Saturday, June 30, 2007

Reisekarte von Nürnberg

Wish you’d been there:
Just back from a megaconference, Building a Future on Peace and Justice, cosponsored by the governments of Finland, Germany, and Jordan, the International Center on Transitional Justice, and Crisis Management Initiative. Standing in the same courtroom (above) where the International Military Tribunal at Nuremberg once tried vanquished Nazis for war crimes, German Foreign Minister Frank-Walter Steinmeier opened the event by stating that it was there that Germany began its "return to the community of respected nations."
Conference highlights:
► The insistence on the presence of women at every peace parley, by Elisabeth Rehn (below), who's served as Sweden's 1st woman Minister of Defence and as Special Representative of the U.N. Secretary-General in Bosnia and Herzegovina. Rehn cited the view of some women she’d met in conflict situations: "‘The men have messed up enough. Now it’s time for us.’" She concluded, "Women have to be at the negotiating table."
► Statements by stakeholders, among them Rwot David Onen Acana II, Paramount Chief of the Acholi people involved in peace talks over Northern Uganda.
► The number and variety of participants, ranging from Prince Zeid Ra’Ad Zeid Al-Hussein, Jordan’s Ambassador to the United States and former President of the International Criminal Court's Assembly of States Parties, to a host of women and men who do humanitarian work in the world’s most troubled regions.
Proceedings are to provide the basis for a 2008 Nuremberg Declaration on Peace and Justice.

On June 30, ...

... 2005, legislators enacted a law legalizing same-sex marriage in Spain. The move tracked similar developments in Belgium, the Netherlands, and Canada.
... 1868, Mabel Cratty was born in Bellaire, Ohio. A public school teacher for several years after her graduation from Ohio Wesleyan University, eventually she turned to social work. In 1906 Cratty became General Secretary (the title of the time for what now is called an Executive Director) of the Young Women's Christian Association. She would hold the YWCA post until her death from pneumonia 22 years later. By then, Cratty "directed the work of 110 women secretaries in thirteen foreign countries and the 1,300 associations in the United States, with a membership of more than 600,000." (YWCA illustration by Neysa Moran McMein courtesy of Library of Congress)

Friday, June 29, 2007

Forced Marriage: The Facts Don't Fit The Crime

In a recent 631-page decision, Prosecutor v. Alex Tamba Brima et al. (Case No. SCSL-04-16-T) mentioned earlier in this blog, Trial Chamber II of the Special Court for Sierra Leone refused to recognize a discrete offense of forced marriage as either a crime against humanity or a war crime. In so doing, the Court rejected innovative arguments by prosecutors that a crime of forced marriage existed independently of related war crimes and crimes against humanity of rape, sexual slavery, imprisonment, forced labor, and enslavement.
The concept of forced marriage was not a theory originally conceived of by feminist academics or advocates; rather, it came from victims themselves. As the story goes, prosecutors interviewing victims of the brutal civil war in Sierra Leone heard innumerable stories of gang-rape and other forms of sexual violence. Other women, however, described their experience using the vocabulary of marriage. The trial testimony of witness TF1-094 is indicative. TF1-094 was about 12 when her village was raided by rebels. Her parents were killed. She survived, because one Andrew intervened to “save her.” Saving her meant first raping her and then taking her along with him to act as his “wife” (also known by the unfortunate term “bush wife”)—doing laundry and other chores and traveling with his unit as the theatre of war shifted. On cross-examination, she admitted that Andrew generally “care[d] for her.” Andrew was ultimately killed in combat. Other women stayed with their “husbands” post-conflict, often because they knew no other life and had no other life to return to. The rest of the Judgement’s Factual Findings are equally as harrowing.
Through pleading vagaries in the Brima Indictment, the “forced marriage” allegations were adjudicated as the war crime of “outrages upon personal dignity” under Article 3(e) of the Special Court Statute. Exemplifying the normative redundancy of international criminal law, the Prosecutor had also originally charged forced marriage as the residual crime against humanity of “other inhuman acts” under Article 2(i) of the Statute. The Special Court ruled, however, that that provision “must logically be restrictively interpreted as applying only to acts of a non-sexual nature amounting to an affront to human dignity” in light of the “exhaustive category of sexual crimes particularised in Article 2(g) of the Statute,” viz. rape, sexual slavery, enforced prostitution, forced pregnancy and any other form of sexual violence. At the same time, the Court dismissed charges under Article 2(g) as duplicitous, because the Prosecutor did not adhere to the rule of one count, one offense. So, Article 3(e) remained the only “hook” on which the forced marriage allegations could hang. All these machinations in the judgment were after Trial Chamber I had earlier allowed the Prosecution to amend the Indictment to add the forced marriage allegations.
In its Judgement, the Court rejected the notion of forced marriage as a separate and distinct crime. The ruling is arguably based solely on the evidence presented, as the Court determined that the Prosecutor had not established a non-sexual crime of forced marriage that did not wholly overlap with the crime of “sexual slavery” as “[n]ot one of the victims of sexual slavery gave evidence that the mere fact that a rebel had declared her to be his wife had caused her any particular trauma, whether physical or mental.” In other words, the crime of sexual slavery subsumed every case of “bush marriage” presented. The Court went farther, however, in rejecting the very concept when it ruled that even if there had been such evidence, forced marriage would not amount to a crime against humanity because it is not of similar gravity to the other acts set forth in Article 2 of the Statute. The Court left open the question of whether forced marriage could still constitute a war crime, which may not require a heightened showing of harm to all of humanity. All defendants were found guilty under Count 9 for the war crime of outrages upon personal dignity.
Justice Teresa Doherty (left, from Northern Ireland) wrote a compelling dissent. She argued that the phenomenon of forced marriage within the context of the Sierra Leone civil war was distinguishable from the crime of sexual slavery as well as other forms of arguably forced marriage, such as arranged marriages or inheritance marriages, that may implicate human rights norms but not international criminal law.
So often, women’s reality is not acknowledged until it is named. Unlike other international prosecutorial teams—who have been critiqued for failing to elicit, overlooking, ignoring, discrediting, and not pursuing women’s stories of sexual violence in their investigations and indictments—the Special Court’s Prosecutor was clearly listening to women. This Trial Chamber, however, missed an opportunity to acknowledge the lived experience of women and to harness the expressive function of the law. The charge of sexual slavery alone fails to capture the full culpability of the accused and the total experience of the victim who finds herself trapped in a life not of her choosing, saddled with an irreversible conjugal status and innumerable “conjugal duties.” The case lends further credence to the astute observation of Professor Catharine A. MacKinnon (right) that “Women are violated in ways that men are not, or rarely are.” It also provides further evidence of how powerless women may be to control their fates in times of war. One is left to hope that the Prosecution maintains its commitment to the women of Sierra Leone and appeals the Trial Chamber's ruling as a matter of law.

