What are the steps involved in domesticating international law? Who is involved?

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What are the steps involved in domesticating international law? Who is involved?

What are the steps and stages involved in domesticating international law (consultation, implementation, enforcement etc)? Who is involved (lawyers, law-makers, NGOs, nonprofits, civil society)? How do you know where to start?

Who can work to domesticate international law? Who are the audiences and how do you engage them? Who benfits from domesticating international law and how are they involved in the process?

Share your thoughts, ideas, questions, etc! Add your comments below.

Human rights entrepreneurs

Creative approaches to human rights implementation are limitless.  What we need are entrepreneurial efforts that identify opportunities in which human rights norms and mechanisms can be used to defend human rights.  We have to understand the "terrain" on which we are operating.  So, for instance, if we are pushing for legislative changes in our states, we have to understand the political context in which we are operating -- who are the key actors, what are the values and priorities reflected in the legislature and in the public -- before we can work effectively.

Traditional human rights methods continue to be important, including litigation, documentation and publication of violations, public education and legislation.  We have to continue to use these methods more and more effectively, but also consider new methods for achieving our objectives.

Recently, a small group of us succeeded in getting our state bar association to adopt a resolution encouraging the US government to take steps toward ratification of the International Criminal Court statute.  The hurdles we needed to get over included a lack of knowledge among local lawyers about the ICC, its law and procedures, and the sense that this was not an appropriate subject for a state bar to engage in.  We had to go back to each level of the process two times before we finally got a majority vote of the general assembly of the bar to approve the resolution.  We felt this was an important effort b/c it serves as a model for other states, it sends a supportive message to Congress and the Administration from the heartland, it educated an important constituency -- lawyers in our state, and we made some allies in the process.  Because Minnesota has so many organizations and lawyers working on HR issues, we were able to show that we actually had the opportunity to practice in the court and we built upon notions of state pride for being one of the first state bar associations to pass such a resolution.

I give this as an example of entrepreneurship.  We knew our terrain, developed a strategy, built allies and gained a small but important HR victory.

Sensitivity

freyx001 wrote:
So, for instance, if we are pushing for legislative changes in our states, we have to understand the political context in which we are operating -- who are the key actors, what are the values and priorities reflected in the legislature and in the public -- before we can work effectively.

Barbara, Your post raises the issue of awareness and I'd like to add the following with regard to the specific context of NGOs providing assistance to state agents, legislators, judges and lawyers. We have quickly realized that the issue of implementation needs to be approached with great care and respect for the cultural differences that apply when advising state agents. Indeed, they know best the social and political context in their country and our approach in advising has been to ensure that, while advocating for a comprehensive and accurate implementation of the ICC Statute in national legislations, we also take the realities of each State in consideration.

We will also be called to advise practitioners in using various tools and resources, and once again, one must be careful and sensitive when referring to standards that may apply in the home country of the advisor, but not necessary in other States. As an example, when advising lawyers from a given State, one may want to refer to jurisprudence of international tribunals, customary international law or even general principles of international criminal law. However, if the judges of that State are reluctant, if not outright opposed, to referring to legal instruments outside the realm of their national laws, such advice will make little mileage. The lawyer at the local level will, too, be reluctant to using tools that are bound to be unsuccessful to persuade the trier of facts.

In retrospect, this reply may also fit in the “Challenges” discussion.

Alex Demirdjian for The Peace and Justice Initiative

Thanks for sharing this great

Thanks for sharing this great story.  I would never have dreamed of going to the bar associaiton to try this. Great victory and schrewd tactics. 

What are the steps invovled in domesticating international law?

I am currently working in East Timor in a peacebuilding area.  My task is to write a middle management course for Police Superintendants - under a new PNTL (Polisia Nasional Timor Leste) career regime. there are a number of issues with attempting to domesticate the rule of law here - not the least of which is a completely inefficient court and legal system.  Crimes sit in the system for up to five years, then, on reaching court fail to achieve an outcome due to lack of evidence or something similar. The biggest problem, however, is the problems inherent in PNTL itself.  The entire policing system here in Timor was written directly out of the Indonesian policing rules and regulations.  The attitudes and values from Indonesian policing have also been inherited ie. The police being outside of the law and essentially keeping law and order according to their own whims and concerns rather than an objectified set of facts and criteria understood by all; and a para military approach that views national security as above and beyond all other criteria for action – make poor bed fellows for objectification of law and rights.  In the course that I am writing  a period of 8 weeks addresses - what the law says and have to take action based on clear legal criteria.  If this could be achieved, police who know the law and uphold it - we would achieve a seismic shift in PNTL culture - I am not expecting this shift to occur overnight.  However, small steps will become giant leaps if pursued consistently over long periods of time, and if, as hoped, the middle level leadership becomes teachers and promoters of the Human Rights Code to their subordinates 

