Female Victims of Abuse—Morally Blameworthy for Offenses Committed Under Duress?

Cross Posted from GuiltyNotGuiltyBlog.com

(follow this blog for a critical analysis of Canada’s legal justice system)

Duress cases often arise in situations of intimate partner violence—a woman commits a criminal offense because her usually male abuser threatens her. In the last 30 years, the law of self-defence has evolved in the context of abusive relationships. For example, a woman who kills or injures her abusive partner is excused from criminal punishment, even when her partner was not advancing at the time she injured him.[1]

Yet, the law still has difficulty recognizing how an abuser could compel his victim to commit a criminal act. Or rather, the predominately white, male judiciary is unconsciously biased against the defendant whose abuser compels her to commit a criminal act.

What Is Duress?

When someone is forced to do something against their better judgment, they are acting out of duress. The law excuses criminal action when someone acts under duress because their actions are not morally blameworthy—they only committed the criminal offense because they were forced to do so. The moral culpability of a person acting under duress is not comparable to someone acting voluntarily. As a result, while the individual admits their criminal conduct, they are excused from criminal punishment because they acted out of duress.

When Is the Duress Defense Available?  

The duress defense is a complicated area of criminal law because it can be accessed by way of either statute or the common law. Section 17 of the Criminal Code outline the statuary defense; Canadian courts have defined the common law defense over the time.

The statutory and common law duress defenses have many common elements:[2]

  • A threat of death or bodily harm;
  • The defendant’s reasonable belief that the threat will be carried out;
  • No safe avenue of escape;
  • A close temporal connection between the threat and the harm threatened;
  • The harm the defendant caused cannot be greater than the harm threatened;
  • The defendant did not conspire to commit the offense

The statutory duress defense only applies when the person who commits the offense is themselves threatened. For example, Mr. Exx threatened to kill Ms. Y if she does not commit an offense. The statutory duress defense does not apply when a third-party is threatened. For example, Mr. Exx threatens to kill Ms. Y’s mother if she does not commit an offense. If a third-party is threatened, defendants can use the common law duress defense.[3]

The statutory duress defense cannot be used if the defendant commits any of the crimes listed in section 17 of the Criminal Code. These include, but are not limited to, murder/attempted murder, sexual/aggravated assault, forcible abduction, robbery, hostage taking, or arson.[4] Recently, the Ontario Court of Appeal found excluding murder from the section 17 defense unconstitutional.[5] The Supreme Court denied leave to appeal, making this decision the leading case in Ontario on the interpretation of section 17.

Is Duress Available for Female Defendants Who Are Victims of Abuse?

The Ryan decision is often erroneously cited to mean duress is not an available defense for women in abusive relationships.[6] The duress defense is available if a reasonable person in the defendant’s situation would have been compelled to commit the offense the defendant committed.[7] This is a modified objective legal test. This analysis requires not only determining whether a reasonable person would have committed the offense under threat. The analysis must also consider the defendant’s individual circumstance to decide if committing an offense was reasonable.

Where a defendant was compelled by her abuser to commit a criminal offense, the defendant’s relationship with her abuser must be considered when determining how a reasonable person would have responded to the threat. As Professor Sheehy notes:

Batterers deploy additional methods when women attempt to separate: promises to change, apologies, and declarations of love; efforts to further isolate women from familial and social supports; and escalating threats to kill them should they leave. These men seek total surrender, which they achieve by forcing women to violate their own boundaries and moral codes, participate in their own humiliation, or sacrifice others – children, family, friends.[8]

Is an Expert Testimony Needed?

Unfortunately, expert testimony is needed for women advancing the defense of duress after experiencing intimate partner violence. In the last 30 years, Canada’s legal system has made significant strides in addressing the unique challenges women face in the criminal justice system. For example, a series of legislative reforms now prevent a women’s sexual history to undermine a victim’s credibility during a sexual assault trial.[9]

The law, however, continues to struggle with applying the modified objective standard to unique female experiences. The duress defense requires judges to determine if the defendant’s actions were reasonable considering the defendant’s circumstances. Reasonableness is supposed to be a completely objective standard but many judges are unconsciously biased—the more defendant who looks and acts like them, the more likely the judge will find her actions reasonable.[10]

Studies, however, suggest that courts are only willing to incorporate the defendant’s physical attributes into the reasonableness standard, not their mental attributes.[11] This is particularly problematic in intimate partner violence cases where abuse is verbal, not physical, and therefore show not physical signs. In these cases, courts cannot easily attribute the defendant’s mental state to the duress defense.

While 90% of intimate partner violence victims are women, only 30% of federally appointed judges are female.[12] Worse, only 2% of Canadian federal judges are visible minorities.[13] The criminal justice system disproportionately targets minority women, yet the Canadian judiciary remains extremely white.[14] Whether the female defendant is a white or a visible minority, an expert witness can help the judge understand why the defendant’s act was reasonable in her abusive circumstances.

Calling expert witnesses, however, takes time. The defense must give the Crown 30-day’s notice if it intends to call an expert witness.[15] Depending on when the defense receives disclosure, if the client being held in pre-trial detention pending trial, or if defense counsel has inherited the client from another lawyer, calling an expert witness can delay proceedings. Defense counsel must then weigh the value of calling an expert witness to strengthen the defense’s case against the impact that delaying proceedings will have on their client. The decision is rarely an easy one.

Other Defense Options for Female Defendants who are Victims of Abuse?

Where an expert witness is not feasible to establish the duress defense, defense counsel can also attempt to demonstrate that the defendant, having experienced abuse, lacks the necessary mens rea to be found guilty of the offense.

A defendant cannot be convicted of a criminal offense where they lack the mens rea necessary for the commission of the offense. Mens rea is the defendant’s intention to commit a crime. A defendant is not guilty of a crime he or she did not intend to commit unless their actions were so reckless that they should have foreseen committing a crime as inevitable. If a defendant committed an offense under duress, it may be possible to argue that they lacked the necessary mens rea to be convicted of the offense.

