Abortion Access in Conflict

Helms Amendment at Work in the Congo

The late August four-day onslaught of mass sexual violence in Walikale, in Eastern Congo, is just the most recent example of a societal epidemic that has come to define the region with devastating consequences. Although early figures suggested that approximately 150 women were raped during this outbreak (most of whom were gang raped by between two to six people), these numbers have continued to escalate.  As of now, a staggering 303 cases of women, children, and men have been reported; it is likely that many more victims have remained silent. Further, in recent testimony to the Security Council, the Special Representative of the Secretary General to the DRC, Robert Meece, said that “[t]he best data available, for example, suggests that over 15,000 rapes were committed last year in eastern DRC.”

These events continue to illustrate the severity of the conflict, as well as the urgency with which we need to address the US restrictions that impede complete humanitarian assistance for female victims in conflict.  Rather than doing everything in its power to help these victims, US anti-abortion conditions on foreign aid deny access to abortion services to women and girls raped in conflict.  Many human rights reports have found that pregnancy exacerbates the consequences of rape in conflict settings for the victims.

The only medical response in the situation in Walikale was provided by the International Medical Corps (IMC), whose work in eastern DRC is funded by USAID.  Because of the aid restrictions outlined in the Helms Amendment, IMC cannot provide abortion services to any women who present at their treatment center.  This is particularly disturbing in light of information from IMC stating that only two of the victims from Walikale received treatment within 72 hours, the timeframe during which emergency contraception is effective.   The MONUSCO report documenting the incident further states that only 100 of these victims received treatment within 3 weeks.  It is clear that while IMC occupies the medical assistance field there, any woman impregnated as a result of these rapes will not have access to abortion – a violation of international humanitarian law guarantees of non-discriminatory medical care and prohibitions on torture and cruel, inhumane and degrading treatment.

A Call For All Member States of the Human Rights Council: End the Gross Violations of the Rights of Girls and Women Raped and Impregnated in Armed Conflict, to Non-Discriminatory Medical Care, Including Abortions, Under the Geneva Convention

FOR IMMEDIATE RELEASE—November 2010

[NEW YORK, NY] - Thousands of girls and women, impregnated by rape in armed conflict are routinely and illegally denied lifesaving abortions in places like the Democratic Republic of Congo (DRC), Burma and Sudan. The right to non-discriminatory medical care for these victims, which includes the option of abortion, is enshrined in common Article 3 of the Geneva Conventions.

GJC President Janet Benshoof Speaks at MP-Hosted Event

From October 27, 2010

At Portcullis House, London, UK

On October 27, GJC President Janet Benshoof appeared at a Parliamentary event hosted by the Conservative Women’s Organization where she discussed how states have an obligation to ensure that women and girls raped and impregnated in conflict have access to an abortion. Click on the link to read CWO’s piece below:

http://www.conservativewomen.org.uk/article.asp?art_id=134

How to Talk About the Speech Censorship at the Heart of U.S. Foreign Policy: The Helms Gag Question & Answer

Law Fellow Akila Radhakrishnan

The Global Justice Center, on April 19, 2010, in a submission to the UN Human Rights Council in Geneva, challenged the U.S. policy requiring censorship of abortion related speech as a condition placed on all U.S. foreign aid. This foreign policy extends to censoring the speech of some 150 foreign governments receiving some form of U.S. foreign assistance. This “Q and A” provides an overview of how this all encompassing censorship, which we term the “Helms Gag,” came to dominate U.S. foreign policy and the injurious effects of what is an egregious violation of international human rights law and a gross violation of international humanitarian law.

1. What is the source of the U.S. policy censoring abortion related speech as central to our foreign aid program?

There is no one single source or law behind the Helms Gag. The Helms Amendment to the Foreign Assistance Act (FAA) in 1973 was the first time the U.S. placed abortion related restrictions on U.S. foreign aid. However, these restrictions have metamorphosized over the last 37 years far beyond the scope of the original Helms Amendment.

