British Intended and Birth Mothers Seek Same Benefits as Birth and Adoptive Parents

By Ben Kopp
Impunity Watch Reporter, Europe

LONDON, United Kingdom – The European Court of Justice advised a British woman that she and her British surrogate were entitled to the same maternity leave as birth and adoptive parents, under the EU Pregnant Workers Directive. In a separate advice, the ECJ stated that an Irish woman and her Californian surrogate were not entitled to maternity leave.

Intended and birth mothers may receive same benefits as birth and adoptive parents in the UK, pending review by the European Court of Justice. (Photo courtesy of the Independent)

In the U.K., while birth parents and women who adopt are entitled to the same maternity leave by statute, families who use a surrogate mother are not covered. However, the European Court of Justice (ECJ) advised that a British woman whose child was born to a surrogate mother was entitled to paid maternity leave.

In 2010, the Newcastle woman, C.D. used sperm from her partner to have a baby through a surrogate mother. Within an hour of the August 2011 birth, C.D. took over as the baby’s mother and began breastfeeding.

C.D. quickly discovered that her employer, National Health Service (NHS) was not obliged to pay for her maternity leave. On taking NHS to court, C.D.’s question went to the ECJ in Luxembourg, the highest tribunal for matters of EU law.

In response, ECJ Advocate General Juliane Kokott, who provides nonbinding legal advice, advised that both the intended and birth mothers should be permitted the same rights as birth and adoptive parents because surrogacy is legal in Britain. However, any maternity leave used by the woman who gives birth to the child must be deducted from the total leave taken by the mother. Nevertheless, each woman must receive at least two weeks.

According to Harriet Bowtell, an employment lawyer from Slater & Gordon, if the Court of Justice approves the Kokott’s opinion, the UK will be obliged to amend its equality act.

Although initial opinions are generally accepted as the basis for the final decision, another ECJ Advocate General, Nils Wahl reached the opposite conclusion of Kokott’s in a case originally taken to Ireland’s Equality Tribunal. Instead of two British women, Wahl’s case involved an Irish biological mother receiving a child born in California.

To prevent the exploitation of women in financial difficulty, eight EU member states prohibit surrogacy. These states also share a concern that surrogates would face emotional distress when forced to give up the child they carried to birth.

In the U.S., while the federal Family Medical Leave Act provides all workers at companies of at least 50 employees up to 12 weeks of unpaid leave to take care of a relative, there is allegedly no federal right to paid maternity leave. As such, surrogacy laws vary between states, which may limit how much surrogate mothers can be paid; and surrogacy policies vary between employers.

If extended the protection of EU law, potential surrogates and parents who choose surrogacy will see a greater incentive to stay with that choice in the future.

For further information, please see:

Guardian – Intended and Birth Mother in Surrogacy Entitled to Maternity Leave, Says ECJ – September 26, 2013

The Independent – Surrogacy Mother Wins Maternity Leave Ruling in EU Court – September 26, 2013

Irish Times – European Court Finds against Irish Woman in Surrogacy Case – September 26, 2013

Wall Street Journal – Surrogate Births Stir Divisions in EU – September 26, 2013

Terrorist Attack in Kashmir Region Presents Hurdle for India-Pakistan Talks

By Brian Lanciault

Impunity Watch Reporter, Asia

NEW DELHI, India– An early-morning attack on the Indian side of the disputed Kashmir region reportedly killed 12 people, including three teenage militants. This occurred just days before the Indian and Pakistani leaders were scheduled to meet in New York.

Soldiers take cover during a violent militant attack on a camp in the Jammu and Kashmir state. (Photo Courtesy of EPA)

The attack seemed to follow a long-established pattern of extremist attempts to derail any steps toward reconciliation between the wary neighboring countries, reports said.

A relatively minor group, identified as the Shohada Brigade, claimed responsibility for the attack. The group first surfaced in September when a threat was issued under its name against a classical-music concert, featuring conductor Zubin Mehta, in Indian-controlled Kashmir.

Thursday’s attack started around 6:45 a.m. local time when three militants dressed in military garb arrived in a motorized rickshaw at the Hira Nagar police station, located in India’s northern Jammu and Kashmir state a few miles from the de facto border with Pakistan. Police said the gunmen were between 16 and 19 years old. Taking officers by surprise during a shift change, the three stormed the station with grenades and automatic weapons, reportedly killing four policemen and a civilian.

Reports said the militants commandeered a truck, killing an assistant and forcing the driver to accompany them along a main highway to Samba, in the adjoining district. There they engaged in a firefight with Indian troops outside an army camp before infiltrating the camp’s perimeter.

