Sunday, September 30, 2007

Of mother's milk and monks

Another Sunday and the posting choice is difficult. I've been following the monks on march for democracy in Burma, was going to be a bit lazy and and post about a study that proves that women prefer pink. Actually, the prefer the red side of the color chart, thus everyone's favorite color, blue, becomes pink or lilac for women. The authors of the study think that this might be so because women gathered fruit, which is red when ripe. I can think of a more sanguine reason... In any case, I opened my LA Times e-mail alert and was jolted out of complacency by the Bush administration's utterly irresponsible caving in to pressure from the baby formula industry and weakening public health ad campaigns promoting breast feeding, which has many more life-long health benefits than does baby formula. Once riled, I figured it was time to post about Burma (currently called Myanmar by the military junta; while US news sources state these facts the other way around, i.e., Myanmar, formerly called or also known as…the French continue to call it Burma and the capitol city Rangoon, rather than the junta-redubbed Yangon). Protests have been going on since August over unannounced and unexplained hikes in gas and other prices and, as anyone who’s been following the news these past weeks knows, Buddhist monks have been leading massive demonstrations (10,000 monks, 20,000 total people in the biggest demonstration last week), even managing to stop and pray before the home of opposition leader Aung San Suu Kyi. But the junta finally cracked down violently, even killing a Japanese journalist and cutting cell phone and internet connections to stop information from getting to the outside world. The UN envoy was finally granted a visa and was able to meet with both Suu Kyi and junta leaders, but few have great hopes for the outcome. While things are clearly at a turning point, without the help of China (Burma’s biggest trading partner), the rest of the world seems powerless to get the junta to democratize (or at least end Suu Kyi’s house arrest) and China, while calling for restraint and peaceful settlement of the situation, will not join the international movement for sanctions or boycotts.

On September 30, ...

... 2007 (today), multilinguals throughout the world mark International Translation Day. This year the International Federation of Translators has chosen to bring attention to a sad fact:

There are parts of the world where translators and interpreters literally risk death simply by doing their job. Some 261 translators and interpreters died in Iraq in 2006, and more in Afghanistan. Elsewhere, translators have been jailed for their work, and received death threats for daring to translate the works of authors such as Salman Rushdie. One was murdered.

This year's theme? "Don't Shoot the Messenger!"
... 1997 (10 years ago today), the Roman Catholic Church in France apologized "to the Jewish people ... for its silence in the face of French collaboration with the Holocaust." Bishops proclaimed a Declaration of Repentance that confessed to and asked forgiveness for the "mistake" of silence as the Vichy regime, which ruled in France after the Nazi conquest, imposed anti-Semitic laws and undertook "the deportation of tens of thousands of French Jews to Nazi death camps."
... 1960, U.S. Sen. Blanche Lincoln (D-Ark.) was born in Helena, Arkansas.

Saturday, September 29, 2007

Treading a green road on trade

Check out the recent ASIL Insight by Julia Qin on the June 2007 "'green' decision" in Brazil – Measures Affecting Imports of Retreaded Tyres.
As Qin (left) explains, the European Communities had brought a challenge against a Brazilian law that bans importation of already-used-but-retreaded tires (right), based on the reasoning that the retreads have a shorter lifespan and so will find their way even sooner into waste heaps where they "create health and enivronmental hazards by providing breeding grounds for mosquite-borne diseases," and further "caus[e] tyre fires that are difficult to control." A panel of the World Trade Organization agreed, perhaps more so than Brazil wished: the panel "effectively directed" Brazil to extend the ban to imports of such tires from countries outside Europe; most notably, MERCOSUR neighbors that'd been permitted to sell the tires in Brazil.
In Qin's view the Brazil - Tyres decision could "become a milestone in WTO jurisprudence on trade and the environment" -- if, that is, it survives review by the WTO's Appellate Body.

On September 29, ...

... 1960, pounding on the table with both fists, Soviet Premier Nikita Khrushchev interrupted the speech of his British counterpart in praise of U.N. Secretary-General Dag Hammarskjöld, made during a session of the U.N. General Assembly in New York. Khrushchev demanded that Hammarskjold "be replaced by a three-man executive representing the western, Soviet and neutral camps." Though Khrushchev continued this attack through the next month, no action was taken. In a plane crash 1 year later Hammarskjöld died, en route to Congo peace talks; he was the posthumous recipient of the 1961 Nobel Peace Prize.
... 2005, Algerians went to the polls to vote on amnesty; that is, on the Charter for Peace and National Reconciliation, a proposal of President Abdelaziz Bouteflika that they "forget the violence of a civil war that left more than 100,000 people dead and to offer amnesty to many of those responsible." In the end, 97% of voters approved the referendum; turnout was 80%.

Friday, September 28, 2007

The Greatest Team You've Never Heard Of

"Brazil Delivers U.S. a Stunning World Cup Exit" read yesterday's NY Times headline; not so stunning if it had been talking about men's soccer, but a serious blow to the phenomenal U.S. women's soccer team, which had beaten Brazil in 21 of 22 prior matches. As a former soccer player and an avid fan of the sport, I'm always disappointed to see how little attention our powerhouse women's soccer team receives in the popular media. Why is it that a national team that had won 51 straight games prior the Brazil loss is, in the words of the soccer federation, "unheard of"? Some academics argue that American exceptionalism is responsible for the unpopularity of soccer as a spectator sport, arguing that the internationalist flavor of soccer contradicted the nativism and nationalism that shaped a uniquely American self image in the late 19th and early 20th century. Unlike the more popular American sports -- baseball, basketball, and football -- the soccer World Cup actually pits American teams against the rest of the world, including, this year, teams from countries as diverse as Argentina, Ghana, Korea, and Norway. While the exceptionalism argument provides a compelling historical explanation, why hasn't soccer taken off as an American spectator sport in the 21st century? The soccer moms are doing their part, chauffeuring girls and boys alike back and forth to soccer games from a tender age. Why hasn't this youthful enthusiasm translated into the soccer fever we see in the rest of the world? Perhaps the less novel but more frustrating question is why so little headway has been made in drumming up spectator support for a sport in which our women's team is truly outstanding. The excellence that Serena and Venus Williams display on the tennis court have engendered substantial enthusiasm from tennis fans, drawing in crowds eager for the sheer excitement of their joga bonito. Despite similar levels of virtuousity, other women's sports simply haven't been able to draw a serious fan base. While the successes of Title IX have empowered talented female athletes, the reality of gender-equal opportunity in sport is still a distant goal. Something to ponder next time you buy tickets for a sporting event . . . .

