Min Son† | 1 Regent J. Glob. Just. & Pub. Pol. 319 (2015)

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Ah, to build, to build!
That is the noblest art of all the arts.
Painting and sculpture are but images,
Are merely shadows cast by outward things
On stone or canvas, having in themselves
No separate existence. Architecture,
Existing in itself, and not in seeming
A something it is not, surpasses them
As substance shadow . . . . ^[1]

Photoshop allows us to make collages of photographs and this is the essence of China’s architectural and urban production . . . . Design today becomes as easy as Photoshop, even on the scale of a city.^[2]

INTRODUCTION

As architectural practice becomes increasingly global and as more architects aspire to build internationally,^[3] the rise of copyright related lawsuits regarding architectural works are inevitable.^[4] In particular, such lawsuits may raise the question as to whether the approach that different countries take toward complying with international standards adequately protect architects’ copyrights.

For example, in less than ten years Iraqi British architect Zaha Hadid has built numerous works in more than forty-four countries,^[5] including China, Japan, and Korea.^[6] In March 2014, Hadid inaugurated the Dongdaemun Design Plaza in Seoul.^[7] She recently finished the Wangjing Soho complex in Beijing in September 2014,^[8] and is designing the New National Olympic Stadium in Tokyo.^[9]

In 2013, the Wangjing Soho building became the subject of a copyright controversy when an allegedly plagiarized design appeared on the other side of China, set to finish construction before the original one.^[10] Soon after international media reported the controversy, Zaha Hadid Architects reportedly initiated legal proceedings in China,^[11] arguing that the “pirates got hold of some digital files or renderings of the project.”^[12] Regarding the Wangjing Soho phenomenon and the potential lawsuit, a Chinese law expert worried that “at present, the Chinese provisions on architectural works are too vague . . . and there is a lack of detailed regulations on the content and symbolic meaning of architecture.”^[13]

While experts had predicted such a phenomenon a few years ago,^[14] the Wangjing Soho controversy clearly brought the architectural world’s attention to whether an architect would be rewarded with adequate copyright protection in a transnational architectural practice setting.^[15]

One of the most important issues transnational architectural practitioners face is confusion as to the scope of copyrightable architectural works in international settings because many countries take different approaches in defining such a scope. While the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention)^[16] and the World Trade Organization’s (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement)^[17] call for a minimum standard for international copyright protection, these international agreements leave it to individual member countries to enact legislation to meet such standards.^[18] Thus, the approach different countries take toward complying with international treaties may result in varying scopes of protection for literary and artistic works, including works of architecture. In particular, an often overlooked but important outcome of the different approaches is the varying definition of “architectural works.”

For example, in some countries, architectural works include all types of buildings and structures,^[19] whereas in the United States, for example, protectable architectural works include only inhabitable buildings.^[20] In East Asian countries (i.e. Korea, China, and Japan), the definition of “architectural works” is absent in copyright law.^[21] For instance, China has only recently dealt with a case asking whether architectural works are “works” protected by China’s copyright law.^[22] On the other hand, it is interesting to note that Thailand, which is in the same Germanistic law family as Korea and Japan, adopts a very detailed definition of architectural works.^[23]

Moreover, an analysis of the language of the current copyright law of East Asian countries which all use Chinese characters and derivatives, may help explain the lack of detailed regulations on the content and symbolic meaning of architecture. As opposed to the language in European and American copyright laws, the language common in the law of East Asian countries emphasizes tangibility and exceptional creativity rather than originality.^[24] The apparent high standard set by such language may add to the confusion and misunderstanding as to what constitutes protectable architectural works in East Asia.

This note argues that the lack of a coherent definition of “architectural works” in East Asian countries impedes the fundamental goal of copyright protection to promote creativity and to protect artists’ rights. Also, the lack of a coherent definition may be contrary to international copyright protection standards such as the Berne Convention, since it may lead to inadequate protection of potentially qualifying architectural works.

As architectural practice becomes increasingly global, adoption of a more coherent definition for the term “architectural works,” that takes cultural perspectives into account, becomes essential. The result will lead to better compliance with obligations under international treaties as well as further appreciation for transnational architectural practice and intellectual property law in general.

Part II of this note, therefore, examines the Berne Convention and TRIPS Agreement and the challenges of complying with them. Part III surveys how different countries approach the definition of “architectural works” and identifies potential limits and benefits of each approach. Finally, Part IV explores the reasons behind the narrow protection of architectural works in East Asian countries and considers possible suggestions for expanding intellectual property protection for architectural works.

THE BERNE CONVENTION AND TRIPS AGREEMENT

A. Obligations Under the Berne Convention and TRIPS Agreement

As the potential for copyright related lawsuits regarding international architectural practice increases, it is important to examine the international agreements that set the minimum protection standards, as well as the challenges of complying with those standards, in particular, the various approaches to defining the term “architectural works.”

The Berne Convention is the most relevant legal instrument for copyright protection when it comes to architecture as it specifically mentions protection of architectural works.^[25] It was adopted in 1886 to honor the rights of all authors who are nationals of the 168 contracting countries^[26] that are party to the convention.^[27] According to Article 2(1) of the Berne Convention, protected “literary and artistic works” include “works of . . . architecture . . . and three-dimensional works relative to . . . architecture.”^[28] However, the Berne Convention does not further define what types of structures constitute “works of architecture.”

Another relevant international agreement in discussing copyright protection for architectural works is the WTO’s TRIPS Agreement. With regard to protection of intellectual property works, the TRIPS Agreement simply says “[m]embers shall comply with Articles 1 through 21 of the Berne Convention (1971) and the Appendix thereto.”^[29] Hence, although the TRIPS Agreement expressly incorporates the Berne Convention as to architectural copyright protection, similar to the Berne Convention, it does not further define what constitutes an “architectural work.”^[30] Nevertheless, the TRIPS agreement is important because it provides member countries with the Dispute Settlement Body (DSB) of the WTO, a forum for resolving intellectual property disputes.^[31]

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1. HENRY WADSWORTH LONGFELLOW , MICHAEL ANGELO, A DRAMATIC POEM 25 (Houghton, Mifflin and Co. 1884). ︎
2. Kevin Holden Platt, Zaha Hadid vs. the Pirates: Copycat Architects in China Take Aim at the Stars, SPIEGEL ONLINE (Dec. 28, 2012, 12:48 PM), http://www.spiegel.de/international/zeitgeist/pirated-copy-of-design-by-star-architect-hadid-being-built-in-china-a-874390.html (Dutch Architect Rem Koolhaas commenting on the rapid growth of Chinese cities that led to the appearance of Chinese “Photoshop designers” who “copy and paste” architectural design). ︎
3. See, e.g., Thomas Fridstein, Global Game Plan, DESIGN INTELLIGENCE (Oct. 10, 2012), http://www.di.net/ articles/global-game-plan; Vanessa Quirk, The Countries Where Demand for Architects Outstrips Supply, ARCH DAILY (Feb. 20, 2013), http://www.archdaily.com/333413/the-countries-where-demand-for-architects-outstrips-supply; Vanessa Quirk, The 9 Best Countries for Architects to Find Work, ARCH DAILY (Jun. 14, 2012), http://www.archdaily.com/243925/the-9-best-countries-for-architects-to-find-work. ︎
4. Roger B. Williams & C. Richard Meyer, Practicing in a Global Market, in THE ARCHITECT’S HANDBOOK OF PROFESSIONAL PRACTICE 153 (Joseph A. Demkin ed., 2011), available at http://www.aia.org/aiaucmp/groups/ ek_public/documents/pdf/aiab028658.pdf. ︎
5. Oliver Wainwright, Zaha Hadid Beyond Buildings: Architect Launches New Design Gallery, THE GUARDIAN (May 23, 2013, 6:03 AM), http://www.theguardian.com/artanddesign/architecture-design-blog/2013/may/23/zaha-hadid-design-gallery. ︎
6. ZAHA HADID ARCHITECTS, http://www.zaha-hadid.com/zha-world (last visited Feb. 5, 2015). ︎
7. Amy Frearson, Zaha Hadid’s Dongdaemun Design Plaza Opens in Seoul, DEZEEN MAGAZINE (Mar. 23, 2014), http://www.dezeen.com/2014/03/23/zaha-hadid-dongdaemun-design-plaza-seoul. ︎
8. Celia Mahon Heap, Zaha Hadid Opens Wangjing SOHO in Beijing, China, DESIGNBOOM (Sept. 21, 2014), http://www.designboom.com/architecture/zaha-hadid-wangjing-soho-beijing-09-20-2014. ︎
9. Andrea Chin, Zaha Hadid: New National Stadium of Japan Venue for Tokyo 2020 Olympics, DESIGNBOOM (Sept. 10, 2013), http://www.designboom.com/architecture/zaha-hadid-new-national-stadium-of-japan-venue-for-tokyo-2020-olympics. ︎
10. See Platt, supra note 2; see also Marcus Fairs, Zaha Hadid Building Pirated in China, DEZEEN MAGAZINE (Jan. 2, 2013, 9:41AM), http://www.dezeen.com/2013/01/02/zaha-hadid-building-pirated-in-china. ︎
11. See Sian Disson, Time Running Out for Zaha Hadid Project as ‘Pirates’ Replicate Design of Wangjing SOHO, WORLDARCHITECTURENEWS.COM (Jan. 7, 2013), http://www.worldarchitecturenews.com/index.php?fuseaction=wanappln.projectview&upload_id=21660; see also Xing Yihang, Copying Architecture, CRIENGLISH (Jan. 14, 2013), http://english.cri.cn/6909/2013/01/14/2724s743500.htm. ︎
12. Platt, supra note 2. ︎
13. Jessie Chen, Twin Buildings Appeared in Beijing and Chongqing, CHINA INTELLECTUAL PROPERTY MAGAZINE (Sept. 6, 2012), http://www.chinaipmagazine.com/en/journal-show.asp?id=859. ︎
14. Platt, supra note 2. Experts had predicted such phenomenon a few years before, when Chinese firms were found to be posing as British architecture firms Broadway Maylan and Aedas in pursuing project bids with false information; “If Aedas and Broadway Maylan, why not [higher design profiles] like . . . Zaha Hadid?” ︎
15. See Anna Winston, Five Things Every Architect Should Know About Copyright, BDONLINE (May 2, 2013), http://www.bdonline.co.uk/five-things-every-architect-should-know-about-copyright/5053987.article; see also Vanessa Quirk, The 10 Things You Must Know about Architectural Copyrights, ARCH DAILY (Feb. 6, 2013), http://www.archdaily.com/328870/the-10-things-you-must-know-about-architectural-copyrights; Kelly Chan, Parametric Panic: China’s Zaha Hadid Clone and the Limits of Digital Design, BLOUINARTINFO (Jan. 23, 2013), http://www.blouinartinfo.com/news/story/858379/parametric-panic-chinas-zaha-hadid-clone-and-the-lim its-of. ︎
16. Berne Convention for the Protection of Literary and Artistic Works, art. 2(1), Sept. 9, 1886, 828 U.N.T.S. 222 [hereinafter Berne Convention]. ︎
17. Agreement on Trade-Related Aspects of Intellectual Property Rights, art. 9(1), Apr. 15, 1994, 1869 U.N.T.S. 299, 33 I.L.M 1197 [hereinafter TRIPS]. ︎
18. Kimberly Y.W. Holst, A Case of Bad Credit?: The United States and the Protection of Moral Rights in Intellectual Property Law, 3 BUFF. INTELL. PROP. L.J. 105, 106 (2006). ︎
19. See Copyright Act 1968 (Cth) s 10(1) (Austl.); see also Copyright, Designs and Patents Act, 1988, c. 48, § 4(2) (Eng.), available at http://www.legislation.gov.uk/ukpga/1988/48/data.pdf. ︎
20. Preregistration and Registration of Claims to Copyright, 37 C.F.R. § 202.11(b)(2) (2010) (defining protectable “buildings” within the meaning of the law as “humanly habitable structures that are intended to be both permanent and stationary, such as houses and office buildings, and other permanent and stationary structures designed for human occupancy, including but not limited to churches, museums, pergolas, gazebos, and garden pavilions”). ︎
21. Choon-Sup Yoon, Keonchukjeojakmului Soksunggwa Beomjue Kwanhan Yoenku [A Study on the Copyrightable Attributes and Extent of Architectural Works], 25 DAEHANKEONCHUKHAKHOEJI [J. OF THE ARCHITECTURAL INST. OF KOREA ] 107, 109 (2009). ︎
22. Beijing Taiheyateqiche Xiaoshou Fuwu Youxian Gongsi Yu Baoshijie Gufen Gongsi Qinfan Zhuzuo Caichanquan Jiufen Shangsu An (北京泰赫雅特汽车销售服务有限公司
    与保时捷股份公司侵犯著作财产权纠纷上诉案) [Porsche AG v. Beijing TechArt Automotive
    Sales & Service Co., Ltd.] (Beijing Higher People’s Ct. Dec. 19, 2008) [hereinafter Porsche
    case]. ︎
23. Copyright Act, B.E. 2537, 1994, § 4(4) (Thai.). ︎
24. Yoon, supra note 21, at 111. ︎
25. Berne Convention, supra note 16. ︎
26. WIPO-Administered Treaties, WORLD INTELLECTUAL PROPERTY ORGANIZATION, http://www.wipo.int/ wipolex/en/wipo_treaties/parties.jsp?treaty_id=15&group_id=1 (last visited Mar. 8, 2015). ︎
27. Fact Sheet P-08: The Berne Convention, THE UK COPYRIGHT SERVICE , http://www.copyrightservice.co.uk/copyright/p08_berne_convention (last updated Dec. 6, 2011). ︎
28. Id. ︎
29. TRIPS, supra note 17. ︎
30. Id.; see also Kirk W. Wilbur, Renovating Architectural Copyright: The Case for Protection of Nonhabitable Structures, 43 MCGEORGE L. REV. 461, 465 (2012). ︎
31. Wilbur, supra note 30. ︎

† J.D. (Equivalent) Candidate, Handong International Law School, 2015; B.A. University of Washington, 2011. I am deeply grateful to Dean Eric G. Enlow for his valuable insights. I also want to thank the advisors and editors of the Handong International Law School Law Review for their help and support: Dean Hee Eun Lee, Professor David L. Mundy, Beka Tesgera, Yohosua Kim, Soochan Cho, Junoh Park, Jieun Shin, Jin Son, and Lili Yang.