Having said all this, I need to address some of my concerns about assuming that Human rights Law is the panacea that we often believe it will be in fragile states and developing legal contexts.  One of the issues for PNTL in Timor is that many of the legal issues and concerns at community level are dealt with through a cultural mechanism known as Lia (word... word is the equivalent of law - the word is the law).  Those who keep the Lia (Lia Nain) have the power to consult all parties in a conflict take a decision and proclaim their choice as law that must be kept by all.  Trust in this customary law is primary in Timor Leste, the first port of call in a conflict.  It is only when the Family together with the Chefe Suco (local elected leader who traditionally stood at local level as Lia leader, but now is an elected representative) cannot solve a problem that the Lia Nain is consulted.  If he cannot solve the problem, people may consult traditional healers and any other sources, then finally, will invite the police to take action if there is no solution (this factor also creates problems for professionalism in policing as the work is dull and their role not always obvious).  It is clear from the predominance of this customary mechanism that it is not legal but cultural frameworks that hold most power at community level and in peoples’ lives. 

In Timor, the promulgation of Human Rights is viewed as essential to achieve change, in fact Human Rights is often discussed as a panacea for all the ills  of Timor Leste – whereas it is unlikely that this single factor can deliver these promises or any at all - when customary law is so predominant. The customary law in Timor is credible, effective and its laws (Tara Bandu) taken under oath are absolutely binding.  Really, this law must be considered in any debates about Human Rights law.  However, this customary system does not deliver the objectified, rights based structure that human rights law can create – in conjunction with a functioning legal system.  Living in Timor, I have however, come to question the place of Human Rights law   as the singular framework for achieving this objectification.  The customary laws of Timor are based on a communal oriented perception of Human existence.  The community takes precedence over the individual.  Customary practices are set in place to restore harmony to the community when differences and individualized actions have caused conflict.  This is a very different conception to that of the   of the human rights law which has an individual rights focus.  The individual rights are based on ownership, property, possession, individual rights - things that have little value or meaning in a community focused context.  What I am trying to address here is the fact that there is very different approaches to understanding law and rules in the communal focused context.  Yet, in the period of heightened conflict (2006-2007) it was lawlessness and subjectification of conflict elements, the lack of an objectified decision making structure and the ability of the political parties to manipulate the people that allowed conflict to spiral out of control to the point of complete loss of law and order, with 150,000 refugees and thousands of homes destroyed.  An objectified and strong legal structure could have prevented much of this.  The Timorese people have learnt from this conflict and will be harder to manipulate in future.  In addition, the political leaders have become savvier and – unfortunately – more willing to apply the rule of law with violence if necessary to control any dissent or risk of violent outbreaks.  This heavy handed approach is concerning, but also understandable given the history.  Timorese people view this approach as strong leadership, unaware of the possible directions that suppression of dissent can take with powerful leaders.  Fear, created by previous violence allows the acceptance of these heavy handed tactics. 

So, for my dilemma – what is the place of Human Rights Law in this community focused cultural context.  First, there is no doubt that Timor needs to move in this direction, creating laws based on Human Rights; teaching these to law enforcers and cultural leaders and society in general and having a functioning legal system.  It appears, though, that the process of shift from cultural laws to objectified laws will require an extensive transition.  First, a functioning legal system is necessary so that these laws can actually respond in reasonable time frames to crimes that are committed.  Secondly, the transition will not occur until development advances somewhat – as people have higher incomes, have more possessions and can make choices; the demand for Human Rights approaches will become more evident.  Thirdly, I propose, the Human Rights system can work within customary traditions.  These contradictory systems need not be viewed as oppositional.  Indeed, there are values concerning forgiveness, reconciliation and responsibility to others in customary practices of Timor that are above Human Rights Law in actively promoting communal harmony and collective action.  Research to understand these values that are in keeping with the values of diversity – can be built on, added to, extended through teaching Human Rights.  In some areas, traditional customary law is below the values of Human Rights charter – patriarchal values, lack of respect for the disabled and poor – these values require attitudinal shift.  Research that allows the human rights system to be added as a layer to the existing customary practice will support the shift as development, (hopefully) improves peoples’ lives and creates a context for the shift in thinking. 

