GJC President Akila Radhakrishnan and GJC Legal Adviser Elena Sarver published this article in the Columbia Human Rights Law Review.

Abstract:

This past July, the Trump administration announced the creation of a new body with a curious name—the “Commission on Unalienable Rights.” Secretary of State Mike Pompeo described the effort as an attempt to “ground our discussion of human rights in America’s founding principles.” However, universal human rights norms exist to hold states accountable: they cannot be defined, redefined, or limited based on the demands or viewpoints of a single government. While Secretary Pompeo claims that he wants to depoliticize human rights, this commission does the exact opposite.

The establishment of this panel is yet another offense on the international system as part of the Trump administration’s regressive agenda. This action follows a clear pattern of ideological attacks on US engagement with the human rights system and the norms they uphold. Such recent examples, as this submission will discuss in greater detail, include withdrawing from the Human Rights Council, erasing reproductive rights from human rights reports, and cutting funding to the Organization of American States in an attempt to censor abortion-related speech. Additionally, the denial of abortion care to women held in detention at the US border, the problematic nomination of Andrew Bremberg as US Ambassador to the Office of the United Nations and Other International Organizations in Geneva, and the removal of language referencing sexual and reproductive health care in UN Security Council Resolution 2467 also fall into the administration’s pattern of undermining the importance of women’s health and bodily autonomy.

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GJC Vice-President, Akila Radhakrishnan, GJC Legal Fellow, Elena Sarver and GJC Staff Attorney, Grant Shubin published an article in Reproductive Health Matters.

Abstract:

Women and girls are increasingly the direct and targeted victims of armed conflict and studies show that they are disproportionately and differentially affected. However, humanitarian laws, policies, and protocols have yet to be meaningfully interpreted and adapted to respond to their specific needs, including to sexual and reproductive health services and rights. In particular, safe abortion services are routinely omitted from sexual and reproductive health services in humanitarian settings for a variety of reasons, including improper deference to national law, the disproportionate influence of restrictive funding policies, and the failure to treat abortion as medical care. However, properly construed, abortion services fall within the purview of the universal and non-derogable protections granted under international humanitarian and human rights law. This commentary considers the protections of international humanitarian law and explains how abortion services fall within a category of protected medical care. It then outlines contemporary challenges affecting the realisation of these rights. Finally, it proposes a unification of current approaches through the use of international humanitarian law to ensure comprehensive care for those affected by armed conflict.

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The Security Council has found that the endemic use of rape in war for military advantage – which is primarily targeted against women and girls – is a military tactic that presents a threat to global peace and security. Despite concerted global efforts over the last two decades to end its use, rape as a tool of war continues undeterred. This article links the intransigent use of strategic rape with states’ failure to treat it as an unlawful tactic of war under the rules of international humanitarian law (IHL) that regulate the 'means and methods of war’. Embedding strategic rape under IHL’s weapons framework will increase its stigmatization, a critical factor in stopping the use of abhorrent weapons or tactics in war. Other potential benefits include the opening up of civil and criminal accountability frameworks and others which provide restitution and reparations for war rape victims. This article focuses on the role of all states in enforcing the weapons framework and it calls for states to undertake an impact and injuries assessment of strategic rape under the Article 36 weapons review process.

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If United States foreign assistance funded the writing of this paper, which addresses free speech and women‘s rights issues of the utmost international concern, the authors, two United States citizens, would be censored—by U.S. law—from making any statements that advocated for abortion in any context.

Because the writing of this paper is not conditioned on the revocation of the authors‘ First Amendment rights, this paper can and will examine the legality and impact of U.S. abortion speech restrictions on foreign assistance recipients. The restrictions violate U.S. constitutional protections of free speech and contravene international law regarding democratic reform of criminal abortion laws abroad and human rights guarantees, including the right to health. Although the U.S. places myriad abortion-related restrictions on foreign assistance, this paper focuses on the speech concerns of the Helms Amendment3 in the context of domestic constitutional law and the Helms and Siljander Amendments4 in the context of international law. 

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