Historically, a criminal act committed under duress has not undermined the defendant’s mens rea—the defendant has the adequate mens rea to commit an offense but is excused from criminal liability because they lacked the moral blameworthiness to be convicted.[16]

More recent case law, however, seems to revisit this argument. In Rochon v R, the Quebec Court of Appeal (affirmed by the Supreme Court of Canada) overturned Ms. Rochon’s conviction for producing a schedule II substance (cannabis). In this case, Ms. Rochon entrusted her son with her cottage property in her absence and, upon returning, discovered a marijuana plantation on her land. Ms. Rochon asked her son twice to get rid of the marijuana plants, saying she did not want to report him to the authorities. The Court found that Ms. Rochon’s failure to report her son to the authorities did not constitute the actus reus (criminal act) of participating in the production and possession of marijuana; nor did it constitute the mens rea (criminal intent) since she had no intention to aid her son in the production and possession of marijuana.[17]

It’s easy to imagine a duress case with facts similar to the Rochon case. The defendant’s boyfriend set up a marijuana grow operation in her apartment. The defendant does not report her boyfriend but objects to the grow op. The police discover the grow op and charge the defendant with producing marijuana. In this set of facts, the defendant could argue she did not form the requisite mens rea to be convicted of producing marijuana.

The Way Forward

While the duress defense is available for defendants who have experienced abuse, the need for statutory restrictions on this defense and the need for expert witnesses makes the successful use of this defense difficult.

How can we make this defense more accessible to victims of abuse?

First, judicial education is needed. Judges need to be able to place themselves in the shoes of the defendant to understand why their actions were reasonable given her experiences. They need to be open to the fact that what they find reasonable and what was reasonable for the defendant may be different, but that does not necessarily mean the defendant is more morally blameworthy. Justice Rothman agreed that courses on gender bias should be part of judges’ continuing education at all stages of their careers.[18]

Second, more female judges are needed. Former Supreme Court Judge Bertha Wilson noted that women do not accept male perceptions and interpretations of events as the norm or as objective reality.[19] And, history has shown this to be true. Strong female judicial voices have historically been instrumental in advancing feminist legal issues and laying the foundation for female equality in the judiciary. Justice L’Heureux Dube’s dissents on consent in sexual assault cases eventually became Canadian law.[20] And, Justice Wilson herself was instrumental both getting the Supreme Court to accept that prohibition on abortion violated a woman’s constitutional right to security of a person and in getting the criminal justice system to recognize battered women’s syndrome as a defense for women who injure or kill their abusive partners.[21]

With judicial education and more female and minority voices in the law, the duress defense will become more widely available for intimate partner violence victims who lack the moral blameworthiness to be convicted of a criminal offense.

[1] R v Lavalle, [1990] 1 SCR 852: 10 WCB (2d) 101.

[2] R v Ryan, 2013 SCC 3 at para 81; [2013] 1 SCR 14. See also Criminal Code, RSC 1985, c C-46, s 17.

[3] R v Ruzic, 2001 SCC 24 at para 83; [2001] 1 SCR 687;

[4] Criminal Code, RSC 1985, c C-46, s 17

[5] R v Aravena, 2015 ONCA 250; 323 CCC (3d) 54.

[6] See Canadian Encyclopedia Digest

[7] R v Ryan, 2013 SCC 3 at paras 47-53; [2013] 1 SCR 14

[8] Elizabeth Sheehy, Defending Battered Women on Trial: Lessons from Transcripts (Vancouver: UBC Press, 2014) at 3.

[9] Criminal Code, s 276. See also Liat Levanon, “Sexual History Evidence in Cases of Sexual Assault: A Critical Re-evaluation,” (2012) 62 UTJL.

[10] Cynthia Lee, Murder and the Reasonable Man, (New York: New York University, 2003) at 204-206

[11] Cynthia Lee, Murder and the Reasonable Man, (New York: New York University, 2003) at 210.

[12] Kirk Martin, “Gender Imbalance: Appointments of Female Judges Under Harper’s Tories” (11 Nov 2011), The Globe and Mail online: <http://www.theglobeandmail.com/news/politics/appointments-of-female-judges-slump-under-harpers-tories/article4183464/&gt;.

[13] Nicolas Keung, “Few Visible Monitories Among Canadian Judges, Study Finds” (27 June 2012), The Toronto Star online: <https://www.thestar.com/news/gta/2012/06/27/few_visible_minorities_among_canadian_judges_study_finds.html&gt;

[14] Pascale Fournier, “The Ghettoisation of Difference in Canada: ‘Rape by Culture’ and the Danger of a ‘Cultural Defense’ in Criminal Trials” (2003) 29 MB L J.

[15] Criminal Code, section 657.3(3)

[16] R v Hibbert, [1995] 2 SCR 973; 40 CR (4th) 141.

[17] Rochon c R, 2011 QCCA 2012 at para 14.

[18] Melvin Rothman, “Prospects for Change in Canada: Education for Judges and Lawyers” In Martin & Maloney, Equality and Judicial Neutrality (Toronto: Carswell, 1987) 3 at 421-427.

[19] Bertha Wilson, “Will Women Judges Really Make a Difference?” (1990) 28(3) Osgoode LJ 507 at 519.

[20] See R v Park, [1995] 2 SCR 836, 39 CR (4th) 287; R v Ewanchuck, [1995] 1 SCR 330, 169 DLR (4th) 193.

[21] See R v Morgentaler, [1988] 1 SCR 30, 63 OR (2d) 281; R v Lavalle, [1990] 1 SCR 852: 10 WCB (2d) 101.

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Talking Not Spying

Cross Posted from the eQuality Project Blog 

By Jolene Hansell (eQuality Project Research Assistant)[1]

GoGuardian is a program installed in about 3 million school-owned computers. This program has the ability to monitor a students web-browsing and searches even when students are at home in the evenings or on weekends. The program automatically flags certain search terms, including those related to suicide. The idea is that when a student searches about suicide, the computer flags this search for the school’s IT director who can then call up the student’s browsing history to get a more detailed picture of what the student is going through and get the student assistance if needed.

Sounds like a great way to prevent suicide, right? But the situation may be more complicated than it first appears.

My main problem with this model is that it perpetuates the stereotype that there is something stigmatizing about mental illness. The student, who may not feel like they can talk about their struggle with their own mental health with anyone, is using the anonymity of the Internet to get information. When the school invades the student’s privacy to get access to their online browsing history, they perpetuate the societal notion that there is something shameful about the way this student is feeling/what the student is searching. This vicious circle continues to push mental health issues into the dark corner of things we are not prepared to talk about in our society.