In a battle lasting much of the day, the insurgents killed an officer and two more soldiers before they were killed.

Omar Abdullah, Jammu and Kashmir’s chief minister, said it would be a disgrace if planned talks between Indian Prime Minister Manmohan Singh and Pakistani Prime Minister Nawaz Sharif were cancelled because of this attack.

“It would be grave injustice to those who have been killed,” he told reporters, adding that he believed the attackers had crossed over from Pakistan-controlled territory.

Both leaders seem to want better relations, analysts said, but face significant political constraints. Sharif has longstanding links to hard-line clerics, including those close to the Jamaat-ud-Dawa Islamist group opposing closer ties, while Singh’s ruling Congress Party is vulnerable to opposition accusations that it’s weak and ineffective.

“Personally, Sharif is in favor of peace, but I don’t know that he will make that his political agenda,” said Radha Kumar, director-general of the Delhi Policy Group think tank. “And India wants peace, but I am appalled by the levels of immaturity the opposition shows when it comes to peace talks with Pakistan.”

India is already in election mode with next years upcoming elections, and within hours of the attack the opposition party attacked the government for even considering a meeting with Pakistan’s prime minister.

Talks and terrorism aren’t compatible, it said, blaming elements close to Pakistan’s powerful military for the attack. “What is the point of taking to a [Pakistani prime minister] who has no control over his army?” said opposition lawmaker Yashwant Sinha.

Though no significant breakthrough was expected upcoming meeting, that it was even taking place sent a positive signal to both countries. Cancelling it reverses hope of any progress in the near future. Two of three wars fought between the two countries since their independence in 1947 have been over Muslim-majority Kashmir.

India, which has battled a separatist insurgency in its part of Kashmir since 1989, has repeatedly accused Pakistan’s military of supporting militants fighting Indian rule.

“The army, [intelligence agencies] and political leadership are on the same page,” supporting better India-Pakistani relations, said Mehmood Shah, a Peshawar-based analyst and former army officer. “Whoever did this attack is no friend of India’s and no friend of Pakistan’s.”

Other recent militant attacks in the region include the killing of eight soldiers at Hyderpora in June and a March suicide strike at a paramilitary camp in Srinigar which resulted in the deaths of five paramilitary personnel and three insurgents.

“We have equally emotional publics on both sides,” Shah said. “But the political leaders must try and keep things in check. We’ve seen many incidents like this before.”

For more information, please see:

CNN– Militant attack in Indian-controlled Kashmir kills 9 — 26 September 2013

LA Times– Ahead of India-Pakistan talks, 12 die in militant attack in Kashmir — 26 September 2013

The Hindu– 12 killed in fidayeen strikes in Jammu — 26 September 2013

Hindustan Times– Twin terror strike in Jammu kills 10, PM says talks still on — 26 September 2013

UN Security Council Reaches an Agreement Regarding Syria

By Darrin Simmons
Impunity Watch Reporter, Middle East

DAMASCUS, Syria-UN Diplomats have announced that the five permanent members (France, Britain, Russia, China, and the U.S.) of the divided Security Council have reached an agreement on a resolution requiring Syria to dismantle its chemical-weapons supplies.

Chinese Foreign Minister Wang Yi and U.S. Secretary of State John Kerry discuss the UN Resolution (photo courtesy of Times of Isreal)

Discussions among the five veto-wielding members of the Security Council have been ongoing for weeks attempting to narrow down the precise stipulations of a new resolution.  Final version of the resolution requires that Syria’s chemical weapons stockpile be “secured and dismantled.”

The final agreement was reached a day after Russia’s deputy foreign minister Sergey Ryabkov stated that a breakthrough had been reached in deciding that the resolution’s text would include references to Chapter 7 of the UN charter allowing military and nonmilitary actions to maintain peace and security.

Reports have indicated that the breakthrough arrived after the U.S. Secretary of State John Kerry stated that Assad could avoid U.S. military action “by turning over every single bit of his chemical weapons to international control within a week.”

China, historically known for blocking resolutions dealing with the civil war in Syria, seemed to be persuaded by the U.S. sense of urgency.  Kerry stated that Chinese Foreign Minister Wang Yi had “strong agreement on the need for a mandatory and binding UN Security Council resolution.”

A U.S. official further stated, “They [U.S. and China] discussed the value of unity among the P5 [permanent Security Council members], and both felt it is important to act quickly.”  However, the U.S. official continued saying “the Chinese gave no indication about whether they would support a resolution that the U.S. and Russia agreed to.”

Ryabkov stated that Russia was prepared to help guard locations of Syrian chemical weapons and destroy President al-Assad’s stockpiles, but would not import them into Russia.  “We believe the destruction [of chemical weapons] on Syrian territory is the best option,” stated Ryabkov.

