Saturday, August 25

:: Irish Times Column on Amnesty, Abortion

OP ED: Amnesty's policy change on abortion long overdue

Date: Tuesday, August 28, 2007
Source: Irish Times
Author: Joseph Powderly

Amnesty International's decision to support abortion in certain instances is correct and in line with international law, argues Joseph Powderly

Over recent months there has been considerable concern, criticism and controversy surrounding Amnesty International's change of policy relating to the provision of legal abortion services for victims of rape, incest or sexual assault.

Unsurprisingly, the Catholic Church has acted as the driving force behind this criticism. Almost inevitably, the debate has devolved into what is widely perceived as a clash of moralities, and it seems necessary to introduce some clarity to the discussion by redefining it in terms of international law.

Before examining the compatibility of Amnesty's policy change with internationally-recognised norms of international humanitarian and human rights law, let us be absolutely certain of what it actually advocates.

The decision to reform its traditionally neutral attitude to the question of abortion was reached following a period of intense discussion within the organisation. There are four core aspects to the policy change ratified by the global movement at its international council meeting in Mexico last week.

It calls for: (i) the provision of comprehensive information on sexual and reproductive health to both women and men; (ii) the provision of legal, safe and accessible abortion in cases of rape, sexual assault or incest, and in cases where there is a risk to a woman's life or a grave risk to her health; (iii) the repeal of laws that permit the imprisonment or imposition of other criminal sanctions on women who have sought to have an abortion or on medical practitioners who provide information or abortion services; and (iv) the provision of quality medical services for the management of complications arising from abortion.

Crucially, the policy does not call for the recognition of a universal right to abortion (a right that simply does not exist in international law), but rather an increased recognition of the right of women to sexual and reproductive integrity in the face of grave human rights abuses.

The move towards reform has been greatly influenced by reports emerging from the conflict in Darfur of the widespread use of rape and forced pregnancy as a weapon of war. Amnesty's long-overdue change of policy is indicative of the international community's evolving recognition of the egregious incidence of sexual and gender-based crimes in conflict situations and the need to address the rights of victims.

While rape has been prohibited by the law of war for centuries, it would appear that until recently history has adopted the deplorable, misogynistic attitude that rape and other forms of sexual violence are an inevitable consequence of war. In many instances prior to and during the second World War rape was given licence as an encouragement to soldiers or even as an instrument of policy (the Japanese retention of "comfort women" is a particularly disturbing example).

There was no explicit reference to sexual or gender-based crimes in the charters establishing either the Nuremberg or Tokyo military tribunals, and no individual was prosecuted specifically for sexual offences.

The conflicts in Rwanda and the former Yugoslavia and the resultant international criminal tribunals have played an enormous part in ending impunity for rape and other serious sexual offences perpetrated in armed conflict. The statutes and jurisprudence of these ad hoc international criminal tribunals have firmly established that rape in time of war may (provided certain criteria are met) be considered a crime against humanity, a war crime, or even an act of genocide. These legal principles have been largely subsumed into the provisions of the Rome Statute of the International Criminal Court, which is currently investigating the situation in Darfur. It seems likely that prosecutions for rape and other sexual offences will be placed high on the International Criminal Court's list of priority offences.

However, this offers little recompense to victims of sexual violence in traditional, religious societies. Victims are frequently ostracised from their families and communities, rendered destitute and sometimes imprisoned for what are perceived as criminal sexual acts outside of marriage.

Amnesty International, like all organisations committed to the promotion and preservation of international human rights, has a mandate to protect the most vulnerable. In order to do this effectively it must necessarily be a secular organisation founded on the rule of law rather than any particular code of theology. It is important to note that this change of policy goes no further than to bring the organisation into line with the jurisprudence of the Europe Court of Human Rights and the United Nations Human Rights Committee, which have both held that while a considerable amount of discretion must be afforded to states in deciding the legality of abortion, there are nevertheless certain obligations accruing to the state which require it to positively secure the physical integrity of mothers-to-be.

The comment of Cardinal Renato Martino, head of the pontifical council for justice and peace, that Amnesty had "betrayed its mission" could not be further from the truth. The terms of the Universal Declaration of Human Rights demands that the preservation of human rights be pursued in a universally secular manner and not be cowed by the dictates of any one established faith.

Abortion is understandably a highly divisive issue. Surely the countless harrowing personal histories emerging from war-torn regions provide an opportunity in which principle and dogma may be set to one side in favour of a truly compassionate appreciation of the circumstances faced by victims of sexual violence.

[Joseph Powderly is case reporter in international criminal law for Oxford University Press and a PhD candidate with the Irish Centre for Human Rights, NUI Galway]

1 comment:

Anonymous said...

Your depiction of the current adopted policy of AI is correct. However, the reasons why AI changed its up to now neutral policy are possibly a matter of post-hoc addition. For very long during the consultation process with members the issue of rape in war, indeed of why any policy was necessary remained vague. There were very serious suggestions to have a much broader policy, indeed a right to abortion. The language and argumentation in a number of important information given to members was very close to strongly held feminist positions. Consequently, members complained about this ideological bias, as they consider political and ideological neutrality very important. It is still not quite clear what the call for complete decriminalization does entail.

In human rights law, of course, a balancing of rights exercise would be possible. However, in its new position AI has not found a way to acknowledge that international human rights law allows for the possibility of human right before birth. This would have been a prerequisite for any balancing-of-rights exercise. Indeed, arguments by members pointing out the contingencies for fetal rights of the American Convention of Human Rights, the preamble of Children´s Right Convention or certain stipulations in the Covenant on civil and political rights, were not taken up. Opinions that human beings before birth have rights were consistently called "conscientiously held", "fundamentalist" "religious" or "theological". But not all members who have problems with the new position have a religious background. Abortion is a legally divisive issue, and any human rights organisation should consider legal arguments, or at least acknowledge their existence.