Suicide is the second leading cause of youth death. It is one of the biggest issues facing our world today. I have no doubt that the intentions of GoGuardian are good—trying to reach out and help individuals struggling with their mental health before they become a suicide statistic is a noble objective. But further stigmatizing mental illness makes the problem worse, not better.

The best tool we have in the fight against suicide is conversation. Every day we are bombarded with things we need to do for our physical health—eat right, exercise, get a good night’s sleep—but we are less apt to discuss the things we do for our mental health.

Mental health needs to be part of our daily conversations; it needs to be okay to say, “I’m not okay”. Rather than employing technologies that invade a student’s privacy, schools should be incorporating conversations about mental health into their daily classes. By facilitating this conversation, schools will create an environment where individuals who are struggling with their mental health will feel comfortable to speak up and ask for help, and remove the need for monitoring technology altogether.

[1] Jolene Hansell is Vice President of the Paul Hansell Foundation. The Foundation supports programs aimed at promoting the emotional and well-being of youth and works to include the mental health conversation in our daily lives.

Where is the Water?

By: Jolene Hansell and Margarita Matias-Valencia*

(Cross-Posted from RESULTS Canada)

Be honest. How many times have you left the water running—while washing the dishes, brushing your teeth, or watering your garden—unconsciously wasting one of the world’s most precious resources and taking for granted the access to clean water that millions around the world struggle for every day?

IMG_2223In 2000, world leaders pledged to halve the proportion of people without sustainable access to safe drinking water and basic sanitation by 2015 as part of the Millennium Development Goals (MDGs). In 2012, with 2.3 billion people having gained access to improved drinking water sources, the United Nations declared the access to water target met—but this fight is still far from over: 748 million people still remain without access to safe drinking water, and 2.5 billion people in developing countries lack access to adequate sanitation facilities.

Why is access to water and basic sanitation so important? Because without it, Canada’s international development efforts are doomed to fail.

Sometimes when we talk about development, we focus on the novel or ‘cutting edge’, neglecting some of the most fundamental issues facing people living in poverty on a day-to-day basis. This is why water and sanitation can often be overlooked in Canada’s international development programming. Yet, access to water and sanitation is a basic and essential prerequisite for health. Take, for example, the global efforts to combat childhood malnutrition. Studies have shown that unsafe water and inadequate sanitation accounts for 50% of global malnutrition. Why? Because without access to clean water and sanitation, children have a significantly increased risk of experiencing repeat diarrhoea or contracting intestinal worms. Why should we care? Because diarrhea kills more children each year than HIV/AIDS, tuberculosis, and malaria combined.

Canada is a global leader in Maternal, Newborn, and Child Health (MNCH) and has a proven track-record for ambitious investments in MNCH, including the $3.5 billion investment announced by Prime Minister Harper at theSaving Every Women, Every Child Summit in May 2014. Water and sanitation, however, is blatantly absent from Canada’s international development priorities, a misstep that could serve to undermine the progress being made towards improving the lives of millions of women and children living without the basic necessities of life needed to thrive.

So, how can Canada ensure its continued impact on maternal, newborn, and child health around the world? By strengthening the links between our current development priorities and water/sanitation. If Canada’s MNCH priorities seek to integrate water and sanitation in the same way it incorporates nutrition, vaccines, and health systems strengthening, then Canada’s international development efforts will truly have a sustainable impact on the lives of the most vulnerable mothers and children around the world.


*Margarita Matias-Valencia is the Child Health—Nutrition Officer at RESULTS Canada. Follow her on twitter at:@mmatiasv

Jolene Hansell is the Communications Officer at RESULTS Canada. Follow her on twitter at: @joleneh340

Words Matter as We Fight to Eliminate Stigma

Jolene and PaulDecember 7, 2010 is a day I will never forget, though its not so much a memory as it is this vivid video I’m trapped in as it plays back in my mind. The phone rang. Matt answered it. Looking scared and confused, he passed the phone to me saying, “It’s your mom,” and I felt my stomach drop. My mom didn’t even say hello, all she said was, “Jolene, you need to come home.” I knew something terrible had happened. And then, those two words that caused more pain than anything I had ever felt in my entire life, “It’s Paul.”

Paul was my brother, the only sibling I had, who at eighteen committed suicide.

At the time, Paul was an undergraduate student at Brock University studying business. He wanted to be an accountant. While we fought like most siblings do, my brother was one of my best friends—the only person who really knew me. I couldn’t believe I was living in a world where Paul no longer existed.

In the days, and weeks, and months following my brother’s death, one of the most difficult things for me to deal with was the stigma of suicide and mental health issues. People told me my brother was selfish for ending his own life, and whispers circulated about how kid from such a good family could choose to end his own life.

I didn’t want to be known as ‘the girl whose brother committed suicide,’ and it was until years afterwards that I started to realize why. The sticking point for me is on the verbage: “committed suicide.” People commit theft, commit treason, commit murder, commit adultery—all things this that society has deemed inappropriate, and which have even been criminalized by law. The word ‘committed’ in front of the word ‘suicide’ then naturally perpetuates the stigma that suicide is bad, and someone who committed suicide is a bad person.

My brother was NOT a bad person; he was my best friend—my partner in crime, my study buddy, my rock when things got rough. I’m not ashamed that he took his own life, but I am frustrated with the stigma of suicide that continues to persist.

This year the theme of the United Nations International Youth Day is Mental Health Matters. Over 280 million youth around the world suffer from a mental health condition, but only one out of every five will receive the help and support they need. For many of these youth, the stigma attached with mental health is a major fact in their decision to ask for help and received treatment. I know it was a reason for my brother.

So how do we break the stigma to increase youth access to mental health programs? Promotion and awareness are definitely important, but it starts with the words we use. The continued marriage of ‘committed’ and ‘suicide’ will only continue to mitigate progress in breaking the stigma. Words matter. And to break the stigma, we need to change the words.

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Never Again? Rather, Never Until Next Time…

Twenty years ago today the world stood by while 1 million Tutsis we slaughtered in the 1994 Rwandan genocide. Then, the world pledged those famous words—never again, the same words spoken after the Jewish Holocaust. Here we are twenty years later and the words never again seem to carry little weight. Our international system continues to value state sovereignty over humanitarian intervention and while its does, we continue to have spurs of genocide like that in the Darfur region of Sudan or more recently in the Central African Republic (CAR).

