Environmental law in the age of climate disruption

This post is written by Professor Jocelyn Stacey.


In the spring of 2019, I was honoured to give one of the keynote addresses at the annual Women in Law event.  The address queried what it means to do environmental law well in the age of climate disruption. It emphasized the relevance of environmental law to women in law – both women lawyers and community leaders. This blog post is a modified version of the keynote address. It is written in the style of a food blog. That is, you have to read my lengthy backstory before you get to the recipe. This is the backdrop that shapes my understanding of what it means to me to be a woman in environmental law today.

I do not have a pre-ecological consciousness. I have always been aware of humanity’s existential dependence on the environment. I have always felt a responsibility to protect the environment.

I do, however, remember quite vividly my decision to apply to law school. Russia was in the news, but for reasons completely different than today. Russia had saved the Kyoto Protocol. Russia’s ratification meant that this milestone international agreement on climate change had passed the crucial threshold needed to come into effect.

At the time, I was a research technician for the federal government working on climate science. I know that sounds really impressive (or at least hard). I had the job of collecting sticks in the boreal forest and weighing them. It was important foundational research but was hardly impressive or intellectually demanding. I remember sitting in the lunch room with my colleagues at the office and feeling optimistic that this agreement, which Canada previously ratified in 2002, would generate tangible global action on climate change.


I applied to law school, thinking that that particular moment was when global momentum was shifting from compiling evidence of climate change to implementing – through law—our collective response to this global threat.

Several years later I decided to pursue academia after the Federal Court held that Canada’s Kyoto Protocol Implementation Act was not justiciable. The Court determined that the Act which, on its face, appeared to require the federal government to report on its implementation of international climate commitments, was immune from judicial scrutiny. The Federal Court of Appeal agreed without issuing reasons and the Supreme Court of Canada (SCC) denied leave to appeal.

This decision became somewhat of a fixation for me. It challenged what I thought I knew about public law. How could it be that the court could not supervise the executive’s compliance with specific obligations set out in legislation? How could it be that on, one of the most pressing issues of our time, the court had nothing to say? What assumptions about law must a judge cling to when rendering a decision like that? This was a challenge that I just had to resolve. I was sure that, if I could expose untenable assumptions about law that are deeply embedded in the legal system, then I could help shift the legal system toward supporting positive climate action.

Last term I taught Environmental Law as I do almost every year. We started the semester shortly after Tahlequah, a mother and member of the endangered southern resident orca population, ended her unprecedented public mourning of her dead calf. The semester arrived on the heels of a heatwave that killed over 90 people in Quebec. The heatwave featured in a Guardian profile of heat as the next big inequality issue. Midway through the semester, the IPCC released its Special Report on a 1.5°C warming scenario. It reported on the catastrophic impacts around the world that will likely follow from a 2°C rise in global average temperatures, the severe but-less-catastrophic impacts that are likely to follow from a 1.5°C warming scenario, and all the known tools that law and policymakers have at their disposal to prevent these realities from coming to pass. Finally, and shortly before we ended for the term, a report was published documenting the rise of ecological grief amongst Canadians and people around the world. Climate change anxiety, food insecurity, PTSD from climate-related disasters are all on the rise as contributors to mental health issues. This is entirely unsurprising in light of the overwhelming number of concerning environmental trends. This last report I had on my power point slides, ready to discuss with the class, but I could not bear to end the course on a note of despair.

When I read this kind of news of course I feel sad and sometimes angry. But I mostly see a challenge – or many. I see so, so much space for making a positive contribution. I see that Federal Court decision on the Kyoto Protocol Implementation Act replicated across the Canadian legal system. The issues are daunting and pervasive, but so are the possibilities for change.


This brings me to my three observations about what it means to me to do environmental law well in an era of climate change.


  1. Environmental Law and Courage

I think of doing environmental law as an act of courage. I borrow here from Dr. Kate Marvel a climate scientist with NASA who says about climate change: “we need courage not hope” and “Courage is the resolve to do well without the assurance of a happy ending.”

For years, like many environmental law colleagues, I’ve considered myself an optimist. I’ve thought that it is this optimism that fuels my commitment to environmental law. I’ve thought that, if only I can instill this sense of optimism in my students, they will be empowered to go out into the world and do good work.