[Posted by IntLawGrrl Beth Van Schaack]

Way-Faring Justice

Notable at the end of a U.S. Supreme Court Term notably lacking in transnational references is Justice John Paul Stevens' reach across borders of time as well as place. (For upcoming transnational cases, see below.)
Yesterday's plurality opinion invalidating programs designed to maintain racially integrated public schools relied on Brown v. Board of Education (II), the 1955 judgment that ordered desegregation with "all deliberate speed." This reference by Chief Justice John G. Roberts Jr. (above right) rankled Stevens (above left), whose involvement with the Court and desegregation, as I wrote here, well predates Brown. In the 1948 case of Ada Sipuel Fisher (right), who'd sought admission to the University of Oklahoma Law School, a typescript memorandum by then-law clerk Stevens advised Justice Wiley B. Rutledge:

I would think it possible to take judicial notice of the fact that (a) a law school for one student cannot be equal, even if you accept the equal but separate doctrine, and (b) the doctrine of segregation is itself a violationof the Constitutional requirement.

Nearly 6 decades later Stevens, who'd gone on to serve as a judicial brother to Sipuel lawyer Thurgood Marshall (left), found "a cruel irony" in Roberts' invocation of Brown II. Elaborating, Stevens' wrote that Roberts' opinion concludes with the sentence

"Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin." This sentence reminds me of Anatole France's observation: "The majestic equality of the law, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread." The Chief Justice fails to note that it was only black schoolchildren who were so ordered; indeed, the history books do not tell stories of white children struggling to attend black schools. In this and other ways, The Chief Justice rewrites the history of one of this Court's most important decisions. Compare ante ("history will be heard"), with Brewer v. Quarterman (2007) (Roberts, C.J., dissenting) ("It is a familiar adage that history is written by the victors").

The transnational reference is to Le Lys Rouge, or The Red Lily, an 1897 novel by Anatole France (left). The renowned French author used his 1921 Nobel Prize speech to condemn the Versailles agreement as "a peace treaty that is not a treaty of peace but a continuation of war" on account of which, if not amended, "Europe will perish." The sentence that Stevens invoked yesterday comes from a passage likewise laden with social commentary. In a chapter entitled "Madame Has Her Way," the character Choulette delivers a bitter critique of what he sees as France's Revolutionary legacy:

"... We are warlike in France, and we are citizens. Another reason to be proud, this being a citizen! For the poor it consists in sustaining and preserving the wealthy in their power and their laziness. The poor must work for this, in presence of the majestic quality of the law which prohibits the wealthy as well as the poor from sleeping under the bridges, from begging in the streets, and from stealing bread. That is one of the good effects of the Revolution. As this Revolution was made by fools and idiots for the benefit of those who acquired national lands, and resulted in nothing but making the fortune of crafty peasants and financiering bourgeois, the Revolution only made stronger, under the pretence of making all men equal, the empire of wealth. It has betrayed France into the hands of the men of wealth. ..."

Choulette's traveling companion, Countess Martin, thinks his ideas "a little absurd," the novel continues. "She did not think that the past had ever been better than the present." And so she replies with resignation:

"I believe, Monsieur Choulette, that men were always as they are to-day, selfish, avaricious, and pitiless. I believe that laws and manners were always harsh and cruel to the unfortunate."

Stevens' dissent underscores the continuing relevance of this 110-year-old debate over formal versus substantive equality.

Gitmo back at the High Court

Notwithstanding this Term's dearth of such references, transnational considerations are likely soon to return to the Supreme Court. Today the Court granted petitions for writs of certiorari in 2 Guantánamo detainee cases that it earlier refused to hear. Coupled with the prior grant concerning internal enforcement of the Vienna Convention on Consular Relations in Medellín, this grant portends an OT '07 filled with review of foreign and international law and context.
Thanks to SCOTUSblog, here (with some hypertexting in lieu of cites) are the precise questions the Court will review in the Gitmo cases:

1. Whether the Military Commissions Act of 2006 validly stripped federal court jurisdiction over habeas corpus petitions filed by foreign citizens imprisoned indefinitely at the United States Naval Station at Guantanamo Bay.
2. Whether Petitioners' habeas corpus petitions, which establish that the United States government has imprisoned Petitioners for over five years, demonstrate unlawful confinement requiring the grant of habeas relief or, at least, a hearing on the merits.

Al Odah
1. Did the D.C. Circuit err in relying again on Johnson v. Eisentrager (1950), to dismiss these petitions and to hold that petitioners have no common law right to habeas protected by the Suspension Clause and no constitutional rights whatsoever, despite this Court’s ruling in Rasul v. Bush (2004), that these petitioners are in a fundamentally different position from those in Eisentrager, that their access to the writ is consistent with the historical reach of the writ at common law, and that they are confined within the territorial jurisdiction of the United States?
2. Given that the Court in Rasul concluded that the writ at common law would have extended to persons detained at Guantanamo, did the D.C. Circuit err in holding that petitioners’ right to the writ was not protected by the Suspension Clause because they supposedly would not have been entitled to the writ at common law?
3. Are petitioners, who have been detained without charge or trial for more than five years in the exclusive custody of the United States at Guantanamo, a territory under the plenary and exclusive jurisdiction of the United States, entitled to the protection of the Fifth Amendment right not to be deprived of liberty without due process of law and of the Geneva Conventions?
4. Should section 7(b) of the Military Commissions Act of 2006, which does not explicitly mention habeas corpus, be construed to eliminate the courts’ jurisdiction over petitioners’ pending habeas cases, thereby creating serious constitutional issues?