 

. .

 

 

 

Customary law vs. human rights

Have there been any efforts to translate the customary system into something more objective and rules-based, or to seed it with certain key human rights protections?  It seems like there could be a mixed system that preserves some of the features of customary law which the Timorese value so highly (and would therefore be very difficult to replace in a country that has many issues to grapple with) but still provides some protections for individual rights, and I would be interested to know if this was happening.  Do other practitioners have examples of this from other countries?  I thought that Equitas' story of trying to blend human rights and Sharia-influenced legislation in Indonesia was an excellent one. 

Customary law vs. human rights law:domesticating Int'l. law

The question on customary law vs. human rights laws is very interesting and pertinent to the ongoing discussion particularly on the steps involved in domesticating international law.


It seems to me that most countries, where customary laws dominate the legal system, the international human rights law stands in sharp contrast to customary law. For instance, torture, flogging in the public as a sort of punishment, violence against women, racial discrimination, early child marriage, denial of right to citizenship and property rights to people of certain origin etc, etc, are condoned and regulated in many countries by customary law.


On the other hand international human rights law regard the abovementioned acts as crimes, in fact at some stage, they’re crimes against humanity. Most astonishing is that countries where the customary laws regulate these acts and behaviors are state parties to most important human rights treaties.


 It is obvious that customary and international human rights laws exist in parallels in the same nation. Usually, the customary law is the functional and dominant law in the legal system while the human rights law is non-functional. 


I feel, human rights education, the use of litigation, provision of shadow reports on the state of human rights to intergovernmental institutions and of course human rights advocacy by NGOs coupled with political will of the government in power are highly necessary in order to bring a change in such countries.


 Columbus Igboanusi

Civil Society Forces

In the domestication of International law, it takes the involvement of stakeholders on the issues at hand. These stakeholders may include lawyers and law makers, active involvement of selected NGOs on those issues of the law and the public. From experience in my country, Liberia, we, Rescue Alternatives Liberia (RAL) formerly Prisoners Assistance Program (PAP) issue of domesticating international law has always being limited to ratification of international instruments international law/instruments ratification are often brought up by concerned civil Society Organization on that particular law. In the case of Liberia, it was not until 2004 the UN Convention against Torture since it was adopted in 1987 that the government of Liberia ratified it. This was made possible by the intervention of my organization the PAP now RAL. We had to take up the advocacy and lobbying with government, supported by other organizations to have the UNCAT and OPCAT ratified, and now we are continuing the advocacy of Making Torture a crime” under the Liberia jurisprudence.

It takes civil society to push for these things to come to life.

Again, in the same 2004, we lobbied and succeeded that other international instrument by ratified. They were ICCPR and its 1st Optional Protocol, ICESCR and its Optional Protocol and the Rome Statues of the International Criminal court.

Ever since that time, there has not being any further steps taken by the Government about these instruments.

Human rights and Islamic law

Hello everyone,

My organization, Equitas - International Centre for Human Rights Education, worked for a number of years with the Ministry of Law and Human Rights and the Directorate General of Human Rights (DG-HAM) in Indonesia to build the capacity of their staff in human rights education. Towards the end of the program last year, the Ministry suggested a workshop on the domestication of international human rights law. In particular, they wanted to examine issues of domestication in areas where Sharia-like legislation was being passed into law (it was not outright Sharia, but "legislation influenced by Sharia" as they noted). They mentioned the need for such a workshop because a number of its staff operating in such areas faced challenges in promoting human rights based on international standards.

Equitas and DG-HAM decided to host a consultation on "human rights education and Sharia" in November 2008; experts were invited to voice their opinions on the links between human rights and Sharia as well as identifying the successes and challenges in promoting human rights in environments where legislation was "influenced by Sharia." This eventually led to a workshop in May 2009 that brought together two distinct audiences: DG-HAM staff who worked to promote human rights, and drafters of Sharia-influenced legislations from across the country.