I now think that my self-ascribed optimism was mistaken. For one thing, I spend an inordinate amount of time thinking about disasters. This is not a sign of an optimist.  I now realize it is not optimism that fuels my commitment. It is possibility. Possibility of change. Possibility of being part of that change.

And so I think Dr Kate Marvel is right. It is not hope, but courage that is the necessary response to daunting environmental reports, inadequate environmental protections and government intransigence. Courage is what makes someone persevere even when the possibility for change seems slight.


  1. Environmental Law and Feminism

I think of doing environmental law well in an era of climate change as a commitment to intersectional feminism. The impacts of climate change are hugely unequal, with those who have contributed least to greenhouse gas emissions bearing the worst of the consequences. This includes children and future generations, and those who live in conditions of poverty here in Canada and around the world. And as we in Canada are now faced with summer after summer of historic floods, wildfires and heat waves, we should heed the warning from more than 50 years of social science that documents how disasters are not social equalizers. Rather, disasters have social causes that render individuals and groups who are already marginalized – due to gender, race, ability, age and/or economic status – more vulnerable to disaster. The fatalities during the Quebec summer heat wave were people whose identities and lives were at the intersection of age, ability, poverty and gender.

The law is implicated both as a cause and as a potential solution to these issues of inequality. For example, basic features of constitutional law render First Nations communities more vulnerable to disasters – divisions of powers between governments and contested jurisdiction impedes the seamless coordination between levels of government needed to respond to major disasters. At the same time, law can and must adapt and respond to these known challenges. It must require decision-makers to attend to these vulnerabilities when making crucial decisions – whether about environmental disasters or otherwise. Environmental law in an era of climate change must be action-forcing and equality-forcing. And every little contribution counts.

  1. Women in (Environmental) Law

Finally, doing environmental law well means being surrounded by phenomenal women. If you look behind environmental law cases and environmental news, you will find strong women everywhere. Studies have documented for decades the disproportionate burden of care-giving work borne by women. It seems perfectly consistent that women carry a disproportionate burden of work caring for the environment too. Indeed there are countless women across the country working tirelessly to keep their social and ecological communities safe from environmental harms – climate change related or otherwise.

Because the third and final way in which I think you do environmental law well in the age of climate change is to find one of these women, or someone like them. So… find your:

Martha Kostuch, a late Alberta farm veterinarian who, for decades, worked to ensure that approvals for dam construction and sour gas well development were made with proper attention to the environmental harms of those decisions.

Marilyn Slett, the long-time Chief of the Heiltsuk Nation, currently leading an almost all-female Tribal Council and seeking to enforce the polluter pays principle for the 100,000 Litres of diesel oil that was spilled from a sinking tug boat and that devastated Heiltsuk shorelines.

Maisie Shiell, a Saskatchewan anti-nuclear activist, who sought the right to be heard in public decisions about uranium mining and who was dismissed by the court as a “mere busybody.”

Carleen Thomas or Charlene Aleck, Tsleil Waututh women who have led the Sacred Trust Initiative, exercising Tsleil Waututh jurisdiction over the Burrard Inlet and the harmful impacts on the Inlet and Tsleil Waututh shorelines that would follow from the Trans Mountain Pipeline expansion and the increase in tanker traffic.

Ada Lockridge, an Aamjimwaang woman working to protect her community from the toxic air pollutants emitted from the 40% of Canada’s petrochemical industry – 57 polluters – located within 25 km of her community’s reserve.

Alexandra Morton, a fisheries scientist who has, for over a decade, led and won three successive court challenges arguing that governments must take a precautionary approach to open-water aquaculture to protect BC and Canada’s iconic wild salmon populations.

Doing environmental law well means working alongside the resilient women who are everywhere, working tirelessly on life-sustaining issues. It means supporting those women. Not by giving them hope, but by finding possibility. And giving each other courage.

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Welcome to the JD class of 2022, to transfer students joining the JD program, and to graduate students beginning their studies at Allard Hall. I still remember the mix of excitement and trepidation that I felt on my first day of law school here at UBC many years ago. Finding “my people” was crucial to surviving the grind and alienation that can often be part of legal education. For me, that meant finding other feminists, both students and faculty. Those people remain some of my closest friends.