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In the past ten years, with increased pressure from the human rights community, there has been a push towards the adoption of the Responsibility to Protect (R2P). This doctrine rests on three pillars: (1) a states responsibility to protect its citizens from genocide, war crimes, and crimes against humanity; (2) the international community’s responsibility to assist states in protecting their citizens; and (3) the responsibility of the international community to intervene with coercive measure when a state fails to protect its citizens. Some would say this is an emerging international norm, one that, with time, will become the new standard of international relation. However, this norm struggles for supremacy with state sovereignty, and state sovereignty almost always wins.

So when does the internationally community choose to intervene? Principally when state sovereignty is violated. The February 2014 Russian invasion of Crimea exemplifies this. When Russia sent military troops over the Ukrainian border to Crimea without the consent of Ukraine, it inexplicably violated Ukraine’s sovereignty. The international community immediately jumped to attention imposing sanctions, condemning Russia’s actions, and calling for an immediate withdrawal of Russian military troops from the Ukraine. This violation of state sovereignty sparked an immediate international reaction and underlines the weight given to a state’s sovereign integrity. With such a strong weight on sovereignty, it then follows that internal state affair remain just that, internal. Regardless of how many people are dying, states are incredible hesitant to violate this principle of state sovereignty.

So, does what happens within a countries border remain the internal affair of a state? Legally yes. But then you have the quick reaction by the international community to the 2007 political violence in Kenya, an internal Kenyan affair. The outbreak of violence following the 2007 Kenyan election was referred to as genocide by the then US Secretary of State, Condoleezza Rice, who visited the rift valley region in Kenya in the weeks following the outbreak of violence. Approximately 1,000 people were killed and 600,000 were displaced. While theses numbers are not insignificant, they do not compare to the death count of the Rwandan genocide, and yet, this outbreak of violence immediately spurred international attention. The Panel of Three Eminent Persons, headed by Kofi Annan was put by the African Union to address the conflict, and a opposing parties were quickly forced into a mediation process. Three months after the outbreak of violence a peace agreement was signed that included a power sharing agreement before the two contested victors of the December 2007 election. Disaster averted by the international community.

The question here is why did the international community choose to intervene in Kenya after the 2007 electoral violence? Some scholars would call this a case for the Responsibility to Protect and point to it as state action supporting this emerging international norm. But, if that is the case, why have we not intervened in the CAR or in Syria, where fighting and violence persists. The conflict in the CAR barely grabs any media attention and the fighting in Syria has been so drawn out that it now falls on deaf ears.

What’s the connection here between the international community’s engagement in Kenya and the Ukraine? When does the international community act? Unfortunately, politics continues to be the driving factor of state action. Kenya and the Ukraine are both of strategic political interest to the world’s powers, namely the United States, and this strategic political interest prompts reaction. Kenya is the international hub in eastern Africa—many international operations based their headquarters there, Eastern Africa foreign aid is transferred through there, and in 2007, Kenya was a strategic US partner in the global war on terrorism. These are strong pull that prompted quick and swift international reaction at the outset of violence. The same can be said about the Ukraine: Russia’s involvement and access to eastern European oil are two very strong pull that forced an international reaction. Unfortunately, there are no pulls prompting a reaction to the CAR Crisis, just like there were no pulls prompting an reaction to genocide in the Darfur region of Sudan or Rwandan genocide in 1994.

In spite of what we would like to believe never again has never really had any political weight. It is was promise made out of anguish and regret for not prevent, mitigating, or stopping mass atrocities, but it is dangerously lacking in political will. The phrase is probably more accurately put as: never again so long as there is this political interest. Having travelled to Rwanda and having met with the victims and perpetrators of the genocide, it’s astonishing to think that the world could left it all happen again somewhere else, turning a blind eye like it did in 1994.

Have the lessons from Rwanda really be embodied by the international community? No. Can we really continue to proclaim never again. Again no. So where do we go from here? How to we ensure there isn’t a next time for genocide when the political cards seem stacked against the odds? These are all questions that remain unanswered by the currently framework of international relations.

 

Jolene Hansell is Conflict Resolution Practitioner and Communications Specialists. She has an MA in Conflict Resolution from Georgetown University and a Bachelor (Honours) of International Development from the University of Ottawa. Her specific area of expertise is transitional justice and rule of law. You can email her at jah340@georgetown.edu or follow her on twitter @joleneh340

 

Tracking Reconciliation?

Monitoring and Evaluation is one of the fastest growing areas in the fields of international development, conflict resolution, and project implementation in general. It provides the basis for determining the effectiveness of a given project and allows for changes and adjustments to be made in order to ensure that the project is reaching its intended outcome. For certain projects this is can more easily be done than for others. Take for example a small-scale development project where the project is to build a medical facility in a given community. This process is fairly systematic. A plan is developed, funding is secured, the project is put into action, and the medical center is continuously monitored to ensure that it is meeting its community health objective. In this case, monitoring and evaluation is someone of a checklist. Is “x” working; yes or no?  What about “y”? And so on and so forth. The same cannot be said when it comes to monitoring an evaluation of projects involving reconciliation.

Reconciliation is a deeply personal process. It involves a change within each individual, a decision to let go of the pain and atrocities that they have endure, a decision to more forward, to let the past be the past. This is a primary concern in the conflict resolution field. How do we get conflicting parties to set aside their differences and at best live and work together or at least civilly tolerate one another? Some projects focusing of this area have sought to bring conflicting parties together on neutral territory with a neutral activity using sports, dance, music, art, farming, community work, or some other cultural activity that would allow both parties to participant. The hope of this activity is that through working/playing together, through having contact with one another, the conflicting parties come to realize that humanness of the other and begin to remove any preconceived conceptions they may have had. But how can we monitor and evaluate this process? How do we tell if someone’s hatred for another has diminished, if there fear of the other is lessened, if they are more apt to work with and along side of someone traditionally considered to be from the outgroup? How do we monitor and evaluate something so personal, someone’s soul?