On September 28, ...

... 2005, Constance Baker Motley, Senior Judge on the U.S. District Court for the Southern District of New York, died at age 84 of congestive heart failure. Daughter of emigrants from the West Indies, in 1944 she became the 1st African-American woman accepted at Columbia Law School, from which she was graduated in 1946. Soon after she began to work for the NAACP Legal Defense and Education Fund. During her 16 years of practice there she "was the only woman on the legal team in the historic legal challenge to school segregation in Brown v. Board of Education," and, as depicted at left, also served as "lead counsel for James Meredith in his successful battle to gain admission to University of Mississippi." Motley won 9 of the 10 cases she argued before the U.S. Supreme Court. Eventually she entered city and state politics in New York. In 1966, she became the 1st African-American woman federal district judge; 20 years later, the 1st woman Chief Judge in New York's Southern District.
... 1961, the United Arab Republic came to an end when the military staged a coup in Damascus. The UAR had been formed on Feb. 1, 1958, as a union of Syria and Egypt; the latter country kept the name for another 10 years, then became the Arab Republic of Egypt on Sept. 2, 1971.

Thursday, September 27, 2007

New Search Engine on the Block

Searching international criminal law has gotten easier with the introduction of a new search engine (in beta format) using google technology to search defined ICL sites. The site was developed by Santa Clara University Law student Jeffrey Larson. Check it out: At the moment, it can search materials on the ICC, ICTY, ICTR, ICJ, and Yale University Avalon sites. More to come...

Immigration & accommodation in Québec

Faced with what is described as “public discontent” with Québec’s current multiculturalism policies, particularly as they provide accommodations for immigrant groups whose cultural and religious practices differ from that of the French Canadian Catholic majority in Quebec, Premier Jean Charest created a commission last February to address the issue. The commission’s approach to its charge has been deliberately provocative. In its consultation document, it has developed a series of “frank” and “direct” questions, “at the risk of occasionally arousing very strong responses” because it is convinced that “a wellspring of disagreements, discontent, dissatisfaction, or even frustration has built up” that must be aired. Accordingly, the public is asked to give its opinions on subjects ranging from the value (or lack thereof) of multiculturalism, Québec’s policy toward acceptance and integration of immigrants, “what kind of secularism” Québec should adopt, and so on. Answers may be submitted via formal briefs, on the commission’s website (in french & english), or in person at public hearings and forums. The expected furor is, of course, framed by the context of Québec’s unique position as a Francophone province within Canada and its corresponding and longstanding concern with protection of its French identity. Accordingly, whereas Canada has long had a federal policy of promoting multiculturalism, Québec’s policy is one instead of “cultural convergence.” The debate has also been spurred by the increasing ethnic and religious diversity of immigrants to Québec in recent years and the new challenge this diversity poses in the context of the long-recognized francophone-anglophone tension in the province. The commission began holding public meetings earlier this month & will continue through November. It will be interesting to see whether the commission succeeds in creating the frank dialogue it seeks, and what, if anything, comes of this vast public conversation.

Navigating the Law of the Sea Treaty hearings

Just in time for the hearing set for today before the Foreign Relations Committee of the U.S. Senate, the American Society of International Law's posted a trove of information on the 1982 U.N. Convention on the Law of the Sea. As we've posted, although the treaty enjoys widespread international support (155 states parties), efforts to secure U.S. ratification always have run aground. ASIL's databank indicates some division of opinion, notwithstanding 2 recent events have reinvigorated supporters: 1st, President George W. Bush's call for Senate approval; and 2d, Russia's deep-sea adventurism in the Arctic Ocean.
Witnesses on the agenda for Thursday's kickoff hearing are Deputy Secretary of State John D. Negroponte, Deputy Secretary of Defense Gordon England, and Admiral Patrick M. Walsh, Vice Chief of Naval Operations. The Committee plans another hearing in October, "at which time proponents and opponents, as well as ocean industry representatives, will be invited to testify." (photo courtesy of the Navy of Australia, a state party since 1994)

On September 27, ...

... 1938, in what the New York Times called "an undoubted dress rehearsal" for a Europe already in the throes of Nazi conquests, the Council of the League of Nations agreed to sanction Japan on account of Japan's "refusal to settle her dispute with China," a province of which Japan had invaded and renamed Manchukuo, via Covenant mechanisms for pacific settlement. This 1st invocation of Article 16 of the League's Covenant proved unavailing; 5 years earlier, Japan had quit the League, and the League was a dead letter before the end of World War II. This cartoon by David Low -- depicting a Japanese officer receiving an obsequious welcome from League officials even as he tramples a woman meant to represent the League itself -- underscored international ineffectiveness.
... 1966, U.S. Rep. Debbie Wasserman Schultz (D-Fla.) was born in New York City.

Wednesday, September 26, 2007

Circuits split on consular-warning lawsuits

A divided panel of the U.S. Court of Appeals for the Ninth Circuit this week rejected a civil suit brought by the victim of a violation of Article 63 of the 1963 Vienna Convention on Consular Relations, requiring that noncitizen arrestees be told they may call their consulate. Judge Pamela Rymer (right), joined by Judge Arthur L. Alarcón, wrote in Cornejo v. City of San Diego that "the right to protect nationals belongs to States party to the Convention," and that "no private right is unambiguously conferred on individual detainees"; therefore, 42 U.S.C. § 1983, a federal civil rights statute, offered no path to relief.
In so ruling, the majority parted company not only with the dissenter, Senior Judge Dorothy W. Nelson (left) -- who wrote that "it is clear that Article 36(1)(b) does confer individual rights" -- but also with the opinion that Judge Diane Wood (below right) wrote for a unanimous Seventh Circuit panel last March in Jogi v. Voges, 480 F.3d 822. (The Jogi decision, about which we posted here, may be viewed free here; log-on required.)
Circuit splits sometimes portend eventual review of an issue by the U.S. Supreme Court. In any event, there's no doubt that Court will grapple soon with aspects of the Consular Relations Convention. For this circuit split arises just weeks before consideration of the enforceability vel non of Avena, a 2004 International Court of Justice judgment that called for reconsideration of noncitizens who'd been convicted in the United States without having been told of the right of consular access. The high court, whose October Term 2007 begins Monday, will argument in that case, Medellín v. Texas, on October 10.