*Sjmole, CC BY-SA 4.0 <https://creativecommons.org/licenses/by-sa/4.0>, via Wikimedia Commons

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INTRODUCTION

An excellent wife, who can find? For her worth is far above jewels. The heart of her husband trusts in her, And he will have no lack of gain . . . . Strength and dignity are her clothing, And she smiles at the future. She opens her mouth in wisdom, And the teaching of kindness is on her tongue.^[1]

The words of King Lemuel’s wise mother have been preserved and passed on to generations of young women, preparing them for the challenging, yet honorable duties of marriage and motherhood. In some cultures, however, the focus of a woman’s preparation for marriage is not a preparation of the heart or mind; rather, the standards set for a woman to be an acceptable bride have digressed to physical alterations of her body.^[2] Female circumcision is considered a requirement for presenting one’s daughter as a pure and accepted woman in many societies.^[3]

Female circumcision or female genital mutilation/cutting (FGM) is a cultural tradition in Indonesia.^[4] Although it was outlawed in 2006, the ban did not diminish the practice of FGM in Indonesia.^[5] Rather, it became a prevalent practice outside of hospitals, performed by traditional healers in unsanitary conditions.^[6] Indonesia represents a unique situation; although it is a secular democratic republic, it is largely Islamic and heavily influenced by ultra-conservative Islamic leaders.^[7] Influential Islamic leaders in Indonesia spoke out against the 2006 ban, arguing that male and female circumcision is essential to Islam.^[8] In response to this pressure, Indonesia’s Ministry of Health issued regulation 1636/2010, which legalized FGM and included “guidelines” for how FGM should be performed.^[9]

Although the United Nations passed Resolution 67/146 in December 2012, specifically condemning FGM in any capacity, the Indonesian government has continued to allow medicalized FGM.^[10] The Council of Indonesian Ulama (MUI)^[11] demanded that the Indonesian government maintain the legality of female circumcision.^[12] Although many international Islamic leaders condemn FGM, the highly influential religious leaders in Indonesia maintain that “[c]ircumcision is a part of the Islamic teachings that were recommended for Muslims, both male and female.”^[13]

Many organizations have helped to decrease the prevalence of FGM in various African nations, and similar steps must be taken in Indonesia to fight the prevalence of FGM.^[14] These organizations have been successful by focusing not only on legislation and government policy, but also on educating those practicing FGM and reaching out to communities.^[15] In addition to this multi-level approach, international pressure must be placed on Indonesia to end this practice. Professor Terry Hull of the Australian Demographic & Social Research Institute, Australian National University,^[16] asserts that female circumcision is, alarmingly, becoming more popular and brutal in Indonesia.^[17]

Indonesia faces particular difficulty in eradicating FGM as it navigates opposing pressures from the international community and the MUI. The Indonesian government must take a firm stance against and work more effectively to eradicate FGM in order to fulfill its obligations and commitments to the United Nations Human Rights Committee and the international community. Due to Indonesia’s unique political and religious composition, the Indonesian government must integrate community education and social programs that inform Indonesians on the dangers of FGM and the truth about its origins in addition to criminalizing all FGM procedures. This Note will focus on the often- overlooked practice of FGM in Indonesia, including the origins of the practice, the medicalization of FGM in Indonesia, why it maintains such a strong foothold in that nation, and the efforts that should be taken to eradicate FGM.

FEMALE CIRCUMCISION AND FEMALE GENITAL MUTILATION/CUTTING

FGM currently affects approximately 140 million girls and women internationally, and about 3 million women are at risk of undergoing FGM each year.^[18] FGM is largely the product of religious sects, tradition, and culture.^[19] As a result of these deeply ingrained conventions, various types of FGM are practiced in different communities and nations worldwide.^[20]

A. Types of FGM

FGM is classified into four categories: Type I includes the most harmful and severe types of FGM, whereas Type IV generally includes less-severe types of FGM.^[21] Type I includes partial or complete removal of a woman’s clitoris or prepuce, also called a “clitoridectomy.”^[22] Type II is the partial or complete removal of the clitoris and labia minora, which sometimes includes excision of the labia majora.^[23] Type III includes the narrowing of the vaginal orifice with a covering seal, which is created by cutting and appositioning the labia minora or the labia majora.^[24] This type is sometimes accompanied by excision of the clitoris.^[25] Type IV encompasses all other harmful FGM for non-medical purposes, including pricking, piercing, incising, scraping, and cauterization.^[26]

There are severe short-term and long-term consequences of FGM, the results of which may vary depending on what type of FGM is performed.^[27] Short-term consequences may “include severe pain, shock caused by pain and/or excessive bleeding (hemorrhage), difficulty in passing urine and faeces” due to swelling, fluid retention, and infection.^[28] Hemorrhaging and infection have led to death in some cases.^[29] Long-term consequences of FGM are both physical and psychological.^[30] Physically, women may experience dermoid cysts, abscesses, severe pain during sexual intercourse, chronic pelvic infections that can lead to chronic back and pelvic pain, urinary tract infections, menstruation problems, and even infertility in some cases.^[31] Additionally, there is an increased risk for childbirth complications, including postpartum hemorrhaging, necessary caesarean sections, and increased probability of tearing.^[32] Studies have found higher death rates among infants whose mothers had been subjected to FGM.^[33]

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1. Proverbs 31:10–11, 25–26 (NASB). ︎
2. Female Genital Mutilation, WORLD HEALTH ORG. 13 (2000), available at http://whqlibdoc.who.int/hq/2000/who_fch_wmh_00.5_eng.pdf. ︎
3. Id. ︎
4. Meiwita Budiharsana et al., Female Circumcision in Indonesia: Extent, Implications and Possible Interventions to Uphold Women’s Health Rights, POPULATION COUNCIL 8 (Sept. 2003), available at http://pdf.usaid.gov/pdf_docs/PNACU138.pdf. ︎
5. Irfan Al-Alawi, Indonesian Government’s Backward Step on Female Genital Mutilation, GATESTONE INST. (Sept. 26, 2011, 4:30 AM), http://www.gatestoneinstitute.org/2452/indonesia-female-genital-mutilation. ︎
6. Lack of regulation and oversight contribute to the persistent practice of FGM in Indonesia. Indonesia: Female Genital Mutilation Persists Despite Ban, IRIN (Sept. 2, 2010), http://www.irinnews.org/report/90366/indonesia-female-genital-mutilation-persists-despiteban. ︎
7. Islam in Indonesia, INDONESIA-INVS., http://www.indonesiainvestments.com/culture/religion/islam/ (last visited Apr. 6, 2015). ︎
8. Al-Alawi, supra note 5. “Nadhlatul Ulama (NU, also spelled Nadhatul Ulama, and meaning ‘Revival of Islamic Scholars’) issued a religious opinion in 2010 approving FGM but advising against ‘cutting
   too much.’” Id. ︎
9. Abby Selden, Female Genital Mutilation in Indonesia, HOW SHE SCREAMS: A SAMA TATA FOUND. BLOG (Mar. 30, 2012), http://samatatafoundationfgm.wordpress.com/2012/03/30/female-genital-mutilationin-indonesia/. ︎
10. G.A. Res. 67/146, ¶ 4, U.N. DOC. A/RES/67/146 (Dec. 20, 2012); Al-Alawi, supra note 5. ︎
11. The Council of Indonesian Ulama, also known as the Majelis Ulama Indonesia (MUI), is Indonesia’s top Muslim clerical body. Council of Indonesian Ulama, BERKLEY CENTER. FOR RELIG. PEACE & WORLD AFF., http://berkleycenter.georgetown.edu/organizations/council-of-indonesianulama
    (last visited Jan. 28, 2015). It is a national moderate Muslim clerical body that issues “fatwas” or religious rulings, for various contemporary issues and public policies. Id. ︎
12. MUI Pushes Govt to Circumcise Girls, JAKARTA POST (Jan. 22, 2013, 9:41 AM), http://www.thejakartapost.com/news/ 2013/01/22/mui-pushes-govt-circumcise-girls.html. ︎
13. Id. ︎
14. See, e.g., Prevalence and Legal Framework, DESERT FLOWER FOUND., http://www.desertflowerfoundation.org//wp-content/uploads/2014/07/Chart-FGM-Legal-Framework_english.pdf (last visited Mar. 29, 2015). ︎
15. See generally MUTESHI J. & SASS J., FEMALE GENITAL MUTILATION IN AFRICA: AN ANALYSIS OF CURRENT ABANDONMENT APPROACHES (Dec. 2005), available at http://www.path.org/publications/files/CP_fgm_combnd_rpt.pdf. ︎
16. Professor Terence H Hull, AUSTRALIAN NAT’L UNIV., https://researchers.anu.edu.au/researchers/hull-th (last update Apr. 7, 2015). ︎
17. Debate in Indonesia Over UN Plan to Ban Female Circumcision, ABC RADIO AUSTRALIA (Jan. 23, 2013, 10:07 PM), http://www.radioaustralia.net.au/international/radio/program/asia-pacific/debate-in-indonesia-over-un-plan-to-ban-female-circumcision/1077806. ︎
18. Letter from Yasmeen Hassan, Global Dir., Equality Now and Listyowati, Chairperson, Kalyanamitra, to U.N. Human Rights Committee 1 (June 13, 2013), available at http://www2.ohchr.org/english/bodies/hrc/docs/ngos/EqualityNow1_Indonesia_HRC108.pdf; Press Release, United Nations, UN Agencies Unite Against Female Genital Mutilation (Feb. 27, 2008), available at https://www.un.org/es/women/endviolence/pdf/FGM%20press%20release.pdf. ︎
19. See Budiharsana, supra note 4, at 8–9. ︎
20. See Sexual and Reproductive Health: Female Genital Mutilation and Other Harmful Practices, WORLD HEALTH ORG., http://www.who.int/reproductivehealth/topics/fgm/prevalence/en/ (last visited Mar. 29, 2015). ︎
21. Media Centre: Female Genital Mutilation: Factsheet No. 241, WORLD HEALTH ORG. (Feb. 2014),
    http://www.who.int/mediacentre/factsheets/fs241/en/; see also An Update on WHO’s Work on Female Genital Mutilation (FGM) Progress Report, WORLD HEALTH ORG. 3 (2011), available at http://whqlibdoc.who.int/hq/2011/WHO_RHR_11.18_eng.pdf [hereinafter WHO Progress Report]. ︎
22. WHO Progress Report, supra note 21. ︎
23. Id. ︎
24. Id. ︎
25. Id. ︎
26. Id. ︎
27. See id. at 2–3. ︎
28. Id. at 2. ︎
29. Id. at 2–3. ︎
30. See id. at 3. ︎
31. Id. ︎
32. Id. ︎
33. Id. ︎

* J.D. 2015, Regent University School of Law.

The post A MULTI-LEVEL, INTEGRATED APPROACH TO ENDING FEMALE GENITAL MUTILATION CUTTING IN INDONESIA appeared first on Regent University School of Law.

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INTRODUCTION

The particular expressions of interpersonal cruelty vary across times, cultures, genders, and age groups; but bullying has undoubtedly been part of all human communities. Now, with the widespread use of hand-held communication technologies, adults and children have available an even broader range of ways to torment others. Although families and schools have long tried to deter and punish childhood bullying, the rapid onset of “cyberbullying” has outpaced the effectiveness of such measures. Further, the pervasiveness and public nature of cyberbullying may increase the risk of serious and violent responses such as suicide or school shootings.^[1] In this paper we review how the American family and schools have attempted to prevent or punish traditional bullying. We next examine how the legal systems can be used to respond to serious consequences of traditional bullying. We also discuss the prevalence of cyberbullying in the U.S. and focus on how legal systems can be effectively used to deter cyberbullying.

WHAT IS BULLYING IN THE UNITED STATES?

The first step in any discussion on bullying is to define terms. For the purposes of this paper we refer to traditional bullying as “unwanted, aggressive behavior among school-aged children involving a real or perceived power imbalance.”^[2] In addition, the behavior is “repeated, or has the potential to be repeated, over time.”^[3] Bullying has typically taken three main forms, though they can overlap. First, verbal bullying entails name-calling, inappropriate sexual comments, and verbal threats.^[4] Second, social bullying includes spreading damaging rumors, excluding someone from a group, and publicly embarrassing someone.^[5] Third, physical bullying refers to hitting, kicking, pushing, tripping, and taking or breaking someone’s things.^[6] All three types occur frequently in the United States.^[7] A U.S. government-funded survey indicates that, nationwide, 73% of students in grades 6–12 experienced bullying in the last school year.^[8] Admittedly, bullying statistics are difficult to assess, as researchers use different age groups, methodologies, timespans, and differently worded questions; as a result, 20% to 90% of students report being victims of bullying in the United States.^[9]

Advances in communication technology have given rise to new and widely accessible ways of harming others. The popularity of and easy access to mobile phones and social media sites have led to a new form of bullying, so-called “cyberbullying.” Cyberbullying is “the intentional and repeated mistreatment of others through the use of technology, such as computers, cell phones and other electronic devices.”^[10] In addition to the range of devices, cyberbullying also encompasses an array of forums. Cyberbullying has quickly become a common form of bullying in the U.S.^[11] A national survey found that nearly one in six high school students (grades 9–12) were electronically bullied in the previous year.^[12]

The basic appeal of cyberbullying may be similar to traditional bullying (e.g., sense of control, social status) but the constraints are significantly decreased, which may mean far more bullies and victims. Both parties may experience serious mental and physical health The basic appeal of cyberbullying may be similar to traditional bullying (e.g., sense of control, social status) but the constraints are significantly decreased, which may mean far more bullies and victims. Both parties may experience serious mental and physical health outcomes,^[13] making bullying a significant concern for families, schools, and the government.

INDIVIDUAL AND FAMILY STRATEGIES FOR DETERRENCE OF TRADITIONAL BULLYING IN THE U.S.

Traditionally, American fathers (and other males in multi-generational, extended family households) have encouraged children (especially sons) to stand up for themselves and their families, which included fighting back against bullies. Thus, men taught children how to physically defend themselves. It was believed that hitting a bully who has been sufficiently warned was an effective deterrent to future confrontations.^[14] In addition, the ability to defend oneself was thought to strengthen a child’s self confidence, elevate respect from peers, and protect him from bullying. These values and skills were reinforced by local community stories and in radio and television programming.^[15]

Many Americans now consider such teachings to be ignorant, old-fashioned, or even brutal.^[16] Indeed, American support for even occasional spanking by parents has significantly declined in recent decades, particularly among women.^[17] Interestingly, this trend coincides with significant changes in family structure in the U.S.: the number of children under age 18 living in single-parent (no father) homes jumped from 23% to 36% between 1980 and 2012.^[18] Rather than physical defense tactics taught at home, today’s promoted strategies to deter bullying focus primarily on parental and school-based development of a child’s social-emotional skills.^[19] For example, Project SEATBELT (Safe Environments Achieved Through Bullying prevention, Engagement, Leadership, and Teaching respect) aims to help children “become resilient, respectful, and responsible and prevent their involvement in bullying, either as the child who bullies or the child who is bullied, or both.”^[20] Other programs focus on making systematic or cultural changes within children’s social groups to prevent bullying^[21] rather than training one child at a time.