2. What is the legal authority for the U.S. to be able to require censorship of abortion speech on all foreign aid?

There is none. There is no domestic legal authority that can ever justify the U.S. violating international humanitarian law, as the U.S. Supreme Court underscored in the Hamdan case. The Helms Gag, as applied to U.S. humanitarian aid funding, constitutes a serious breach of what are called jus cogens principles, or, peremptory norms. No domestic law, even if one existed, could ever be a defense to the U.S. breaching fundamental obligations. However, no single domestic law exists.

The expansion of the Helms Gag has been through a series of Congressional restrictions on annual foreign appropriations, by means of USAID administrative orders and policies, and, by the Helms Gag language being incorporated into new development initiatives such as the Millennium Development Corporation. The Helms Gag

3. What is the legal authority for the U.S. to be able to require censorship of abortion speech on all foreign aid?

There is none. There is no domestic legal authority that can ever justify the U.S. violating international humanitarian law, as the U.S. Supreme Court underscored in the Hamdan case. The Helms Gag, as applied to U.S. humanitarian aid funding, constitutes a serious breach of what are called jus cogens principles, or, peremptory norms. No domestic law, even if one existed, could ever be a defense to the U.S. breaching fundamental obligations. However, no single domestic law exists.

The expansion of the Helms Gag has been through a series of Congressional restrictions on annual foreign appropriations, by means of USAID administrative orders and policies, and, by the Helms Gag language being incorporated into new development initiatives such as the Millennium Development Corporation. The Helms Gag now covers all foreign appropriations; censoring over $49 billion in U.S. foreign aid in 2010.

4. What abortion related speech does the Helms Gag cover?

Almost all speech about abortion. The Helms Amendment prohibits “motivating” or “coercing” abortions in all circumstances, which has been interpreted broadly by U.S.AID to include “information, education, training, or communication programs…” about abortion. The Siljander Amendment, expanding the gag, prohibits any speech that could be construed to “lobby for or against abortion law reform,” including by foreign governments reforming their own laws. Recently, for example, some members of the U.S. Congress, sought to enforce Siljander Amendment ban on lobbying by protesting the abortions discussions which took place in Kenya around the drafting of the new Kenya constitution.

They stated in a letter to USAID that “any expression of support for or opposition to the proposed new constitution (including by drafting, offering technical advice, or providing foreign assistance of any kind that is designed to influence public approval in the upcoming plebiscite) unavoidably involves lobbying for or against abortion.”

5. Didn’t President Obama remove all the abortion related restrictions when he lifted the Global Gag Rule?

No. The “Global Gag Rule” or Mexico City Policy expanded the Helms Gag to prohibit foreign NGOs receiving U.S. funding from engaging in any abortion related activities using even their own private funds. Since the Global Gag Rule was issued by executive order, President Obama was able to unilaterally lift it in January 2009; many people mistakenly believe that revoking the Global Gag Rule meant an end to abortion speech censorship placed on foreign aid. That is not true. In fact, the executive order revoking the Global Gag Rule explicitly states that the Helms restrictions remain in place.

6. Is the Helms Gag on abortion speech the only censorship imposed on all U.S. foreign aid?

Yes. The Helms Gag language is mandatory for all foreign assistance contracts; including both bilateral aid to foreign governments and, aid earmarked for particular programs, such as the U.N. Voluntary Fund for Victims of Torture. The only other censorship condition on foreign aid that we have been able to find, is one requiring U.S. and foreign NGOs certify that they have an anti‐prostitution policy as a condition to receiving U.S. HIV/AIDS funds. However, unlike the Helms Gag, this anti‐prostitution policy condition exempts the U.N. and foreign governments. This anti‐prostitution policy condition has been challenged and a federal court in New York has granted a preliminary injunction on free speech grounds. Alliance for Open Society Int’l v. USAID, Preliminary Injunction Order, 05 Civ. 8209 (2006).

7. What U.S. and foreign entities does the Helms Gag censor?

All U.S. and foreign organizations and governments that receive U.S. foreign aid funds directly, or, as sub grantees or contractors, are covered by the Helms Gag. Further, since all U.S. foreign aid is accompanied by the Helms Gag, the U.S. acts as a viral censoring agent when U.S. funds are commingled with funds from other donors. Entities gagged include:

  1. Over 150 foreign governments who receive foreign aid funds from the U.S. government. For example, the grant contract between the U.S. and the government of Afghanistan providing $4.2 million for democracy building requires Afghanistan to agree to the gag (see UPR appendix).
  2. All democracy and rule of law funding by the U.S. including programs under the National Endowment for Democracy (NED) and various U.S. contracts and subcontracts with major U.S. organizations including the American Bar Association, universities, law schools.

