Thursday, October 30, 2008

An aside about gossip

My daughter at college is suddenly most impressed with the press that I have been receiving. Not that I'm referring to quotes in The Economist or the Times of London -- mention of which received a bored "Oh Great! What else is up?" -- but to the current issue of OK! Magazine, the place for "hot celebrity gossip and photos."
The quote has me very boringly saying that, "They need to decide who is going to have primary residential custody and the other parent will get significant visitation," as well as making some other fascinating (?) observations.

But my quote is right underneath a picture of Madonna with her son throwing a tantrum and on the next page is a great shot of Angelina Jolie. "That's so cool!" my daughter breathlessly announced.

And I'm positioned between Madonna and Angelina; Guy's there too but he'll be out of the way soon. 

Friday, October 24, 2008

British Court rules Islamic Law Dscriminatory

The Independent,23 October 2008

Britain's highest court has criticised Islamic law for discriminating against women after a case in which a mother was forced to flee the Middle East for Britain to protect her son from his abusive father.

In a 5-0 ruling, the law lords said that there was no place in sharia for the equal treatment of the sexes. It would be a "flagrant breach" of the European Convention on Human Rights for the Government to remove a woman to Lebanon, where she would lose custody of her son because of sharia-inspired family law.

The woman, known as EM, came to the UK in 2004 with her son when he was eight. She has had sole custody of him since his birth because of her ex-husband's violence. She left Lebanon because its laws automatically award fathers custody of children from the age of seven.

Lord Hope of Craighead said that the right to non-discrimination was a core principle in the protection of human rights. "Sharia law as it is applied in Lebanon was created by and for men in a male-dominated society... There is no place in it for equal rights," he said.

Sharia was the product of a much-observed religious and cultural tradition, "but by our standards the system is arbitrary because the law permits of no exceptions to its application... It is discriminatory too because it denies women custody of their children after they have reached the age of custodial transfer simply because they are women."

Yesterday's decision reversed rulings by the Court of Appeal, the Asylum and Immigration Tribunal and the Home Secretary that returning EM to Lebanon with her son would not violate her right to family life.

The human rights groups Liberty and Justice intervened in the case. Liberty's legal director, James Welch, said: "How can the Government speak of equal treatment in one breath and seek to deport mother and child to face separation... in another? The law lords have rightly upheld basic protections which must be available to us all."

EM had obtained, in the Islamic Court in Lebanon, a divorce from her husband, who reportedly ended her first pregnancy by hitting her in the stomach with a heavy vase. She had been awarded physical custody of her son until his seventh birthday.

Lord Carswell said: "The House is applying the domestic law of this country, as it is bound to do... We are not passing judgment on the law or institutions of any other state. Nor are we setting out to make comparisons, favourable or unfavourable, with sharia law."

Eric Metcalfe, of Justice, said: "This isn't a case of British law versus Lebanese law or Sharia law. This is simply a victory for basic fairness and a useful reminder for anyone who doubts the value of the Human Rights Act 10 years on."

Thursday, October 09, 2008

Forced Marriage is a Crime Against Humanity

We have just read the appeal judgment of the Appeals Chamber of the Special Court for Sierra Leone in a case entitled Prosecutor v. Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu

For international family lawyers the judgment is significant in that the court ruled that forced marriage constitutes a crime against humanity.

The case arose out of a coup d’etat in Sierra Leone in 1994, spearheaded by the three defendants who were the leaders of the “Armed Forces Revolutionary Council,” which led to horrific atrocities.

The Special Court for Sierra Leone was set up jointly by the Government of Sierra Leone and the United Nations. It is mandated to try those who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996.

The Court’s Trial Chamber had convicted the defendants of crimes against humanity, war crimes, and other serious violations of international humanitarian law, but had dismissed charges arising out of evidence of mass forced marriages. The reason for the dismissal was that the Prosecutor had not demonstrated that forced marriage was a non-sexual crime, and was different from the crime of sexual slavery.

On appeal, the Appeals Chamber focused on other aspects of forced marriage, especially its patriarchal and coercive nature, the physical and psychological toll that it exacted from its victims, and the exclusivity that assumed the "bush wives" were mere property of their rebel "husbands". The court ruled that:

“The trial record contains ample evidence that the perpetrators of forced marriages intended to impose a forced conjugal association upon the victims rather than exercise an ownership interest and that forced marriage is not predominantly a sexual crime. There is substantial evidence in the Trial Judgment to establish that throughout the conflict in Sierra Leone, women and girls were systematically abducted from their homes and communities by troops belonging to the AFRC and compelled to serve as conjugal partners to AFRC soldiers. They were often abducted in circumstances of extreme violence, compelled to move along with the fighting forces from place to place, and coerced to perform a variety of conjugal duties including regular sexual intercourse, forced domestic labour such as cleaning and cooking for the “husband,” endure forced pregnancy, and to care for and bring up children of the “marriage.” … The Trial Chamber findings also demonstrate that these forced conjugal associations were often organised and supervised by members of the AFRC or civilians assigned by them to such tasks. A “wife” was exclusive to a rebel “husband,” and any transgression of this exclusivity such as unfaithfulness, was severely punished. A “wife” who did not perform the conjugal duties demanded of her was deemed disloyal and could face serious punishment under the AFRC disciplinary system, including beating and possibly death.”

The Appeals Chamber determined that forced marriage is a crime against humanity under the Nuremberg Charter, which lists several specific crimes against humanity and then, in Article 6(c), includes "Other inhumane acts" as a residual provision intended to punish acts that are comparable in nature.

The Chamber defined “forced marriage” as “a situation in which the perpetrator through his words or conduct, or those of someone for whose actions he is responsible, compels a person by force, threat of force, or coercion to serve as a conjugal partner resulting in severe suffering, or physical, mental or psychological injury to the victim.”

It concluded that “society's disapproval of the forceful abduction and use of women and girls as forced conjugal partners as part of a widespread and systematic attack against the civilian population is adequately reflected by recognizing that such conduct is criminal and that it constitutes an "Other Inhumane Act" capable of incurring individual criminal responsibility in international law.”

Forced Marriage Law in Britain

Britain has initiated a concerted effort to stem the number of forced marriages in that country. A new law – the Forced Marriage (Civil Protection) Act 2007– will come into force there next month. A “forced marriage” is one in which a party is married without his or her consent or against his or her will. It is still practiced in South Asia, the Middle East, and Africa, as well as within migrant communities from such areas in Europe and the United States. Most involuntary spouses are women.

The British law allows civil courts to issue restraining orders – known as forced marriage orders -- to stop forced marriages from occurring and to protect victims. The subject of an order can include any person who aids, abets or encourages the forced marriage. Interested third parties, such as counselors or teachers, may apply themselves for court permission to intervene on behalf of victims who are too fearful to seek help on their own.

The orders can contain such provisions as a court finds appropriate to prevent a forced marriage or to protect a victim of forced marriage from its effects, and may include confiscation of passports or restrictions on contact with the victim.

A marriage can be considered forced not merely on the grounds of threats of physical violence to the victim, but also through threats of physical violence to third parties (e.g. the victim's family), or even self-violence (e.g. marriage procured through threat of suicide.)

The British law does not criminalize forced marriage, because of the fear that victims—even those subjected to the worst abuse—would be unwilling to see their parents prosecuted. However, a person who violates a forced marriage order is subject to contempt of court and may be arrested.