Some critics believe these newer, “soft” psychological approaches to bullying address victims’ feelings, but fail to address the root of the bullying problem. In other words, social-emotional approaches teach children to be “good victims” instead of deterring bullies.^[22] Thus, in an interesting adaptation of the older family-based coping strategies, some private organizations are attempting to prevent bullying by enhancing potential victims’ ability to physically protect themselves. For example, the Gracie Bullyproof system, run by a family of long-standing jiu-jitsu masters, trains children to understand appropriate rules of engagement and to use non-violent techniques to neutralize opponents who have physically assaulted them.^[23] The Gracies believe “there are only three solutions to bullying: bullyproof the victims, bullyproof the bullies, and bullyproof the schools.”^[24] A featured story describes a bullied 12-year-old who completed a one-week Gracie Bullyproof program, then returned to school and put his training into practice once he was bullied again: “He went through the entire cycle of standing up for himself verbally first, then physically, but not violently. He kept it humble, and allowed the bully to save face. No punches. No kicks. He just held him with Gracie jiu-jitsu. It’s the gentle way.”^[25]

Although less publically visible and therefore more difficult to measure than organizational training, parents may still punish their children for engaging in bullying. Creative or unusual punishments sometimes garner news attention, as in a widely publicized U.S. incident in 2013, when parents learned their 10-year-old daughter was bullying another child because of her unstylish clothing.^[26] The parents then forced their daughter to wear unattractive, second-hand clothing to school; within two days, she demonstrated remorse for bullying and showed empathy for the other girl.^[27]

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1. Alana Vivolo-Kantor et al., Bullying and Suicide: What’s the Connection?, STOP BULLYING (Dec. 30, 2013), http://www.stopbullying.gov/blog/2013/12/30/bullying-and-suicide-whats-the-connection. ︎
2. Id. ︎
3. Id. ︎
4. Id. ︎
5. Id. ︎
6. Id. ︎
7. Id. ︎
8. Jill Fleury DeVoe & Lynn Bauer, Student Victimization in U.S. Schools: Results from the 2009 School Crime Supplement to the National Crime Victimization Survey, NAT’L CENTER FOR EDUC. STAT. (Nov. 2011), http://nces.ed.gov/pubs2012/2012314.pdf. ︎
9. Sandra G. Boodman, Gifted and Tormented, WASH. POST (May 16, 2006), http://www.washingtonpost.com/wp-dyn/content/article/2006/05/15/AR2006051501103.html; Bullying Statistics 2010, BULLYING STA., http://www.bullyingstatistics.org/content/ bullying-statistics-2010.html (last visited July 10, 2014); Danice K. Eaton et al., Youth Risk Behavior Surveillance – United States, 2011, 61 MORBIDITY AND MORTALITY WKLY. REP., no. 4 (June 8, 2012), http://www.cdc.gov/mmwr/pdf/ss/ss6104.pdf. ︎
10. Definitions Related to Name-Calling, Bullying and Bias, ANTI-DEFAMATION LEAGUE, http://www.adl.org/education-outreach/bullying-cyberbullying/c/definitions-bullying-and-bias.html#.U46qTnK1aRY (last visited July 11, 2014). ︎
11. Cyber Bullying Statistics, BULLYING STAT., http://www.bullyingstatistics.org/content/cyber-bullying-statistics.html (last visited July 11, 2014). ︎
12. Eaton, supra note 9. ︎
13. Effects of Bullying, STOP BULLYING, http://www.stopbullying.gov/at-risk/effects (last visited July 11, 2014). ︎
14. Justin Case, Bullying Prevention: The Old Fashioned Way, MONT. PIONEER, http://www.mtpioneer.com/2011-April-bullying-prevention.html (last visited July 10, 2014) ︎
15. E.g., Little House on the Prairie: The Bully Boys (Paramount Studios, NBC television broadcast Dec. 6, 1976). ︎
16. Sue Edgerley, Teaching Kids to Protect Themselves, 5 KEYS PARENTING (Sept. 24, 2010), http://5keysparenting.com/blog/2010/09/teaching-kids-to-protect-themselves. ︎
17. Attitudes Toward Spanking, CHILD TRENDS, http://www.childtrends.org/wp-content/ uploads/2012/10/51_Attitudes_Toward_Spanking.pdf (last updated Apr. 2013). ︎
18. Family Structure and Children’s Living Arrangements, FED. INTERAGENCY F. ON CHILD AND FAM. STAT., http://www.childstats.gov/americaschildren/famsoc1.asp (last visited July 11, 2014). ︎
19. E.g., Laura Markham, 10 Ways to Bully-Proof Your Child, AHA! PARENTING, http://www.ahaparenting.com/parenting-tools/raise-great-kids/socially-intelligent-child/Helping_Bulllied_Child (last visited July 11, 2014). ︎
20. What is Seatbelt?, RFK CENTER, http://bullying.rfkcenter.org/what-is-seatbelt (last visited July 12, 2014). ︎
21. E.g., About the Bully Project, THE BULLY PROJECT, http://www.thebullyproject.com/about_the_bully_project (last visited July 9, 2014); NO BULLY, http://nobully.com (last visited July 11, 2014); PACER’s National Bullying Prevention Center, PACER CENTER, http://www.pacer.org/bullying/about (last visited July 11, 2014). ︎
22. Elisabeth Wilkins, School Bullies: How the Parents of One Child are Fighting back, EMPOWERING PARENTS, http://www.empoweringparents.com/blog/bullying/school-bullies-how-the-parents-of-one-child-are-fighting-back/ (last visited July 12, 2014). ︎
23. GRACIE BULLYPROOF, https://www.graciekids.com (last visited July 10, 2014). ︎
24. Id.; see also Gracie Bullyproof, GRACIE JIU-JITSU ACAD., http://www.gracieacademy.com/bully_proof.asp (last visited July 11, 2014); Steve Henson, Bullying Victims Fight back with Help from Brazilian Jiu-Jitsu Royalty, THE POST GAME (Aug. 24, 2011, 1:17 AM), http://www.thepostgame.com/features/201108/real-it-gets-victims-schoolyard-bullying-can-fight-back-help-ufc-royalty. ︎
25. Henson, supra note 24. ︎
26. Brittany Green-Miner & Caroline Connolly, Thrift Shop Clothes Punishment for Bullying Tween Gets Mixed Reviews, FOX 13 NEWS (May 21, 2013), http://fox13now.com/2013/05/21/ ugly-clothes-punishment-for-bullying-tween-gets-mixed-reviews/. ︎
27. Id. ︎

* Professor of Law, Handong International Law School; J.D., Regent University School of Law. Professor Collier has served as an Assistant Commonwealth’s Attorney for Buchanan County, Virginia, where he prosecuted misdemeanor and felony criminal cases.
† Classroom consultant and editor, Handong International Law School; M.A., Ph.D. Social/Academic Psychology from the University of Illinois-Chicago. Sherrie Lantinga has served as a Professor of Psychology at Dordt College, Iowa and as the Dean for Curriculum and Instruction.

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INTRODUCTION

Kazakhstan is a predominantly Muslim country. However, the Constitution of Kazakhstan has proclaimed that Kazakhstan is a secular state.^[1] Article 14 of the Constitution states a guarantee that “no one shall be subject to any discrimination for reasons of. . . attitude towards religion.”^[2] Freedom of conscience and freedom of forming associations are guaranteed in articles 22 and 23, and censorship is prohibited by article 20.^[3]

However, on October 11, 2011, the President of Kazakhstan signed the Law on Religious Activity and Religious Associations (the Law), replacing the former law on religious freedom.^[4] The Law has been criticized by international human rights activists and organizations as infringing religious freedom because it requires registration, restricts religious materials, and prohibits religious activities in public places.^[5] For example, the United States Commission on International Religious Freedom (USCIRF) in its Annual Report for 2013 called the Law “repressive” and the cause of “a sharp drop in the number of registered religious groups in 2012.”^[6] The USCIRF for the first time classified Kazakhstan as a tier-2 country.^[7]

The Director of the Organization for Security and Cooperation in Europe’s (OSCE) Office for Democratic Institutions and Human Rights (ODIHR), Ambassador Janez Lenarčič, expressed concern about the Law saying, “[t]he law appears to unnecessarily restrict the freedom of religion or belief and is poised to limit the exercise of this freedom in Kazakhstan.”^[8]

The criticism of the Law is not baseless. A sharp drop in the number of registered religious groups took place after the new religious law went into effect.^[9] The official statistics depict the drop as approximately one third.^[10] By October 2012, when a year-long re-registration period ended, the number of registered religious organizations fell from 4,551 to 3,088 religious communities, from forty-six to seventeen religious confessions, and from twenty-eight to thirteen religious educational institutions.^[11]

Kayrat Lama-Sharif, the then head of the Agency for Religious Affairs of the Republic of Kazakhstan (ARARK), said that among 666 protestant Christian groups, 462 could not re-register, meaning that 69% of them were closed.^[12] He explained the drop by claiming that many of the previously registered groups existed on paper, but not in fact.^[13]

Lama-Sharif’s statement that the drop was caused by the closure of non-existent associations is disputable, as discussed later in this article. The requirements of the Law did influence the drop in the number of registered Christian communities as well as other aspects of religious freedom; but it must be noted that this article is not intended to focus on how to “argue” with the lawmakers. Rather, the goal of this research is to give an overview of the Law’s impact on Christian activities in Kazakhstan as well as suggestions for how Christians can legally work within the framework of the Law.

There are three major spheres that were affected by the Law: (1) the registration of religious associations and missionaries; (2) restrictions on the use of religious literature and other religious materials; and (3) the places and mode of religious activities. These three spheres will be discussed below.

REGISTRATION

A. The Requirement of a Minimum Number of Founders

The first step to start with is registration. Religious activities of non-registered associations are prohibited.^[14] All emerging communities must be registered, and all existing communities were required to re-register within one year from the enactment of the Law.^[15] The communities that failed to re-register within one year were to be liquidated through the court.^[16]

The requirement of registration is not something new. The old 1992 law also required registration, but the Law took it one step further; it included a more detailed description of required documents^[17] and increased the minimum number of founding members.^[18] The new minimum number is now fifty members in order to be eligible for the registration of a local association,^[19] 500 members are required for the registration of a regional association, and 5,000 members are required for the registration of a national association.^[20]

According to the USCIRF, religious groups have described the re-registration process as “complex,” “burdensome,” “arbitrary,” “unnecessary,” and “expensive.”^[21] Lama-Sharif, the head of ARARK at the time of the Law’s implementation, said that the Law treats all religions evenly and emphasizes the “secular character of the State.”^[22] It is true that the Law sets a high threshold of registration for all religions, be it Islam, Christianity, Judaism, or Hinduism. However, the impact of the Law draws a vivid line between those groups that are stronger in number and the minorities, as is obvious from the statistics.

Ninel Fokina, the head of the Helsinki Committee in Almaty, a nongovernmental human rights organization and member of International Helsinki Federation for Human Rights, commented on the Law stating, “[a]ll will be affected, but especially minorities like Catholics, Lutherans, and Jews. It will be difficult for them to gather fifty people for the registration.”^[23] The statistics speak for themselves. According to ARARK’s official web site, as of January 1, 2015, there were 3,514 registered religious organizations of eighteen confessions.^[24] This number is almost one third less than the number before the Law was enacted (4,551 associations of forty-six confessions).^[25] As the table below shows, Pentecostals, Baptists, Presbyterians, Lutherans, the New Apostolic Church, Baha’i, Judaism, Buddhism, and Mennonites dropped in number by a rate more than half after the re-registration deadline (those confessions are highlighted in the chart below).

Table 1: Religious Organizations in the Republic of Kazakhstan^[26]

As stated in the introduction, Lama-Sharif, the former head of ARARK, explained the drop by reasoning that many of the previously registered groups existed only on paper, but not in fact.^[27] However, the requirement of at least fifty members as a prerequisite for registration has apparently played a significant role in the post re-registration statistics.^[28] The imposition of this restriction favors associations that are strong in numbers, and at the same time makes the registration of new associations difficult.

To give an illustration, a usual way of planting churches is a “pioneer model”^[29] where a church is started as a small independent gathering of five to ten people or as a house church and then it grows in number. In view of the minimum fifty founders requirement, this kind of church planting method is strongly disfavored and greatly inhibited.

Nonetheless, there are some ways to overcome such difficulties. For example, one of the approaches could be an “adoption model”^[30] where a small gathering of less than fifty adult members is held under the name of an already registered church. The registered church in this way would have full responsibility for all religious activities of the “adopted” smaller community. Additionally, the plant church’s property or premises would need to be registered under the name of the “adopting” church because the Law requires religious activities to be held only in such places.^[31]

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1. CONSTITUTION OF THE REPUBLIC OF KAZAKHSTAN, 1995, art. 1. ︎
2. Id. art. 14. ︎
3. Id. arts. 20, 22–23. ︎
4. Zakon Respubliki Kazakhstan o Religioznoi Deiatel’nosti i Religioznykh Obieedineniiakh [The Law of the Republic of Kazakhstan on Religious Activity and Religious Associations] (Oct. 11, 2011), art. 3, § 11, available at http://online.zakon.kz/Document/?doc_id=31067690 [hereinafter the Law]. ︎
5. Id. arts. 7–9, 15. ︎
6. United States Commission on International Religious Freedom Annual Report 2013, U.S. COMMISSION ON INT’L RELIGIOUS FREEDOM, 243–44 (Apr. 2013), http://www.uscirf.gov/sites/default/files/resources/2013%20USCIRF%20Annual%20Report%20(2).pdf [hereinafter USCIRF Annual Report 2013]. ︎
7. Id. at 242. To be placed on Tier-2, USCIRF must find that the violations of religious freedom are increasing, particularly severe, and at least one of three elements of the “systematic, ongoing, egregious” standard is met. Id. at 3. ︎
8. Thomas Rymer, OSCE Human Rights Chief Expresses Concern over Restrictions in Kazakhstan’s New Religion Law, OSCE (Sept. 29, 2011), http://www.osce.org/odihr/83191. ︎
9. Chislo Religioznykh Obieedinenii v RK Sokratilos’ na 32% Posle Pereregistratsii – Lama Sharif [The Number of Religious Associations in RK Has Decreased for 32% After the Re-registration – Lama Sharif], NOVOSTI-KAZAKHSTAN, AGENTSTVO MEZHDUNARODNOI INVORMATSII [NEWS -KAZAKHSTAN, AGENCY OF INT’L INFO.] (Oct. 25, 2012), http://newskaz.ru/society/20121025/4179139.html [hereinafter News-Kazakhstan]. ︎
10. Id. ︎
11. V Kazakhstane Podschitali Kolichestvo Religioznykh Obieedinenii [The Number of Religious Associations Was Counted in Kazakhstan], NOVOSTIGAZETA.KZ (May 15, 2013, 2:34 PM), http://news.gazeta.kz/news/v-kazakhstane-podschitali-kolichestvo-religioznykh-obedinenijj-newsID381077.html. ︎
12. NEWS-KAZAKHSTAN, supra note 9. ︎
13. Dimmukhammed Kalikulov, Kazakhstan Uslozhniaet Registratsiiu Religioznykh Grupp [Kazakhstan Makes Registration of Religious Groups More Complicated], BBC RUSSKAIA SLUZHBA [BBC RUSSIAN SERVICE ] (Sept. 29, 2011, 7:33 PM), http://www.bbc.co.uk/russian/international/2011/09/110929_religious_law_kazakhstan. ︎
14. Zakon Respubliki Kazakhstan o Religioznoi Deiatel’nosti i Religioznykh Obieedineniiakh [The Law of the Republic of Kazakhstan on Religious Activity and Religious Associations] (Oct. 11, 2011), art. 3, § 11, available at http://online.zakon.kz/Document/?doc_id=31067690 [hereinafter the Law]. ︎
15. Id. art. 24, § 2. ︎
16. Id. art. 24, § 3. ︎
17. Id. art. 15, § 3 (stating seven documents required for the registration of religious association: (1) bylaws of the religious association signed by the leader of the association; (2) minutes of the initial meeting, (3) the list of the founding members; (4) a confirmation of the association’s location, (5) religious materials about the history and theological features of the denomination, including the description of its religious activities; (6) registration fee; and (7) decision on the election of a leader or approval of the appointment by the ARARK if the leader was appointed by a foreign religious center). ︎
18. Id.; cf. Zakon Respubliki Kazakhstan o Svobode Veroispovedaniia i Religioznykh Obiiedineniiakh [Law of the Republic of Kazakhstan on Religious Freedom and Religious Associations] (Jan. 15, 1992), art. 9, available at http://www.pavlodar.com/zakon/?dok=00160&al=all [hereinafter Religious Freedom and Association Law]. Compared to the old law’s requirement of only ten founding members, the Law’s minimum number is fifty adult members. ︎
19. The Law, supra note 14, art. 12, § 2. ︎
20. Id. art. 12, §§ 3–4. ︎
21. USCIRF Annual Report 2013, supra note 6, at 244. ︎
22. Kalikulov, supra note 13. ︎
23. See id. ︎
24. Religious Associations, COMMITTEE FOR RELIGIOUS AFF. OF THE MINISTRY OF CULTURE AND SPORT OF THE REPUBLIC OF KAZAKHSTAN, http://www.din.gov.kz/rus/religioznye_obedineniya/?cid=0&rid=1715 (last visited Mar. 18, 2015). ︎
25. Id. ︎
26. Id. ︎
27. Kalikulov, supra note 13. ︎
28. Id. ︎
29. The term “pioneer model” here is used purely for the purpose of convenience, not in a missiological context. ︎
30. The term “adoption model” here is used purely for the purpose of convenience, not in a missiological context. ︎
31. The Law, supra note 14, art. 7, § 2. ︎

* Inna Nam Brady was born and raised in Kazakhstan. She received her Specialist in Jurisprudence degree from L. N. Gumilyov Eurasian National University in Kazakhstan, M.Div and Th.M from Korea Nazarene University, and graduated Summa Cum Laude from Handong International Law School in 2014.