Let the briefing begin.

On June 29, ...

...1992 (15 years ago today), a divided U.S. Supreme Court, in Planned Parenthood of Southeastern Pennsylvania v. Casey, reaffirmed that the Constitution guarantees a woman the right to privacy in deciding whether to terminate a pregnancy before the fetus is violable. As "Mary Harris Jones" [IntLawGrrl Johanna E. Bond] posted, the Court relied on Casey this Term to sustain, by a 5-4 vote, a federal statute prohibiting termination by a method its detractors dubbed "partial-birth abortion." The decision prompted Justice Ruth Bader Ginsburg (left) to read her dissent from the bench.
...1950, U.S. Rep. Jo Ann Davis (R-Va.) was born in North Carolina.
...1943, U.S. Rep. Virginia Foxx (R-N.C.) was born in New York City.

Thursday, June 28, 2007

Gender, Sexuality and the Military

The Duke Journal of Gender, Law & Policy has just published an issue devoted to current issues of gender and sexuality in the U.S. military. It includes 10 articles, 2 notes, and 2 sets of transcribed conference remarks that focus on the "don't ask/don't tell" policy.
In this issue, fighter pilot and Air Force colonel Martha McSally challenges the restrictions on women in combat; Diane H. Mazur discusses "military values" in the context of women's integration; Elaine Donnelly, per usual, laments the impact of gender integration; and Kingsley R. Browne concludes his article "Military Sex Scandals from Tailhook to the Present: The Cure Can Be Worse than the Disease" by asking "Can women take care of themselves, or can't they?". Clearly, the debate on women's military service has not progressed as far as it should have after so many years of women under arms.
Also notable is Walter T. Cox III 's (senior judge of the U.S. Court of Appeals for the Armed Forces) treatment of military consensual sex crimes, which points out that a massive overhaul of the military rape statute, Article 120 of the Uniform Code of Military Justice (UCMJ), goes into effect on October 1, 2007. The new statute is a long overdue attempt to update the sexual misconduct provisions of the UCMJ. When Congress changed this law, it left the military sodomy statute (Article 125 of the UCMJ) intact despite many calls for change in the wake of the Supreme Court's holding in Lawrence v. Texas 539 U.S. 558 (2003).

On June 28, ...

...1919, 5 years to the day after the assassination of Austrian Archduke Franz Ferdinand that touched off World War I, delegates convened in the Hall of Mirrors, Palace of Versailles, France, to sign a Treaty of Peace with Germany. Among those signing were Allied leaders Woodrow Wilson, Georges Clemenceau, and David Lloyd George, chief negotiators at the Paris Conference that had been in session for months. A superb study of that conference is Paris 1919 by historian Margaret MacMillan (left), Provost of Trinity College in the University of Toronto and Lloyd George's great-granddaughter.
...1945, U.S. Rep. Jane Harman (D-Cal.) was born in Los Angeles.

Wednesday, June 27, 2007

Charles Taylor trial on hold again

Only days after handing down verdicts in its first cases, the Special Court for Sierra Leone has adjourned the Charles Taylor trial so that new defense counsel can be appointed. The court had refused to permit Taylor’s no-show strategy (also discussed here) to derail the proceedings -- and properly so, under the court’s Rules of Procedure and Evidence, which permit it to continue in the defendant’s absence if he has appeared in court and been given the opportunity to participate but is simply refusing to attend. However, the court could not ignore his decision to fire his defense counsel. Proceedings are supposed to begin again on July 3, one month after the first attempt to get the trial rolling on June 4.

Prosecuting Human Trafficking in U.S. Courts

U.S. Senators Dick Durbin (D-IL) and Tom Coburn, M.D. (R-OK) today introduced legislation -- S. 1703, the Trafficking in Persons Accountability Act -- to allow prosecution of non-U.S. citizens for human trafficking committed outside the United States. Under current law, federal prosecutors can only prosecute trafficking that is committed within the United States or by a U.S. citizen abroad. According to Durbin, "[w]e cannot allow our contry to continue providing safe haven for those trafficking in human misery." Citing the recently released U.S. State Department's Trafficking in Persons Report 2007 (TIP Report), Durbin noted that the "number of countries who are not doing enough to combat trafficking has increased. If these countries won't prosecute those who engage in human trafficking, the United States should be empowered to bring justice to those traffickers who are in the United States."
The annual State Department TIP Report ranks countries based on their efforts to comply with a set of U.S. minimum standards on trafficking (established in the U.S. Trafficking Victims Protection Act of 2000). Countries that are not making significant efforts to comply are ranked Tier 3, and may be subject to U.S. sanctions (few ultimately are). This year, there are 48 countries on Tier 3; last year, there were 44, and the year before there were 41. The U.S. minimum standards focus on the prosecution prong of the U.S.'s "3P's" policy on trafficking (prosecution of traffickers, protection of trafficked persons, and prevention of trafficking). But it's not entirely clear how far an emphasis on prosecution -- at least to the relative neglect of the other 2P's -- gets us...

Introducing Frances Perkins

My heartfelt thanks to Diane Amann for inviting me to participate in this blog – it’s a privilege to be a part of this fabulous online community.
Let me introduce Frances Perkins (1882-1965), Secretary of Labor under FDR and the first woman to hold a cabinet position in the United States. A strong advocate of workers’ rights and protections, Perkins began her career studying firsthand the problems of the working poor, particularly young women who had immigrated to the United States in search of jobs. During her tenure as Secretary of Labor, Perkins achieved landmark reforms, including giving workers the right to organize unions and bargain collectively, establishing a minimum wage and maximum workweek, and spearheading the development of the U.S. social security system. As former Secretary of Labor Willard Wirtz put it, “[e]very man and woman who works at a living wage, under safe conditions, for reasonable hours, or who is protected by unemployment insurance or social security, is her debtor.”
Imagine what Perkins could have accomplished were she alive today. As our leaders continue to debate immigration reform and to develop/implement anti-trafficking laws and policies worldwide, may Perkins’ work inspire us to consider these issues from a labor perspective...

