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Papers on access to justice post-conflict

The Office of the High Commissioner for Human Rights has had offices in many countries over a period of years. The mandate of these offices has varied but has largely consisted of monitoring and reporting on human rights violations, technical cooperation to assist in the promotion and protection of human, education and training. Many of these offices have been either in country during conflict or in the immediate post war moment, often remaining to assist in attempts to move into sustainable development, peace and security. Hence they have been ideally located to identify, in broad terms, what happens to people, what it is that prevents progress and what can and needs to be done.

What is obvious is that the seeds of success or failure start in the peace process and the interests that are represented there, the resulting peace agreement, and whether or not any constitutional framework arising from the agreements contains within it protection for specific rights. The next step is more practical and more difficult; how can agreements and law be translated into very real and often difficult contexts.

Attempts to provide answers to those questions have been made by the United Nations and others through, for example, developing transitional justice mechanisms, including establishing the ad hoc tribunals for Rwanda and the former Yugoslavia, through the incorporation of human rights in the constitution of post conflict states, such as in Bosnia and Herzegovina, by seeking to increase economic development through the introduction of free market principles, and by insisting on democratic forms of governance. However, reform of normative frameworks, including with respect to non-discrimination and special measures, is usually an element considered over a longer period.

Has this worked? Is it possible to conduct an honest and objective analysis and to conclude that states have been able to make the transition from war to peace and security with the interests and rights of all sectors of the population taken into account and mechanisms developed to ensure that they are actually implemented?

The simple answer to that question is to ask the women.

In 2006, the then High Commissioner, Louise Arbour, recognised the need to establish an entity within her office, focusing specifically on women’s rights and gender integration. The decision came after a task force within the office had identified the need to strengthen this area of work in particular in access to justice, economic and social rights and human rights education. The approach adopted by the Women’s Rights and Gender Unit (WRGU) was to look at the real experience of women, their experience of seeking justice in its most inclusive sense, essentially examining whether the programmes, policies and normative frameworks from which the international community has been working in the post conflict setting do serve women and their rights.

The basic approach is the one that evolved from the field office in Bosnia and Herzegovina after close cooperation with women and women’s organizations over an extensive period. In 1996 there was optimism. There was a belief that with so much external assistance in financial and political terms, there was a possibility that a transitional period would remove from power the architects of the conflict, that there would be accountability through the ICTY and that the legal order would be restored. Against that there was also a rapid realisation that accessing the formal justice mechanism as represented by the ad hoc tribunal was fraught with its own difficulties. Security was clearly an element but it also became increasingly apparent that women just did not have the ability to participate. In 1996 those who were survivors or witnesses to war crimes were, very often, internally displaced or refugees, many women did not know the whereabouts of their husbands and partners, concerns of daily survival were paramount such as adequate housing, access to food water and basic health care. Concerns for the trauma suffered by children and their future education were priorities as, of course, were concerns as to employment or sustainable livelihood. Without these being addressed then the possibility of participating in either the formal justice system to ensure accountability, or in governance structures and thereby gaining a voice in the future policies of the country, remained very much in the realms of mere aspiration for most women. Within a relatively short time frame additional issues arose: the experiences of those who gave evidence at the Hague, became widely known, some positive but a worrying number of women feeling disillusioned or worse, traumatised by the experience. After the Kunerac case was heard, in which there was a traumatising cross examination of a woman who had been raped with a regularity that was “unimaginable,” as to her consent, the optimism was replaced by a general reluctance among Bosnian women to continue to participate.

During that period there was no consensus as to how international human rights law and international humanitarian law, should inform each other so as to be complementary and to provide a post conflict framework which would achieve what was demanded, in terms of rights of the stakeholders, and what was desired by the international community, in terms of security, peace, democracy and the supremacy of the rule of law.

The post conflict moment is crucial in defining how a State will develop and has the potential to be transformative, particularly for women. For this to happen, however, there must be a consensus as to how to interpret and use law as the framework for that change and to ensure that it provides the necessary processes and procedures that make it not just accessible but also practical and effective.