The post RELIGIOUS FREEDOM IN KAZAKHSTAN: FACING THE KAZAKHSTANI LAW ON RELIGIOUS ACTIVITIES AND RELIGIOUS ASSOCIATIONS appeared first on Regent University School of Law.

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Hester Prynne by cheese5you, published on DeviantArt.com

INTRODUCTION

The vacant stare of her hollow eyes says it all, revealing a soul stripped bare of all dignity. The boundaries of her existence are determined by the abuse she has suffered and the rejection she is met with every time she tries to find a way to move forward. Her name does not matter. What does matter is that she is found nearly everywhere in our society and that she could be anyone—your childhood friend, your sister or niece, your daughter, even your wife. Her identity is defined by one thing, a figurative, yet indelible “Scarlet A”^[1] emblazoned across her entire personhood. The fact that she has potential, and if given the opportunity, could become a productive, contributing member of society, is irrelevant. Regardless of the positive changes she tries to make, every time she attempts to pull her life on track, the “Scarlet A” on her record shows up and stops the train. Trapped in a vicious cycle of despair, there seems to be nowhere else for her to go except back to the abusive and humiliating lifestyle that got her here in the first place. Although this story may sound like a script from a B-rated film, it is, in fact, an accurate description of the daily life of the countless number of individuals in our nation who are victims of human trafficking, especially those inducted into the sex industry.^[2] According to the Amara Legal Center in Washington, D.C.,

[i]n addition to prostitution, survivors of sex trafficking are often involved in a wide range of unlawful activity and incur hefty criminal records. Survivors are commonly convicted of crimes such as drug possession and theft, and minors are commonly convicted of truancy, running away, and violating state curfew laws. In many instances, the survivors only committed these crimes under duress from traffickers and pimps. In fact, those benefiting from sex trafficking often push survivors into these crimes intentionally, as a means of control. Survivors’ criminal records hinder them from moving forward with their lives in many ways. Many applications for public benefits require disclosure of criminal records and many programs are unavailable to those with criminal records. Specifically, a criminal record can prevent a survivor from getting a job, receiving medical care, furthering her education, receiving housing assistance, or applying for a loan.^[3]

Many industries in the United States receive ill-gotten gains by exploiting human trafficking victims, the most notorious being the sexual slavery industry.^[4]

Sexual exploitation has surfaced in several different forms, but the general methods of exploitation remains [sic] the same. The women are promised a better life through high-paying job offers or educational opportunities. However, once they leave their homes, they are forced into any number of commercial sex industries, including: “prostitution, pornography, stripping, live-sex shows, mail-order brides, military prostitution and sex-tourism.” The subservience of these victims is maintained by the traffickers’ use of a number of control mechanisms. Debt bondage is commonly used; many women are forced by their captors to pay off a “never-ending cycle of debt,” which includes the cost of the trip and the everyday expenses—food, medicine, toilet paper, condoms—that they incur. Additional amounts are added to the outstanding balance for insubordination or underperformance. Moreover, the women are given little (if any) money for services rendered and are forbidden from keeping track of their debt, giving their captors increased control over their freedom. In addition to financial restrictions, the women are limited by many other control mechanisms devised by their captors. They are often subjected to intense physical and sexual violence. Their physical movement is severely restricted: they are either under constant surveillance and/or they are moved around frequently to disorient them. They are kept in isolation from the rest of society, and in extreme situations, from each other . . . . Many unsuspecting girls fall into this industry in pursuit of a better life.^[5]

As reported by the American Bar Association, in support of ABA House of Delegates’ resolution 104G, which encouraged legislation allowing human trafficking victims to assert an affirmative defense when “charged with prostitution related offenses or other non-violent offenses that are a direct result of their being trafficked,”^[6]

[V]ictims of human trafficking endure terrible and inhumane treatment, which results in lasting physical, emotional, and psychological scars. These victims are beaten, sexually assaulted, starved, imprisoned, threatened, and/or psychologically controlled. It is unfortunate that the nature of human trafficking either directly or indirectly results in commercial sex acts, illegal sexually explicit performances, labor violations, or other crimes being committed by victims of human trafficking. Often, victims of human trafficking are arrested and convicted for prostitution and other related offenses.^[7]

Some legislation has been passed with the intent to protect victims of human trafficking, the most notable being the Trafficking Victims Protection Act (TVPA) of 2000^[8] and its subsequent reauthorizations.^[9] “Through the TVPA, human trafficking victims qualify for government protections and services if they are adults who are forced, tricked, or coerced into labor or commercial sexual trafficking or they are minors who are induced to perform commercial sex acts.”^[10] Although the TVPA affords the right of protection to both foreign victims and victims who are American citizens, serious disparities exist between the protective provisions extended to foreign victims as compared to American victims.^[11] Specifically,

[i]f an international trafficking victim qualifies to receive services as a result of having been trafficked, the United States will provide refugee-like protections through the TVPA. These protections include housing, food, cash assistance, job training, counseling, medical care, legal assistance, and other services that are available for a period of several years. Victims who are Americans, on the other hand, must find protection elsewhere. The United States government specifically excludes its own trafficked citizens from receiving federally-funded TVPA protections. Though the United States government recognizes that there is a disparity in the services and protections offered to Americans, it has yet to provide a remedy.^[12]

In the interest of protecting child victims of sex trafficking, some states have passed safe harbor laws, which require that “children be placed in a safe house and assessed through physical and mental examinations,” and be provided with “‘food, clothing, medical care,’ and other resources,” with the goal being the “rehabilitation and reintegration of [child victims] into society.”^[13] Although safe harbor laws are “very beneficial to minor victims, [they] completely ignore[] victims over the age of eighteen. While a majority of sex trafficking victims appear to be minors, there are still a substantial number of sex trafficking victims who are eighteen or over.”^[14]

Compelled by the plight of those victims who are least protected, and therefore, most vulnerable under American law—adult American citizens—the purpose of this article is to examine current practices and legislation as applicable to the wrongful convictions of those individuals, and to provide recommendations for improved legal strategies that will not merely address existing wrongful convictions, but avoid future wrongful convictions as well. While trafficking in persons occurs in many forms, this paper will specifically focus on developing improved strategies to assist victims of sex trafficking, providing: (1) recommendations for increasing awareness of local law enforcement officers, prosecutors, defense attorneys and judges; (2) an examination of current state anti-trafficking laws regarding provisions for human trafficking as an affirmative defense, vacatur and expungement, and the need for improved state legislation that aligns with federal laws and protections for victims; and (3) recommendations for practical strategies to connect victims with the assistance that is needed to allow them to move out of their current circumstances and on to a better way of life.

HISTORICAL FRAMEWORK AND EXAMINATION OF ANTI-TRAFFICKING LAWS

Human trafficking has been around for a long time, spanning many centuries, taking many forms, and hiding in the shadows of many cultures around the globe.^[15] However, it was not until the 1990s that it gained “widespread public attention in the United States,” where the “discussion centered on international human trafficking.”^[16] Interest in addressing the problem gained traction, with a breakthrough occurring, as if on cue, at the turn of the century on both the national and international level.^[17]

In 2000, the United States passed what is commonly known as the Trafficking Victims Protection Act (TVPA), while the United Nations adopted a treaty known as the Palermo Protocol.^[18] Both documents were enacted to combat human trafficking by encouraging countries to enact anti-trafficking laws and to prosecute traffickers.^[19] Domestically, “state-level criminal justice systems treated United States citizens qualifying under the federal definition of ‘human trafficking victim’ as criminals by prosecuting them for prostitution.”^[20] The irony that the United States was more “concerned about trafficking in other countries, but was neglecting trafficking of its own citizens” was noted by activists for sexually exploited females.^[21] Laws and practices that were condemned in other nations, by the United States, were occurring domestically.^[22] As an example, “federal law requires other countries to ensure that victims of trafficking are not inappropriately incarcerated for unlawful acts as a direct result of being trafficked. Yet many states lack laws ensuring that sex trafficking victims are not prosecuted for prostitution.”^[23]

A. International Level

The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, an international treaty passed by the United Nations in 2000, better known as the Palermo Protocol, defined human trafficking as:

the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, or deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.^[24]

The Palermo Protocol defined exploitation to include “prostitution . . . or other forms of sexual exploitation” and “focused on prevention, prosecution, and protection” as it relates not only to victims of sex trafficking, but victims of labor trafficking as well.^[25] The Protocol called “on nations to pass laws against trafficking, to prosecute traffickers, to enhance border control, and to provide services to victims of human trafficking.”^[26]

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1. Hester Prynne, CHEESE5YOU, http://cheese5you.deviantart.com/art/Hester-Prynne-97780680 (last visited Jan. 21, 2015) (featuring an artistic rendition referencing Nathaniel Hawthorne’s Scarlet Letter about a young woman named Hester Prynne who was found guilty of adultery and forced to wear a conspicuous scarlet “A” on her dress as a public symbol of her private shame). ︎
2. See Human Trafficking, POLARIS PROJECT, http://www.polarisproject.org/human-trafficking/overview (last visited Feb. 28, 2015). The official number of victims of human trafficking in the U.S. is unknown, but when statistics for sex trafficking victims and labor trafficking victims are combined for adults and minors, it is estimated to be in the “hundreds of thousands.” Id. ︎
3. Lauren Ulrich, Vacatur Statutes for Survivors of Sex Trafficking, AMARA LEGAL CENTER, http://media.wix.com/ugd/da6af9_930bba47e2da4fc28e0a2385e48696e3.pdf (footnotes omitted). ︎
4. Stephanie L. Mariconda, Note, Breaking the Chains: Combating Human
   Trafficking at the State Level, 29 B.C. THIRD WORLD L.J. 151, 155–56 (2009). ︎
5. Id. at 156–58 (footnotes omitted). ︎
6. A.B.A. Res. 104G, at 4 (2013), available at http://www.americanbar.org/content/dam/aba/administrative/house_of_delegates/resolutions/2013_hod_midyear_meeting_104g.docx (last visited Feb. 28, 2015). ︎
7. Id. at 1–2 (footnote omitted). ︎
8. Pub. L. No 106-38622, div. A, 114 Stat. 1466 (codified at 22 U.S.C. §§ 7101–13 (2000)). ︎
9. POLARIS PROJECT, Current Federal Laws, POLARIS (2015), http://www.polarisproject.org/what-we-do/policy-advocacy/national-policy/current-federal-laws (last visited March 1, 2015) [hereinafter Current Federal Laws]. ︎
10. Amanda Peters, Disparate Protections for American Human Trafficking Victims, 61 CLEV. ST. L. REV. 1, 2 (2013). ︎
11. Id. at 3–4. ︎
12. Id. ︎
13. See POLARIS PROJECT, Human Trafficking Issue Brief: Safe Harbor (Fall 2014), http://www.polarisproject.org/storage/documents/policy_documents/Issue_Briefs/2014/2014_Safe_Harbor_Issue_Brief_Final_1.pdf; see also Aaron Ball, Note and Comment, The Battle Against Human Trafficking: Florida’s New Expungement Law is a Step in the Right Direction, 38 NOVA L. REV . 121, 134 (2013). ︎
14. Ball, supra note 13, at 134. ︎
15. See Timeline of Human Trafficking, RUTGERS U. CAMPUS COALITION AGAINST TRAFFICKING (2011), http://www.eden.rutgers.edu/~yongpatr/425/final/timeline.htm (last visited Mar. 17, 2015); see also Kristiina Kangaspunta, A Short History of Trafficking in Persons, FREEDOM FROM FEAR MAG., Oct. 2008, at 38, available at http://f3magazine.unicri.it/wp-content/uploads/F3_UNICRI_MAX-PLANCK_01.pdf. ︎
16. Carrie N. Baker, Symposium: Crime & Punishment: The Modern Development of Homegrown Creative Justice: The Influence of International Human Trafficking on United States Prostitution Laws: The Case of Expungement Laws, 62 SYRACUSE L. REV. 171, 171 (2012). ︎
17. Id. at 171–72. ︎
18. Id. ︎
19. Id. ︎
20. Id. ︎
21. Id. ︎
22. Id. ︎
23. Id. ︎
24. Convention on Transnational Organized Crime, Annex II Protocol to Prevent Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Crime, G.A. Res. 55/25, art. 3(a), U.N. Doc. A/Res/55/25 (adopted Nov. 15, 2000; signed Jan. 8, 2001; entered into force Dec. 25, 2003), 200, T.I.A.S. 13127, 2237 U.N.T.S. 343, available at http://www.uncjin.org/Documents/Conventions/dcatoc/final_documents_2/convention_%20traff_eng.pdf [hereinafter Palermo Protocol]. ︎
25. Baker, supra note 16, at 172–73; Palermo Protocol, supra note 24, art. 3(a). ︎
26. Baker, supra note 16, at 173. ︎

* LL.M. candidate at Regent University School of Law; J.D. Regent University School of Law, 2008. The author formerly served as Editor of Counsel to the Regent Journal of International Law and currently practices law in the Commonwealth of Virginia. The author wishes to honor Professor Kathleen A. McKee for opening the eyes of her students to the stark reality of suffering experienced by trafficking victims and for challenging us to strategically take our place on the frontlines of the war against human trafficking.

The post REMOVING THE SCARLET “A” FROM VICTIMS OF HUMAN TRAFFICKING: STRATEGIES FOR AVOIDING AND ADDRESSING WRONGFUL CONVICTIONS appeared first on Regent University School of Law.

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INTRODUCTION

“The history of childhood is a nightmare from which we have only recently begun to awaken.”
– Lloyd deMause^[1]

Despite barriers created by culture, language, gender, and even age, there is one thing everyone holds in common: he or she was once a child. Children always have been, and always will be, important. Nonetheless, there remains no global consensus as to the legal role of the child. In the past few decades, however, this debate has gained considerable momentum and the rights of the child in international law have begun to crystalize.

In its 2013 Grand Chamber decision in X v. Latvia,^[2] the European Court of Human Rights added Europe’s voice to the fray, and opined as to the role and rights of the child in European legal culture. In this decision, the European Court of Human Rights has done more than simply consider the best interests of the child; it has given that child a voice. This article will explore that judgment and explain how the European Court of Human Rights has employed the legal doctrines available to it in such a way that not only maintains the integrity of the legal instruments before it, but also furthers the child-centered jurisprudential dialogue.