The United States and Russia are the only countries who the capability to handle mustard, VX, sarin, or cyanide-armed weapons.  However, U.S. law bans the imports of chemical weapons.

Since neither country that has the capability to take on the chemicals is willing to, the UN resolution is designed to implement destabilization of the chemical weapons within Syria at the local sites.  Inspection of these sites are to be completed by November 30 and the entire arsenal destroyed by June 30.

President Obama has stated that the U.S. use of force against Syria for last month’s chemical attack still remains a possibility.  However, a skeptical Congress and Geneva talks has put consideration of attack on hold.

For more information, please see the following: 

Aljazeera-Reports: Deal reached on Syria UN resolution-September 26, 2013

Times of Isreal-World powers reach Syria resolution deal, diplomats say-September 26, 2013

USA Today-U.N. diplomats: Possible deal on Syria resolution-September 26, 2013

Washington Post-U.S., Russia reach agreement on seizure of Syrian chemical weapons arsenal-September 26, 2013

 

Judges Uphold 50-Year Sentence for Charles Taylor

By: Dan Krupinsky
Impunity Watch Reporter, Africa

THE HAGUE, Netherlands – Judges at the Special Court for Sierra Leone denied the appeal of former Liberian president Charles Taylor on Thursday, confirming his 50-year sentence for war crimes.

Judges found no reason to overturn or reduce the 50-year sentence for Taylor.
Original Chief Prosecutor David Crane (center), with his successor, Sir Desmond DeSilva (left) and current Prosecutor Brenda Hollis (right) at Taylor’s appeal.

Taylor was found guilty of 11 counts of war crimes, including murder, rape, torture and the enslavement of child soldiers, on April 26, 2012. The atrocities in Sierra Leone were carried out by the Revolutionary United Front (RUF), a guerrilla army. Taylor supplied them with guns, training and recruits in return for diamonds, actions that the Court determined amounted to “aiding and abetting” the crimes.

In addition to aiding and abetting, Taylor also planed some of the attacks carried out by the guerrillas.

“Their primary purpose was to spread terror. Brutal violence was purposefully unleashed against civilians with the purpose of making them afraid, afraid that there would be more violence if they continued to resist,” said Presiding Judge George Gelaga King.

Taylor is the first head of state to be convicted of war crimes by an international court since the Nuremberg trials of Nazi leaders after World War Two.

“This verdict shows no person, no matter how powerful, is above the law,” said the court’s prosecutor, Brenda Hollis.

The reaction in Sierra Leone was understandably positive.

“It’s a victory for me against tyranny,” said Edward Conteh, whose hand was cut off by rebels, according to Reuters. “I’m happy Charles Taylor is behind bars for 50 years because I’m a victim of the war.”

The ruling means that Taylor, 65, will more than likely spend the rest of his life in a high security prison cell. A final decision will be made next week on where we will serve his sentence, but the UK is currently the only country that has publicly offered to accommodate him.

“The sentence is fair in the light of the totality of the crimes committed,” said Judge King. “The defense failed to demonstrate any discernible errors in the trial chamber’s sentencing.”

Taylor’s lead defense attorney, Morris Anyah, said Taylor took the verdict with great stoicism and also added that Taylor would not have been convicted if he had had a powerful ally.

“If Charles Taylor had had a friend among the permanent members of the U.N. Security Council, this case would not have had the traction it has had,” he said.

Thursday’s ruling is the final judgment at the court, which indicted 13 of the main facilitators of the violence in Sierra Leone. Two died before trial and one more remains unaccounted for and possibly dead. Another died before hearing a verdict. All of the others were tried and convicted.

For further information, please see:

Al Jazeera – Judges uphold Charles Taylor’s jail sentence – 26 September 2013

The Guardian – Charles Taylor’s 50-year sentence upheld at war crimes tribunal – 26 September 2013

Reuters – Liberia’s Charles Taylor loses appeal against war crimes conviction – 26 September 2013

The Telegraph – Charles Taylor to spend rest of life in British jail for Sierra Leone war crimes – 26 September 2013

 

Blue Ribbon Panel of Experts to Unveil Draft Statute for Syrian Tribunal on October 3, 8:30-9:30 AM, at the National Press Club in Washington D.C.

Event open to the Press and Public

The government of Syria has admitted possessing chemical weapons; the United Nations has confirmed that their use killed more than 1,400 people in the outskirts of Damascus last month; and an international process for ridding the country of such weapons has just commenced. But what about holding the perpetrators accountable for violating the Geneva Conventions and the 1925 Chemical Weapons Treaty?

