Andrea Durbach

Leaving Behind the Age of Impunity

Abstract As sexual violence in conflict – predominantly affecting women and girls – appears to increase in prevalence, gender justice advocates are calling for a reparations model that is not only restorative, but also, and more critically, preventative or transformative. This article asks whether the reparations mandate of the International Criminal Court (ICC) and the Trust Fund for Victims has the potential to address the pre-conflict structural inequalities that often contribute to the sexual violence and harm experienced during and post-conflict. Drawing on social theorist Nancy Frasers model of trivalent justice and the ICCs first reparations decision in Lubanga, this article argues that the design of the ICCs court-ordered reparations mandate, and the unrealistic expectations it raises, may make it untenable to support the key transformative elements of recognition, representation and redistribution essential to addressing structural inequities contributing to conflict-related sexual violence. It suggests however, that modifying initiatives of the ICCs Trust Fund for Victims and a greater emphasis by the ICC on the notion of member state “reparative complementarity” may provide mechanisms for transforming conditions that trigger and perpetuate gender violence during conflict.

Joining the Club: The Asia Pacific Forum of National Human Rights Institutions, the Paris Principles, and the Advancement of Human Rights Protection in the Region

The Asia Pacific Forum of National Human Rights Institutions (APF) is a membership organisation of national human rights institutions (NHRIs) from across the Asia Pacific region. As at the end of 2008, there were 14 full members and three associate members. The underlying eligibility criterion for membership is compliance with the United Nations Principles Relating to the Status and Functions of National Institutions for the Promotion and Protection of Human Rights (the Paris Principles). Full membership is open to those NHRIs which comply with the Paris Principles, candidate membership is available to those which do not do not fully comply with them but which could do so within a reasonable period of time, and associate membership is available to those NHRIs which do not comply with the Paris Principles and are unlikely to do so within a reasonable period. This article explores the way in which APF membership criteria have been applied by the Forum in its assessment of applications for membership and for upgraded membership (and in its other activities), and considers whether this has resulted in greater compliance by potential and existing members of the APF with the Paris Principles. It examines the APFs activities in relation to its membership procedures within the framework of writing about transnational government networks as a form of international governance.

The International Criminal Court

Even as the International Criminal Court (ICC) faces criticism for failures in the framing of charges, inordinate delays in prosecutions and delivery of final judgments and an apparent focus on Africa in its investigations, it has gained some recognition for its efforts to provide protection to victims – including women and girls – of gender and sexual violence in conflict. Many feminists, however, have long held a deep skepticism about using criminal law in general, and international law in particular, as a tool to advance gender justice. This distrust of international justice stems, in a large part, from the lessons offered by international tribunals – from Nuremberg to the more recent UN ad hoc tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) – in which women were excluded as prosecutors and judges (Viseur Sellers 2009), perpetrators of violations against women escaped with impunity in conflicts examined by these tribunals (Charlesworth and Chinkin 2000) and women who sought the protection of international law were often revicitimized due to their participation in insensitive processes (Buss 2011; Mertus 2004; Nı́ Aoláin, Haynes, and Cahn 2011). These limitations led some feminists to reject the law as a strategy for pursuing gender justice and resort to other approaches for strengthening women’s rights and agency; others were compelled to take up the challenge of “engendering” international legal institutions. As the international community finally began the drafting of the Rome Statute that would establish the ICC, a group of international feminist legal actors created the Women’s Caucus for Gender Justice in the mid-1990s to contribute to the Statute’s design. Cautious in their engagement and conscious of the law’s limited capacity to effect change, their influence on the evolution of the Statute was nonetheless

Testing the mettle of National Human Rights Institutions : a case study of the Human Rights Commission of Malaysia

In April 2008, the Human Rights Commission of Malaysia (SUHAKAM) was informed of the possible downgrading of its ‘‘A’’ status within the UN system, due to its apparent failure to comply with the Paris Principles relating to the status of national human rights institutions. This article explores this threat to downgrade SUHAKAM and the actions which it stimulated on the part of the Malaysian government and SUHAKAM itself. It argues that despite expectations by government and civil society at the time of its establishment, SUHAKAM has directly challenged government on major human rights issues on a number of occasions. At the same time, it has had difficulty persuading government to give effect to its recommendations and has as a consequence drawn strong criticism from civil society for failing to protect human rights that are within the government’s power to rectify. In April 2008, the Human Rights Commission of Malaysia (Suruhanjaya Hak Asasi Manusia—SUHAKAM) was informed by the Sub-Committee on Accreditation of the International Co-ordinating Committee of National Institutions for the Promotion and Protection of Human Rights (ICC), that it was considering downgrading SUHAKAM from an ‘‘A’’ to a ‘‘B’’ status institution. The Sub-Committee gave * Research Fellow; Director, Project on National Human Rights Institutions in the Asia Pacific Region, Australian Human Rights Centre, Faculty of Law, University of New South Wales. The research on which this article is based forms part of an Australian Research Council Linkage project between the Australian Human Rights Centre and the Asia Pacific Forum of National Human Rights Institutions (LPO776639). In July and August 2008, the authors conducted interviews with SUHAKAM commissioners, members of civil society, and government representatives, in Kuala Lumpur, Malaysia. These interviews form part of the research presented in this article. We are grateful to Francesca Erts and Eleanor Bath for their assistance with the preparation of this article, to Jono Lusthaus for his research assistance in Sydney and Kuala Lumpur, and to Greg Heesom and Suraina Pasha for their comments on earlier drafts of this article. We are also grateful to Amanda Whiting who provided us with contacts in Malaysia. y Professor of Law; Chair, Australian Human Rights Centre, Faculty of Law, University of New South Wales. z Associate Professor of Law; Director, Australian Human Rights Centre, Faculty of Law, University of New South Wales.