First, this article will introduce the facts, procedural background, and legal analyses pertinent to the European Court of Human Right’s X v. Latvia judgment. Second, by way of background, this article will then explore the relevant legal theories, history, and instruments at play in the judgment and the historical development of the best interests of the child standard and child-centered jurisprudence. Third, this article will present an analysis of how the above-mentioned legal theories, history, and instruments helped inform the European Court of Human Rights judgment in such a way that furthered the child-centered jurisprudential dialogue in a sustainable manner easily adopted by domestic courts.

a. The Facts of X v. Latvia

The applicant (X.) is a Latvian national born in 1974, and, as of 2007, an Australian citizen.^[3] X. met T. at the beginning of 2004, and moved into his apartment at the end of that year during the final stages of pregnancy.^[4]

In early February 2005, X. gave birth to a daughter, but listed no father on the birth certificate.^[5] As a result, X. was able to claim single-parent benefits from the Australian government while she continued to cohabitate with T.^[6] X.’s relationship with T. began to “deteriorate,” although she continued to live with T. as a tenant.^[7]

In July 2008, X. left for Latvia with her then three-year old daughter.^[8] One month later, in August 2008, T. sought to establish his parental rights with respect to the child in Australian Family Court by means of a sworn affidavit that stated:

[H]e had been in a relationship with the applicant [X.] since 2004 and the [applicant] had always indicated that he was the father of the child; the rental agreement . . . was a sham and had been a mutual decision; he had made false statements to the [Australian] social-security services in order to enable the applicant to receive single-parent benefit. T. asserted that the applicant [X.] had left Australia with the child without his consent.^[9]

T. further claimed that X. had fled to an unknown location in Latvia, and submitted correspondence with members of his family in support of this claim.^[10] While X. had been invited to attend the hearing through various electronic means, she was not present.^[11] On November 6, 2008, the Australian Family Court recognized T.’s paternity in respects of the child, and further held that T. had exercised joint responsibility for the child since the child’s birth.^[12]

T. therefore sought to pursue matters under the Hague Convention on the Civil Aspects of International Child Abduction (Hague Abduction Convention), an international instrument that entered into force in 1980 in order to help address the rising problem of international parental child abduction.^[13] The Australian judge refused to rule on whether the child’s removal had been wrongful pursuant to the Hague Abduction Convention and expressly left that determination for Latvian courts; X. nonetheless did not appeal the judgment.^[14]

b. Procedural Developments Leading to the 2013 Decision by a Grand Chamber of the European Human Rights Court

On September 22, 2008, the Latvian Central Authority received a request from T. asking that the child be returned to Australia under the Hague Abduction Convention.^[15] The Australian Central Authority furnished a sworn affidavit detailing the pertinent Australian law and guaranteed that T. had exercised joint custody over the child with X. on the date the child had been removed from Australia.^[16] On November 19, 2008, the Riga City Zemgale District Court considered the Hague Abduction Convention request in the presence of both X. and T.^[17]

At this hearing, X. denied that T. had any paternal rights, as she had been married to another man at the time of the child’s birth, and T. had made no efforts to have his paternity recognized before the child’s departure from Australia.^[18] X. further alleged that T. had acted aggressively towards her, and accused T. of initiating proceedings under the Hague Abduction Convention “only in order to benefit from them in criminal proceedings that had allegedly been brought against him in Australia.”^[19]

The representative appointed by the local Latvian guardianship institution urged the District Court to dismiss T.’s request, arguing that X. had been a single mother at the time of the child’s removal from Australia, and “that the child had developed ties with Latvia.”^[20] X. further lodged a complaint under Article 13 of the Hague Abduction Convention.^[21]

The Latvian District Court instead granted T.’s request, ruling that the child’s removal had been wrongful and ordering that the child be returned to Australia immediately (not later than six weeks after its decision).^[22] The court held that, pursuant to an uncontested judgment by an Australian family court, T. and X. exercised joint parental responsibility.^[23] The court surmised that the Latvian courts did not have the authority to reverse that decision, or interpret the relevant Australian law.^[24] The District Court equally dismissed the allegation of potential psychological harm as unfounded.^[25]

X. appealed the Latvian District Court’s judgment, alleging that she had been the child’s sole guardian both in law and in fact upon their departure from Australia.^[26] X. further claimed that the child’s return to Australia would “expose the child to psychological harm.”^[27] X. submitted a psychologist’s certificate, which had been prepared after the District Court’s judgment, supporting this assertion.^[28] Moreover, X. submitted additional evidence seeking to establish the child’s ties with Latvia, including that the child spoke Latvian as a native language.^[29] Further, X. alleged that T. had mistreated both her and her child, and accused the District Court of wrongfully refusing to request information from the Australian Central Authority regarding T.’s criminal record.^[30]

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1. THE HISTORY OF CHILDHOOD 1 (1974). ︎
2. X v. Latvia (No. 27853/09), Eur. Ct. H.R., Grand Chamber (2013). ︎
3. Id. ¶ 9. ︎
4. Id. ¶ 10. ︎
5. Id. ¶ 11. ︎
6. Id. ︎
7. Id. ︎
8. Id. ¶ 12. ︎
9. Id. ¶ 13. ︎
10. Id. ︎
11. Id. ¶ 14. ︎
12. Id. ¶ 15. ︎
13. Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T. I. A. S. No. 11670. [hereinafter Hague Abduction Convention]. ︎
14. X v. Latvia, Grand Chamber, ¶¶ 15–16. ︎
15. Id. ¶ 17. ︎
16. Id. ︎
17. Id. ¶ 18. ︎
18. Id. ¶ 19. ︎
19. Id. ︎
20. Id. ¶ 20. ︎
21. See id. ¶ 21. ︎
22. Id. ︎
23. Id. ︎
24. Id. ︎
25. Id. ︎
26. Id. ¶ 22. ︎
27. Id. ︎
28. Id. ︎
29. Id. ¶ 23. ︎
30. Id. ︎

* Kaitlin M. Ball is a PhD Candidate at the Department of Politics and International Studies, University of Cambridge. She would like to thank Professor Diane Marie Amann for her thoughts and guidance on this piece. Any errors are solely attributable to the author.

The post THE RIGHTS-BEARING CHILD’S BEST INTERESTS: IMPLICATIONS OF THE EUROPEAN COURT’S REJECTION OF A CHILD-RETURN ORDER IN X V. LATVIA appeared first on Regent University School of Law.

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INTRODUCTION

If, as Laurence Tribe has observed, “all law tells a story,”^[1] this Article tells two stories occurring forty years apart—the story of Justice Harry Blackmun and the unborn human beings he covered with the legal mask of “potential” lives in Roe v. Wade^[2] in 1973, and the story of Doctor Kermit Gosnell and the unmasked babies he was convicted of murdering in his Philadelphia abortion clinic in 2013.^[3] As Professor Tribe also observes, these stories amount to “a clash of absolutes, of life against liberty,”^[4] and therefore they are stories that must be told time and again, until we get them right. These stories also demonstrate how legal concepts can be used to mask reality, and how peeking beneath the masks of the law^[5] can blow away the fog of legal illusion and give society a starkly different perspective from which to view an old constitutional issue.

THE MASKS OF THE LAW

A. Legal Concepts That Conceal Persons

One of the great constitutional law scholars of the past fifty years, Judge John T. Noonan, Jr. of the Ninth Circuit, has observed that “[i]t is a propensity of professionals in the legal process to dehumanize by legal concepts those whom the law affects harshly.”^[6] He calls this process of dehumanization the “masks of the law.”^[7]

What Noonan means by the masks of the law is the law’s ability to use rules and legal concepts to conceal persons who are treated harshly by the law. He puts it this way: “By masks in this context I mean ways of classifying individual human beings so that their humanity is hidden and disavowed.”^[8]

Perhaps the best historical example of legal masks used to conceal human persons is the law’s treatment of the issue of slavery in the United States. Suppose the law wants to permit and even sanction slavery, as was the case in America before the Civil War. The mask that the legal system used to disavow the human dignity of slaves was the mask of “property.”^[9] The mask of “property” was what allowed champions of liberty, such as George Wythe and Thomas Jefferson, to own slaves and to accept the power of the law to treat slaves harshly.^[10]

For example, as a judge in the state of Virginia, George Wythe, a signer of the Declaration of Independence and its embrace of all men being created equal, was able to preside over the sale and inheritance of slaves.^[11] In one case, Wythe declared that “[t]he property of slaves, whatever be their number . . . may be transferred with as little judicial ceremony as a single quadruped or article of house or kitchen furniture.”^[12] As Noonan observes, when deciding cases involving slaves, Wythe “could not have compassion for each of them as a person and still be a judge. His role in a slave system necessitated the use of masks.”^[13]

As in the case of Wythe, so too in the case of other great Virginians, including Thomas Jefferson and John Marshall; economic and cultural pragmatism caused them to accept the institution of slavery and “the power of the law to convert persons into [property].”^[14] As Noonan observes, “[a]t the critical moments,” these great men employed “the masks of the law [to] cover [] the faces of the slaves.”^[15]

Noonan, quoting Montesquieu, explains even more clearly the need for the masks of the law in an age of slavery: “It is impossible that we should suppose those people to be men, because if we should suppose them to be men, we would begin to believe that we ourselves are not Christians.”^[16] Thus, the law’s masking of slaves served a dual function – it hid the humanity of slaves, so judges and the law could treat them like an animal or an inanimate chair, and it allowed the white ruling classes to think well of themselves by masking the tyranny of the legal system they had created.

Interestingly, the law only treated slaves as nonpersons when it served the interests of slave owners to do so. Remarkably, when slaves were charged with crimes, they were often held to be legal persons.^[17] For example, in United States v. Amy,^[18] a slave named Amy was treated both as “the property of Samuel W. Hairston” and as a “person” who could be held criminally responsible for stealing mail from a post office.^[19] Chief Justice Taney, sitting as a circuit justice, held that although “[i]t is true that a slave [was] the property of the master . . . and it [was] equally true that he is not a citizen,” nevertheless a slave was indeed a person when charged with a crime under the criminal laws.^[20] According to John M. Gregory, the federal prosecutor in the case, the evidence of Amy’s status as a person under federal criminal law was palpable: “I cannot prove more plainly,” argued Mr. Gregory, “that the prisoner is a person, a natural person, at least, than to ask your honors to look at her. There she is. She is beyond doubt a human being.”^[21] Thus, the law masked Amy as the property of her master for some purposes, and removed the mask and “look[ed] at her” when she was charged as a person who had unlawfully stolen mail from a post office.^[22] Such are the masks of the law. As we sometimes tell our students, the law often treats “X as Y for the purposes of Z.” But when X is a human being, and Y is a nonperson, great injustices may occur.

However, the jurisprudential magic of the masks of the law can be broken if we dare to look beneath the masks, even for the purposes of Z, and see the real persons who have been concealed underneath.^[23] For example, consider what happens when Batman’s mask slips, and everyone sees Bruce Wayne’s unmasked face. The secret identity is destroyed, and everyone now knows that Batman is Bruce Wayne. He is no longer the Dark Knight striking fear in the hearts of criminals, but instead merely a billionaire, playboy vigilante missing his mommy! There is no getting the toothpaste back in the tube once the “spell is broken” and the human face under the mask is revealed.^[24] In order to abolish slavery, you must dispel the magic of the masks of the law, and invite society to look into the eyes of the real persons concealed by the masks.^[25]

B. Literature and Popular Culture Peeking Beneath Legal Masks

“[T]he masks of the law” are a type of legal fiction, “magical ways by which persons are removed from the legal process.”^[26] As Noonan explains lucidly, “[a]t the points of a legal system where it is too much to recognize that a human being exists, a mask is employed. The intolerable strain is relieved.”^[27]

But great literature and even the popular culture often give us a peek behind the masks of the law and enable society to see the real persons concealed by legal fictions.^[28] For example, in Mark Twain’s The Adventures of Huckleberry Finn there is a passage concerning a steamboat explosion in which Aunt Sally asks Huck if anyone was injured.^[29] When Huck replies “No’m” and notes that only a slave had been killed, Aunt Polly responds: “Well, it’s lucky: because sometimes people do get hurt.”^[30] The reader, of course, is aware that Aunt Sally is looking at the mask of property, not the real human being who was killed in the explosion.

There is also a powerful example of slavery and the masks of the law in the recent Oscar-winning film, Twelve Years a Slave.^[31] It is the scene in which the cruel slave-owner, Master Epps, brutally whips Patsey, a female slave.^[32] He literally tears the flesh off her back with a bull whip for a minor act of disobedience.^[33] Solomon Northrup, who was kidnapped and sold into slavery, denounces Epps for his inhumanity: “Thoudevil!” says Solomon. “Sooner or later, somewhere in the course of eternal justice, thou shalt answer for this sin!” To which Epps replies with a mask: “Sin? There is no sin. A man does how he pleases with his property.”^[34] Of course, the modern viewer clearly recognizes that Epps is using a legal concept to mask his unjust treatment of a real human being.

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1. LAURENCE H. TRIBE, ABORTION THE CLASH OF ABSOLUTES 27 (1990). ︎
2. See Roe v. Wade, 410 U.S. 113 (1973). ︎
3. See Jon Hurdle & Trip Gabriel, Philadelphia Abortion Doctor Guilty of Murder in Late-Term Procedures, N.Y. TIMES , May 13, 2013, http://www.nytimes.com/2013/05/14/us/kermit-gosnell-abortion-doctor-found-guilty-of-murder.html?pagewanted=all&_r=0; See generally Report of the Grand Jury, In re Cnty. Investigating Grand Jury XXIII, Misc. NO. 0009901-2008, (Pa. Ct. Com. Pl. Jan. 14, 2011) [hereinafter cited as Grand Jury Report]. As the Grand Jury Report made clear, Gosnell’s standard late-term abortion technique was to induce premature birth of “live, viable, babies in the third trimester of pregnancy —and then murder[] these newborns by severing their spinal cords with scissors.” Id. at 1. ︎
4. TRIBE, supra note 1, at 3. Of course, the right to life is really the most fundamental means of protecting liberty, because without life there is no liberty. So it is probably more correct to describe this issue as concerning a clash between life and liberty on one side, and liberty and autonomy on the other. ︎
5. See generally JOHN T. NOONAN, JR., PERSONS AND MASKS OF THE LAW (1976). ︎
6. JOHN T. NOONAN, JR., A PRIVATE CHOICE 153 (1979). ︎
7. NOONAN, supra note 5, at 54. ︎
8. Id. at 19. ︎
9. Id. at 39–40. ︎
10. Id. at 29–64. ︎
11. Id. at 29. ︎
12. Id. at 56 (citing Fowler v. Saunders, 8 Va. (4 Call) 361 (1798)). ︎
13. Id. at 58. To his credit, after the death of his wife in 1787, Wythe “freed their slaves, a decision made easier by a lack of children expecting an inheritance.” ALAN TAYLOR, THE INTERNAL ENEMY: SLAVERY AND WAR IN VIRGINIA, 1772-1832 105 (2013). ︎
14. NOONAN, supra note 5, at 59–60. ︎
15. Id. at 60. ︎
16. Id. at 48. ︎
17. See Note, What We Talk About When We Talk About Persons: The Language of a Legal Fiction, 114 HARV. L. REV. 1745, 1748 (2001). ︎
18. 24 F. Cas. 792 (C.C.D. Va. 1896) (No. 14,445). ︎
19. Id. at 793. ︎
20. Id. at 809. ︎
21. Id. at 795; see also Note, supra note 17, at 1748–49. ︎
22. See generally United States v. Amy, 24 F. Cas. 792. ︎
23. See NOONAN, supra note 5, at 58–59. ︎
24. Id. ︎
25. See id. ︎
26. Id. at 25–26. ︎
27. Id. at 26. ︎
28. See generally MARK TWAIN, THE ADVENTURES OF HUCKLEBERRY FINN (The Floating Press 2008) (1884). ︎
29. Id. at 397; NOONAN, supra note 5, at 11. ︎
30. TWAIN, supra note 28, at 398. ︎
31. Twelve Years a Slave (20th Century Fox Home Entertainment 2013). ︎
32. Id. ︎
33. Id. ︎
34. Id.; 12 Years a Slave, IMDB, http://www.imdb.com/title/tt2024544/?ref_=nv_sr_1 (last visited Mar. 27, 2015). ︎

* Sherman S. Welpton, Jr. Professor of Law, University of Nebraska College of Law. In writing this Article I stand on the shoulders of an intellectual giant of the law, Judge John T. Noonan of the Ninth Circuit. This Article is dedicated to him and to his enormous contribution to the legal profession.