On September 26, ...

... 2007 (today), celebrate the 7th annual European Day of Languages. The Council of Europe set aside the day to "alert the public to the importance of language learning," "increase awareness and appreciation of all languages," and "encourage lifelong language learning" -- goals that ought to extend beyond that 1 continent. Indeed, they do: counted among the 307 languages of the European Community ("20 of which have over 2000 speakers") are languages like "Japanese which for a majority of students may, in fact, be second rather than first languages." Join the festivities, perhaps by taking this Council quiz, or curling up with a copy of An Béal Bocht, Saga af bláum sumri, or the like.
... 1936, Nomzamo Winifred Zanyiwe Madikizela was born in a village in what was then called Transkei and is now the Eastern Cape Province of South Africa. She received a bachelor's degree in political science from the University of the Witwatersrand, Johannesburg. Upon becoming politically active in the anti-apartheid movement, she was 1st detained in 1958, the same year she married African National Congress leader Nelson Mandela (left). Thereafter she was frequently subjected to detention and banning orders, as well as 5 years' imprisonment. After her husband's release from prison in 1990, allegations of misconduct by Winnie Madikizela-Mandela surfaced. The couple were divorced in 1996; thereafter, she was convicted of fraud, though a 4-year prison sentence was suspended in 2004.

Tuesday, September 25, 2007

World leaders at United Nations today

World leaders converge at the United Nations headquarters in New York today to give speeches marking the new session of the General Assembly. The speech that U.S. President George W. Bush (right) delivered this morning is available via hard copy and video here; among those due to speak later is French President Nicholas Sarkozy. Live webcast of all proceedings is here. (photo courtesy of United Nations)

...and counting...

(Occasional sobering thoughts.) Amid last week's news that the latest troop withdrawal bill's been sidelined by a majority of Senate Republicans, and today news that "car and suicide bombings ... killed 44 people and wounded more than 100 in less than 24 hours across Iraq, shattering what had been a relatively calm holy month of Ramadan," here's the count of casualties: even by Iraq Body Count's low-end figure, civilian casualties since the war began now well exceed 73,000. Specifically, it reports that between 73,606 and 80,224 Iraqi women, children, and men had died in the conflict -- an increase of 2,347 to 2,416 deaths in the last 3 weeks. By the U.S. Defense Department's figures, meanwhile, 3,800 American servicemembers have been killed through today. Total coalition fatalities: 4,100 persons. (That's 62 servicemember deaths in 3 weeks, all but 3 of them Americans.) The Department stated that 27,767 servicemembers have been wounded, and that 8,298 of them required medical air transport. Military casualties in the conflict in Afghanistan stand at 442 Americans and 254 other coalition servicemembers, an increase of 4 and 15, respectively, in the last 3 weeks.

On September 25, ...

... 1926, under the auspices of the League of Nations, well over 2 dozen countries concluded the Convention to Suppress the Slave Trade and Slavery. The convention entered into force on Mar. 9, 1927, and survived the demise of the League. Today the convention has 95 states parties.
... 1944, during World War II, U.S. Rep. Doris O. Matsui (D-Cal.) was born in an internment camp run by the United States in Poston, Arizona.

Monday, September 24, 2007

Estimates in the fog

Pointing to the enormous gap between U.S. estimates of the number of humans trafficked (50,000 a year) and U.S. cases involving trafficking (1,362 since 2000), criminologist Ronald Weitzer told the Washington Post:
'The discrepancy between the alleged number of victims per year and the number of cases they've been able to make is so huge that it's got to raise major questions. It suggests that this problem is being blown way out of proportion.'
Though law enforcement agents' lack of knowledge about or interest in the problem no doubt furthers that gap, in Weitzer's view, that can't account for all of it. In any event, the political capital to be won from embrace of the issue -- of critical concern to some in this administration's base -- itself suggests a need for careful examination of the scope of the problem and the proper means to address it.
The problem scarcely is limited to human trafficking. More than once the declaration of a transnational threat -- from drug trafficking, for instance, or money laundering, or terrorism -- has spurred massive spending campaigns. Campaigns have been undertaken with little identification of goals, little study of what might work to achieve those goals, and little consideration of how stepped-up law enforcement would impinge on civil liberties; in short, with little genuine cost-benefit analysis.
Inevitably, assessment of a criminal enterprise will contain "estimates in the fog." Petrus C. van Duyne, Organized Crime in Europe 113 (1996), quoted in Diane Marie Amann, Spotting Money Launderers: A Better Way to Fight Organized Crime?, 27 Syracuse Journal of International Law and Commerce 199, 229 (2000). That fact alone counsels care in crafting law enforcement mechanisms that will do the most harm to law-breakers with the least intrusion on law-abiders.

On September 24, ...

... 1992 (15 years ago today), the Inter-American Commission on Human Rights, ruling on a petition brought 3 years earlier, confirmed petitioners' allegation that on "February 22, 1983, approximately 74 people were assassinated by members of the Salvadoran security forces near Las Hojas, Sonsonate, El Salvador." It concluded that the government of El Salvador (flag at right) was responsible for the massacre, in violation of several articles of the American Convention on Human Rights. The Commission directed the state to investigate and bring to justice those responsible, and to put in place measures for prevention of such atrocities.
... 1980, under orders from President Saddam Hussein, Iraqi armed forces bombed sites in Iran and set an oil export terminal in Iran on fire, the latest escalation of border skirmishes between the 2 countries. The Iran-Iraq War would not end for another 8 years; by that time, more than 400,000 had been killed and 750,000 wounded.