Simon Wiesenthal‘s book The Sunflower demonstrates the complexity of forgiveness in his true account of a Nazi solider (Karl) who asks Jewish concentration camp detainee (Simon) for forgiveness on his deathbed for killing another Jewish family. The questions of forgiveness that Wiesenthal addresses are thought provoking, prompting the reader to question his or her own beliefs. Can forgiveness be granted ion someone else’s behalf? Karl is not seeking Simon’s forgiveness for a grievance caused to Simon, but rather is seeking forgiveness for the murder of another family. Since Karl cannot seek forgiveness from the dead, he asks for Simon’s forgiveness instead. If the circumstances had been different, if the family Karl wronged remained alive, would Karl have still asked Simon to forgive him for his wrongdoings? And if so, would Simon have been able to grant forgiveness on behalf of the family? The probable answer is no. If Karl could have sought forgiveness from the family he murdered, he would have done so and Simon would have no right to grant forgiveness on the family’s behalf. Should these circumstances be different if the wrongdoing resulted in death and the forgiveness of the wronged person cannot be granted? There are some circumstances in which the bereaved victims do grant the perpetrator forgiveness (this can sometimes be seen in murder trials), but to give anyone this right would dishonor the dead. Thus, Simon did not have the right to forgive Karl the atrocities Karl committed, as they were not inflicted on Simon, and Simon does not have the right to grant forgiveness on someone else’s behalf.

With an issue as complex as forgiveness, how can an organization seek evaluate progress made in their reconciliation efforts? The Spirit and Education Movement (SEM), a South-East Asian organization working in the area of post-conflict reconciliation, uses surveys to help bridge this gap. They conduct surveys before the project is implemented and after the project is implemented in an attempt to gage the ‘feelings’ of those who participated in the process. Although this is one why to capture how someone is feeling, is only captures their feelings on a particular moment in time, a feeling that could be swayed by multiple factors ranging from the weather outside to problems at home or at work. In spite of having conducted these surveys, SEM recognizes that monitoring and evaluation what it comes to questions of reconciliation is extremely difficult. So the question remains, can it be done?

The reality is that reconciliation is a process, an extremely long and sometimes incredibly painful process at that. It takes time and cannot be constricted on single project or activity. There is an old saying that goes “time heals all wounds”, note the word time. Consequently, monitoring and evaluation of reconciliation efforts should be carried out in the long-term, not the immediate aftermath.

Impact of the Media on US Foreign Policy in Darfur

In order to determine what, if any, impact the media had on US foreign policy towards Darfur, I have examined articles published in the New York Times between January 2003 and January 2006 on the topic of Darfur and then crossed reference those with actions taken by the US government. A visual depiction of this analysis can be found in Appendix A. The New York Times being the top print news outlet in the United States provides a good basis for this analysis.

At the height the conflict in Darfur, between April 2003 and April 2005, the New York Times (NYT) published 192 article on the topics, including news reports, editorials, and letters to the editor.[1]Of the articles published by the NYT’s between April 2003 and April 2005, 59.5% were plain news stories about the atrocities in Sudan, the Sudanese government’s reactions, and international response to the atrocities.[2] There were also 15 editorials, 17 letters to the editor, and 3 news stories that urged US government official to intervene and help the Sudanese; as such the “NYT reported in a more US-centered way and promoted American intervention in the incident.”[3] These articles, which focused on urging the US to intervene in the conflict, are the focus of my analysis.

Nicolas Kristof was the primary author of the editors for the NTY on the topic of Darfur. His editorials are written in a very provocative tone, meant to solicit a response from the reader and prompt the reader to take action for his cause. His articles are personalized; in many, he speaks directly to President Bush as if the conversation was just between the two of them.[4] He also constantly invokes the Rwanda narrative and the shame of the United States’ lack of involvement in ending the Rwandan genocide and also shames the United States for their lack of initiative in preventing the escalation of violence in Darfur.[5] The articles also call on the American populations, individuals and elected representatives alike, to put pressure on the Bush administration to act in regards to the crisis in Darfur.[6] The articles are written with a strong sense of purpose and urgency; implicit in their writing is the sense that a failure to respond will result in continued atrocities.

From the analysis of the print media articles in the NYT and the US’ reaction to the crisis in Darfur (see appendix A), the influence of the media on US policy towards Sudan can be isolated into three waves. The first wave is from March to April 2004. The NYT editorials written during this time period draw public attention to the atrocities being committed in Darfur and framed the conflict as genocide.[7] The awareness struck by their articles pushed the issued to be addressed in the United States Senate, where Senator Kennedy, Senator McCain, and a coalition of Senators (Senator Frist and Senator Daschel among them) called the crisis in Darfur genocide and began to lobby for US intervention.[8]

The second wave of influence corresponds with the lull in Senate efforts to influence the Bush administration to take action in Darfur. The last of articles produced by the NYT in June forces Darfur back on the Administration’s agenda.[9]This wave of the media campaign is marked by two events: a bipartisan letter by 51 Senator addressed to Secretary of State Collin Powell calling on the US government to take action in Darfur and the President Bush’s deployment of Powell to the Sudan region to assess the crisis and make a determination regarding the occurrence of genocide.[10]

The third wave of articles by the NYT occurred through July and August 2004, while Powell was in the Sudan region conducting his investigation. From the persistence of these articles, it appears as though there purpose is to keep the spotlight and the pressure on the conflict,[11] while the US Congress passes concurrent resolutions – first in the Senate, then in the House of Representatives –calling the crisis in Darfur genocide and subsequently calling of US action in this regard.[12] The culmination of the media pressure is seen in Powell’s declaration of genocide in Darfur on 9 September 2004, followed by President Bush’s declaration of genocide in Darfur to the United Nations General Assembly on 21 September 2004.[13] In its labeling of Darfur as a genocide the “United States stood virtually along among nations-states and non-governmental organization,”[14] supporting the claim that the US’ determination of genocide was, in large part, due to immense pressure from the media and subsequently the public.

There is one other trend in the NYT’s articles that is worth noting. As the debate in the US Congress over the question of genocide intensified and the resolution were past classifying Darfur as genocide, the rhetoric in the articles shifts – it not longer strongly asserts genocide is taking place, but rather begins to contemplate the technically of the definition of genocide and examines the situation for the point of those (United Nation, Human Rights Watch, and Amnesty International), who would not classify the conflict as genocide.[15] In this, it becomes evident that the intention of the articles has been achieved: the United States has recognized the crisis in Darfur as genocide; however, implicit in this intention was the belief that the recognition of genocide would force US engagement in the region. As it turns out, this was not the case.