A blue ribbon panel of former international tribunal chief prosecutors, international judges, and leading experts has prepared a Draft Statute for a Syrian Extraordinary Tribunal to Prosecute Atrocity Crimes.  It’s being called the “Chautauqua Blueprint” because it was finalized on the margins of a recent conference of several of the chief prosecutors of the various international criminal tribunals at the Chautauqua Institution. The initiative was organized by Case Western Reserve Law Professor Michael Scharf, who is Managing Director of the Public International Law & Policy Group (PILPG); and David Crane, former Chief Prosecutor of the Special Court for Sierra Leone, who is a member of PILPG’s Board.

The members of the blue ribbon panel believe the time is particularly ripe for this initiative.  According to Scharf: “It can help the Syrian opposition demonstrate its commitment to the rule of law, ensure that accountability plays an appropriate role in peace negotiations, put Syrian officials and military commanders on all sides on notice of potential criminal liability, and lay the groundwork for justice rather than revenge in the immediate aftermath of transition.”  Crane adds, “It is a useful framework for not only the Syrians but regional and international organizations to assist in the creation of an appropriate justice mechanism.”

The Chautauqua Blueprint will be publicly unveiled and discussed at a special event at the National Press Club, 8:30-9:30 AM, on October 3.  A preview copy of the document is available at http://publicinternationallawandpolicygroup.org/wp-content/uploads/2013/09/Chautauqua-Blueprint1.pdf.  Speakers will include Scharf, Crane, members of congress, and other experts.  Paul Williams, President of the Public International Law & Policy Group, will chair the event, which is open to the press and public.  Breakfast will be provided.

The National Press Club breakfast event precedes Congressional hearings scheduled to consider Congressman Chris Smith’s Concurrent Resolution #51 on establishing accountability for war crimes and crimes against humanity in Syria.   Congressman Smith’s resolution recommends establishment of an international tribunal to prosecute top figures.  The Chautauqua Blueprint recommends an “internationalized domestic tribunal” as a complement or alternative to an international tribunal.

The Chautauqua Blueprint reflects insights gained from a series of meetings and workshops over the past two years led by the Public International Law & Policy Group, which brought together Syrian lawyers, jurists, and civil society leaders with international experts to discuss an approach to transitional justice uniquely tailored to Syria.  It also reflects comments received from the distinguished members of the Blue Ribbon expert drafting committee whose names and affiliations are listed below.

The Blue Ribbon Panel consists of:

 

  • M. Cherif Bassiouni, Emeritus Professor of Law at DePaul University, who chaired the Drafting Committee at the United Nations Diplomatic Conference on the Establishment of an International Criminal Court
  • David Crane, Professor, Syracuse University College of Law, who was the first Chief Prosecutor of the Special Court for Sierra Leone
  • Sir Desmond de Silva, QC, former Chief Prosecutor of the Special Court for Sierra Leone
  • Mark Ellis, Executive Director of the International Bar Association
  • Justice Richard Goldstone, former Justice of the Constitutional Court of South Africa, and former Chief Prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda
  • Larry Johnson, Adjunct Professor at Columbia Law School, former U.N. Assistant Secretary-General for Legal Affairs who drafted the Statutes for the Yugoslavia Tribunal, the Cambodia Tribunal, and the Special Tribunal for Lebanon.
  • Gregory Noone, Director of the Fairmont State University National Security and Intelligence Program and Assistant Professor of Political Science and Law, and former head of the International Law Branch in the International and Operational Law Division at the Pentagon  
  • Michael Newton, Professor, Vanderbilt University Law School, and former Deputy to the Ambassador at Large for War Crimes Issues, U.S. Department of State
  • William Schabas, Professor, Middlesex University Faculty of Law, and former Member of the International Truth Commission for Sierra Leone
  • Michael Scharf, Associate Dean, Case Western Reserve University School of Law, Managing Director of the Public International Law & Policy Group, and former Attorney-Adviser for United Nations Affairs, U.S. Department of State
  • Paul Williams, President of the Public International Law & Policy Group and Rebecca Grazier Professor of Law and International Relations, American University

 

In addition the following experts provided comments on the draft Statute but have asked to be listed as “contributors” rather than members because of their official positions:

 

  • David Scheffer, Director of the Center for International Human Rights at Northwestern University School of Law, U.N. Special Expert on United Nations Assistance to the Khmer Rouge Trials, and former US Ambassador at Large for War Crimes Issues.
  • Judge Patricia Wald, former Judge of the International Criminal Tribunal for the former Yugoslavia and Chief Judge of the U.S. Court of Appeals for the District of Columbia Circuit.
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