Sunday, September 23, 2007

India rising, dowry rising

Dowry-related violence -- including burning young wives alive, beating them to death or otherwise killing or torturing them to extort their families into forking over more money, jewels or consumer goods as dowry – is on the rise in India, despite dowry’s having been banned in 1961. As rising income spells greater freedom and better living conditions for some, it spells hell for women like Devi, who managed to survive 4 years of regular pummeling and beating with “whatever they could lay their hands on” by her mother- and sister-in-law, while her father-in-law pinned back her arms. Whereas dowry, generally livestock or household furnishings, began as a practice to ensure that brides had a few creature comforts independently of their husband, families are now insisting on thousands of dollars, expensive jewelry and consumer goods, including luxury cars. The fact that many dowry deaths are even recorded as such is a major breakthrough; the shocking figures are therefore to be considered just a tip of the iceberg: corresponding to India’s economic boom of the 1990s, dowry deaths rose by 46% from 1995-2005, the last year for which figures are available. In that year alone, a woman died a dowry-related death every 77 minutes for a total of 6,787 such homicides (again, as reported; experts believe the true number to be much higher). Most offenders still go unpunished, though the central jail in New Delhi now has a wing for mothers-in-law accused of murdering or torturing their daughters-in-law for dowry. Still, the practice is so widespread that many men involved in law enforcement have benefited from dowry and are likely to dismiss the few charges that women dare to bring. For example, the Delhi conviction rate for dowry-related death was a mere 28% in 2003, a third that of the rate for sexual harassment. Meanwhile, in various South Asian countries including India and Afghanistan, women as young as 16 are burning themselves alive to escape violent, forced marriages, on the order of one per day in some cities. Pictured above is Mala Sen's Death by Fire, a book about the persistence of the ancient practices of sati (throwing wives on their husbands funeral pyres), dowry death and female infanticide in modern India. Various websites like this one address the issue of dowry death (or bride burning) and the link to Sen's book leads to a page with several related books. Getting the word out, first step toward getting it taken seriously.

YouTubing U.N. Human Rights Council

Check out this post on same by our Opinio Juris colleague, Peggy McGuinness.

On September 23, ...

... 1972 (35 years ago today), Ferdinand Marcos, who 3 years earlier had become his country's 1st President to be elected to a 2d term, made a public announcement, carried on radio and television, of his decision to declare martial law in the Philippines. He would flee the country in 1986; his exile was followed a decade later by Hilao v. Estate of Marcos, litigation brought in the United States pursuant to the Alien Tort Statute.
... 1869, Mary Mallon was born in Ireland. She immigrated to the United States at around age 15, and soon became a cook for wealthy families in Massachusetts and New York. In the early 1900s she was determined to be an asymptomatic carrier of typhoid fever, and was believed to have spread the disease to dozens of people for whom she worked. Dubbed "Typhoid Mary," "the most dangerous woman in America," Mallon was quarantined by health officials; that's her in the 1st hospital bed at left. In a letter pleading for release, she wrote:
I have been in fact a peep show for everybody. Even the interns had to come to see me and ask about the facts already known to the whole wide world. The tuberculosis men would say 'There she is, the kidnapped woman.' Dr. Park has had me illustrated in Chicago. I wonder how the said Dr. William H. Park would like to be insulted and put in the Journal and call him or his wife Typhoid William Park.

Questions persist about the fairness of her treatment and the degree to which class or ethnic prejudice motivated officials in her case.

Saturday, September 22, 2007

In the hands of justice

Alberto Fujimori's "in the hands of justice," proclaims today's special edition of the Lima daily La República. Peru's former President arrived on an overnight flight, having been transported from Chile less than a day after a 5-judge chamber of Chile's Corte Suprema ruled that there is sufficient evidence of crime in 7 of the dozen events for which Peru had sought the Fujimori's extradition. In so doing, it overruled another Supreme Court judge's July ruling in favor of Fujimori, and credited instead the June recommendation in favor of extradition by Mónica Maldonado (left), the court's prosecutor. Among the cases now cleared for trial in Peru, the Santiago Times reported,
are two emblematic human rights abuse cases – the Barrios Altos and La Cantuta massacres – which took place in 1991 and 1992 respectively. Twenty-five people, including a small child and a professor, were murdered in the two massacres. The killings are believed to have been carried out by an infamous, government-backed death squad known as the Colina Group. Prosecutors contend that Fujimori had direct knowledge of and may have even ordered the Group’s anti-subversion operations.
"From an international law standpoint," Helena Marambio of Amnesty International Chile said, the court found Fujimori "to be responsible for the character of his time in office. Let’s hope they continue to process him in Peru."
Meanwhile, Peru's Minister of Justice María Zavala (left) insisted at a press conference in Lima that the judges who will try the former President "must not be politicized."

On September 22, ...

... 1927 (80 years ago today), Britain's "colonial government declared the abolishment of slavery in Sierra Leone," where for a century the capital, Freetown, had been a hub for British anti-slave-trading activities. (For an analysis of how the recent, relatively trouble-free election and inauguration of Sierra Leonean President Ernest Bai Koroma may augur a "splash of good news" about Africa, see here.)
... 1868, Louise Crummy McKinney (right) was born in Frankville, Ontario. Trained as a teacher, in 1903 she became a Canada-based organizer of the Women's Christian Temperance Union. Elected to the Albert legislature in 1917, she became the 1st woman legislator in the British Empire. She took part in an appeal to the Privy Council through which women won the right to become Senators. McKinney died in Claresholm, Alberta, in 1931. "Her gravestone reads only 'Mother.'"