On June 27, ...

... 1951, Mary McAleese (right) was born in Belfast. Following a career in law, education, and journalism, she became in 1997 the 8th President of the Republic of Ireland. A recent interview with her is here. McAleese succeeded President Mary Robinson, who proceeded to serve till 2002 as U.N. High Commissioner for Human Rights.
... 1986, in Nicaragua v. United States, the International Court of Justice, by a vote of 12 to 3, held the United States had violated international law by aiding the Contras, paramilitaries engaged in armed struggle against Nicaragua's Sandinista government. An earlier adverse ruling had prompted the United States to withdraw from the compulsory jurisdiction of the Court. The case stands as a watershed for at least 2 reasons. 1st is its articulation of an "effective control" standard for responsibility, which is now in tension with a standard articulated in Tadic by the International Criminal Tribunal for Yugoslavia. 2d is the fact that the contemporary resistance of some Americans to obligatory international norms and regimes has roots in the case.

Tuesday, June 26, 2007

Write On! 'Gender & the Long Postwar'

(Write On! is an occasional item about notable calls for papers.)
Papers comparing changes in Europe and the United States, particularly changes in gender relations, since the end of the World War II, are sought for "Gender and the Long Postwar: Reconsideration of the United States and the Two Germanys, 1945-1989," a conference set for May 30-31, 2008. Conveners are Sonya Michel, University of Maryland-College Park, Karen Hagemann, University of North Carolina-Chapel Hill, and Corinna Unger, German Historical Institute, Washington, D.C. Themes of the conference, to be held at the Institute: "War, Memory and the (Re)construction of Gender"; "Migration, Immigration and Changing Gender and Sexual Identities"; "Education, Employment, Consumerism: New Roles for Women"; "Social Citizenship and the Gendering of Welfare States"; "Politics, Protest and Civil Society"; "New Sexualties"; and "Gender, Postwar, and German and U.S. Historiography." October 1's the deadline for paper proposals; details are here. (Pictured at left is Angela Merkel, Germany's Chancellor since 2005. Thanks to Legal History Blog for the head's up on the call for papers.)

On June 26, ...

...1892 (115 years ago today), Pearl Comfort Sydenstricker was born in Hillsboro, West Virginia, to a Presbyterian missionary couple. When she was 3 her family would move to China, location of The Good Earth and the many other works that she would write under the name Pearl S. Buck (left). Active in rights campaigns on behalf of women, African-Americans, and mixed-race children, Buck became, in 1938, the 1st American woman to win the Nobel Prize in literature.
... 1945, the San Francisco Conference concluded as delegates from 50 countries signed the United Nations Charter, which would enter into force on October 24 of the same year.

Monday, June 25, 2007

Australia's Katrina?

Late last week, Australian Prime Minister John Howard announced wide-ranging policies targeting the sexual abuse of children in the indigenous communities of the island continent's Northern Territory. Responding to his declining position in electoral campaign polls and the report by Northern Territory authorities into the sexual abuse of children in aboriginal communities in Australia's Northern Territory, Howard has taken drastic action: the Northern Territory aboriginal communities will be subject to stringent action banning alcohol and porn, and threatening a reduction in welfare payments to parents who do not adequately provide for their youngsters. In addition, Howard announced that federal law will override territory law, and military and law enforcement personnel would be stationed in Aboriginal communities in the Northern Territory. Further, Aboriginal children will be medically examined for signs of sexual abuse. The report pointed to systemic conditions in the community, stemming from the history of Australia's relationshiop with its indigenous people, and made several policy suggestions for dealing with the situation on Aboriginal communities, none of which appear to be targeted in the newly announced policy.
Opinion polls suggests that there is support for the announced policy and it has not been opposed by the leader of the labor party, who is afraid of losing support on the polls. Mr. Rudder has now resorted to defending his support for Howard. The plan has been met with a wide range of reactions, ranging from suspicion that Howard is trying to jump start his poll numbers, that this is a thinly veiled attempt to re-assume federal authority over resource-rich Aboriginal land in the name of economic activity, and accusations of paternalistic racism. In the face of protests, Mr. Howard has expressly compared the situation in Aboriginal Australia to Hurricane Katrina in the U.S.
Mr. Howard and the Australia public should ask themselves whether, instead of an army of military and law enforcement personnel, an army of doctors, social workers, sociologists and/or anthropologists and some real commitment to understanding and resource expenditure would bring greater benefits to the Aboriginal communities.

On June 25, ...

... 1678, Elena Lucrezia Cornaro Piscopia, a multilingual scholar in mathematics, science, grammar, and music, became the 1st woman ever to receive the degree of Doctor of Philosophy. Her initial application to University of Padua, Italy, for a doctorate in theology, had been rebuffed. On account of "the multitude of spectators" her oral examination had to be transferred from Padua's University Hall to its Cathedral of the Blessed Virgin; her "brilliant answers amazed and awed" all. The session's depicted in a stained-glass window at the Vassar College library (right). Piscopia dedicated the remaining years of her life to charity; her death in 1684, at age 38, has been attributed to tuberculosis.
...1945, U.S. Rep. Carolyn Cheeks Kilpatrick (D-Mich.) was born in Detroit.
...1981, by a 6-3 vote in Rostker v. Goldberg, the U.S. Supreme Court rejected a challenge to reinstatement of a men-only military draft on the ground that it violated the equal protection component of the 5th Amendment's due process clause.