8. What Helms Gag related international law violations are the GJC seeking to have the Human Rights Council address?

The Global Justice Center’s submission to the Human Rights Council focuses on the illegality of the Helms Gag on two areas of foreign aid funding:

  1. Censorship of U.S and foreign entities providing overseas law and democracy programs, which violates the rights to free expression under the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.
  2. The provision of discriminatory medical services to women and girls raped in situations of armed conflict, which violates its obligation to “ensure respect” for international humanitarian law under the Geneva Conventions and customary international law, including torture.

The submission does not address the problematic restrictions on funding abortion services or U.S. funded population and family planning projects.

9. Can the U.S. impose censorship of abortion speech on American citizens and universities as a condition of their receiving U.S. grants or contracts under the U.S. programs designed to promote the rule of law and democracy overseas?

Not legally. All U.S. contracts under State and USAID “rule of law” and democracy programming, some 2.2 billion dollars a year, contain the Helms Gag. All U.S. and foreign NGOs (and foreign governments) are prohibited from freely discussing abortion when conducting trainings on international human rights laws, including CEDAW, which requires governments to reform their criminal abortion laws. U.S. law schools, funded with U.S. foreign aid to teach overseas, for example, could not legally discuss the GJC submission to the Human Rights Council.

10. Is there a duty under international law to provide women and girls impregnated as a result of rape in conflict situations the option of abortion?

Yes. International humanitarian law (IHL) mandates certain protections for civilians in armed conflict, including medical treatment and protection from torture. The Human Rights Committee and the Committee on Torture have recognized that forcing a woman to carry to term a pregnancy that is the result of sexual assault (by denying the option of abortion) constitutes at a minimum cruel, inhuman and degrading treatment. Further, in situations of armed conflict, this denial can raise to the level of torture. Because of the Helms Gag, U.S. funded humanitarian aid organizations and their local partners do not, with certain courageous exceptions, provide abortion to impregnated women and girl rape victims in conflict. This denial increases their risk of death in childbirth, or from an illegal abortion, many times over.

11. Does the U.S. Have obligations under IHL when it is not a party to the conflict?

Yes. All states, regardless of whether they are party to an armed conflict, have obligations to “ensure respect” for IHL, including taking all possible steps to stop war crimes, ensure accountability, and render aid to civilian victims. Therefore, where the U.S. provides humanitarian aid in situations of armed conflict, such aid must be provided in compliance with IHL.

12. Can President Obama lift the Helms Gag like he did the Global Gag Rule?

In part. President Obama not only has the authority but the duty to issue an immediate executive order stopping the Helms Gag from continuing to breach the right to nondiscriminatory medical services to women and girls raped in the context of an armed conflict. Further, the statutory language of the Helms Gag can and should be interpreted very narrowly and President Obama should instruct all agents and departments under his authority to ensure that foreign aid contracts are amended accordingly. In the long term, to repeal the Helms Amendment and other legislation which includes the Helms Gag language, such as the Millennium Development Corporation, requires an act of Congress.

13. Is the U.S. Congress doing anything about the Helms Gag?

Not directly. Two bills currently pending in Congress address U.S. funding restrictions on abortion in foreign aid, but neither calls for a direct repeal of the Helms Amendment nor would prohibit the speech censorship provisions addressed in the GJC’s UPR. H.R. 4879, the Global Democracy Promotion Act, if passed, would legislatively block the ability of the President to reinstate the Global Gag Rule via an executive order, but it firmly leaves Helms in place. The second bill, H.R. 5121, the Global Sexual and Reproductive Health Act of 2010, would cut down some of the Helms Amendment restrictions by creating access to safe abortion where legal, but it does not address any of the speech restrictions that form the Helms Gag.