Friday, September 21, 2007

Excluding Academics Through Secret Evidence

To the shameful exclusion tales of Bolivian historian Waskar Ari and Swiss theologist Tariq Ramadan, we can now add that of musicologist Nalini Ghuman, a British citizen of British and South Asian descent. It is hard to imagine how Ms. Ghuman, an expert on Elgar, could pose any kind of threat to the security of the United States. Even Department of Homeland Security (DHS) officials who refused her entry admitted that her exclusion was probably a mistake, and "suggested that perhaps a jilted lover or envious colleague might have written a poison pen letter about her to immigration authorities." Over a year later, Ms. Ghuman has been provided with no further explanation as to why she might be considered a threat, and has been separated from her fiance, her job at Mills College, and her home of 10 years. In her eloquent words, "I don't know why it's happened, what I'm accused of . . . There's no opportunity to defend myself. One is just completely powerless." My forthcoming article, A Global Approach to Secret Evidence: How Human Rights Law Can Reform Our Immigration System (soon to be posted on SSRN), details several cases of exclusion or removal of non-citizens, all of Arab, Muslim, or South Asian descent, on the basis of secret evidence. The sloppiness with which the DHS has pursued these cases has led to tragic results for individuals and serious embarassment for the US government, as the evidentiary basis for removal has often been seriously inaccurate and unreliable. As an evidence professor, these practices make my hair stand on end; as an American academic of South Asian descent, they hit home in a whole different way. In the article, I argue that human rights law presents a middle path that balances national security interests and individual rights, and should be used by DHS and DOJ in interpreting immigration statutes, drafting immigration regulations, and, perhaps most importantly, training immigration officials. Utopian, perhaps, but a profound shift in institutional culture seems the only way to prevent DHS from turning the lives of any more non-citizens into Kafka-esque nightmares.

Charging Brother Number Two

The Extraordinary Chambers in the Courts of Cambodia (ECCC) released today on their website the detention order for Nuon Chea, a.k.a. Brother Number Two -- Pol Pot's right-hand man and the ideologue of the Khmer Rouge regime. The order notes that Nuon Chea is being charged with crimes against humanity and war crimes, and justifies his detention to prevent witness tampering and destruction of evidence, to stop him from fleeing and to protect him from violence. It also catalogues Nuon Chea's denial of responsibility for the crimes charged and his desire to "enlighten the Kampuchean people and the whole world concerning the real enemies of Cambodia." The 81-year-old will likely face trial early next year. He has chosen Son Arun, a Cambodian defense lawyer specializing in terrorism cases, to represent him. More to come soon, and for more detailed information on the ECCC, check out, a website dedicated to monitoring the tribunal, featuring expert commentaries from various Cambodia hands, including yours truly and "Eleanor Roosevelt," aka IntLawGrrl Beth Van Schaack. (Photo courtesy of the Documentation Center of Cambodia.)

On September 21, ...

... 2007 (today), the world marks this International Day of Peace. Established by the U.N. General Assembly in 1981, the day's set aside for events like these and these. Do feel free to improvise your own peacemaking.
... 1898, the Empress Dowager Cixi (left; the name's a variation on Tzu-Hsi) -- among "the most formidable women in modern history," "famed for her beauty and charm," and "power hungry, ruthless and profoundly skilled in court politics" -- detained and seized power from the Chinese emperor, thus ending a period of reform known as the Hundred Days' Reform.

Thursday, September 20, 2007

Women at Nuremberg: Defendants

(Final installment of IntLawGrrls' 5-part Women at Nuremberg series)

This series began with the observation of Peter Heigl in his German-English book Nürnberger Prozesse - Nuremberg Trials that among those who played a role at Nuremberg were "a few female defendants." IntLawGrrls've understandably been loathe to claim these women as our own. But they exist, as photos of "SS women" in yesterday's New York Times reminded. Those who stood trial for war crimes have an undeniable, if unfortunate, international prominence, and at times their story too must be told.
Among the defendants convicted by the International Military Tribunal during the Doctors' Trial was Dr. Herta Oberheuser (right), a physician whose specialty was dermatology. For her part in nonconsensual medical experiments conducted on inmates at Ravensbrück Concentration Camp, Oberheuser received a sentence of 20 years, later halved. On release from prison 1952 she tried to open a medical practice but was forced to close it on account of former inmates' protests.
Women defendants further included a number of Nazi camp guards, prosecuted in proceedings such as as:
Buchenwald trial
Conducted by a U.S. military tribunal at the former concentration camp at Dachau. Among those convicted was Ilse Koch (left), wife of the Buchenwald Camp commander who was complicit in the atrocities committed under his command. Furor erupted in 1948, when her initial sentence to life in prison was cut to 4 years. "Koch was released in 1949, rearrested by German authorities, retried, and sentenced to life imprisonment. She committed suicide at Aichach prison in Bavaria in 1967."
Bergen-Belsen trial
A British military court adjudicated charges against 45 defendants, including: "the most notorious" Irma Grese (#9 at right) executed in 1945 along with Elizabeth Volkenrath and Juana Borman, plus at least 18 other women. Of these, 5 were acquitted; the rest received sentences ranging from 1 to 15 years.
Auschwitz trial
Conducted by Polish authorities in Krakow. Defendants included Therese Brandl, 45 when she was executed in 1947; Maria Mandel (below), 36 when executed in 1948; Luise Danz, sentenced to life in prison, released in 1956, and in 1996 subjected to a German trial that was halted on account of her age; Hildegard Lächert, released in 1956, then convicted in a German courtroom in 1981; and Alice Orlowski, sentenced to life in prison but released in 1957.

The crimes of which these women were convicted ought to be unimaginable, and will remain, here at least, unprintable.

Previous installments of in IntLawGrrls' Women at Nuremberg series: Prosecutors, Staffers, Press, Witnesses.

On September 20, ...

.... 1973, Carol C. Laise became the 1st woman Assistant Secretary in the U.S. State Department. Appointed Assistant Secretary of State for Public Affairs, she held the post until March 27, 1975, then served as the 1st woman Director General of the Foreign Service (1975-1977). Other government posts included the U.S. Civil Service Commission; State Department international relations officer in Indian and South Asian affairs (1948 to 1956); and U.S. Ambassador to Nepal (1966-1973). In 1991, she died at age 73, having survived her husband, diplomat Ellsworth Bunker.
... 1999, a force of 1,190 soldiers, most from Australia or New Zealand, landed at the airport in the capital city of Dili in a U.N. effort "restore law and order" in East Timor, where militias "are thought to have killed thousands" in the couple of weeks since the electorate voted overwhelmingly for independence from Indonesia, which had invaded in 1975 after Portugal ended its 450-year colonization of the tiny state (flag at left), which occupies half an island.