From its inception, therefore, the WRGU made the examination of the formal justice mechanisms and the role of economic and social rights in post conflict systems, a priority. The reason was not just because of the compelling need to do so, but also because definitions for rape stemming from such mechanisms fixed the world in rem with the knowledge that rape is a war crime, a crime against humanity, torture and an element of genocide. Decisions from the ad hoc tribunals have informed human rights bodies, such as the Strasbourg Court, played a vital role in the creation of the Statute of the ICC, and it is anticipated that their jurisprudence will guide the interpretations of that court when it adjudicates the issue of sexual violence. It is contended that the jurisprudence is not relevant only to the context of conflict but has further application, as will be shown subsequent. It is therefore of singular importance to look at the law and how it has evolved from a woman victim perspective and to ask if it meets the justice test - which in turn means that it is not just the decision that is of importance. Given the important and undeniable progress made in terms of defining rape and other forms of sexual violence as particularly serious human rights violations, it would be easier to stop at just that and claim that justice has been done. Instead the whole picture needs to be assessed. What of the procedure to actually get a woman to court? What of the processes and protections within the trial itself and is it sufficient? Is it right that due process claims can still enable the cross examination of a victim as to her consent to the sex she was subjected to, even though it took place in the middle of a conflict and was perpetrated by the “enemy”, in a context already well documented?

The other part of the equation is the economic, social and cultural rights framework. If it is known that trying to survive prevents or is at best inimical, to the assertion of civil and political rights, what is the obligation on the State and the international community to ensure that particular attention is given to the provision and protection of such rights in the immediate aftermath of conflict? Is there a framework which can ensure that a focus on those made vulnerable is an obligation, possible and sustainable? If so, is it justiciable, is it something that should be addressed through the transitional justice framework, or is it inherent in the State obligations under existing human rights instruments?

With these two broad strands of thought, the WRGU commenced a process of both consultation and analysis. Three papers were commissioned, two to provide the broad chapeau and the third, pertaining to the actual state of laws and their impact in the Bosnian context. The aim being to convey what the legal framework should be, and then to compare it with the real situation of a post conflict State:

  1. The Prosecution of Rape under the Formal Justice Mechanisms *
    This paper considers the evolution of the prosecution of rape under international law, to look at the human rights framework and to consider the approach in relation to the experience of women who had participated in the formal justice system. The objective is to assess whether it brought justice for the individual women who were courageous in coming forward, or whether it delivered international justice in definition only.

    The Prosecution of Sexual Violence in conflict (PDF)

  2. Women’s Economic, Social and Cultural Rights *
    The second paper looks at the wide range of economic and social rights implicated in post conflict reconstruction, to assess the extent of their justiciability with reference to case law from diverse jurisdictions and then to examine the issue of discrimination and obligations as to guaranteeing equality of enjoyment, including to ensure women’s right to equal access to justice.

    The protection of economic, social and cultural rights post-conflict (PDF)

  3. The Bosnian Experience *
    The paper examines the constitutional framework, the numerous laws relating to civilian victims of war, how victims have to access rights and the discriminatory impact. In addition the paper aims to address how or if, the recommendations to Bosnia and Herzegovina from treaty bodies had been taken into account.

Methodology and objective

The process leading to the conceptualization and finalization of the analytical papers have been inclusive. An initial discussion meeting took place with experts within OHCHR. After further refinement as to substance, the Consultants were asked to produce draft papers in cooperation with the WRGU. These were circulated to experts in those areas of law within and outside OHCHR and several expert group meetings were held in Geneva to provide reaction and additional thinking to the drafts. The finalisation phase was conducted with considerable input from OHCHR.

The analyses are intended to provoke discussion as to how the UN, other international bodies, and member states should reassess their strategies towards post conflict reconstruction and sustainable peace, democracy and rule of law. It is an alternative, more gendered view of justice. In so doing OHCHR is seeking to inject reality and pragmatism into how Security Council resolution 1325 should be implemented, based as it is on what has already been demanded by the Fourth World Conference on women in Beijing and CEDAW.

To build on the need to realise justice, in September 2008 OHCHR supported and participated in a conference organised by the NGO Medica Mondiale, entitled “Seeking Justice”. It was attended by over forty women from twenty six countries, most of which were either in conflict or post conflict. The aim was to take stock of what has been achieved to date, what has worked, what has not worked and to ask the questions as to what needs to be done to ameliorate women’s inequality. Without exception, the experiences of women in their attempts to enjoy full participation and realisation of their rights was negative. International justice was seen as remote from their realities; transitional justice mechanisms were too frequently driven either by western concepts of justice and/or without effective reference or acknowledgement of the experiences of women. National legal systems were either non existent or inaccessible, traditional justice mechanisms were generally discriminatory and objectified women. In short, justice seemed only to reach women when they had sought their own informal routes to find it.

It is these findings that need to be scrutinised and addressed. If the justice that exists in terms of formal legal mechanisms does not serve women who claim rights under it then, from a human rights perspective, those failings must be addressed in order to secure equality.

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* These papers are made available for information only. The opinions they express are those of the author and do not necessarily reflect those of the United Nations or its Member States