Sunday, June 24, 2007

German Women WWII Slaves Seek Recognition

As Holocaust compensation payments reach completion in Germany for both German and non-German wartime slave laborers, over 1000 German women who’d been slave laborers in Siberian labor camps are excluded from German fund set up to compensate Germans imprisoned by Communist authorities for political reasons. Of the roughly 20,000 young German women and girls taken prisoner by the Red Army and forced to do heavy manual labor for over 4 years, fewer than 2000 are estimated to survive. Released into East Germany in 1949, the women were forbidden to discuss their experiences and have been excluded from the fund to compensate former political prisoners because they were never put on trial. Arnold Vaatz, a legislator in Chancellor Angela Merkel’s party has, like Merkel, spent years campaigning for the political prisoners, and he's trying to get another bill passed to create a 5-million-euro package for these women, who say they are less concerned about the money than about the recognition and respect they’ve been seeking for almost 60 years.

On June 24, ...

... 1941, Julia Kristeva was born in Sliven, Bulgaria. In her 20s she moved to Paris, where she has lived ever since. Schooled in linguistics and psychoanalysis, for decades she has been a leader in feminism, semiotics, and cultural theory. Among her works is a 1977 essay, "Women's Time," and a 1999 study of Hannah Arendt, both included in The Portable Kristeva, edited by Kelly Oliver.
... 1968, authorities shut down Resurrection City (above), a shantytown built on the Mall in Washington, D.C., just weeks after the April assassination of Rev. Martin Luther King Jr. , and occupied by "poor people -- mostly black, some Hispanic and Native American, and a handful of whites -- from across the country."

Saturday, June 23, 2007

Postcard from Phnom Penh

The big news from Cambodia is that the national and international judges on the Extraordinary Chambers in the Courts of Cambodia have finally agreed on internal rules (available here), enabling the prosecutions to move forward at long last. After meeting with ECCC officials on Wednesday, I went yesterday to the Choeung Ek killing fields, just outside Phnom Penh. The simple memorial, which holds 8,985 skulls of Cambodians murdered by the Khmer Rouge, is overwhelming; it defies description and language. Sophary, a young Cambodian law graduate who has accompanied me to the site, tells me that on her first visit to the memorial, the tears simply rolled down her face; she could not control them. Set in a lush and verdant field with butterflies flitting past, it is hard on this Cambodian summer day to imagine the evil acts perpetrated at Choeung Ek. More importantly, it is impossible to conceive of an appropriate response to this senseless violence; the tourists snapping pictures of the bones seem no less equipped to address the killings than our sacred international criminal law. On Sophary's second visit to the memorial, she brought a group of Buddhist nuns, who stood in a circle and recited chants for the souls of the dead. To me, this simple act represents a crucial element lacking in a purely legal response to the violence: an element of locally grounded and rehabilitative spirituality. Will the ECCC be able to speak so eloquently and thoughtfully to Cambodia and her ghosts?

On June 23, ...

... 1888, at the Republican National Convention in Chicago, Frederick Douglass (right), the abolitionist and women's suffragist who had escaped slavery in 1838 and written and spoken out about his experiences ever since, became the 1st American of African ancestry proposed for nomination as President of the United States. Benjamin Harrison would win the GOP nomination 2 days later; soon after his election, Harrison named Douglass U.S. minister to Haiti. (For an excellent analysis of Douglass' transformative midcentury journey to famine-struck Ireland, see Peter D. O'Neill, “Frederick Douglass and the Irish,” 5 Foilsiú 57 (2006) (available here).
... 1894, the International Olympic Committee, an international, nonprofit, nongovernmental organization, was founded as a means to revive the famed athletic games of ancient Greece.

Friday, June 22, 2007

Cortar atención en México

Commentators on both sides of the Rio Grande have begun to pay attention to the doings of la Suprema Corte de Justicia de la Nación, Mexico's Supreme Court. After decades of caution, the 90-year-old Court seems to have taken an "activist" turn, reports the Los Angeles Times. Early this month overturned a law granting "huge concessions" to Televisa and another media conglomerate. "'The court took action because it had to,'" Mexico City-based Professor Ana Laura Magaloni told the Times. "'All the other branches had caved in.'"
The Court further launched an investigation of a "rogue" governor in Oaxaca, and has just decided to expand that investigation to former President Vicente Fox and other federal officials. The court is about to consider a similar investigation in Puebla. (Meanwhile, Mexico's executive branch appears ready to extradite Quintana Roo's ex-governor for trial in the United States.)
The Court's moves have generated applause among those who, the Times writes, see this as Mexico's Warren Court moment. But others warn that this is "dangerous terrain": 1 columnist advised readers to "tighten your seat beat, because there's going to be turbulence."

Close Gitmo: New Episode

Following overnight news of an on-then, off-now high-level Friday meeting, reports that the Bush Administration may be reaching a consensus to close its detention center at the U.S. Naval Base at Guantánamo Bay, Cuba. Stay tuned whether the plan calls for closing not only Guantánamo, but also "Guantánamo"; that is, the complex of interrogation, detention, and rendition policies that span the globe and now associated with that one, once geographically situated, word.

ASIL wants you

The American Society of Law's put out a call for ideas and nominations relating to a host of its programs.
"The Politics of International Law" is the theme of the next annual meeting, to be held April 9-12, 2008, in Washington, D.C. Planners ask that ASIL members send program and panel ideas. A separate call seeks abstracts from new voices. Deadline's soon, July 9; details here and here.
Members also are asked for nominations for ASIL officers, for the American Journal of International Law editorial board, and for awards in honor of scholarly work. Deadlines are as early as August 15; details on the 1st 2 here, on the 3d, here.

On June 22, ....

... 1933, U.S. Sen. Dianne Feinstein (D-Cal.) (right) was born in San Francisco, where she also served as mayor from 1978 to 1988.
... 1940, Nazi Germany compelled France to sign an armistice 8 days after overrunning Paris. On the same day 1 year later, Germany further expanded World War II when it invaded the Soviet Union.
... 1989, in Gbadolite, Zaire, União Nacional para a Independência Total de Angola, the rebel group known by its acroynym, UNITA, agreed to a ceasefire in its 14-year-old conflict against Movimento Popular de Libertação de Angola, Angola's Soviet-backed government.