Wednesday, September 19, 2007

Global gumshoes

New on the international scene: One World Research, a firm that'll provide investigation and research on public interest and human rights issues. Principals are our colleagues John Sifton, who's just finished a gig as senior researcher on terrorism and counterterrorism for Human Rights Watch, and Jonathan Horowitz, an investigator and researcher who's worked with HRW, too, and also with U.N. agencies and New York University's Center for Human Rights & Global Justice. They offer to NGOs, law clinics, and lawyers working on public interest/human rights cases a gamut of services from conventional surveillance to database searches, from evidence preservation to witness location.
Affiliated with the Los Angeles-based Public Interest Investigations, One World Research confirms the growth of a new and important actor in human rights protection. A complementary project that comes to mind is the Institute for International Criminal Investigations, a investigator-training organization founded a few years ago by our colleagues Raymond McGrath and Nancy Pemberton.
The global gumshoe -- the P.I. who stands ready to traipse the planet in aid of victims of human rights violations -- deserves a heartfelt welcome.

On September 19, ...

... 1945, Donna M. Christian-Christensen, a Democrat and the U.S. Virgin Islands’ delegate to the U.S. House of Representatives, was born in Teaneck, N.J.
... 1893, legislators passed the Electoral Act that extended suffrage to women in New Zealand, as depicted in this illustration from the New Zealand Graphic and Ladies Journal. On this achievement -- New Zealand was the 1st country so to act -- the feisty suffragist Kate Sheppard commented:
It does not seem a great thing to be thankful for, that the gentlemen who confirm the laws which render women liable to taxation and penal servitude have declared us to be 'persons.' ... We are glad and proud to think that even in so conservative a body as the Legislative Council there is a majority of men who are guided by the principles of reason and justice, who desire to see their womenkind treated as reasonable beings, and who have triumphed over prejudice, narrow-mindedness and selfishness.

Tuesday, September 18, 2007

Dismissal of California v. General Motors

Efforts to address greenhouse gas emissions through nuisance lawsuits suffered a blow last night when the Northern District of California granted defendants' motion to dismiss in California v. General Motors. In this action, California seeks damages against several major automakers on the grounds of state and federal public nuisance law.
The District Court dismissed on the ground that the case raises non-justiciable political questions, with a particular focus on the third factor of Baker v. Carr: Can the court decide the case without making “an initial policy determination of a kind clearly for nonjudicial discretion”? In particular the opinion stated:
By themselves, the CAA and EPCA do not directly address the issue of global warming and carbon emission standards. However, when read in conjunction with the prevalence of international and national debate, and the resulting policy actions and inactions, the Court finds that injecting itself into the global warming thicket at this juncture would require an initial policy determination of the type reserved for political branches.
Moreover, the District Court found that the Supreme Court’s decision in Massachusetts v. EPA (on which we've posted here, here, and here) only reinforces its conclusion:
Because the States have ‘surrendered’ to the federal government their right to engage in certain forms of regulations and therefore may have standing in certain circumstances to challenge those regulations, and because new automobile carbon dioxide emissions are such a regulation expressly left to the federal government, a resolution would thrust this Court beyond the bounds of justiciability.
Regardless of whether one agrees or disagrees with this dismissal or whether, this opinion gets overridden on appeal, it raises important questions about the regulation of anthropogenic climate change in several senses:
1st, what role should courts play in the multiscalar, interbranch regulation of this problem? Will these justiciability concerns become more or less salient as the crisis gets worse and the domestic regulatory regime develops further?
2d, how much of a difference should it make whether litigants seek damages or injunctive relief? The opinion indicated that “by seeking to impose damages for Defendant automakers’ lawful worldwide sale of automobiles, Plaintiff’s nuisance claims sufficiently implicated the political branches’ powers over interstate commerce and foreign policy, thereby raising compelling concerns that warn against the exercise of subject matter jurisdiction on this record.” If a suit focused on major emitters within a particular state, do damages become more or less viable under this reasoning? How should courts navigate the interconnections that globalization brings?
3d, and perhaps most importantly, how should climate change be regulated? Is it a problem that can be addressed through a primary set of international and national regulations or do states and localities need to be included more directly? What options should a heavily impacted state like California have to address this problem if international and federal level efforts lag behind what it is willing to do (an issue raised by other recent and pending litigation)? This dismissal does not resolve these questions, but rather serves as another moment in a complex, ongoing conversation.

Hard landing for Microsoft

The big news in international trade is yesterday's judgment in Microsoft v. Commission, in which the Grand Chamber of the of the Court of First Instance of the Court of Justice of the European Communities largely sustained a 2004 European Commission ruling that Microsoft, the U.S.-based high-tech giant, had "abus[ed] its dominant position" in violation of the Treaty Establishing the European Community. In a decision that spanned nearly 1,400 paragraphs, the Court of First Instance agreed, thus affirming the fine of 497 million euros, or $690 million. That's pocket change to Microsoft; of longer-lasting effect will be what the company has to do to comply with European regulators like Dr. Neelie Kroes (above right, #59 on Forbes' powerful women list), the European Commissioner who led the challenge.
Comprising the Grand Chamber were President Bo Vesterdorf (Denmark) and 11 other Judges, among them 4 women: Ingrida Labucka (above left, from Latvia), Maria Eugénia Martins de Nazaré Ribeiro (above center, from Portugal), Irena Wiszniewska-Białecka (right, from Poland), and Virpi Tiili (left, from Finland).
The judgment was unanimous, of course: unlike the European Court of Human Rights and many common law courts, the ECJ follows a civil law tradition that disallows dissenting or concurring opinions.

'Nuff said

(Occasional item taking context-optional note of thought-provoking quotes.)

"Alcatraz was never no good for nobody."