It wasn’t until my 3rd year of law school (and I’m dating myself because this was 1997) that the Centre for Feminist Legal Studies was founded by then-Dean Lynn Smith, the law school’s first woman dean. From its humble beginnings in a trailer beside the law school, furnished by donated sofas and decorated with political posters on the walls, the CFLS has been a hub for feminist students, faculty, and visitors. The Centre is both a place and a community. A place to drink tea or coffee with friends who care about more than big law firm hiring interviews (although some of us worried and strategized about those, too) and who share our outrage at the discrimination and injustice we see around us – in the news and in the cases we read. And a community with which to come together in learning, research, and activism.

The CFLS community includes more than 20 faculty members who bring a range of feminist perspectives to their research and teaching on topics in criminal law, environmental law, family law, corporate law, Indigenous law, evidence, administrative law, international law… and more! These professors hire Research Assistants to work with them on these projects. More than 20 years ago I had the great fortune of working as an RA for Professor Isabel Grant. That experience opened my eyes to the potential for feminist legal scholarship to have an impact on law reform and in judicial decisions.


Every year the Centre welcomes a diverse array of visitors – academics and lawyers from across Canada and around the world – to give lectures in our Monday CFLS Lecture Series. This Fall the CFLS will host speakers on the gendered impacts of mental health detention, family law in China, pay equity, the Calls to Action in the Missing and Murdered Indigenous Women and Girls (MMIWG) Inquiry Report, and the regulation of assisted reproduction, among other topics.


The Centre also supports student initiatives such as the #LawNeedsFeminismBecause photo project and collaborates with groups such as Indigenous the Law Students Association, the Women’s Caucus, and OUTLaws on events and speakers. One such upcoming event is the October 4thSisters in Spirit Vigil (co-presented with ILSA) to honour the memory of missing and murdered Indigenous women, girls, trans and two-spirit people.


Follow us on Facebook and Twitter or drop an email to cfls@allard.ubc.ca to join our email list-serv.


Reach out. Share your ideas. And find your people.


I can’t wait to see what you will do here and in the future,


Debra Parkes

Professor and Chair in Feminist Legal Studies

Director, Centre for Feminist Legal Studies

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CFLS Award Winners

The CFLS would like to congratulate the recipients of the three feminist awards at the Peter A Allard School of Law. These individuals demonstrate their commitment to feminist advocacy through their intellectual and community work.

Hilda Janzen Memorial Award in Feminist Legal Studies
2017 Recipient: Allison Sharkey

Allison Sharkey, entering her 2nd year of the JD program at Allard Hall, is the recipient of the Hilda Janzen Memorial Award in recognition of her substantial contributions to feminist advocacy, scholarship, and community work. Before starting law school, Allison completed a PhD in Anthropology, studying substance use and addiction among young adults. Allison has demonstrated feminist leadership and community involvement while overcoming barriers in accessing and continuing her legal education. By regularly volunteering with the CFLS and bringing feminist critical perspectives to bear on the 1L curriculum, Allison represents the best of the Allard law community, embodying a feminist ethic and advocating for social justice.

Auriol Gurner Young Memorial Award
2017 Recipient: Melanie Begalka

Recognizing her contribution to feminism and law, Melanie Begalka is the recipient of the Auriol Guner Young Memorial Award. Melanie, entering her 3rd year at Allard Hall, was one of the coordinators of the #LawNeedsFeminismBecause campaign in 2016-2017. She has years of experience working with and on behalf of marginalized people, particularly in Vancouver’s Downtown East Side. She has been a mental health worker, support worker, and outreach worker for those with acute mental illness, HIV+ women, sex workers, and women with addiction challenges. She has also coordinated the opening of a legal clinic in Vancouver assisting homeless folks to obtain government ID. Melanie embodies the values of Auriol Gurner Young as an active member in the feminist legal community.