To avoid the connotation that "domestication" has - in the sense that domestication implies taking the accepted international standards and ensuring national-level compliance - we opted to call the workshop a "human rights harmonization of local regulations in Indonesia." Participants were provided with the proceedings of the consultation workshop and encouraged to work together using a participatory approach. We benefited from the expertise of four facilitators: two from the NGO sector who were familiar with participatory approaches, and two scholars at an Islamic university. 

For the DG-HAM participants, the workshop provided them with a better understanding of the work involved in drafting legislations, and crucially the opportunity to engage with the drafters and to ensure that current legislations could be amended and future legislations would be human rights friendly. For the drafters, it gave them the opportunity to learn about the vast resource of international human rights law they can rely on to draft their laws.

It was a first step in a long process of ensuring domestication. It was not without its challenges, particularly concerning the respect, protection and fulfillment of women's rights. In that respect, we were hoping to present a more substantive interpretation of Sharia rather than a formal one, which could align itself with human rights values and make room for greater respect of women's rights. To help us in this respect, we benefited from the expertise of human rights researchers who wrote a practical guide for addressing women's rights in Muslim communities. The guide examined key women's rights issues, namely:

  • Women's political leadership
  • Women's reproductive rights
  • Women's rights in marriage
  • Women's rights to freedom of movement and choice of dress

The guide was developed using a comparative analysis of international and Islamic laws.Regards, Paul

Civil society's role in domesticating human rights

At The Advocates, we combine several different approaches to helping ensure human rights are fulfilled for people in the U.S. and abroad.  Some of these, other practitioners in the dialogue have already touched on, such as lobbying for treaty ratification/compliance, helping draft legislation incorporating or following international human rights standards, training government officials to correctly apply those new laws, and monitoring their implementation. In my work, I am more interested in the non-legislative aspects of domesticating international human rights law. The U.S. already has ratified certain treaties or passed certain laws that, in the abstract, are quite protective of human rights, but these laws fail to adequately ensure that human rights are fulfilled. On the other hand, the U.S. resists quite strongly applying a legal framework to certain human rights issues, especially economic, social, and cultural rights. The informal political culture of this country needs to be changed to make sure that formal laws have the intended effect and to overcome the barriers to fulfillment of other, non-Constitutionally protected rights. That, to me, is the key challenge of domestication - translating these grand ideals that are the products of an entire global community into something that is applicable to the local context while providing the same level of protection.

One way we are hoping to do this is to take people who already work to ensure that people have access to a basic minimum standard of treatment, for instance homeless shelters, food shelves, worker's rights organizations, prison rights groups, etc., and helping them conceive of their work in human rights terms. These organizations or individuals and the people that support them are already demonstrating an implicit acceptance of certain fundamental human rights, though they may or may not think of it in those terms. The goal is to help them translate their support for meeting these immediate needs (=remedying a current human rights violation) into support for long-term social change that seeks to create laws and policies that protect or provide those rights and to mold values and attitudes so that society continues to support the same human rights for all even in times of hardship (terrorism, recessions, etc) or when the law is incomplete or imperfect.

So we have created a training for civil society organizations who don't currently think of themselves as human rights organizations, but who want to learn more or who would like to see more sustainable, long-term improvements in the lives of people they serve. To me, this is an equally important strategy as lobbying legislators and drafting laws, because it fills in the gaps where the government cannot reach and also supports the work of legal incorporation by building cultural and societal acceptance of new laws. 

Your work IS human rights work!

mlohman wrote:

One way we are hoping to do this is to take people who already work to ensure that people have access to a basic minimum standard of treatment, for instance homeless shelters, food shelves, worker's rights organizations, prison rights groups, etc., and helping them conceive of their work in human rights terms.

This is a great approach! Here at New Tactics, we are trying to do the same thing. You'd be surprised how many people I invite to participate in our dialogues that say "Sounds really great...but I don't work in human rights." Oh yes you do....!

Madeline, can you share the link to the training guide that you referenced? Thanks!

Training guide

It is still being edited - we will definitely let you know when we have a finished product!