UK Baroness Uddin Uses GJC Legal Arguements in House of Lords Debate to Call for end to Discriminatory Care of Women Raped in Conflict

In her statement last Thursday, UK Baroness Uddin used a new legal argument from the Global Justice Center to call for the end to the routine denial of access to abortions for women who are raped and impregnated in conflict. Baroness Uddin identified the United States policy of censoring humanitarian aid recipients from speaking about or providing access to abortions as playing a major role in the continuing violation of the rights of these victims and called on the UK to ask questions of the United States about this policy when it is reviewed by the UN Human Rights Council. 

From UK House of Lords debate on the Millennium Development Goals, October 7, 2010, at link below, columns 307-308:

http://www.publications.parliament.uk/pa/ld201011/ldhansrd/text/101007-0002.htm#10100714000795

Baroness Uddin: My Lords, I, too, thank the noble Lord, Lord Chidgey, for initiating this important discussion. In the UK we should be rightly proud of the British leadership in advancing the millennium development goals which represent a vision of a world transformed where equality and justice prevail.

However, while we are very pleased, one group of women remains outside the MDG effort. Until we address this failure, we cannot speak of real progress. Today I ask our Government to call explicitly for girls and women who are forcibly impregnated by the vicious use of rape in armed conflict to be included under MDG 5-reducing maternal mortality. “Rape as a weapon of war” is a phrase commonly used accurately to describe what is happening alongside today’s armed conflicts, but we rarely speak about the consequences of this weapon. Thousands of girls and women impregnated by rape used as a weapon of war are routinely denied access to abortions. Girls and women die from their attempts to self-abort and from suicide resulting from untold stigmatization leading to social marginalization.

We should do what no other country has done: to ensure that the humanitarian medical aid provided to girls and women in places such as Congo, Sudan and Burma-an endless list of countries-gives them choices and access to abortion when pregnancy is a direct result of rape as a weapon of war. This is a moral imperative and a legal obligation. The Geneva Convention requires that civilians and combatant victims receive non-discriminatory medical care, whether it is provided by the state in conflict or by others. Why, then, are pregnant rape victims given discriminatory medical care through the routine denial of access to abortion? The embedded inequality towards women in conflict settings has been recognised by the Security Council in such historic resolutions as 1325 and 1820. Equal justice for women is not limited to the courtroom, it must be extended to supporting those women who are victims of the inhuman practice of rape as a weapon of war.

I draw the attention of the House to the recent report of the Harvard Humanitarian Initiative and Oxfam, which details examples of the impact, stigma and suffering of raped children and women in Congo, Sudan and elsewhere, where no legal provision exists to support them. It also mentions that women should be given preventive care-that is, utilisation of contraception-as though women who are raped can be prepared for such horrors.

One of the solutions proposed by women’s organisations, including the international human rights organisation the Global Justice Center, is that access to abortion must be a critical part of the support available to women. The centre filed a shadow report with the Human Rights Council asking it to recommend that the US remove the prohibitions put on humanitarian aid to rape victims in conflict, as it violates the US obligation under the Geneva Convention. The UK can and must support this issue by asking questions of the US during the council’s review process due shortly.

I know that these are difficult matters for many individuals and countries to address, and international donor communities have thus far resisted pressurising countries to review their policies. Neither criminal abortion laws in the conflict state nor foreign aid contracts with the United States can serve as defence to a state provision of discriminatory medical care to all victims under international humanitarian law.

Time is short, and I should have liked to highlight many examples of countries such as Bangladesh where the suffering and humiliation of rape has left decades of suffering, ill health and stigma. The UK must take a lead to end that discrimination. This will mark real progress towards the millennium development goals and towards ensuring equal rights for women under international humanitarian law.

Global Justice Center Challenges the Abortion Speech Censorship Imposed by the U.S. on all Foreign Aid Recipients, at the UN Human Rights Council

FOR IMMEDIATE RELEASE - May 26, 2010

[NEW YORK, NY] - The Global Justice Center, in a submission to the UN Human Rights Council, challenges the censorship of abortion related speech imposed on all U.S. foreign aid. The Global Justice Center identifies the alarming effects of this censorship, including denying impregnated rape victims in conflict access to information about abortion services. “For the United States to prevent women and girls who have been gang raped and impregnated by the military in places like the Congo, Sudan, or Burma from their full range of medical treatment options, including abortion, is cruel, inhumane, and violates fundamental international laws such as the Geneva Conventions,” says Global Justice Center President Janet Benshoof. “It is not what America stands for.”