Marlee G Kline Essay Prize
2017 Recipient: Carly Teillet

Credit: Paul Joseph/UBC

Carly Teillet is Métis from Red River and is the great, great, grand-neice of Louis Riel. She completed her JD from Allard Hall early in December of 2016. Carly has been awarded the Marlee G Kline Essay Prize for her exceptional essay “Invisible in the Spotlight: Aboriginal Women, Embodiment and the Legal Structure.” This award recognizes an exceptional essay that addresses the various intersections between gender, race, class, sexual orientation, and other differentiating characteristics. Carly’s essay critically examines how Aboriginal women’s bodies experience systemic violence from the colonial state and the legal system through the story of Jane’s arrest. She situates Jane’s story and her body within the historic and ongoing colonial structures that construct, control, and discard the bodies of Aboriginal women.

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BC Women’s Employment Inequality Calls for Rights-Based Approach

The CFLS is delighted to present a new series of student-authored blog posts on current feminist legal topics. These opinion, editorial-style posts were written by Allard Hall JD and LLM students as part of the Women, Law & Social Change course in 2016-2017.

In October 2016, British Columbia was held to account for its disappointing women’s rights record at the United Nations in Geneva. “British Columbia does not have a women’s rights focal point,” said UN Committee member, Nahla Haidar, at Canada’s periodic review for compliance with the Convention on the Elimination of Discrimination Against Women (CEDAW).[1]

Those who are skeptical about the power of a rights-based approach might see BC’s implementation failure as affirming their position. The ten BC-based non-governmental organizations (NGOs) that made submissions at Canada’s review would disagree. BC’s pronounced inequality does not reveal the weakness of a rights-based approach; it is the consequence of failing to adopt one.

This week, the BC Liberals held onto their 16-year leadership of the provincial legislature – a period in which multiple regressive policy decisions have adversely impacted BC women. As of 2002, BC is the only Canadian province without a Human Rights Commission.[2] BC has no pay equity law, no employment equity law, and some of the least affordable childcare in Canada.[3] BC has now been without a Human Rights Commission for almost 15 years, meaning that the broad oversight needed to effect structural change has been absent for the same amount of time.[4]

The Commission was formerly tasked with educating the public, inquiring into systemic issues, developing guidelines, and promoting human rights compliance.[5] By asking what systemic obstacles block opportunity for communities, the Commission embodied a rights-based approach.

A rights-based approach turns ‘problems’ into ‘violations’ – the difference being that violations are not inevitable, and do not need to be tolerated.[6]  Rights “change the way people perceive themselves vis-à-vis the government and other actors,” calling power structures into question.[7] In these respects, the approach is transformative – and when it comes to systemic discrimination, transformation is what we need.

Today, BC relies on adjudication of individual complaints, with only the Human Rights Tribunal remaining.[8] The Tribunal provides a forum for discrimination complaints to be heard – but in the context of employment, where gender stereotypes are so embedded and power dynamics so imbalanced, there are many factors that deter complainants from coming forward. To this end, the Ontario Human Rights Commission plainly states, “a lack of complaints does not mean there is no problem to address.”[9]

With a glance at today’s statistics, the problem – the compounded effect of countless human rights violations – becomes apparent.  The Canadian gendered wage gap is twice the global average at 30%.[10] BC women are even further behind, with the gap widening to 35% provincially.[11] From 2000 to 2010, median income of Canadian women rose by 10.6%. BC made only a 4% gain.[12]

The BC Human Rights Code precludes employers from refusing to hire persons because of their gender or family status[13] – but statistics tell us that discrimination is happening at an increasing rate. Discrimination may be unconscious, as “stereotypical assumptions about women’s abilities, interests and priorities… lead even fair-minded, well-intentioned employers to discriminate against women in the workplace”[14].

With no employment equity law or programs, BC employers are not required to scrutinize hiring practices to eliminate discriminatory effects, or to challenge ingrained stereotypes by hiring disadvantaged groups in fields where they are underrepresented.[15] As a result, women are funnelled into low-paying, precarious work. 70% of BC’s minimum-wage workers aged 25-54 are women.[16]

With BC lagging so far behind national averages for women’s employment, it is clear that the state of affairs is not the result of one or two poor policy decisions; it is the result of prolonged power imbalance. The rights-based approach identifies problems as “rooted in differences of power, income and assets”.[17] BC has the highest rate of income inequality in Canada, with average household income of the top 1% growing by 36% in the last 10 years, while that of the median remains unchanged.[18]  With such pronounced inequality, it is imperative that exploitative power relationships be challenged. This can only happen with the involvement and empowerment of those who are most marginalized.[19]

Fortunately, the United Nations did just that – they involved and empowered 22 Canadian NGOs by hearing their submissions at the 2016 CEDAW review. Typically, underfunded NGOs face barriers that limit access to such global institutions while “representatives of private capital generally enjoy unfettered access to the decision-making table”.[20]  With funding from Status of Women Canada, as well as other research grants, the voices of marginalized Canadians were heard.