Thursday, June 21, 2007

Special Court for Sierra Leone: 1st verdicts

The mixed national-international tribunal set up in the wake of Sierra Leone's civil war returned its 1st verdicts yesterday, finding 3 rebel leaders guilty on 11 counts of war crimes and crimes against humanity. This 1st judgment by the Special Court for Sierra Leone also constituted the 1st international convictions for conscripting child soldiers and forced marriage as crimes against humanity. (A pathbreaking work on the 2d crime is Forced Marriage: Rwanda’s Secret Revealed, 7 UC Davis Journal of International Law & Policy 197 (2001), by Monika Kalra Varma).
Reading the verdict at yesterday's session was Justice Julia Sebutinde (left) of Uganda, Presiding Judge of Trial Chamber II. The other members of the panel -- now adjudicating charges against former Liberian President Charles Taylor -- were Justices Teresa Doherty (right) of Northern Ireland and Richard Lussick of Samoa.
In the instant case, Trial Chamber II adjudged defendants Alex Tamba Brima, Brima Bazzy Kamara, and Santigie Borbor Kanu. Each had helped lead the Armed Forces Revolutionary Council, which, along with the Revolutionary United Front, had wreaked mayhem in the Western African country throughout much of the 1990s. The Court reports that in addition to crimes just mentioned, these 3 also were found guilty of acts of terrorism, collective punishments, murder as a crime against humanity, murder as a war crime, rape. outrages upon personal dignity, physical violence as a war crime, enslavement, and sexual slavery and other sexual violence. (The 631-page judgment's available here.)
Allowing that the judgment's "'a positive signal,'' Amnesty International urged greater accountability for the atrocities of Sierra Leone's civil war; that is, more prosecutions of persons believed responsible, as well as compensation for victims of the violence.

On June 21, ...

... 1947 (60 years ago today), Shirin Ebadi (left) was born in Hamedan in the northwest part of Iran. She's served as a judge and as an attorney for decades. For her courageous efforts on behalf of "democracy and human rights," especially on "the rights of women and children," Ebadi received the 2003 Nobel Peace Prize. (Susan Tiefenbrun's paper "The Semiotics of Women's Human Rights in Iran" analyzes the efforts of Ebadi and others.) Ebadi's work continues; currently she represents Haleh Esfandiari, an Iranian-American arrested for espionage while in Iran to visit her mother.
... 2007 (today), the sun stands still. Well, not quite, but that's the notion at the root of the word "solstice." It's Summer Solstice in the Northern Hemisphere, where the sun shines longer than on any other day; south of the equator things are reversed, and it's Winter Solstice. Across time and culture the event has been cause for magical celebration: In Midsummer's Night Dream, it was on this day that the ensorcelled Queen Titania danced with a donkey. (painting by Henry Fuseli, circa 1790)

Wednesday, June 20, 2007

International Law Women

Midsummer greetings from some attendees at this week's AALS/ASIL conference on international law in Vancouver. Standing in front at far left is the Honorable Diane P. Wood, Judge on the U.S. Courts of Appeals for the Seventh Circuit, whose lunchtime keynote examined the interrelation of national and international law in norm creation, treaties, and customary international law. Over her left shoulder is ASIL Executive Director Elizabeth Andersen. Beside them, a host of the many other women who think and write about, teach, and work in international law.

On June 20, ...

... 1953, International Criminal Court Judge Ekaterina Trendafilova (left) was born in Sofia, Bulgaria.
... 2001, in honor of the 50th anniversary of the 1951 Convention Relating to the Status of Refugees, the United Nations proclaimed the 1st World Refugee Day. A global list of events commemorating the day is available here, and at ImmigrationProf Blog there's a call for petition signatures.
...2002 (5 years ago today), in Atkins v. Virginia, the U.S. Supreme Court overruled 13-year-old precedent to hold that execution of mentally retarded persons is cruel and unusual punishment that violates the 8th Amendment to the U.S. Constitution. A footnote in the judgment revived consultation of external norms to aid constitutional decisionmaking. The Court did not establish a bright-line rule for determining whether a persons is "mentally retarded" – with the result that persons with the same IQ may not suffer the death penalty in some states, yet be executed in others, as author Sara Catania details here.

Tuesday, June 19, 2007

Taking note

Bits 'n' pieces from the AALS/ASIL conference, "What Is Wrong with the Way We Teach and Write International Law," just opened in Vancouver:
In the morning, calls to imagine international law -- to "reconceive," as Jeremy Waldron put it, "an international ordering as a single embracing legal order," and to "engage again with the natural law tradition" that enables a "clear-headed sense of the important ot positive law as means for human ordering." Why do so? To resist realist and pragmatist counterapproaches. Sanjay Reddy spoke of the imagining of "possible worlds," and Colin Dayan challenged human rights jurists to recognize the complexity -- and treacherous malleability -- of terms like "humanity," as they exercise "legal imagination" and "moral imagination."
In the afternoon, calls to change what's taught in international law. Reminding that more than 1 billion people in the world live on under $1 a day, Edith Brown Weiss urged attention to how poverty affects the world and the world's law. She and Balakrishnan Rajagopal called for greater use of information technology to bridge rich-poor/North-South divides. But Rajagopal told a cautionary tale, making clear that many points in his critique had been made by Onuma Yasuaki 26 years ago.
Capping the day, works in progress. The 3 excellent presentations I heard -- Peggy McGuinness on norm portals, Karen E. Bravo (our own Nanny of the Windward Maroons) on the old trans-Atlantic slave trade and contemporary human trafficking, and Patrick Keenan on globalization in a world where some investors, like China, threaten to break the human rights paradigm -- reflected what's right in our discipline.

Announcing, from across the blogosphere, 5 new "Legal Wonders' nominees!