Despite the US’ recognition that the conflict in Darfur is a genocide, both Powell[16] and President Bush[17] downplayed the calls for US intervention, advocating for working with African Union troop and the United Nations rather than deploying Americans to the regions. In doing so, they exercised article VIII of the Genocide Convention that states “any contracting party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate to prevent and suppress acts of genocide.”[18] In essence, the United States was able to declare the crisis genocide while simultaneously absolving itself of any requirement to physically intervene. This stripped away the illusion that a mere declaration of genocide would lead to significant action,[19] and made it clear the genocide is not a “magic word that triggers intervention.”[20]Moreover, it provides evidence to the fact that the Genocide Convention does not have the impetus that many originally thought it to have.[21]This makes the present situation in Darfur all the more frustrating, as while the US has determined it to be genocide, it has done little since. Although the International Criminal Court has issued indictments for Sudanese President Al-Bashir, Al-Bashir remains at large and the crisis in the Darfur region continues.

Through an examination of articles written in the New York Times it has become evident that there is a correlation between print media publication regarding the crisis in Darfur and the US’ subsequent declaration of genocide, suggesting that pressure from the media impacted this debate in the US government. However, this is where the media influence stopped, for while it was able to assist in the having Darfur declared a genocide, it has not be successful in mobilizing action beyond this point, and the topic of Darfur no longer makes the front page of newspapers.

Was then the media able to influence US foreign policy towards Darfur? To a certain extent yes. The media was able to influence the declaration of genocide. However, the flaw lies in the assumption that the declaration of genocide would prompt action. The intended goal was reached, the declaration of genocide was made, but the intended outcome of international action was not attainable. The United States was able to hid behind the United Nations and argue than it would support the efforts of the United Nations – the irony of course is that the UN did not believed the crisis to be a genocide. Moreover, once the conflict was declared genocide, it lost public interest for the same reason: the general belief that recognition would lead to intervention. This lack of public interest inevitably results in decrease in media attention, due to the basic economics of supply and demand. Could the situation have been different? That is hard to say. What can be concluded is that the rhetoric of the media can and does influence government policy.

Jolene Hansell is a Master’s Candidate of Conflict Resolution at Georgetown University. Her specific area of focus is transitional justice and rule of law in post-conflict countries. You can email her at jah340@georgetown.edu or follow her on twitter @joleneh340


[1]  Jang Hyun Kim, Tuo-Yu Su and Junhao Hong, “The Influence of Geopolitics and Foreign Policy on the US and Canadian Media: An Analysis of Newspaper Coverage of Sudan’s Darfur Conflict,” The Harvard International Journal of Press/Politics 12, no. 3 (2007): 87-95. 91

[2]  Ibid. 92

[3]  Ibid. 92

[4] See Nicholas Kristof, “A Whimp on Genocide,” The New York Times, sec. F, 18 September, 2005. and Nicholas Kristof, “Dithering as Others Die,” The New York Times, sec. F, 26 June, 2004.

[5] See Nicholas Kristof, “Ethnic Cleansing, again,” The New York Times, sec. A, 24 March, 2004.; Editorial Desk, “Peril in Sudan,” The New York Times, sec. A, 7 April, 2004.; Nicholas Kristof, “Bush Points the Way,” The New York Times, sec. A, 29 May, 2004.; Nicholas Kristof, “Dare we Call it Genocide?” The New York Times, sec. A, 16 June, 2004.; Editorial Desk, “Time for Action on Sudan,” The New York Times, sec. A, 18 June 2004, 2004.; Kristof, Dithering as Others Die, 13.

[6]  Ibid.

[7] See Kristof, Ethnic Cleansing, again; Kurt Mills, “A Genocide in Sudan, and our Silence,” The New York Times, sec. Letters to the Editor, 30 March, 2004.; Samantha Power, “Remember Rwanda, but Take Action in Sudan,” The New York Times, sec. A, 6 April, 2004.; Editorial Desk, Peril in Sudan; Nicholas Kristof, “Cruel Choices,” The New York Times, sec. A, 14 April, 2004.; Nicholas Kristof, “Attacked, Expelled, Ignored,” The New York Times, sec. 6, 25 April, 2004.

[8] See United States Congress, Executive Session, 108th Congress sess., 2004, , http://beta.congress.gov/crec/2004/05/06/CREC-2004-05-06-pt1-PgS4951.pdf (accessed 2 May 2013).; United States Congress, On Sudan, S4678 Cong., 108th Session sess., 2004, , http://beta.congress.gov/crec/2004/04/29/CREC-2004-04-29-pt1-PgS4678.pdf (accessed 2 May 2013).; United States Senate, “Condemning the Government of the Republic of Sudan,” Congressional Record 150, no. 62 (6 May, 2004): S4931, http://beta.congress.gov/crec/2004/05/06/CREC-2004-05-06-pt1-PgS4931-7.pdf (accessed 2 May 2013).

[9] See Kristof, Bush Points the Way; Yazen Joudeh, “Suffering and SIlence,” The New York Times, sec. A, 2 June, 2004.; Marc Lacey, “White House Reconsiders its Policy on Crisis in Sudan,” The New York Times, sec. A, 12 June, 2004.; Kristof, Dare we Call it Genocide?, 21.; Editorial Desk, Time for Action on Sudan; Nicholas Kristof, “Sudan’s Final Solution,” The New York Times, sec. A, 19 June, 2004.; Foreign Desk, “World Briefing Africa: Sudan: Genocide Charged,” The New York Times, sec. A, 24 June, 2004.; Kristof, Dithering as Others Die, 13.

[10]  Heinze, The Rhetoric of Genocide in US Foreign Policy: Rwanda and Darfur Compared, 359-383. 386

[11] See Editorial Desk, “Death in Darfur,” The New York Times, sec. A, 3 July, 2004.; John Prendergast, “Sudan’s Ravines of Death,” The New York Times, sec. A, 15 July, 2004.; Nicholas Kristof, “Saying no to Killers,” The New York Times, sec. A, 21 July, 2004.; Marc Lacey, “In Darfur, Appalling Atrocity, but is that Genocide? ,” The New York Times, sec. A, 23 July, 2004.; Eduardo Gonzalez, “The Sudan Horror: A Time to Act,” The New York Times, sec. A, 27 July, 2004.; Marc Lacey, “Sudanese Suffer as Militias Hide in Plain Sight,” The New York Times, sec. F, 6 August, 2004.; Sam Dealey, “Misreading the Truth in Sudan,” The New York Times, sec. F, 8 August, 2004.; Somini Sengupta, “Crisis in Sudan: Thorny Issues Underlying Carnage in Darfur Complicate World’s Response,” The New York Times, sec. F, 16 August, 2004.; Ibid.