-- Frank Wathernam, on March 21, 1963. He was the last prisoner to leave the prison often called "The Rock," maintained by the United States for more than half a century on an island in San Francisco Bay.

On September 18, ...

... 2007 (today), the United Nations' General Assembly begins its 62d regular session at U.N. headquarters in New York. Provisional agenda's here.
... 2001, exactly 1 week after the terrorists attacked the World Trade Center in New York and the Pentagon in Washington, the U.S. Congress passed the Authorization for Use of Military Force, which stipulated

"[t]hat the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

This joint congressional resolution's been claimed to authorize a host of acts, ranging from detention at Guantánamo to covert electronic surveillance; those claims remain the subject of litigation in U.S. courts.
.... 1923, Bertha Wilson (right), who served from 1982-1991 as the 1st woman member of Canada’s Supreme Court, was born in Kirkcaldy, Scotland.

Monday, September 17, 2007

Take care not to court insecurity

"George Bush Goes for Consensus in Naming Michael Mukasey for Justice," reads the minutes-old headline at Le Monde. It spins with the Associate Press story that surmises, "Mukasey appears unlikely to face a bruising confirmation battle in the Democratic-controlled Senate."
No quibbling about the credentials of Mukasey (left), who presided over high-profile terrorism trials while a Chief Judge at the U.S. District Court in Manhattan, to serve as Attorney General of the United States. Still, there's good reason for Senators to take a hard look at the nomination.
Fresh in mind is the U.S. citizen whom the U.S. executive kept in "enemy combatant" detention for years before permitting him to stand trial in federal court in Miami. Prosecutors set out the case against José Padilla in an open and public proceeding, without resort to classified evidence -- and jurors promptly returned the verdict of guilty that likely will permit his incarceration for life. Putting to one side the difficulties presented to the defense by the taint of prior detention, many saw the result as proof positive that persons suspected of terrorist acts can and should be handled through the justice system in place before attacks on Washington and New York set the stage for efforts to establish a newfangled system. (See here, for example; I'd written as much here before the verdict.)
The administration's called this new mechanism "military commissions," though, as the Supreme Court recognized in Hamdan v. Rumsfeld, in many respects -- respects particularly menacing to the U.S. tradition of fundamental fairness in the substance and procedure of criminal law -- the system deviates from past commissions. Despite Congress' near-rubberstamp of the system in the post-Hamdan Military Commissions Act, the newfangled system continues to falter: the latest halt occurred because military judges concluded that the government was asking them to act illegally.
Against this backdrop, consider now the op-ed that Mukasey published in the Wall Street Journal a week after the close of the Padilla case. In stark contrast with many other commentators, Mukasey saw the result not as an affirmation of existing practice, but rather as evidence that "current institutions and statutes are not well suited to even the limited task of supplementing what became, after Sept. 11, 2001, principally a military effort to combat Islamic terrorism."
To solve the problem that he maintains is at hand, Mukasey commends his readers, and Congress, to give "careful scrutiny" to proposals for "a new adjudicatory framework" -- the so-called Homeland Security Court or, more often, National Security Court, idea that's been percolating in certain thinktanks for a year or more now. It remained out of the larger public discourse until a recent bipartisan publication in support.
Have yet to read anything in support that demonstrates genuine need for this legal contraption. Proponents tend to ignore statistical analyses -- like this chart in the ABA Journal -- indicating that the Justice Department's scarcely a failure in playing its part in the U.S. antiterrorism campaign. And just as the "new paradigm" proponents of a few years back (some of the same folks now calling for this "new court") acted as if history offered no cautionary lessons, proponents today do not mention difficulty and criticism (some from the pre-9/11 United States) visited upon other countries that've pursued this path. Think of the nonjury Diplock courts in Northern Ireland, or the special terrorism tribunals in places like Egypt, Turkey, and Peru. These examples show that such courts, though established in the name of enhancing security, not infrequently make guarantees of due process, public assumptions of the fairness and legitimacy of judicial decisions, and, in extreme cases, public safety, less secure.
With benefit of hindsight, Mukasey's August op-ed looks much like an audition for the position of next Attorney General. And with more than a year remaining for implementation, the Senate ought to use the confirmation hearings to test whether the nomination's intended to pave the way for a final Bush legacy: for the 1st time in the history of a centuries-old country that's faced many a threat to peace, even to its very existence, establishment of a permanent, due-process-lite National Security Court.

On September 17, ...

.... 1948, in Jerusalem, "radical Zionists" in the Stern group assassinated U.N. mediator Count Folke Bernadotte and a French military attaché, Col. Andre P. Serot. Born in 1895 in Stockholm, grandson and nephew to kings, during World War II Bernadotte, as a leader of the Swedish Red Cross, oversaw exchanges of prisoners of war and helped to rescue a 15,000 concentration camp internees, among them Norwegians, Danes, and a "few thousand Jews." In the 4 months of 19548 that Bernadotte had served in the Middle East, by appointment of the Security Council, he had negotiated a truce between warring Jewish and Arab groups and prepared a report on the conflict. Published 3 days after his death, Bernadotte's report became a blueprint for a U.N.-imposed settlement. The 1948 Advisory Opinion of the International Court of Justice on Reparation for Injuries Suffered in the Service of the United Nations was another consequence of Bernadotte's death in service of the United Nations. (1948 photo aobve, of Bernadotte and Ralph Bunche, the U.S.-born U.N. diplomat who would take Bernadotte's place as lead mediator, courtesy of UCLA.)
... 1179, the mystic, composer, theologian, and natural historian known both as Hildegard von Bingen and Sybil of the Rhine (right), died at age 81. For details on this "remarkable woman, a 'first' in many fields," see here.

Sunday, September 16, 2007

From absurd to surreal?