Heartfelt thanks to our colleague Anil Kalhan for making Dorf on Law the 1st cross-blog participant in our ongoing contest to Name the World's 7 Legal Wonders. After listing the nominees to date -- (1) the 13th Amendment to the U.S. Constitution, (2) the Constitution of the Republic of South Africa, (3) the Law Merchant, and (4) the Edicts of Aśoka -- he remarks:

Just as interesting as any particular candidate for "Legal Wonder" may be what the nominations say about the cultures from which these Legal Wonders have emerged and our own. Mary Rebecca Bynum has written that when she teaches her undergraduate course on "The Seven Wonders of the Ancient World," her purpose is not simply to teach students about the Seven Wonders themselves, but to explore "how members of one culture view other cultures, and what use they make of other cultures in their own world." This contest, too, may be as much a window into our own values, ideals, and culture as it is into the cultures that produced the particular "Legal Wonders" being nominated.
Then comes Anil's nomination:
So who or what do we nominate here at Dorf on Law? There are of course many worthy candidates, but I nominate Dr. B.R. Ambedkar [left], a Dalit (or so-called "untouchable")leader who at times clashed with Gandhi and other Congress leaders during the Indian independence movement and later became one of the principal architects of the Indian constitution, which among many other notable things abolished "untouchability." Over fifty years after his death, Ambedkar remains a deeply influential figure in contemporary India, and to some people a controversial one. A crude indicator of progress under Ambedkar's Constitution may be seen in the sweeping recent victory in the state of Uttar Pradesh by the Bahujan Samajwadi Party, a party created principally to represent and advocate on behalf of Dalits. Not only did the BSP surprise observers by winning an absolute majority of seats in the state -- returning Mayawati, the first Dalit woman to lead any of India's states, to power as the state's Chief Minister -- but it apparently did so with significant support from a "rainbow coalition" that included significant numbers of upper caste Hindus. On the other hand, for a sense of how far India has yet to go to fully realize its formal abolition of untouchability, recall my post on the status of Dalits from several months ago.
What's more, commenters at Dorf on Law added even more nominees, both positive and negative.
From commenter Caleb: "I'd suggest the Magna Carta [right] and -- in a bout of sentimentality perhaps -- the Canadian Constitution. It did what new contemporary constitutions did, and tried to enshrine principles of equality and protection between different groups without forcing assimilation."
Meanwhile, commenter Juan named: 1st, as a positive influence, the 4 1949 Geneva Conventions on the laws of war, and 2d, as a "fiasco," memoranda written by members of the Office of Legal Counsel, U.S. Department of Justice, in the wake of the terrorist attacks of September 11, 2001. Often called the "'torture
,'" many are reprinted in The Torture Papers.
Whew -- 5 new nominees in 1 fell swoop. And more to come, we hope: tell us yours, with a brief description of your reasons, by posting a comment or by e-mailing us at

On June 19, ...

... 1945, a daughter was born to in the city then known as Rangoon to Aung San, commander of the Burma Independence Army, and Daw Khin Kyi, senior nurse of Rangoon General Hospital. Named Aung San Suu Kyi, she would devote her life to nonviolent struggle for change in her country, renamed Myanmar following a military coup. The 1990 electoral victory of her opposition party resulted not in a change in government, but in the house-arrest of Suu Kyi. In 1990 her son accepted the Nobel Peace Prize on her behalf. Despite international outcry, Suu Kyi's remained in detention at her home in the city of her birth, now known as Yangon, for 11 of the last 17 years; recently, detention was extended for yet another 12 months. (photo courtesy of Suu Kyi's website)
... 1862 (145 years ago today), an act declaring that "there shall be neither slavery nor involuntary servitude in any of the Territories of the United States ... otherwise than in punishment of crimes whereof the party shall have been duly convicted" was approved. Marking the occasion to this day are Juneteenth celebrations, not only in the United States, but throughout the world.

Monday, June 18, 2007

Mourning Constitutional

Movement afoot to take a step toward greater European integration that's been moribund since 2005, when voters in France and the Netherlands said "non" and "nee," respectively, to ratification.
On the eve of this week's European Union summit Chancellor Angela Merkel (left) of Germany, current holder of the EU presidency, put forward a plan for a streamlined treaty that would do much of what the spurned document would've, yet would lose the name of European Constitution. Merkel's said her initial meetings, particularly with Poland, met with "'serious snags.'" New French President Nicholas Sarkozy, whose party won a legislative majority yesterday, wants things simplified, and outgoing British Prime Minister Tony Blair resists giving the Charter of Fundamental Rights supranational effect. Only time will tell whether Merkel's initiative will bear fruit.
In any event, proposals to pare the document seem like a good idea if Europe is to embrace fully the clarity of comprehension that popular sovereignty requires. To one schooled in the world's oldest written Constitution still in existence -- a charter that even as amended weighs in at well under 20 pages -- Europe's 474-page version has always seemed a tad on the long side.

On June 18, ...

... 1948, the instrument known as the Universal Declaration of Human Rights was approved by the U.N. Commission on Human Rights. It would be presented for approval by the U.N. General Assembly later in the year.
... 1979, the arms-reduction treaty known as SALT II was signed at Vienna's Imperial Hofburg Palace by U.S. President Jimmy Carter and Soviet leader Leonid Brezhnev (right). The U.S. Senate never gave its advice and consent to the treaty.

Sunday, June 17, 2007

Globally Disappeared

Questions've been raised about the accuracy vel non of the term "Global War on Terror" almost since its inception. Is it correct, many ask, to label the campaign a "war"? Can one fight "terror"? Or ought the campaign target, rather, acts of terrorism? Though less has been said about the 1st word, 2 recent reports on persons who've been ghosted into secret detention counsel more consideration of the campaign's "global" nature.
Six NGOS -- Amnesty International, Cageprisoners, the Center for Constitutional Rights, the Center for Human Rights and Global Justice at New York University School of Law, Human Rights Watch, and Reprieve -- focus "Off the Record" on U.S. conduct. The report names more than 3 dozen persons -- including 1 woman and her 3 children, aged 6 months to 7 years -- whom they believe have been detained in secret. "'Enforced disappearances are illegal, regardless of who carries them out,'" said NYU's Meg Satterthwaite on release of the report, which points to violations of the International Covenant on Civil and Political Rights and of the Convention Against Torture, to which the United States is party, as well as the International Convention for the Protection of All Persons from Enforced Disappearance opened for signature in February.
As remarkable as the role of the United States in in this account is the involvement of intelligence agencies from other states. Nearly 2/3 of the seizures cited occurred in Pakistan, where the issue of disappearance has sparked unrest. Other countries of capture: Somalia, Afghanistan, United Arab Emirates, Iran, Sudan, and Georgia.
That last country, of course, is in Europe -- and a report to the Parliamentary Assembly of the Council of Europe indicates that Georgia was by no means the only European state involved in secret detention. Rapporteur Dick Marty named Poland and Romania as the location of CIA "black sites" for detainees believed to have high intelligence value. Neither country acted alone, in Marty's opinion; to the contrary, he concluded that they and other states aided the U.S. effort within the framework of a North Atlantic Treaty Organization "platform" agreement reached just weeks after the 9/11 attack (¶¶ 72-111). Marty attributed his ability to ferret out facts that states want to keep secret to the "dynamics of truth" -- often, a sense among Europeans that since President George W. Bush conceded the existence of the program he said he'd keep secret, they might as well tell the story, under promise of anonymity, from their perspective. He called for further inquiry, greater accountability, and a return to the rule of law:

We are fully aware of the seriousness of the terrorist threat and the danger it poses to our societies. ... The fight against terrorism must not serve as an excuse for systematic recourse to illegal acts, massive violation of fundamental human rights and contempt for the rule of law. ... [H]aving recourse to abuse and illegal acts actually amounts to a resounding failure of our system and plays right into the hands of the criminals who seek to destroy our societies through terror. ... [I]n the process, we give these criminals a degree of legitimacy -- that of fighting an unfair system .... (¶ 14)

(Next counterterrorism update: the status of accountability, at home and abroad.)

On June 17, ...

... 2007 (today), is Fathers Day in the in the United States. Two women, Grace Golden Clayton and Sonora Smart Dodd, are said to have spearheaded the commemoration. Heartfelt thanks to our own dads, and to our grandfathers, husbands, brothers, and friends who're excellent parents to their girls and boys.
... 1999, Dr. Vaira Vike-Freiberga (right) was elected President of Latvia, a post she holds to this day. Until shortly before her election she had been living in Canada, her family having become refugees in 1945, when the Soviets occupied her Baltic homeland.
... 1946, U.S. Rep. Marcy Kaptur (D-Ohio) was born in Toledo, Ohio.
... 1858, Lakshmi Bai, Rani of the northern India state of Jhansi noted for her resistance to colonialism, died while battling the British Army at Gwalior. She is the namesake of IntLawGrrl Jaya Ramji-Nogales.

Saturday, June 16, 2007

A Whale of a Tale

Alaskan whale-hunters recently found embedded in the blubber of their catch "a 3-1/2-inch arrow-shaped projectile" like those a whaler would shoot "from a heavy shoulder gun around 1890." The discovery, which means that the 50-ton leviathan was as much as 130 years old, serves to remind that whaling continues well over a century after the heyday of Moby Dick. For the last 60 years, however, the industry's been monitored by the Cambridge, England-based International Whaling Commission established pursuant to the 1946 International Convention for the Regulation of Whaling, to which 77 countries, including the United States, are parties. (For news of another ocean-related treaty regime see below.)
In keeping with its mission of managing and conserving the world's cetacean population, in the 1980s the Commission imposed what it called a "'pause'" on commercial whaling. Revision of that moratorium has moved slowly, and not quickly enough for 1 maritime member state, Japan. There whaling is a nationalist cause supported by Prime Minister Shinzo Abe, the Japan Times. reports, and "forever linked with the hypocrisy of the West and the perceived humiliation of having to enter the modern world under pressure from U.S. gunboats." As it has for the last 20 years, this month Japan repeated its request for permission to hunt whale in its coastal waters, on cultural grounds, for the next 5 years. The bid failed; indeed, "40 countries passed a resolution condemning Japan's scientific whaling," a practice expected to claim 50 humpbacks this summer. And so the Commission's meeting in Anchorage, Alaska, concluded with the prospect that Japan would withdraw and restart its whaling industry. Some hope that the dispute will end in salutary fashion, with the establishment of a dispute settlement mechanism now absent from the treaty regime.

LOST no more?

Sorry, this is not a commentary on that survivalist series that seems to have taken couch potatoes by storm; check out that TV show if you must. But check out too a new ASIL Insight into another LOST: the Law of the Sea Treaty concluded in 1982, to which 153 other countries already belong. In their commentary our colleagues David D. Caron and Harry N. Scheiber explain how the opposition of a very few -- among them the late Jeane Kirkpatrick, 1st woman ever to serve as the United States' Ambassador to the United Nations -- stymied U.S. accession to a convention which enjoys the support of the
Defense Department, the State Department, the Commerce Department, the U.S. Coast Guard, the oil industry, the shipping industry, and the fishing sector, as well as environmental and conservation non-governmental organizations and religious organizations.
In mid-May U.S. President George W. Bush urged the Senate to give its advice and consent. "Senate delay may prove costly since treaties without leadership can decay," Caron and Scheiber write, sounding a warning that can be applied to other contexts, too.
(For news of another ocean-related treaty regime, see above.)

On June 16, ...

... 1976, a march in Soweto, South Africa, by more than 10,000 students opposed to the apartheid government, turned into a riot in which police killed hundreds. Another hundred died soon after in rioting throughout the country. International attention made the event a watershed in the path to majority rule in South Africa.
... 1897 (110 years ago today), the United States and the Republic of Hawaii signed a Treaty of Annexation of Hawaii in Washington, D.C. The following day Lili‘uokalani (right), who'd become Queen of Hawaii in 1891 and objected for years to the "provisional government" that purported to represent the islands, wrote in a letter to U.S. Secretary of State John Sherman:
I ... do hereby protest against the ratification of a certain treaty ... purporting to cede those Islands to the territory and dominion of the United States. I declare such a treaty to be an act of wrong toward the native and part-native people of Hawaii, an invasion of the rights of the ruling chiefs, in violation of international rights both toward my people and toward friendly nations with whom they have made treaties, the perpetuation of the fraud whereby the constitutional government was overthrown, and, finally, an act of gross injustice to me.