work proactively around the causes of injustice. Reactive measures are a plaster – a simple diversion or distraction from the main point.

  • sajeeva samaranayake

    Criminal law is anti-human and pro-structural. Human rights is pro-human and anti structural. This was demonstrated by people like Gandhi and Mandela who fought WITH the oppressed but also managed to co-create with the oppressor new structures of thought and action that broke free of existing divisions. The current resort of human rights approaches to criminal law get stuck in old patterns of divide and rule. Human rights activists must leave the criminal law to criminal lawyers and re-think what is their true mandate.