[12]  Concurrent Resolution Declaring Genocide in Darfur, S. Con. Res. 133, 2nd sess., 108th Congress, (22 July, 2004): , http://www.gpo.gov/fdsys/pkg/BILLS-108sconres133ats/pdf/BILLS-108sconres133ats.pdf.; Concurrent Resolution Declaring Genocide in Darfur, Sudan, H. Con. Res. 467, 2nd Session sess., 108th Congress, (7 September, 2004): , http://www.gpo.gov/fdsys/pkg/BILLS-108hconres467rfs/pdf/BILLS-108hconres467rfs.pdf.

[13]  Heinze, The Rhetoric of Genocide in US Foreign Policy: Rwanda and Darfur Compared, 359-383. 386

[14]  Lippman, Darfur: The Politics of Genocide Denial Syndrome, 193-213.

[15]  Dealey, Misreading the Truth in Sudan, 11.

[16]  Heinze, The Rhetoric of Genocide in US Foreign Policy: Rwanda and Darfur Compared, 359-383. 372

[17]  George W. Bush and John Kerry, “The First Presidential Debate,” Commission on Presidential Debates (30 September 2004), http://www.refworks.com/refworks2/?r=references; MainLayout::init (accessed 2 May 2013).

[18]  United Nations, Convention on the Prevention and Punishment of the Crime of Genocide ¶VIII

[19]  Kasfir, Sudan’s Darfur: Is it Genocide, 195-202. 202

[20]  Strauss, Darfur and the Genocide Debate, 123-133. 131.

[21] Ibid. 123

Why We Kill…

Every day the headlines are plagues with stories of violence—murder, abuse, assault, rebellion, armed conflict, war. Such violence has becomes so deeply entrenched in our society that it takes a truly extraordinary act to so much as stir the general populations attention. It has become almost matter of fact: human commit violent acts against each other. The question is why do we kill our own kind?

It’s the age-old question: are human beings inherently good or evil? Are we the product of the society in which we live or are we predisposed to certain actions based on our genetic coding? Nature vs. Nurture.

World-War2-soldiers-2

Dave Grossman, author of On Killing: The Psychological Costs of Learning to Kill in War, argues that while humans are perfectly capable of killing another specifies (the majority of human beings are meat eaters), when it comes the killing their own kind, the act of killing can be deeply traumatizing to the individual. While his book has been criticized for being flawed in many aspects, this particular argument does provide support for the nurture side of the debate; that humans are not genetically programed to kill one another and, in fact, are resistant to such an action. If this is true, if humans are not inherently violent, where does such violent action originate? How does so much violent conflict exist in a world where humans are resist to the very act of killing?

In attempting to reconcile this dichotomy there are three important factors that taken into consideration: the disjuncture between the civilian actors in the military and the soldiers, the military’s culture of obedience, and evolution of weaponry throughout military history

Civilian-Military Relations: Those at the top of military command are not members of the military. In the United States, the President is the head of the military, the Commander in Chief; however, he, himself, is a civilian. While some Presidents have had military experience, serving in various ranks and units in their country’s military, others have no such experience. Of those Presidents who do have experience, some have never seen combat or been to the front lines. Without having such and experience, there remains a disjuncture between the President who is giving the ultimate order to launch an attack or invade a country and the soldiers who carry out this order. This top down structure allows a the Commander in Chief to see military engagement as an abstract notion while simultaneously disengaging them from the personal nature of the act of killing via the their physical and/or command distance for the act.

Military’s Culture of ObedienceWhen one thinks of the military, the first image that comes to mind is its ridged structure: soldiers marching uniformly at their superior’s command. The relationship between a solider and his/her superiors is not simply one of respect; it is one of legal obligation. Failure to comply with the orders of a superior can result in military reprimand and/or criminal indictment. The military places a high degree of value on the obedience of its members. This is not only for the creation of a highly functioning military unit, but also for the psychological refuge of the soldiers. When a soldier kills another human being, they can take refuge in the fact that they were following orders and not acting on their own accord. Thus, the culture of obedience actually provides a mechanism to mitigate to psychological impact that results from killing another.

Military Weaponry: In the medieval times knights fought face to face with soldiers in extremely close proximity to one another. Put plainly, they could look in the eyes to the opposing solider before they killed them. Then came the development of the arrow that allowed the soldiers to be further away from their victims; then cannons, armed boats/planes, missiles, bombs, and now drones. With each new development in military weaponry, the physical distance between the soldier and his or her victims is increase. Today, a drone operator can sit at base in the United States and press a button that launches a strike in Pakistan some 7,500 miles (12,300 km) away.  While some studies have shown that the psychological impact on drone operators is greater than aircraft pilots because drone operators have a very clear view of their victim, this does not negate the fact the tactics themselves have developed in such a why as to place the greatest degree of distance between the soldiers and the victim.

If, then, we are to take a human’s aversion to killing as valid, is must follow that the existence/continuation of armed conflict is the result of the adaptation of the military to address this psychological phenomena. But, this then leaves us with an obvious question: If we are willing to go to so much effort to override a human’s aversion to killing, wouldn’t our time be better spent changing our tactics? Rather than working against this natural aversion, should we not attempt to work with it and seek non-violent conflict resolution mechanisms? The biggest problem here is that violence begets violence. In order to have a world system of non-violent warfare (oxymoronic by nature) each state would need to buy into the system and summarily eliminate all violence means of combat. Unfortunately this does not seem feasible in today’s world, but it might be something to aspire towards.

Jolene Hansell is a Master’s Candidate of Conflict Resolution at Georgetown University. Her specific area of focus is transitional justice and rule of law in post-conflict countries. You can email her at jah340@georgetown.edu or follow her on twitter @joleneh340

Unpacking the Syrian Conflict: What’s Next?