The post KERMIT GOSNELL’S BABIES: ABORTION, INFANTICIDE AND LOOKING BEYOND THE MASKS OF THE LAW appeared first on Regent University School of Law.

1 Regent J. Glob. Just. & Pub. Pol. 123 (2014)

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INTRODUCTION

Good morning. When I stand here, I stand on behalf of my country, Uganda, and we are so lucky that in Uganda we recognize God. This is a very interesting panel that is condensing a lot of things together. It’s a panel that is condensing the law, diplomacy, and the Gospel. When you mix all these together, I don’t know what you come up with. I find myself condensed in the middle of all this, a person who has gone through the criminal justice system as a police officer, as a public prosecutor, as a diplomat, as a Christian Counselor. I’m also a traditional peacemaker, so I find myself actually condensed in sharing with you these few minutes, but I hope God is going to help us get the best from this time.

The presentation today, and before I proceed, I want to just again re-echo that when God prompts you to do something good, just do it. I think Jim and John will remember that David was prompted to do something good, and he just did it, and that is the result you can see. There are many things that you can do that will have a lasting impact in one person’s life, in a community’s life, in a nation’s life, and in part, the whole globe. My presentation today explains reconciliation and restorative justice, the role of lawyers in reforming the law, the rule of law, and how the judge can address the development of justice in places of violence. Actually, the second one also includes the role of lawyers and diplomats.

My brother, Mike, is in a very difficult place. The Director of Public Prosecution, where I had the privilege of working for 10 years, you are mandated to actually achieve prosecution, to achieve as many convictions as possible. We are geared towards prosecuting the offenders and ensuring that we complete them. But it’s interesting that we also have provisions that deal with reconciliation in our legal provisions, and I’m going to talk about that in a bit. Over the last two days, we have heard, from very enlightened, well experienced, and distinguished speakers, emphasis on the rule of law. As we come to the end of this symposium today, we can all agree that every one of us shares the belief that the rule of law is a foundation of equitable state relations and the basis upon which just and fair societies are built. A lot has been discussed by various speakers, and I’m pleased to add just a little bit of my thoughts to what has already been discussed.

RECONCILIATION AND RESTORATIVE JUSTICE

Reconciliations and restorative justice is a simple term. It’s a people-focused approach to justice with a spirit of promoting social bond and peace for a progressing peoples and communities. In general terms, restorative justice refers to an alternative model for facing crime, which is based on the social importance of reconciliation between parties, victims, and perpetrators. It advocates for a criminal law model that pays attention to the victim and the harm he or she has suffered as a result of the crime. The Constitution of the Republic of Uganda is a people-focused constitution. We have talked about this constitution. Brian has mentioned a little bit about it. In the promulgation of this constitution, we took care of the history of the people of Uganda, where we have come from as a people, the wounds deeply rooted in us as a people, and then we came up with a constitution that is actually people-focused.

Our Constitution puts the people – makes the people supreme. It focuses on the supremacy of the people, not the law, and not the state. It is not the state that is supreme. It’s not the law that is supreme. It is the people who are supreme. That’s why it was promulgated with a people-focused approach to justice. Under Article 126(1), there’s a very clear provision there that, “[j]udicial power is derived from the people and shall be exercised by the courts established under this Constitution in the name of the people and in conformity with the law and with the values, norms and aspirations of the people” of Uganda.^[1]

In the same spirit, clause (2)(d) of this constitution, makes it a very interesting provision. It provides for the role of the courts to promote reconciliation between parties to disputes of both criminal and civil natures.^[2] Justice Mike was talking about it, and I don’t think he should apologize for what he did in communicating with the victims and the relatives of the BIC victims as he was going through the case of accident. This is entrenched within the legal provision. It is the role of the courts to promote reconciliation as we go through the cases. It doesn’t mean that the accused has to go unpunished, but in some cases, the accused actually walks out forgiven and pardoned by the victims.

That’s why section 160 of the Magistrates Court Act provides that in criminal cases, the Magistrates Courts “may promote reconciliation, and encourage and facilitate the settlement in an amicable way, of proceedings [especially] for assault, or for any other offense of a personal or private nature, not amounting to felony and not aggravated in degree, in terms of payment of compensation or other forms approved by the courts, and may, thereupon, order the proceeding to be stayed.”^[3]

While working in the courts, I was involved in lots of these kinds of settlements where you find people coming, those who were supposed to be your witnesses and they come to your office as a prosecutor and said, “We have already looked through this case in the village. We have sat down. We saw that there is no need for us to keep coming to court. We have agreed to forgive the offender. He has accepted to put off all the bills that was involved in the treating of the victim and we don’t think that we should carry on with the case. We want to withdraw this case.” We would just facilitate the reconciliation and the withdrawal of the case in a legally provided manner.

According to these provisions, the main objectives of the state’s response to crime should be the satisfaction of the victim’s needs and the reestablishment of social peace in that way. More than punishing the offender, criminal law seeks the reconciliation and recognition of the victim’s suffering, reparation of her harm, and restoration of her dignity. As for the perpetrator, he or she is reintegrated and reincorporated into the society, a society that is prepared to receive him, in order to reestablish social bond and a peaceful cohesion within the community.

From the restorative perspective, retributive punishment is seen as insufficient for reestablishing a peaceful social coexistence. It does not give primary importance to the victim’s suffering and needs, nor does it allow for the adequate reincorporation of the delinquent in the community. In contrast, the retributive paradigm is only concerned with the future, instead of the past. In so doing, it does not focus on evaluating the guilt of the sufferer and the offender, but promotes all those mechanisms capable of making him conscious of the harm he caused, admitting his responsibility, encouraging trying to repair the harm.

The practice of reconciliation and restorative justice is deeply rooted in the culture of our people back home in Uganda to the extent that we believe that no crime, no offense is unforgivable. We believe that no offense is irreconcilable, including capital offenses. This is very interesting. When Brian talked about Northern Uganda, where I come from, this is the case. Yesterday, when brother Edward was presenting, I sympathize with him a little bit. On part of this UCLF, I know that we failed in the north because cases were not actually being prosecuted well where lawyers – in the way that ordinary lawyers wanted to see cases go to the conclusion. But we have saturated this region with the teachings, both general legal teachings and also principles of reconciliation. They know that the best way to go is to go through consultative settlement of disputes.

THE POWER OF THE MANGO TREE SETTLEMENT

In that spirit, many of the offenses, many of the cases that go to court, eventually find its way through conciliation. Actually, the term “mango tree settlements” came from us. I think it was found on the website of Advocates International, and many people started using it. It came when we tried to settle a case, which had latest for over twelve years, a long dispute between a school and a community, and it was boiling up. It was going to be a big, big blast. It was going to be bloody. But as special reconciliation ministers in Africa, we gathered the administration of the school together and the neighbors and everybody involved and we sat under a mango tree. We went through the case from morning to evening. We left the mango tree in the middle of the day, in the hot sun, walked through the boundaries, and we came back. We listened to witnesses, those who had been chairmen of management committees years ago – who understand the boundaries, who understand how things have been going. At the end of the day, we were able to resolve the dispute.

And on that day, I had one of the vice presidents of Peacemaker Ministries who was visiting with us, and he sat with us. He was able to tolerate how we walk through cases. I went back and made this story about the mango tree justice. We brought reconciliation between all parties who were involved in this dispute. We derived a creative solution of resolving these boundary disputes. All boys of the school came up, who were also around, and said, “We are going to pay for alternative land somewhere else to re-settle some of the people who were part of the conflict.” At the end of the day, the matter was resolved.

We also entered a conflict that was very nasty that involved the death of four people where a UPDF – then, it was an NRA soldier – went back home to Northern Uganda. Of course, in Northern Uganda, we were in a conflict situation; so when a soldier is coming home, he tries to have some weapons with him, so that in case of anything, he can defend himself. When he came with his weapons, he had grenades, and one day he went to drink. He had a grenade inside his clothes, but after taking a few drinks, he realized that he did not have the money to pay for the drink, but the money was at home. He left it in his other clothes.

When he told the lady who was selling the beer, he said, “I realize that I left the money in my other clothes at home. Can I run home and come back and pay you?” The woman said, “No, you must pay me now. I need my money. You soldiers who come home, you sometimes grab people’s things by force.” She did not believe that he could go and bring back the money. He said, “No, I’m telling you the truth. My home is not far away from here and you know me.” They were from the same village. They happened actually to be my relatives, both of them, both parties.

The boy – I call him a boy because he was younger, although he was an adult already – he decided to start walking. The lady ran after him and grabbed his waist and started pulling him. “I want my money. I want my money.” He said, “Please, don’t touch me. I have a weapon inside.” The lady thought he was just joking. Other people came and starting pulling her and said, “Yes, yes, a grenade. Please, leave him.” In the middle of the struggle, the grenade blasted and four people died on the spot. The father of the boy, who was not there – in our community where such a situation happens, the relatives of the victim pursues the relatives of the offender, even where the offender is also dead, and that is exactly what happened.

They ran after the family of the offender, took away whatever they could take, goats, cows, chickens, food from the granary. These people ran away for their lives and the matter eventually – there was no person specifically who could be taken to court in this particular case, but the community had remained hurt by the offense. The relatives of the different parties involved, these people went to a different village where they stayed for seven years. They could not come back to this village, the family of the offender, who has also died and was later buried. Eventually, somebody advised him and said, “You need to go to court because you need to go home.”

He went to court and they had to come and recover their land. Their land was taken away by the families of the different victims. He wanted to get back to their land. It was very difficult. They were suffering in a foreign place. These people were later on arrested. A number of people were arrested who were having the land of these people. When the case remained in court, we were allotted that we should come in as Peace and Reconciliation Ministries in Africa. We started counseling the different parties involved and said, “These people were actually innocent according to the law. You took their land for nothing. The truth is they are innocent. They are not party to any crime. This is the position of the law. You are all at a loss in terms of the deaths that occurred. There’s no particular person directly responsible for this incident, and you are going to lose this case. You have been in prison, you have come out, you have been remanded a number of times, you are walking every day. You are not going to win this case.”

So, we sat down under the mango tree several days and we came up with an arbitration, went through arbitration, left mediation stage, went to arbitration stage. We handled it, but the case in court was still there. And then, at the end of the day, we came up with a reasonable arbitration decision. We came up with an agreement, which eventually acted actually as a consent judgment. We went to court. Part of the agreement was being signed on the ballot of the court, and eventually the court had the case withdrawn. With the parties reconciled, they migrated back from the village where they had gone into the community. Today, they are living together. That is the power of the mango tree settlement.

RECONCILIATION VERSUS TRADITION

There are other things that I will talk about in this aspect where we believe there is no offense that is not reconcilable. There is no dispute that is irreconcilable. We understand the provisions of the law. Now, we have a culture called Mato Oput and Kiuchi, which is within the spirit of the Ubuntu of South Africa. This culture and tradition is only found within my tribe and in a tribe of the Acholi people. Kiuchi is from my Lango tribe, and Mato Oput is in the Acholi tribe. This is a traditional ritual of reconciliation that happens whenever a conflict involved death caused by a member of the community.

We have what we call clan systems. I belong to a clan. John may belong to another clan. God forbid, if I happen to kill John, the family and the clan of John will run after my family, even when I’ve already been arrested and remanded and actually going through mentions of my case, which has not yet come to hearing and I have my attorney or I still don’t have an attorney. I will be in prison, but my family will be on the run. My father will not be able to settle in the village. My brothers will not be able to settle in the village. They will be on the run because the community, the family of John will be running after my family for revenge.

But we have chiefs and kings who John had the privilege of going along with me to train them in the principles of peacemaking, the principles of mediation, the principles of arbitration, how to go through negotiations of these kinds of difficult disputes. We have trained them all through the process of peacemaking. Now, these chiefs, in addition to the cultural practices that they used to have, we have given them all weapons, the knowledge that we have used to train them based actually on Christian principles. They would come together. They’re in charge of conflict that ensured death. The chiefs are responsible for those kinds of offenses and responsible for mediating.

He would walk – so even if they kill me, I am the chief. So, he would walk to that village and he will mention that I come in peace. I come in peace. I am the chief of revenge from my clan in charge of this kind of situation that has befallen our community. Then, they will also receive a chief from that side. They will sit down and say, “We want peace. We want to discuss the issue and resolve it.’ It will be difficult. He will actually be walking also with a spear, but the spear will not be used because he will go in the name of peace. The two will start negotiation, and there will be a community meeting again sometimes under the mango tree, or at the home of one of the chiefs. In most cases, they look for common ground. Then, they go through discussions and they say, “What are we going to do?”

The family of the victim says, “It’s no more. The law is clear.” It is not written law, but cultural norms that have existed for years. If you kill my son, you pay us seven cows. That’s the position. If you have the cows, pay us quickly. If that is the case, we are going to bring the cows. Not only the family of the victim, but the entire clan will contribute for the cows. They will bring the seven cows and give them to the family of victim and another two cows, bulls, will be raised; they will be slaughtered and shared as a symbol of reconciliation between the parties.

Mato Oput is a symbolic action that will be taken like a ritual. They will mix some bitter concoction in a gourd, and then the chief of negotiation from the other side will come and meet the chief of negotiation from this side, and the two of them will drink from the same gourd, a very small gourd. In the process of sipping this bitter concoction, their forehead will meet. As their foreheads meet, it’s the symbol of reconciliation that we used not to see eye to eye, but now, we are seeing each other eye to eye inside the gourd. We used not to drink – they used to say, “We shall drink from the well,” when you are going through conflict before it is resolved, that we can only share water from the well. I cannot drink well water from your pot. But now, after reconciliation has been achieved, you can now drink from the same pot, from the same gourd.

All the bitterness that has been going on in the process of the conflict, we are now going to drink it away and it is over. Once that is done and reconciliation has been achieved, one thing remains: the offender, who is languishing in prison on remand. This is now – Mike’s role becomes critical here. Many of this community are witnesses of how the offense occurred. What will happen at the end of this–they will also request the other clan and say, “What do you think about our son?” “We agree with you he should come back.”

When I was talking, I said that the offender will come back to a reconciled community that is prepared to receive him and will not revenge. They will write a petition to the Director of Public Prosecution and a number of them will sign this petition, including the chiefs and kings, and say, “We are not willing to proceed with this case.” Many times, when I was working with the DPP, I’ve seen the DPP writing another prosecution decision made by none other than my brother alone. Nobody else makes the decision except him. It is within his own discretion to decide that he’s going to withdraw the case against the offender, and he will not give reasons when he’s writing to the courts about the withdrawal of that. He will not say it because the community has reconciled. He will just say that the Director of Public Prosecution has decided to drop charges against so and so.