How to Talk About the Speech Censorship at the Heart of U.S. Foreign Policy: The Helms Gag Question & Answer

The Global Justice Center, on April 19, 2010, in a submission to the UN Human Rights Council in Geneva, challenged the U.S. policy requiring censorship of abortion related speech as a condition placed on all U.S. foreign aid. This foreign policy extends to censoring the speech of some 150 foreign governments receiving some form of U.S. foreign assistance.

This "Q and A" provides an overview of how this all encompassing censorship, which we term the "Helms Gag," came to dominate U.S. foreign policy and the injurious effects of what is an egregious violation of international human rights law and a gross violation of international humanitarian law.

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Comment parler de la censure de la parole au cœur de la politique etrangere americaine: La loi Helms Gag Question - Reponse

Le Global Justice Center, le 19 avril 2010, dans un rapport adresse au Conseil des Droits de l'Homme a Geneve, a conteste la politique americaine exigeant la censure de la parole concernant l'avortement comme une condition imposee a toute aide etrangere provenant des Etats-Unis. Cette politique etrangere s'etend a la censure de la parole de quelque 150 gouvernements etrangers recevant d'aide par les Etats-Unis.

Ce questionnaire donne une vue d'ensemble de la façon dont cette censure globale, qu'on appelle la «Helms Gag», a domine la politique etrangere americaine et les effets prejudiciables de ce qui est une violation flagrante du droit international des droits de l'homme et une violation grave du droit international humanitaire.

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On The Issues, “Twisted Treaty Shafts U.S. Women”

On The Issues publishes an article by Janet Benshoof, founder and President of the GJC, titled "Twisted Treaty Shafts U.S. Women".

This article shows how the U.S. is lagging behind several countries with women's equality. The CEDAW (Convention on the Elimination of All Forms of Discrimination Against Women) international treaty, already ratified by 185 countries, has yet to be ratified by the U.S. Furthermore, even if ratified eleven reservations have been placed on it, rendering it useless to the equality movement - and possibly even harmful.

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CEDAW and Colombia: The Path to Liberalizing Colombia’s Abortion Laws

On May 10th, 2006, the Constitutional Court of Colombia made a historic decision, overturning the nation’s total ban on abortion, and ruling that abortions would now be permitted in the most extreme cases: “when the life of a mother was in danger or the fetus was expected to die or in cases of rape or incest.” This unprecedented case was the first to challenge a domestic abortion law using the United Nation’s Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). 

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False Choices: Sacrificing Equality to get CEDAW

The United States signed CEDAW in 1980, but it has not yet ratified the Convention. Proponents of ratification argue that the U.S.’ failure to ratify CEDAW hurts American efforts, by both the government and private organizations, to promote human rights. Although the Global Justice Center agrees, we urge organizations committed to promoting true gender equality not to support ratification accompanied by the sort of "understanding" added by Senator Helms in 1994.1 The compromises made by the addition of the Helms "understanding" sacrificed the core concepts of CEDA W. This dangerous "understanding" resurrects the discriminatory fallacy of biology as destiny and promotes the agenda of those who would find laws severely restricting or even criminalizing abortion to be perfectly compatible with "women's rights" and "equality."

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Don’t Fight the Phony Wars: The US Exportation of Gender Inequality

This fact sheet provides information on the Gonzales decision, and how it "opens the door to more criminal laws regulation reproductive rights on theological, ideological and/or moral grounds." The fact sheet also lists the four pillars of Roe, and four phony wars: The Federal ERA, The US Ratification of CEDAW, "Roe v Wade" as it stands today is no right to fight for and the Global Gag Rule.

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The Anfal Decision: Breaking New Ground for Women’s Rights in Iraq

The GJC publishes a fact sheet on the Anfal decision.

The Anfal decision was made by the IHT, in prosecuting crimes committed under the Anfal campaign against Iraq's Kurdish population. The decision is a step in the right direction for women's rights in Iraq. This fact sheet gives information on the decision, including rape as torture, rape as genocide, joint criminal enterprise and rape, and how the IHT can be a vehicle for legal reform both in Iraq and internationally.

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