Strengthening national judicial systems

One of the benefits of establishing the ad hoc tribunals for the former Yugoslavia and for Rwanda has been the "return" of the cases before national courts. The example of the Sarajevo State Court is one of the most compelling examples of this. Almost a decade ago, the ICTY adopted Rule 11bis which allowed for the transfer of low-level and mid-level cases back to the region, hence empowering local prosecutors in dealing with those cases.

A few things before I continue. (1) the adoption of this rule was necessary for the reason that - unlike the ICC - the ICTY was endowed with primacy over national courts and could at any moment request a State to transfer a case to its seat in The Hague. (2) Although I'm using the example of the ICTY, it is to be noted that a similar rule was adopted by the ICTR although transfer attempts from the ICTR have not been as successful (I believe one of the main reasons being that, up until 2009, Rwanda still had capital punishment).

The Bosnia & Herzegovina (BiH) State Court (http://www.sudbih.gov.ba/?jezik=e) has handed down several judgments since the creation of its war crimes chamber. Initially, it was staffed partly by local lawyers and international lawyers, but the international component has been gradually phased out, leaving it up to the locals to carry out the work. This handover of the case load has allowed the ICTY to focus on the leadership cases.

Of course, this is a very specific situation dealing with the assistance to post-conflict judicial institutions, but it is worth noting that the cooperation between international and national courts has been of great assistance to this end. Today, BiH, Croatia and Serbia have liaison officers working at the ICTY, and this practice has facilitated the transfer of knowledge and information at an impressive rate.

Local courts also benefit by the massive jurisprudence developed by the ad hoc tribunals both on substantive and procedural law.

All this to say that in the future, it might worth keeping in mind this type of cooperation and perhaps there may be ways to implement such practice at the ICC. As we know, the success of the ICC will not be measured by the number of cases it will try (despite widespread expectations). But by assisting States in establishing capacity-building measures, it may equally fulfill its mandate.

Alex Demirdjian for

The Peace and Justice Initiative

customary vs human rights law

Thanks for these suggestions.  Translation of the current customary practices (which are many and varied across districts) combined with a participatory process that promotes understanding of law and encourages participation and empowerment in creating and adpating new laws will be stept to take. My concern is that there has been no attempt to translate this practices and that the role out of laws based on human rights law is occuring alongside tokenistic support for cultural practice - without concern for the clash. 

I was impressed in the way that Equitas was able to work with DG - HAM.  When I worked with DG HAM back in 2002 - the leadership was dominated by military personell in leadership positions and anything but an open human rights organisation.  The work described is a big advance on those times.  In Indonesia, as in Timor, there is a need to reconcilie a number of customary law directives - religious, traditional village leadership values and human rights.  I am glad to see excellent practice in advancing this.  Who is head of DG Ham now?

customary vs human rights law

Hello Louise and others,

Strong leadership that believes in human rights is a tremendous asset. Equitas began working with DG-HAM back in 2004. The program was to initially support the implementation of their second 5-year national human rights plan. The biggest challenge was to develop the capacity of decentralized human rights committees across the country - not a simple task in a country as diverse as Indonesia. The tsunami of 2004 refocused the direction of the program at two levels: the central government in Jakarta and the areas affected by the tsunami in Banda Aceh. The participatory approach adopted by Equitas was novel for many DG-HAM government employees, but one which they welcomed after an onslaught of (non-participatory) workshops in Banda Aceh from international organizations. 

The program was not without its challenges, but what's encouraging is that the impetus for harmonizing international human rights came from DG-HAM, based on the awareness that "Sharia-influenced" legislation was posing challenges for DG-HAM staff and other human rights educators, even when these types of legislations were passed into law in areas where there was no strong Islamic political presence. In other words, Sharia was used for political gain by those in power. DG-HAM's Director General, Prof. Dr. Harkristuti Harkrisnowo, has been a staunch advocate for human rights and we're fortunate to have worked with her. Now that Indonesia is set for a third 5-year national human rights plan, the government will hopefully build on its past successes and push forward additional initiatives to ensure domestication of international human rights. 

One area that I think can be strengthened, however - and this is true in many countries - is closer cooperation between the government, NGOs, and national human rights commissions. All three are strong in Indonesia, but their ability and willingness to cooperate is measured by slow progress. Perhaps there are examples from others reading this dialogue who know of successful initiatives to ensure domestication between these different actors.