Once that letter arrives in the courts, the offender, on that day, when it will have come for mention or whatever, he will walk away, and he will go back to a reconciled community. He has murdered. He has blood on his hands. He has not been sentenced. He walks away and will live in the same community. He will again drink together with the people whom he killed their relative, and that will be it. That is how deep it is from our cultural perspective. We believe that there is no crime, which is unforgivable. That is a situation where we find the Kwoyelo case coming up.

The people were actually agitating for amnesty saying, “We need him forgiven and come home.” Interestingly, when Kwoyelo was first arrested, “Thomas Kwoyelo” at that time, I was still in Gulu. I was the first prosecutor to attend to the hearing of his case and [I] developed different charges that eventually were being used to prosecute him. What happened is that many of the people from his clan, not necessarily his relatives, but the people from the region believe that whatever crimes he has committed, he can still be forgiven. And when he comes home, we shall perform these rituals and it will be fine. If the rituals are not done, they believe that some omens will follow you. Something bad will happen to you.

We do not only believe in the punishment through imprisonment or something. If you kill somebody and your clan or community doesn’t go through this process of reconciliation, you have a disturbed life even if the court drops your case due to lack of witnesses or evidence. You may come back acquitted, but you will not have peace. You have disturbed life. That’s what they believe and in most cases, it happens until the community agrees to receive you in a good way. That is the most powerful tradition that we have in Northern Uganda and it is existing and works.

HOW CHRISTIANITY INFLUENCES HOW WE THINK ABOUT RECONCILIATION

It is important to understand that the notion of reconciliation that underlies restorative justice generally implies an absolute agreement among all social actors, including the victims and perpetrators, regarding the need and the utility of forgiveness, pardon, and the value of the reestablishment of a social tie and harmony. It must be noted that the notion of reconciliation and restorative justice underlies the fact that we are created for reconciliation. Since God created us to need relationships, He has also provided instruments in His word to help us make our relationships work and also grow strong.

This is a deeper understanding that goes beyond the legal paradigm of this world, the understanding of God’s creation and God’s grace. The reason why God created man in the Garden of Eden was so that He may relate with man. And then, He created Eve, so that man may have relationship. He created us for relationships, that we will live together in harmonious relationship. When man sinned and the relationship broke, man was cast away from the garden and man was divided from God. Because relationship is so critical to God, very important to God, God again, in Christ Jesus, decided to give His own life to come down and redeem the relationship and He died on the cross so that we may be reconciled to Him and reconciled to one another.

So, the entire understanding of this principle, to me, is based on all God valued, relationship, and to God. Just like in my tribe, no offense is irreconcilable, even the offense triable by the International Criminal Court, war crimes, whatever. That’s where transitional justice comes in. That’s why the Gacaca court had to work. The community in Rwanda had to use Gacaca, community coming together to decide on the fate of the inmates who had taken part in genocide. Many of them testified, they told the truth, and they were given a lesser sentence and they walked out.

In 1996, 1997 and again in early 2000, I did a lot of discussion with prisoners in said Rwandan prison. I had a lot of testimony about how – listening to the offender talking with the victim, and eventually, “I cannot do much for you. All I can do for you when I’m released, I will build your house.” This was one – I remember this because I did some recordings – where the victim, a woman whose husband was killed, was testifying on how, in case he is released, he will come and help this woman: build a house for her. I’ll explain how the woman survived. He said, “You survived from us. We were just like dogs. We were so brutal. We were killing people like mad. We were behaving like dogs. You survived after we killed your husband. We tied heavy stone on his leg and we throw him in the water, but because you were pregnant, we could not kill you because we thought it was going to be a bad omen to us, and that’s how you survived.” And they started crying, and both of them started crying. Later on, they get reconciled.

THE ROLE OF CHRISTIAN LAWYERS AND DIPLOMATS

Well, what are our roles as lawyers and diplomats in reforming the rule of law? Both lawyers and diplomats understand that the rule of law is fundamental for building equitable state relations and the basis upon which just and fair societies are built. We daily engage and should be committed to the efforts of reforming the rule of law in the global community of nations as a basis for our calling and practice. As a general principle, we should see our legal and diplomatic positions as both a calling and a God-given opportunity.

This is a very interesting point. I try not to mix the lawyer together with the diplomat because I find myself in the middle of this. We all have similar responsibilities. Both lawyers and diplomats are very enlightened people. The lawyer knows the law. The lawyers know the directions a country should take to be considered a country working or governed within the principles of the rule of law. Where the leadership has deviated from the principles of the rule of law, lawyers understand. Diplomats, they are internationally exposed and they know what is good and right. They’re exposed to information and the opportunities of meeting leaders, including leaders of their own countries. They are respected and accepted within countries of their postings, especially in third-world countries. We have seen diplomats engaged in criticizing government and bringing government to account when they start abusing the rights of their people and deviating from the fundamental principles of the rule of law.

It is important that as we practice law, we should know that we have a calling, a God’s calling, to be agents of transformation, including the transformation and reformation of the rule of law within our communities and in countries where God takes us. As lawyers, many times you end up picking up a case or deciding to sue a sovereign nation for abuse of human rights for things not being done, things that are not consistent with fundamental rights and principles, unconstitutional ways of behaviors within a country being perpetrated by a state. You decide to take a country to court, not because you expect payment, but because you’re looking at social change.

You’re looking at the benefit that will accrue to the members of your community, to people in your country who are going to benefit from the change that will come up in case you win the case and bring legal transformation. We have to take ourselves as people who are privileged and people who have the opportunity to serve our people, to serve the citizens of the world with our profession, with our knowledge and skills. As a lawyer, when people walk to your law firm, especially as a Christian lawyer, you cease to see them as money opportunity. You see them now as another opportunity to bring a smile on the face of somebody in the middle of a conflict, a new satisfaction, just like the satisfaction of our brother Edward will not be in the driving of that luxurious Mercedes in the city where you’re practicing law.

Your satisfaction will be seeing people walk out of court or come out of a dispute celebrating how you have helped them work through the conflict and come out praising God because you were there. Your satisfaction is going to be in seeing God glorified in your work. At the end of your case, is God pleased with what you have just done? Have you been so much taken away and ended up grubbing money in corrupt ways and corrupted justice? You are full of shame. You are haunted in the quiet of your house. You’re haunted even when you’re driving your luxurious car because you know somebody is suffering. The community is not changed because you have corrupted justice.

That’s where we find our brother Mike now. He is placed in the position where his decision is critical, but he has the opportunity to glorify God from that office. So, our opportunity is to serve, seeing clients who walk into our offices as God-given opportunities to make a difference, opportunities to serve with integrity and setting examples for others. Diplomats should be good listeners and correct conveyors of information. The best diplomat I’ve come to learn is the one who listened very well, who takes his time to listen.

While I’m in the United States, I’m very keen to hear what they’re talking about in my country. When I get the chance to meet my president, as I did a few weeks ago, I know what to tell him, and I should be able to tell him the truth because my words will guide him. What I’m telling him is not from the public domain, but is between me and him, and I’m the only person with that opportunity. Nobody else has that chance to meet him and tell him what others are saying. Others may fear to tell him. If he listens to you and he takes precautions and change, that’s your satisfaction. So, many times people fear to tell the truth. People don’t care. They take the positions as an opportunity to get rich and to make names, but we need to know that this is a God-given opportunity for us to bring glory to Himself.

Ladies and gentlemen, Senior Diplomats of the United Nations General Assembly by declaration A/RES/67/1 of 24 September 2012, “reaffirm that human rights, the rule of law, and democracy are interlinked and mutually reinforcing and that they belong to the universal and indivisible core values and principles of the United Nations.”^[4] “[T]he rule of law applies to all states equally, and to international organizations, including the United Nations . . . . [A]ll persons, institutions and entities . . . are accountable to just, fair and equitable laws and are entitled [to] . . . equal protection of the law” without discrimination.^[5]

It is therefore the role of both diplomats and lawyers to dedicate themselves to supporting efforts that uphold the sovereign equality of all states, that promotes respect for the territorial integrity and political independence of states, defends states from threats or use of force in a manner inconsistent with the United Nations Charter, and in upholding the peaceful resolution of disputes in conformity with the principles of justice and international laws, given the strong interrelationship between the rule of law and development, advancing the rule of law by both lawyers and diplomats at the national and international levels is essential for sustained an inclusive economic growth.^[6]

Both lawyers and diplomats have the duty of promoting the principles of good governance and ensuring that states are committed to the effective, just, and nondiscriminatory delivery of public services, such as criminal, civil and administrative justice, commercial dispute settlements, and legal aid.^[7] Understanding that the independence of the judiciary and the judicial system, along with the impartiality and integrity is a prerequisite for upholding the rule of law.^[8]

The wider body of criminal law developed at the United Nations, provides the basis for peaceful resolution of conflicts and the means to ensure there is no relapse into fighting. The universal standard setting power of the General Assembly,^[9] the enforcement power of the Security Council,^[10] and the judicial power of the International Court of Justice all provide indispensible tools to defend the rule of law.^[11] Diplomats and lawyers should press and encourage state actors using diplomatic and legal means to commit themselves to the equal application of the law at the national and international levels to uphold its highest standards in their decision-making and to accept the jurisdiction of the courts of justice.^[12]

Last, but not least, lawyers, as well as diplomats, should play key roles in encouraging and facilitating the settlement of international disputes among states using peaceful means, inter alia, foreign “negotiation[s], enquiry, good offices, mediation, conciliation, arbitration and judicial settlements, or other peaceful means” acceptable within the culture norms and practices of the peoples.^[13]

THE ROLE OF THE CHURCH IN PROMOTING JUST SOCIETIES

Ladies and gentlemen, I go to the final parts of my presentation looking at the role of the church. How can the church address the development of justice in places of violence? First and foremost, the main question to ask and answer here is: Is the church playing its role well as gatekeepers in places of violence, or rather, it’s answering, “Am I your brother’s keeper?” As it was the case with Cain and Able, feeling conflict rather than being a catalyst to peaceful resolution of conflict. Both brother Mike and Edward remember one time during our fellowships when we were taught about the gatekeepers and were given this example about the gatekeeper in China, who was bribed and allowed enemies to enter the gate. The wall of China is too strong, but if you don’t put a faithful and trusted person at the gate, then your gates are going to be infiltrated and you’re going to lose your people.

As Christians and as Church, we are to act like gatekeepers to protect our nations against all kinds of evil practices. We can only do that if we present ourselves as people of integrity, who resist from every temptation to be corrupted. At the churches, in concert with other groups in civil society, better placed than our positions, lawyers and diplomats to articulate the vision for the future that is gracious and hopeful, sowing seeds of love, justice, mercy, kindness, and peace. The church is critical in the development of justice, peace, and reconciliation in places of violence. First and foremost, by leading with examples, leading by words, not by deeds.

The church should be exemplary in the way members conduct themselves and how they respond to conflict. We should be setting examples for the world by following the principles of justice as it is written in the Gospel, keeping in mind that for the churches to lead the way in fostering justice and reconciliation, it will take leadership from the clergy and public figures, as well as moral steps by people at grassroots. You will agree with me that the early church was able to influence the society of their times, not by preaching. They gained converts by their actions, by practice.

As the Bible says in the book of Acts 2:42-47, the Bible says, “They devoted themselves to the apostles’ teaching and to fellowship, to the breaking of bread and to prayer. Everyone was filled with awe at the many wonders and signs performed by the apostles. All the believers were together and had everything in common. They sold property and possessions to give to anyone who had need. Every day they continued to meet together in the temple courts. They broke bread in their homes and ate together with glad and sincere hearts, praising God . . . . [T]he Lord added to their numbers daily those who were being saved.”^[14]

Ladies and gentlemen, it was not by going out. The one way that the church can use to reform the rule of law and change and transform our communities is by doing the right thing from within the church. It’s not just by going to talk out there. This is very interesting to me because I got to realize that God Himself adds people. God, Himself, will add people who are not interested in going into violence when the church is practicing non-violence. In Rwanda, for instance, it’s a shame to realize that the church was involved in fueling genocide. But today, we need to have the body of Christ willing and able to sow a different example, to sow seeds of peace, seeds of justice.

I remember the example of one pastor near my village who was involved in a dispute with his neighbor, a land dispute. He came and they were quarrelling, interestingly. He said, “Man, I’ll remove the collar and throw the Bible down and I will handle you man-to-man.” Just that word was enough to make the neighbor migrate to another church because I don’t believe in a clergy with a collar on his neck ready to confront a conflict physically, and ready to go into violence.

Why am I talking about land conflict? This is a major thing that we have been involved in in Northern Uganda. Here, you find that the clergy set a very bad example before a man, whom is mandated to shepherd into love, justice, and good works. The neighbor later migrated to another church, as he did not see the seed of Christ in the clergy, and therefore, no value sitting under his teaching for the rest of his life. In Uganda, Peace and Reconciliation Ministries in Africa, that I had the God-given opportunity to found, has been trying to help church establish quasi-judicial system referred to as Biblical Justice for Peace and Reconciliation.

In trying to help the church in our efforts towards the development of justice in times of conflict, I’ll be able to set good examples for the body of Christ. It establishes mechanisms of resolving conflict among the body of Christ, starting from the courts of first instance to the Supreme Court level by training pastors and elders basic principles of law, negotiation, mediation, and arbitration. I happened to take John and a small team recently to meet one of the chairmen, who is an elder in a church, who sits in an interdenominational court where they settle these kinds of disputes and it’s working.

They’re applying the teachings of Jesus based on Matthew 18:15 downwards where they encourage people to use the one-on-one approach and then eventually, where people cannot get reconciled, they use Corinthians I 6:1–8, where Paul himself cautioned the church not to use the earthly or worldly court in settling their matters, but appoint among themselves men and women who are capable of resolving disputes to act like judges. So, the church can be a good influence by practicing examples, principles of non-violence, settlement of disputes. We have seen this work in Northern Uganda, and I believe that if the church everywhere can adopt conciliatory settlement of disputes, we can avoid sending fellow Christians to court and encourage resolution of conflict among believers from within the body of Christ.

Finally, I’ll conclude with this famous quote of Abraham Lincoln that was used by Kenneth Star many times when I worked with him teaching communities in Northern Uganda the art of peace and reconciliation a few years ago. “Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser — in fees, expenses and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.”^[15] If you think about business, there is plenty in peacemaking.

Ladies and Gentlemen, thank you. It has been a privilege and great honor being with you all.

1. CONST. OF THE REP. OF UGANDA OF 1995 art. 126, § 1. ︎
2. Id. § 2(d). ︎
3. Magistrates Courts Act, 1971, c. 16, § 160 (Uganda). ︎
4. G.A. Res. 67/1, ¶ 5, U.N. Doc. A/RES/67/1 (Nov. 30, 2012). ︎
5. Id. ¶ 2. ︎
6. Id. ¶ 3. ︎
7. Id. ¶ 12. ︎
8. Id. ¶ 13. ︎
9. Id. ¶ 27. ︎
10. Id. ¶ 28. ︎
11. Id. ¶31. ︎
12. Id. ︎
13. Id. ¶ 4. ︎
14. Acts 2:42–47 (NIV). ︎
15. FREDERICK TREVOR HILL, LINCOLN THE LAWYER 102–03 (1906). ︎

The post ADVANCING THE RULE OF LAW IN EAST AFRICA: LESSON LEARNED FROM AFRICAN LAW AND CULTURE appeared first on Regent University School of Law.