Syria made the headlines again today. In more than two year of fighting, the Syrian civil war has resulted in over 90,000 deaths, displaced over 4 million people, and has caused more than $80 billion in damage. Yet, there is still no end in sight. As described in the Institute of Social Policy and Understanding and the New America Foundation’s June 2013 Report, Dissecting an Evolving Conflict: The Syrian Uprising and the Future of the Country, the conflict in Syria has reached a stalemate, a condition if not resolved soon could spiral Syria into becoming a failed state.

Syria was the fifth Arab spring country, following in the footsteps of Tunisia, Libya, Egypt, and Yemen. What began as a peaceful call for political reformation in March 2011 quickly took up the slogan of the Arab Spring revolution – “the people want to overthrow the regime” – and was consequently met with stark regime crackdown. The regime’s use of violence transformed the nature of the conflict from one of rebellion, seeking political reform, to one of revolution, seeking the overthrow of the Assad regime. As the protests gained momentum, the Syrian governments stepped in with increasing force, perpetuating further protests. Each time this cycle occurred, the conflict escalated a little bit further.

The militarization of the rebellion came in response to Assad’s implementation of the security solution—a plan that involved breaking up protests but quickly escalated to include the use of military might to disband the unarmed protesters. Syrian soldiers, who are now being asked to fire on unarmed civilians, began to defect from the Syrian army. The defected Syrian military officers formed the Free Syrian Army (FSA) in July 2011 to combat the unchecked Syrian army in its campaign of human rights violations and crimes against humanity.

After the 18 July 2013 bombing of Syrian regime’s National Headquarters and the killing of four high ranking Syrian personnel, the opposition gained momentum and provided the catalyst of numerous opposition victories. Despite immediate successes, the progress of the rebels has since been slowed and has been met with immense opposition. With Assad’s government backed by Russia and Iran, the question in the last six months has been whether the West would intervene and support the rebels. For President Obama, the Syria’s use of chemical weapons was the ‘red line’ the eventually prompted the US to support the Syrian rebels.

An end to this conflict is in the interest of regional stability. The conflict has already spilled over into neighboring countries, putting tremendous stress on the region. Jordan, Lebanon, Iraq, and Turkey have all experience shelling and/or fighting as a direct consequence of the Syrian conflict.  Moreover, the conflict has forced the creations of regional alliances, Turkey, Saudi Arabia, and Qatar supporting the Syrian rebels, while Iran continues to support the Assad regime.

The stability of the region is now tied to the stability of Syria, a country locked in civil war stalemate. If the support of the US is able to tip the scales in favor of the rebels, this alone will not be sufficient to bring stability and security to the region. Over time the rebel movement has become fragmented and the success of the rebels would not bring stability alone. This is all to say that the road to regional stability in Syria may be longer than is immediate apparent. The end to civil war will not equate to stability. There are many difficult steps in between.

The Inevitability of Egypt’s 2nd Revolution

On July 3rd 2013, the world watched history repeat itself as the Egyptian military rose up yet again and deposed Egypt’s sitting President. This second revolution was the result of months of growing animosity, and with the seed of the first revolution still present, this second revolution was, in fact, inevitable.

In January 2011, the Egyptian military sided with the people and ousted President Mubarak in show of determination to transform Egypt into a democracy.  This revolution was the result of years of growing animosity with the Egyptian government and the deterioration of conditions in Egypt. It sought to change the system, overthrowing the two systems of oppression: the state—by way of a highly centralized government, its suppression of Egyptians, and its silencing of its opponents, foresting a system of patrimony, corruption, and impunity; and religious extremism—the disjuncture in Islamic values created by the rise of Wahhabism, with Islamic teachers only teaching the formalities and rituals of Islam and not the concepts of freedom, justice, and equality which are at the heart of Islam.

When President Mohammed Morsi came to power on June 30th 2012, he was faced with an incredibly difficult task: balance the differences between the religious extremists and the liberal revolutionaries and slowing move the country away from dictatorship and towards democracy. To fast a movement and he faced opposition from the right; to slow a movement and he face outcry from the left. The entire process was like that of balancing on the edge of a knife. The revolution has created space. It had brought change from the time being, but what was done with that moment, how it was used, is the most critical component of creating lasting change. And it is in this way that Morsi truly failed.

Egypt’s pre-revolution society—the lack of political rights, police brutality, the implementation of emergency of laws, the rise of Wahhabism, the deterioration of the medical system, increased poverty, increased violation of human rights and violence against women, governmental hypocrisy, and the isolation of the President from the people—provided the spark fro revolution. In the 2 ½ years since the first revolution, and the year of President Mori’s rule, no significant ground has been covered. In fact, the economic situation in Egypt has worsened. The discontent of the masses has been evident for the past year, yet the government made little progress in address these grievances. Once again, the situation came to a boil and the world saw history repeat itself as Egypt underwent a second revolution.

This second revolution was inevitable. The first revolution caused a break in the system; a pause in which space was created for changes to be made. However, Morsi was not able to take advantage of this space. He was not able to bridge the gap between the two polarized groups, find a middle ground, and slowly initiate change. And are we surprised? Morsi was not the great Mandela type; the great unifying figure around which the country could assemble, with the capacity to mobilize Egyptians to create a better and brighter Egypt. From the beginning of his Presidency, Morsi was constantly hit from both the left and the right and it crippled him. He did not have the strength to stand up and unify them, and this, consequently, resulted in the creation of such discontent that revolution struck again.

Although Morsi was not the leader that Egypt needed him to be, this second revolution sets a dangerous precedent, one in which societal discontent becomes equivalent to the need for revolution. This leaves not room for the development of democratic processes and peaceful mechanisms of regime change; it only leaves room for violence. Egypt, right now, is at a critical point in its history. What happens next will determine Egypt’s future. Will Egypt now be able to seize the moment, use the space, start a dialogue between its polarized factions, and initiate real change? Or will it forever be plagued by cycle of violence?

 

Jolene Hansell is a Master’s Candidate of Conflict Resolution at Georgetown University. Her specific area of focus is transitional justice and rule of law. Currently she is in Arusha, Tanzania, working as a Legal Intern for the United Nations International Criminal Tribunal for Rwanda. You can email her at jah340@georgetown.edu or follow her on twitter @joleneh340