Judge Odio Benito

Judge Elizabeth Odio Benito was Vice President of the International Criminal Tribunal for the Former Yugoslavia (ICTY) from 1993 to 1998, and in 2003 was one of the first judges appointed to serve on the International Criminal Court (ICC), where she was later elected Vice President. Her term ended in 2012 at the conclusion of the ICC’s first trial. Prior to her executive and judicial appointments, Judge Odio Benito had served as Minister of Justice and Vice-President of Costa Rica, and was a legal academic at the University of Costa Rica, where she specialized in the field of gender studies, with an emphasis on crimes committed against women. Judge Odio Benito was a member of a three-person bench for the ICC’s first trial against accused Democratic Republic of Congo militia leader, Thomas Lubanga. During the trial, the Prosecution highlighted evidence of sexual violence against female child soldiers in Lubanga’s armed group. Nevertheless, the majority of the Trial Chamber declined to hold Lubanga criminally responsible for this sexual violence because the Prosecution had not referred to any acts of sexual violence when he presented the charges for confirmation at the pre-trial stage. By contrast, Judge Odio Benito’s dissenting opinion (discussed in detail in Durbach and Chappell and by Inder in this issue) sought to remove the “invisibility” of the sexual violence dimensions of the child solider charges. While a minority judgment, Judge Odio Benito’s dissent leaves a powerful legacy and is now viewed as a major factor in contributing to the ICC’s increased commitment to address and prioritize sexual and gender violence in conflict. Given Judge Odio Benito’s reputation as a leading figure in international criminal law for asking difficult gender justice questions and making groundbreaking decisions to draw out the gender dimensions of conflict, we were delighted when she agreed to an interview with us for this Special Issue. Our conversation with Judge Odio Benito, which took place over email across late 2013 and early 2014, focuses on her commitment to address the historical

Book Review: The Courtroom as a Space of Resistance: Reflections on the Legacy of the Rivonia TrialALLOAWOL (ed), The Courtroom as a Space of Resistance: Reflections on the Legacy of the Rivonia Trial. Abingdon: Routledge, 2015, pp. 360, ISBN 9781472444608, £84.00 (hbk).

In the introduction to his chapter, ‘“Black Man in the White Man’s Court”: Performative Genealogies in the Courtroom’, the editor of this striking collection, Awol Allo, refers to a conversation during which one of the accused in the South African Treason Trial (1956–1961), Professor ZK Matthews, declares that ‘[t]he whole of South Africa is on trial (during the Treason Trial). . . . It’s ideas that are being tried here, not people’. This assertion by Matthews had perhaps greater application two years later in the Rivonia Trial (1963–1964), which instructing solicitor, Joel Joffe, described as ‘the trial that changed South Africa’. In the foreword to Joffe’s book about Rivonia, Nelson Mandela wrote in 2006:

‘Nothing about us, without us, is for us’: victims and the international criminal justice system

Q1: What are some of the key features of the international criminal justice system that have attracted you to work in this area?I began in the human rights field before the International Justice fi...

‘To shape our own lives and our own world’: exploring women’s hearings as reparative mechanisms for victims of sexual violence post-conflict

ABSTRACT Transitional justice processes have been criticised for neglecting to recognise the specific dimensions of women’s experiences of sexual violence during conflict. This failure to acknowledge the gendered elements of a conflict or the denial of its enduring impact undermines the prospect of transitional justice mechanisms devising measures of reparation that address the conditions that first enabled and subsequently perpetuate sexual violence against women. Women’s hearings have been one institutional response to criticisms that transitional justice mechanisms have failed women victims of sexual violence in conflict, both at the point of investigation and accountability and in the development of reparations. This article examines the role of women’s hearings in post-conflict contexts and institutional settings, and the factors that have led to their creation. By reference to women’s hearings held in South Africa, Peru, Sierra Leone, Timor-Leste, Japan, Bosnia–Herzegovina and Guatemala, the article evaluates women’s hearings as responses to the treatment of sexual violence by transitional justice mechanisms, and as potential measures of reparation.