I, too, love Lakshmi [Jaya]’s Ionesco awards for absurd policies. So much so that I can’t resist following up on her awarding the prize to the Governor of Ulyanovsk for his decree giving couples the day off to make babies to increase Russia's declining population, with Iran’s surreal (at least 3 women painters of note, including Frida Kahlo, at left; numerous women writers) program encouraging couples to enjoy marital sex but discouraging political dissent. Appearing in this week’s New York Times supplement to Le Monde (also here), the program is part of Iran’s effort to forge a national identity that blends revolutionary ideology and Shiite Islamic teachings. This involves overcoming conflicts between those teachings, among others, and “pleasure-loving Persian culture and traditions”. The article points out that sex education isn’t new, but the emphasis on pleasure certainly is, and it indicates that something’s rotten in Iran. In a land where daily life is highly stressful, the government is hoping that families that enjoy together, stay together – and accept autocratic limits on other basic freedoms. Thus, classes required for all engaged couples teach women and men that “women should enjoy themselves as much as men” (patience guys, women take longer to be aroused). Also surreal is the NYT supplement’s juxtaposition of this article on the front page just above an article on a Utah polygamist sect’s banishment of boys. Yes, in a perverse twist, teenage girls are much more valuable than boys in this community where men must take at least 3 wives to attain eternal salvation and short sleeves, looking too hard at girls (nevermind dating), as well as TV and the Web are banned as immodest or wicked. So we have the sect’s “prophet” Warren S. Jeffs awaiting trial as an accomplice to rape for having forced a 14-yr-old girl to marry her cousin, while boys as young as 15 are forced out for going to the movies. Others choose to leave but in all cases, they need help transitioning into life outside: most have construction skills, but no more than a junior-high school education. After learning 4 years ago that there were hundreds of these boys on their own and in distress, Utah officials began working with state and private agencies to provide help. A residence has just opened in the nearby town where many end up. There they’ll receive psychological counseling and learn basic modern-life skills like check writing and asking girls out politely.

On September 16, ...

... 1927 (80 years ago today), Dr. Sadako Ogata was born in Tokyo, Japan. After earning her B.A. degree from the University of the Sacred Heart in that city, Ogata moved to the United States, where she earned an an M.A. in International Relations from Georgetown University and a Ph.D. in Political Science from the University of California, Berkeley. Long prominent in academia -- she served as Dean of the Faculty of Foreign Studies at Tokyo's Sophia University -- Ogata's had a long, distinguished U.N. career. A small sample of posts: U.N. High Commissioner for Refugees (1991-2000); U.N. Commission on Human Rights (1982-1985); and co-chair, U.N. Commission on Human Security (2001-2003). She's pictured at right presenting that Commission's report, along with co-chair Amartya Sen, to then-Secretary-General Kofi Annan.
... 1928, Patricia McGowan was born in "the manufacturing town of Torrington, Connecticut," where she "spent her summers working in the brass mills." She graduated 1st in her class at Connecticut College for Women, then became 1 of a very few women students at Yale Law School. On earning her J.D. she worked in the chambers of Judge Jerome Frank -- the 1st woman law clerk at the U.S. Court of Appeals for the 2d Circuit. After a 10-year hiatus as she and her husband raised a family, she returned to law practice and public service; in particular, on matters of criminal justice and mental health. In 1979, Patricia M. Wald became the 1st woman to Judge on a U.S. Court of Appeals, serving as the D.C. Circuit's Chief Judge from 1986 to 1991. On retirement from the federal bench, she was a Judge on the International Criminal Tribunal for the former Yugoslavia (1999-2001). Since then she's served on the President's prewar intelligence commission, and is on the board of a number of groups concerned with international law.
... 1950, U.S. Rep. Jo Ann Emerson (R-Mo.) was born in Bethesda, Maryland.
... 1987 (20 years ago today), the Montreal Protocol on Substances that Deplete the Ozone Layer was adopted; it entered into force on January 1, 1989. Nearly all the world's countries now are states parties to this protocol and, in large part, to subsequent instruments that have amended and added to it. For details on why it's sometimes called the "most successful international environmental treaty," see the "When A Treaty Works" post by our Opinio Juris colleague Duncan Hollis.

Saturday, September 15, 2007

Indigenous Peoples Declaration

By an overwhelming margin, the U.N. General Assembly's voted to adopt the Declaration on the Rights of Indigenous Peoples.
The 1st article of the Declaration, which was "twenty years in the making," provides:
Indigenous peoples have the right to the full enjoyment, as a collective or as individuals, of all human rights and fundamental freedoms as recognized in the Charter of the United Nations, the Universal Declaration of Human Rights and international human rights law.
The 45 articles that follow elaborate, setting forth explicit rights to, for example: self-determination, financial and technical assistance, land use, conservation and environmental protection, and enforcement of treaties.
In favor were 143 states, with 4 in opposition and 11 abstaining. Against the nonbinding instrument? Australia, Canada, New Zealand and the United States, each of which has significant indigenous populations. According to a U.N. release, here're their reasons for opposition:
Australia: Asserting that self-determination ought to apply only in narrow, often colonialist situations, it "supported and encouraged the full engagement of indigenous peoples in the democratic decision-making process, but did not support a concept that could be construed as encouraging action that would impair, even in part, the territorial and political integrity of a State with a system of democratic representative Government."
Canada: "[P]rovisions in the Declaration on lands, territories and resources were overly broad, unclear, and capable of a wide variety of interpretations, discounting the need to recognize a range of rights over land and possibly putting into question matters that have been settled by treaty."
United States: Stating that in mid-2006 the Declaration had passed by a "splintered vote" of the Human Rights Council [the vote was 30 votes to 2, with 12 abstentions -- ed.], expressed concern regarding the risk of "'endless conflicting interpretations and debate about its application, as already evidenced by the numerous complex interpretive statements issued by States...'"
A day after the General Assembly vote, New Zealand said it had opposed the Declaration on the ground that it "disadvantages non-indigenous people and conflicts with the country's laws."
In a twist, the Taipei Times, a newspaper in the capital city of non-U.N.-member Taiwan, praised the Declaration as giving to "[l]ocal Aboriginal activists ... new, concrete benchmarks against which they can judge and, as is often necessary, embarrass the government." The paper concluded, "The scene is set, then, for a test of how committed Taiwanese officials, politicians and members of the public really are to a subset of UN principles that are genuinely honorable."
The same might be said for officials elsewhere in the world.