During the review, the BC CEDAW Group was pleased to hear the Committee press Canada on provincial issues of single mothers’ poverty and sub-par human rights enforcement. Canada’s federal structure was also addressed. “In treaty obligations, the obligation rests with the state party regardless of the constitutional order of the state” said the Committee. The Committee proceeded to ask for “a national strategy to address the structural factors leading to persistent inequality,” pointing to use of federal spending power to “speed up [provincial] inability to implement.”[21]

Adoption of a rights-based approach brought Canadian NGOs to the table, but now we need action at home. “International conventions establish rights as universal, but give little guidance on translating the universal into local realities,” said Oxfam in a report on rights-based development.[22] This concern was borne out following the last CEDAW review in 2008, when the Harper administration simply ignored most of the Committee’s recommendations.[23] This time around, NGOs hope that the feds take heed.

“We have a Prime Minister who repeatedly reaffirms his commitment to gender equality – so structurally, we are in a good place,” assured Linda Savoie, Senior Director at Status of Women Canada.[24] NGOs are cautiously optimistic, urging the BC Liberals to implement the CEDAW Committee’s 2016 recommendations. “We know the conclusions of this Committee have the power to ignite political will,” said the BC CEDAW Group.[25] For the sake of all Canadian women, let’s hope they are right.

Carly Stanhope is a JD student at the Peter A. Allard School of Law and the research assistant to the BC CEDAW Group.


[1] CEDAW, 65th Sess, 1433rd Mtg, UN Doc CEDAW/C/SR.1433 (25 October 2016).

[2] BC CEDAW Group. 2016. Women’s Rights in British Columbia: Submission to the Committee on the Elimination of Discrimination Against Women on the occasion of its consideration of Canada’s combined eighth and ninth periodic reports at its sixty-fifth session.

[3] Ibid.

[4] BC CEDAW Group, supra note 2 at 1.

[5] Day, Shelagh and Gwen Brodsky. 2014. Strengthening Human Rights: Why British Columbia Needs A Human Rights Commission.

[6] Oxfam America. 2001. Challenges And Opportunities Of Implementing A Rights-Based Approach To Development: An Oxfam America Perspective.

[7] Ibid.

[8] Ibid.

[9] Ontario Human Rights Commission. 2008. Human Rights At Work.

[10] Feminist Alliance for International Action. 2016. Reply To Issues 3, 4, 7, 8, 11, 12 & 13: Report To The Committee On The Elimination Of Discrimination Against Women On The Occasion Of The Committee’S Eighth And Ninth Periodic Review Of Canada.

[11] Canadian Centre for Policy Alternatives – BC Office. 2012. BC Disadvantage For Women – Earnings Compared With Other Women In Canada.

[12] Ibid.

[13] Human Rights Code, RSBC 1996, c 210, s 13(1).

[14] Women’s Legal Education and Action Fund. 2016. Closing The Gender Wage Gap.

[15] BC CEDAW Group, supra note 2 at 7.

[16] West Coast LEAF and Coalition of Childcare Advocates of BC. 2016. A Cornerstone Of Equality For Canadian Women: The Essential Role Of Child Care In All Articles Of The Convention On The Elimination Of All Forms Of Discrimination Against Women.

[17] Chapman, Jennifer, Valerie Miller, Adriano Campolina Soares, and John Samuel. 2005. Rights-Based Development: The Challenge Of Change And Power.

[18] BC Poverty Reduction Coalition. 2016. Factsheet On Poverty and Inequality In BC.

[19] Chapman et al, supra note 17 at 5.

[20] Oxfam America, supra note 4 at 16.

[21] CEDAW, supra note 1.

[22] Oxfam America, supra note 4 at 19.