 

Regards,

Paul

Identifying Priorities and Defining Justice

Hello everyone,

When considering the different actors involved in domesticating international law (i.e. states, lawyers, NGOs, etc.), it is clear that everyone will bring to the table different intentions and priorities. Specifically though, I am curious about the priorities of the populations affected by the conflict and/or human rights violations and the extent to which these priorities are considered when proceeding with international law on local and national levels. International law is justice-seeking, but in many post-conflict states, internationally defined justice is not always the priority of affected populations. Rather than seeking prosecution for past human rights violations, they may be more interested in ensuring that their livelihoods are met and that peace will be sustained. While international law can be a means to these ends, the process is often long, inaccessible to many people and is based on a definition of justice that may not be as important for people on the local level.

That being said, I was wondering about the timing of introducing international law procedures into post-conflict states. Given your past experience, do you believe that it is necessary to introduce immediately following a conflict or that the most pressing needs of communities as defined by the local people themselves should be addressed first? Furthermore, what are the mechanisms through which local populations can express their needs and priorities? Are there examples of times when multiple actors' definitions of justice and the intentions behind their pursuit of international law have been incompatible, but made commensurable?

 

Thanks,

 

Domesticating hs laws re torture State or non-state

As a Canadian, I am in my 18 year of working directly with/for women who report having endured and survived torture by non-state actors in the domestic/private sphere, so-called, tortured when they were girls and/or in adulthood; tortured by parents, family members, partners, pedophiles and like-minded others. It happens, for example, research in Canada, the US, UK and Australia, states that between 20 and 26% of pedophilic crime scene ‘pornography’ viewed by special police units involves torture, bondage, and bestiality, with Canadian research suggesting the torture is inflicted on children under eight years; media reports also include the pedophilic torture of infants, as well as the torture of women and men in Canada.

Though out these years I, and my colleague, have been advocating for the distinct and specific criminalization of non-state torture (NST) into the Canadian Criminal Code and for the international recognition that NST is a human rights violation that occurs in the domestic/private sphere. The following points reflect the praxis of this journey:

  1. THE CANADIAN LEGAL SITUATION: Canada has in the Canadian Criminal Code, section 269.1, the mirror definition and historical application of torture as per the UN Convention against Torture (CAT);meaning torture as was historically defined before the present emerging gender-sensitive framework of CAT. Therefore, section 269.1 comes into legal play only if the torturer is a representative of the State and applies whether the State actor commits torture in Canada or elsewhere. The first State actors tried in Canada were soldiers for their torture and murder of a Somalia youth while serving overseas.  

Because Canada has not adapted a gender-sensitive framework section 269.1 is discriminatory. It does not hold non-state actors accountable for the torture they perpetrate in the domestic or private sphere.

2.   THE CEDAW EXPERIENCE: My colleague and I sent a shadow report to the CEDAW Committee about NSAT. When the time came for CEDAW experts to write their report to/about Canada we were told that there was resistance among the CEDAW experts to hold Canada accountable re NST. Therefore, the women and their testimonials included in our shadow report were dismissed and NST was not addressed. At this 2008 appearance of Canada’s reporting to the CEDAW Committee the Canadian governmental delegate, a lawyer, acknowledged non-state actor torture (NSAT) existed but that it was legally addressed using “existing provisions”. This is how NST in Canada is minimized, trivialized, misnamed and invisibilized. NST is also sexualized by attitudes of presumed consensual sadomasochism.

3.   THE EXISTENCE OF A PATRIARCHIAL DIVIDE: My perspective is, when it comes to acknowledging torture is perpetrated by non-state actors in the domestic/private sphere there has existed/exists a historical misogynistic patriarchal position that even though the acts of torture – the elements of torture – are the same whether inflicted by State or non-state actors, it is as if the “stature” of state torturing must not be “lowered” to be occurring in the domestic sphere. For example, electric shocking and falanga are known State inflicted torture acts, electric shocking and falanga torture perpetrated in the domestic sphere are not.