1 Regent J. Glob. Just. & Pub. Pol. 115 (2014)

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INTRODUCTION

Before I get into the presentation let me just, first of all, since I am Ugandan—sort of, I have been there for six years—the first thing I have to do is say, “Praise the Lord.” That is what you do in Uganda. And you also bring greetings, so I do bring greetings from Uganda Christian University in Mukono. We are fresh off celebrating our hundredth year as an institution. We originally started as a theological college, Bishop Tucker, and we have been a university since 1997. And we have various friends of the institution here, and there are friends that were here at Regent. So, I feel at home here even though I have not been home in about a year and eight months.

So, a quick story. When you drive around—maybe this is an experience and a story combined—but when you drive around and you are in line on the interstate and then that person decides that they are just not going to follow the rules. They go off the side of the road, and then they try to get in. And you are sitting there and you’re just frustrated, you know? And you are hoping that other person will not let him in and you get the chance not to let them in. If you go to Uganda and you have that emotion, you will die of a heart attack or something will happen to you. It may be the greatest difference between an American and a Ugandan—how we react to that situation, like someone cutting in line. I know that sounds like an overstatement, but bear with me, because I think it goes to what is in our DNA as Americans. We feel like if everybody just plays by the rules—everybody does what they are supposed to do—things are going to work a lot better. So if you just stay in the line and you do that, then you will get there eventually. And we will not have to worry about all the other people blocking the other people and we will just get there. And there are a lot of emotions like that where you feel, as an American, “Man, can’t we all just cooperate and play by the rules together and it will be okay.” And the Ugandan is just like, but you know, nobody else is going to follow the rules. And then that is what they are going to do. I might follow the rules but they can do what they are going to do, and I do not worry about it. I have to take care of myself, because ultimately Uganda is not going to take care of me. I can take care of my family maybe. Or my family can take care of me. Close friends can take care of me. So I think when we think about the rule of law, there is also something that is very big: just that core expectation of what you can expect from society. A place like Somalia, of course, has even less expectations. But in Uganda, there are just not a lot of expectations of what society is going to do for you. It is, “Can you survive?” “Can you navigate this place the best you can?” Obviously one of the big things I am going to talk about in a second about a tipping point, but with the rule of law, you have to have a tipping point. You have to have a buy-in that this system can work. And I think that is a big problem with a lot of people in Uganda is they do not feel like the system can work. They feel like it is broken. They do not understand it. It is too expensive. It is for other people.

So, we are going to talk about barriers in the Ugandan context—barriers that prevent the rule of law from being advanced. There is your map of Uganda. We have a very Ugandan flavor to the festivities here, which is great. And there are other issues to talk about—especially even we could talk about Eastern Congo as an East African issue as well as South Sudan, as well as the ICC controversy in Kenya, as well as Somalia. There are a lot of very interesting and tragic and important things happening in East Africa. But we are going to focus a bit more on Uganda maybe than we will the other places. So there you see, that is where—there on the map you look down at the lake—we do have a Lake Victoria. We just do not have Victoria Falls. So we got Lake Victoria there, and Mukono, which means, “hand,” is right there over Victoria. So that is where we are, just for your reference. And Kampala is there 20 kilometers to the west, and as we went over last night at dinner, it is the size of Oregon. That is the official geographic thing you are supposed to know. We are going to save the barriers as surprises. Get to them one at a time.

LANGUAGE

The first barrier is language. This is your map of language groups in Africa. You have got down in the lower left the languages where people click and things like that. And then you have got the big purple swath of Zulu languages, and then you have got some Nilo-Sahara languages. You can see that Uganda is in a place where some colors come together. And you could add another color too if you wanted to add, for example, Kushite languages. So you’ve got like 50—40, 50, 60 languages—depends on who is counting. Is Norwegian a language or not? Who is counting the languages? Lots of languages. And Swahili really did not take off in Uganda for various reasons. People have different theories—why they say people do not know Swahili. So, English is the universal language. And so English is the language of the courts. Obviously for colonial reasons as well. But it is not what most people are speaking as their day-to-day language. So you have a court system that exists in one language, and you exist in another language. This makes you not want to go to court. It’s not a surprise.

The Ugandan Constitution has a provision that says, “We are going to put the Constitution in all the languages in Uganda.” I have finally—after four years of trying—I have now paid for my own photostat copy of the Luganda Constitution, which I finally received. I think we have the best working version of the Rancoli Constitution at UCU that our students have worked on putting together. I think that is about it. And this Constitution is not new. It is seventeen years old or so. So this requirement is out there to do this, and it has not been done. So, of course, the Ugandans, what are they going to say? Can you expect the government to do something for you? You cannot expect the government, necessarily, to translate the Constitution into the language you speak even though the Constitution says it was supposed to and a lot of time has gone by. And it creates interesting situations. Wills. So, we work with International Justice Mission. We go around and help people write wills, which is great, because usually people respect the wills and they help things go better at the time of death with property succession. And they will say: “Oh by the way, you could write this will in your local language.” “Oh great.” And so some people choose to write the will in the local language, which is cool. But, when it has to go to court, at the end of the day, when it has to go to the probate process, by law, it has to be translated. And so there are professors sitting around at Makerere that make extra money translating wills into Luganda, because they are the only official translators. So you have told these people they can have it in their own language, but then they have got to pay to have a translation done by a translation professional. These are the kinds of things—like why could they not just probate it in the language? Why can you not have somebody who knows the language and just probate it in that area? But you have these kinds of barriers, and it keeps people on the outside looking in.

RESOURCES AND CAPACITY

Resources and Capacity was gone over earlier, and it is sort of the obvious one. This is supposed to be a picture, I think, of someone getting ready to go to the local council court. This is very typical—people going to court under mango trees and with local individuals. And it is a great idea, as far as ideas go; but in terms of implementation, it is a program that often is not funded. And now the legal capacity of it to render decisions is called into question, because people on local councils were supposed to be replaced by law. They were not, and so now, they are basically mediating, effectively. It can be said that it is not real. Whatever they do has no legal mandate, because they have not replaced the officials that are supposed to be there that make it a legally active body. So, no capacity, no resources. Sounds great—and is good on the ground. And so what are people doing? They are making it work anyway. Right? I cannot afford to go to court. I do not speak English. Yes, they say this court is not real. Yes, they do not keep records. Yes, I have got to pay these people to show up. But it is the best option I have got. So, people are still going to these courts and doing these sorts of things. So, resources and capacity. We could go on and on and on, but oftentimes there are ways to get around resources and capacity. In this case, there is an easy solution to capacity: re-up the local council members officially and get them legally recognized again. That could be done. But for political reasons, it is not being done.

“STICKY” COLONIALISM

All right, then I have this one. It is “Sticky” Colonialism. What is sticky colonialism? Well, first of all, you see that Lady Justice there has a wig on her head, right? But people like the wigs in Uganda, so you do not want to be down on the wigs. It does add pomp and circumstance to the process. Now, the younger generation may not be as big on the wigs, but I think the wigs are okay. It is more about the aspect of colonialism—not about whether you wear a wig—but whether you feel that you have dominion over your own legal system or you feel that you just got this legal system from somebody else and you are curating it—like those computers that you keep in the basement in Afghanistan because you do not want to mess it up. And I think in Uganda, you have had the “we-do-not-want-to-mess-it-up” attitude. You can read things that I have written if you really want to spend time slogging through some stuff that is more substantive, but I am trying to use my time the right way here. And so, I have an article that sort of explains this aspect of colonialism more. But a great example is in the context of customary law. We heard an earlier talk about customary law. What is that? That is the common law of Uganda. It is the law that existed on the ground—people that were there, how they handled their matters. So, the British come in and they have common law. The common law becomes the real common law, and the customary law becomes something that goes away, essentially—unless people are practicing it in their own places, as long as they do not take it to court and take it up different levels.

Uganda has provisions that recognize customary law in marriage and in other contexts. But the problem is proving customary law in court is very difficult. The judges cannot just know customary law. Customary law is treated like a fact. Imagine if you are a lawyer and instead of just citing Lexis or WestLaw, finding your case, and citing your Supreme Court case, every time you wanted to try a customary law case, you had to prove the law—not just the facts. And how do you prove the law? By finding the oldest man in town and trying to see if he can remember how everything was since time immemorial and tell you what it was. Because he must be the only one that knows what everything has been since time immemorial. Because that is what the law is—some law that has been around forever. It’s fine if you have tablets that came from Mount Sinai. You can say: “That is the law. There it is.” But if you do not, it becomes very difficult. So you have this customary law; it is what people are practicing. But because you adopt the colonial attitude towards how customary law is proven, which was established by the British courts that were in East Africa, you basically disempower the judges and disempower litigants from having the customary law recognized in the formal court system.

LEGAL PLURALISM

So why do I have pictures of ladies when I talk about legal pluralism? We talked about hybrids—this is sort of like hybrids—it is all these different forms of law that are existing at once. It is because women are the most problematic aspect. When we hear a talk about Sharia Law, we want to talk about people’s hands getting chopped off, and we want to hear about women having to not drive, right? The previous speaker was careful not to mention those sort of stereotypical aspects of Sharia Law. But, when it comes to legal pluralism, you cannot get around the issue of how women are treated. There is no way around it. And these customary laws are oftentimes patrimonial. And so that means that all the property is going to go through the man, typically. If there were a death, the woman would go back to her old family and leave. The family would often just keep the children and she would go her way. Obviously, you are treating women differently. You are saying they cannot have property. The Islamic laws—they have their own rules about property too. So you have a Constitution that says men and women have to be treated the same. Everything has to be according to the Constitution. But when you start stripping out the different treatment of women and men from a law of succession system, the whole law of succession system does not make sense anymore. The law of succession kept the land in the same people—kept it going right there. And when you have both sides of families claiming interest to land and going different ways, things get very complicated. The system worked okay, but it was not constitutional.

It is still done on the ground. So how do you deal with the reality that it is still done on the ground? So different people are engaging it, and they are trying to say: “Well, we can change customary law. We can make customary law so it meets standards of human rights, standards of our Constitution.” They do that in South Africa. They do that in Namibia. They do not do that in Uganda. It is all or nothing. It is time immemorial—what was time immemorial? Is it in line with these principles? If it is not, it is repugnant; cut it down. Well, that is fine as long as you can take it to court. But if you are living in a legal system that is in your own language and it is not going to court, you are living in a parallel world. You are living outside of that rule of law. You are living in a different rule of law.

IMMATURE COMMON LAW

Another barrier—it is all related—is an immature common law system, which is related to that “sticky” colonialism. The example is: there is this case. It is a United States Supreme Court case from 1904. It is called South Dakota v. North Carolina. It is an eleventh amendment bond case. What happened was, once they passed the eleventh amendment, people could not sue states. There were all these Confederate states that had a bunch of bonds that they were not honoring. People realized they could not recover against the Confederate states directly. So what do they do? They go to places like South Dakota and sell their bonds on the cheap. And South Dakota says: “Yay, we still have an article in the Constitution that allows us to go after other states, so we are going to try it out.” And the Supreme Court said: “Yes, you can, South Dakota. You have scored big. You can collect these bonds. You have made a nice purchase for yourself—a tidy profit.” Had to tide them over until they discovered all this petroleum or whatever they have done now in South Dakota. They are doing well again in South Dakota.

So there is this case, and it has a dissenting opinion from a judge that says you have to read the Constitution as a whole. It is the dissent; it is not the majority opinion. Somehow this case became part of Ugandan jurisprudence, because a very famous judge named Justice Kenny Hamba decided that he was going to cite it for this principle. He cited the case wrong. He had the wrong date. So no one ever read the case, because it was not cited correctly. No one really knew where it was. But people kept citing the case, and they started calling it Smith v. Dakota; they started calling it South Carolino, South Caroline, or different things, because they were not reading the law. So, they are in a common law system, but they are not reading the case. And this case has been cited—I do not know—fifteen times in Uganda. In three recent high-profile cases in Kenya it was cited. In the presidential election case it was cited incorrectly, because people are not reading the case. They are simply taking law, really as aphorisms, and saying, “This is a principle; this is a principle.” But who can blame them? Because building a thick common law is difficult. Building a common law that really has careful distinctions between factual situations is difficult. And when you come from a colonial heritage where you did not get the right to mess with the law in the first place, are you really going to think you have the power and the license to make your own common law in a meaningful way? So, instead, common law almost becomes like the law of equity—just a bunch of principles.

CORRUPTION

So, corruption. No, Malcolm Gladwell is not corrupt. The point of putting Malcolm’s mug there is that it is important to reach a tipping point.^[1] Right now, if you practiced law in Uganda, it is very hard to be ethical. It is really hard to do things the right way. We have someone on the panel that actually does that. It is really exciting. He inspires the students at UCU, at my university, because he comes and tells them: “You can do it. You do not have to pay bribes. You can do it this way. It took me awhile to get my reputation, but now I have it and now they do not mess with me. So if you just do it the right way long enough, and be a little patient, and put off having that really nice car for five or six years or ten years, eventually you will get there.” But I think in Uganda, there has to be enough advocates that think you can practice law doing it the right way, and they are not there right now. And it would take a lot of cloning or a lot of instilling something in our young people. We try to give this talk to our young people and say: “You can do it. You can practice.” And they walk the right way, some of them have a gleam in their eye and say, “I can,” and then three of them are walking away going, “I know how it really works. I was at that law firm during the break, and this is how you have to practice law in Uganda.” So, eventually reaching that tipping point where you cannot get away with doing things corruptly. Where are we? How far away is it? I do not know. The more things are technological, the harder things become to fix. Uganda is a cash society. It sure makes it easy to do things when everybody is running around with big wads of cash as opposed to every single thing happening on an electronic transaction. But what sort of things are going to tighten things up? I think eventually things will tighten up, and eventually people will hold people more accountable and feel like you cannot get away with things. But when everybody owes somebody else a favor, it becomes difficult.

FALLEN CULTURE

I am not going to say culture, because I do not think culture is bad. There is awesome culture, and then in every culture there is fallen culture. And Uganda has some fallen culture like child sacrifice. It does not get much more fallen than that. Of course we have our own fallen culture in terms of a death toll that I think we are all aware of in this country. But in Uganda, there is the sacrifice of children that happens. It is just horrible. It is just as bad as anything you can imagine. Fortunately, it does not happen just constantly, but it happens way, way, way more than anyone would like.

One thing that is pretty cool—Heather Pate and I wrote a paper, along with another UCU student. It is interesting, because it addresses those things about new laws. We have a human trafficking law, and it actually addresses child sacrifice, interestingly enough in the human trafficking law. We do not need more laws about child sacrifice. We just need to enforce the law, and we just need people to think that they know they can go after it.

I think the other cultural problem that is really devastating in Uganda also has to do with children: the sexual abuse of children. And it puts a huge tax on the justice system. How many defilement cases take up high court court dockets! And I think it takes a toll on the judges just to have to see case after case—and the prosecutors—case after case of sexual abuse to children. It makes the justice system something you do not want to be a part of, because if you go there, that is what you see in a high court session—a few murders, and then, essentially, a statutory rape case after statutory rape case. So addressing these issues of where culture is fallen is another challenge. With that, I am finished with my time. Thank you.

1. Malcolm Gladwell authored a book called The Tipping Point. ︎

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