[23] BC CEDAW Group, supra note 2 at 4, 9.

[24] CEDAW, supra note 1.

[25] BC CEDAW Group. 2016. “Women’s Rights in BC”. Presentation, United Nations Headquarters, Geneva.


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Rape Culture at the International Criminal Court: A Call for Accountability in Cases of Conflict-Related Sexual Violence

The CFLS is delighted to present a new series of student-authored blog posts on current feminist legal topics. These opinion, editorial-style posts were written by Allard Hall JD and LLM students as part of the Women, Law & Social Change course in 2016-2017.

Rape culture accepts sexual violence as a fact of life, when in reality much of what we excuse as inevitable is the expression of values and attitudes that can change. Despite a host of progressive, feminist-inspired law reforms, misguided attitudes toward sexual assault are prevalent in Canadian courts, where decisions have repeatedly come under fire for being informed by myths and stereotypes. But attitudes toward gendered crimes do not confine themselves to state borders nor submit to the optimism of advocates for global justice. At the International Criminal Court (ICC), prosecutors, judges and witnesses hold implicit biases that not only affect decision-making in cases of conflict-related sexual violence, but also influence which cases are afforded their day in court to begin with.

On 16 September 2016, Nadia Murad Basee Taha was appointed United Nations Goodwill Ambassador. When militants captured the city of Sinjar, Iraq in August 2014, Nadia was captured, sold and subjected to grave abuses, while her elderly mother and male family members were murdered as part of the ongoing campaign of genocide against the minority Yazidis perpetrated by the Islamic State of Iraq and the Levant (ISIL; also known as ISIS). Nadia escaped, but thousands of women and girls remain enslaved in ISIL strongholds where girls as young as 9 years old are being bought and sold in slave markets at this very moment.

In a speech to the United Nations in December 2016, Nadia implored the international community to act in response to the ongoing genocide of her people. Yet to this day not one member of ISIL has been held accountable at an international court or tribunal for crimes against Yazidis. When it comes to prosecuting conflict-related sexual violence, accountability is the exception; impunity the rule. Despite the explicit classification of conflict-related sexual violence as a war crime and crime against humanity in international law, the ICC continues to mischaracterize, overlook and under-prioritize conflict-related sexual violence. The pervasive myth that conflict-related sexual violence is ‘opportunistic’ and isolated from the broader conflict is a gross mischaracterization of how militant groups such as ISIL strategically utilize sexual violence as a weapon of war.

While entire communities suffer the consequences war, women and girls are particularly affected due to the prevalence of gendered crimes. Reports from the International Criminal Tribunal for the former Yugoslavia (ICTY) explain that sexual violence  “… [was] particularly tailored to [the] goals of driving women from their homes or destroying their possibility of reproducing within and ‘for’ their community.” When innocent women like Nadia stand in the face of genocide, their suffering is no longer confined to the consequences of war. Their bodies become the battlefield itself.

Supposing that conflict-related sexual violence is more about sex and less about violence allows for a second myth, that gathering evidence for these crimes takes ‘extra’ work. The misguided belief that sexual violence is not a core crime makes it difficult to justify allocating the necessary resources to gather witnesses, military records, and other key evidence. But do cases of sexual violence really pose any additional challenge compared with other international crimes?  Maxine Marcus, an experienced investigator and prosecutor of international crimes, says not. She argues instead that sexual violence is neglected by international jurisdictions because investigators and prosecutors shy away from sexual evidence.

This was certainly the case at the Nuremberg trials, where the subject was considered “too distasteful” to prosecute. Fifty years later, interviews with judges, prosecutors, and other parties at the ICTY revealed that many of them accepted rape myths, held misogynistic views about women, and felt ambivalent and uncomfortable when dealing with cases of sexual violence. In response to the lack of accountability, one prosecutor confessed, “I get embarrassed asking questions to rape victims”.

Surely sexual violence is a difficult topic to speak about, but that is no excuse not to hold perpetrators to account. If global justice is to be realized, the trend of applying inconsistent approaches to sexual violence as compared to other crime categories must end. This calls for a reasonable allocation of resources, which will only be possible if prosecution offices change their mentality toward conflict-related sexual violence and begin to perceive it as a core crime.