THE CANADIAN AND GLOBAL INVENTION: This starts, from my perspective, with working to have the presently emerging gender-sensitive framework of CAT domesticated globally and nationally. Under CAT the defining elements of torture – causing severe pain and suffering, intentionality and purpose, humiliation and powerlessness have since been added, have been transferred to the grassroots level so to speak by Manfred Nowak, Special Rapporteur on torture. He has identified reasons why torture needs to be considered as a distinct and specific crime and human rights violation in both the public and private spheres, whether perpetrated by State or non-state actors; his reasons are:

  1. Torture is one of the worst human rights violations,
  2. The intentional and purposeful intensity of the pain and suffering inflicted specifically distinguishes torture from other forms of violence,
  3. Trivialization contributes to its widespread practice, 
  4. The right to be publicly heard acknowledges torture victimization, is an important step in healing and helps create a socially just community,
  5. Silencing causes social exclusion, denying victimized women the right to complain and/or to seek social/legal justice and access to specific diagnostic, care and rehabilitation services,
  6. When domestic criminal law misnames torture as another crime, for example bodily injuries, the specific gravity of the physical and psychological destruction is not adequately addressed, causing further victimization,
  7. Inadequate punishment creates a culture of impunity, fostering its continuation, and
  8. The specific criminalization of distinct crimes is a preventive measure in global use.

Applying the evolving gender-sensitive international human rights framework of CAT requires acknowledging CEDAW and the fundamental reality that all forms of violence against women/girls is their inequality and devaluation that leads to gender-based discrimination. This said, the threshold elements of intentionality and purposefulness - tortured because they are women/girls - are fulfilled under CAT. The limited notion that torture has occurred requires the “consent and acquiescence” or perpetration by the State actor has evolved; under CAT acquiescence includes the State’s failure to protect all persons within its jurisdiction from being tortured by non-state actors in the domestic sphere. It is in the domestic sphere where women/girls predominately endure NST.  

Applying this framework, Canada’s existing provisions position, at the same time acknowledging that non-state actor torture occurs in Canada, is a violation of Canada’s due diligence responsibilities to protect all its citizens from torture. Accompanied by the CEDAW Committee’s failure to hold Canada accountable illustrates how strong the patriarchal divide is. I suggest this situation is not unique; rather our experiences suggest there is a global struggle ahead in the effort to achieve the domestication of international human rights law re torture and that such laws be applied whether perpetrated by State or non-state actors. The positive is, I believe, the emerging international gender-sensitive framework described above is opening the door for the domestication of torture laws whether committed by State or non-state actors.

Getting Involved in Domestication

The domestication of international law can start at any level of the system depending on the country, the influence of the petitioners and structure of the process of domestication. It can begin with an executive degree/order, implementation of the law, ratification or legislation.

I will present the case of my work in Liberia on domesticating the UNCAT and OPCAT in Liberia. The Liberian 1986 constitution Article 21 (e) provides for the abolition of torture then legislation that should describe punishment and the Government ratifying the UNCAT and OPCAT.

First, in ratifying the UNCAR and OPCAT, PAP now RAL mobilized other human rights and prodemocracy civil society groups to call on the government to ratify the UNCAT and OPCAT since it signed those instrument. The campaign took us to holding consultations in building networks and identifying our allies in the legislature and executive mansion.

This led to petition to the legislature requesting it to ratify the UNCAT and OPCAT. Given our already layout preparation, it was immediately passed giving way for preparation, it was immediately passed giving way for its appearance the executive that was also awaiting it to sign into law.

Following the ratification of the UNCAT and OPCAT, we began a series of consultations in 2005 towards the domestication of these instrument. The years of consultations brought using national and international actors in the contact with prevention of torture and sympathizers against human rights violations.

The consultations were aimed at defining torture in the local context and not losing the intentions of definitions. The consultations also took around the country holding small and large focus groups meetings discussing the issues of torture and gathering versions at all levels. The process of consultation was finalized with the constitution of a drafting committee among NGOs and CBOs members in human rights, advocacy, etc.

Partners outside Liberia also participated in the validation of the bill. We were fortunate have the inputs of IRCT, APT, OMCT, UNMIL, etc.

Now that the bill was finalized in July 2010, it was formally presented to the legislature in August 2010 awaiting official hearing as of January 2010 upon the return of the legislature from its recess.

The domestication process starts at any level. It largely involves all stakeholders in the state. Be it NGO, lawyers, the public as well as the law – makers and the exceptive branch of government.

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