Of course the reluctance to prosecute conflict-related sexual violence is not entirely unreasonable, especially given the difficulties of successfully prosecuting any crime at the ICC. In addition to the overarching challenge of confronting myths and stereotypes about sexual violence, each case presents its own complexities. In the cases of ISIL, there is the issue of jurisdiction. Since neither Iraq nor Syria have signed on to the Rome Statute, a case against top ISIL members would require the support of the United Nations Security Council, which presents its own political hurdles. However, the challenges associated with such cases are not insurmountable and are in fact comparable to those faced by other war crimes, which are readily prosecuted at the ICC.

The international community must be vigilant to ensure that impunity for gendered crimes does not continue to be the norm. As a starting point, the working group of the ICTY suggests prosecuting gendered crimes under the general categories of torture, enslavement, and genocide to contextualize them in the broader conflict. Other improvements would include assigning senior staff to advocate on gendered issues and employing diverse investigative teams to reach out to witnesses. Finally, the international legal community must be sensitive to the needs of survivors and answer the call of victims like Nadia, who are not helpless, but rather courageous enough to call on us for help. We too must be courageous and ensure their cries do not continue to go unanswered.

Rochelle Kelava is a JD student at the Peter A. Allard School of Law and the Centre for Feminist Legal Studies’ Student Coordinator for 2016-2017.

Sources – Academic

Serge Brammertz and Michelle Jarvis, eds, Prosecuting Conflict-Related Sexual Violence at the ICTY (Oxford: Oxford University Press, 2016).

Doris Buss, “Women at the Borders: Rape and Nationalism in International Law” (1998) 6:2 Feminist Legal Studies 171.

Doris Buss, “Performing Legal Order: Some Feminist Thoughts On International Criminal Law” (2011) 11 International Criminal Law Review: Special Issue on Women & International Criminal Law 409.

Doris Buss, “Knowing women: Translating Patriarchy in International Criminal Law” (2014) 23:1 Social & Legal Studies 73.

Christine Chinkin, “Gender-Related Crimes: A Feminist Perspective” in Ramesh Thakur and Peter Malcontent (eds), From Sovereign Impunity to International Accountability: The Search for Justice in a World of States (United Nations University, Press, 2004) 116.

Anne-Marie de Brouwer, “The Importance of Understanding Sexual Violence in Conflict for Investigation and Prosecution Purposes” (2015) 48 Cornell International Law Journal 662.

Margaret M. DeGuzman, “Giving Priority to Sex Crime Prosecutions at International Courts: The Philosophical Foundations of a Feminist Agenda” (2011) 11 International Criminal Law Review 515.

Margaret M. DeGuzman, “An Expressive Rationale for the Thematic Prosecution of Sex Crimes”, in Thematic Prosecution of International Sex Crimes, Morten Bergsmo, ed. (Torkel Opsahl Academic EPublisher, 2012).

Dakshita Sangwan, “Sexual Offences in International Law” (2012-2013) 12:13 ISIL Year Book of International Humanitarian and Refugee Law 259.

Sources – Reports and UN Documents

ISIS Escapees Describe Systematic Rape: Yezidi Survivors in Need of Urgent Care, Human Rights Watch, 2015.

ISIS is Committing Genocide Against Yazidis, UNOHCHR, 2016.

 Report on the Protection of Civilians in Armed Conflict in Iraq: 6 July – 10 September 2014, UNOHCHR, 2015, at 12-16.

 Report of the Office of the United Nations High Commissioner for Human Rights on the Human Rights Situation in Iraq in the light of Abuses Committed by the So-Called Islamic State of Iraq and the Levant and Associated Groups, UNOHCHR, 2015, at 16-49.

Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 UNTS 287.

Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 8 June 1977, 1125 UNTS 3.

Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, 8 June 1977, 1125 UNTS 609.

Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 3, arts 7(1)(g), 8(2)(b)(xxii)-(e)(vi) (entered into force 1 July 2002).

Women Peace and Security, SC Res 2106, UNSC, 6984th session, UN Doc E/13-37215, 24 June 2013, at para 2; and Women Peace and Security, SC Res 1820, UNSC, 5916th session, UN Doc E/08-39144 19 June 2008.


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