Monday, December 31, 2007

Year-end 2007: Not all about us

Yesterday I spent the day in Washington, DC with a friend who I’d last seen when I stayed with her in Kinshasa in 2006. When I asked her what had been striking to her about coming back to the US after two years in the Democratic Republic of Congo, she cited a few of the things that always stand out to me as well when I come home, like the national obsession with personal safety, a tendency to overreact to minor inconveniences as if they were breaches of fundamental rights, and – notably for this blog – an at times maudlin fixation on individual American deaths as tragedies while millions suffer and die elsewhere unnoted. In 2007, many of the entries in this blog have been devoted to taking note of the fact that it’s not all about us, including as just one example, Diane Amann’s periodic “…and counting…” post on all the deaths in the Iraq and Afghanistan conflicts (not just the American deaths reported by the Department of Defense).
The Democratic Republic of Congo gets my vote as the most under-recognized “it’s not all about us” international crisis point (notwithstanding a much-appreciated series of New York Times articles in recent months). At least 3.8 million people have died since “Africa’s World War” began, making it the deadliest conflict since World War II. In spite of a formal peace agreement, resurgent fighting in eastern Congo continues to cost tens of thousands of lives each month, not to mention the many more refugees, internally displaced people, and women and girls suffering from crippling sexual assaults.
As 2007 comes to a close, who else has been forgotten on the world stage? Feel free to add your comments below…

On December 31, ...


... 1992 (15 years ago today), at midnight, a country that had been designated a "Soviet Socialist Republic" for decades ceased to exist. Succeeding Czechoslovakia were 2 independents states, Slovakia and the Czech Republic (flags at left).
... 2000, then-President Bill Clinton ordered the United States' signature added to the International Criminal Court treaty. The action was taken just hours before the signature period closed; Israel followed suit in this last window of time. Little more than a year later, the administration of new U.S. President George W. Bush repudiated the country's signature; again, Israel followed suit. I've written about these developments here and here.

Sunday, December 30, 2007

Secure or surveilled?

Trade and human rights are once again at odds as US firms seek to provide surveillance equipment to China for the Beijing Olympics. Following the Tiananmen Square killings in 1989, Congress banned the export of “crime control or detection instruments or equipment” to China. In providing surveillance equipment designed to keep athletes as well as spectators safe from terrorist attacks during the Olympics, US companies may be violating the spirit, if not the letter of the law. The Commerce Department doesn’t agree: equipment that serves only law enforcement purposes, such as devices that detect fingerprints at crime scenes, are banned, but video systems that have broader uses, such as alarms, movement control devices or counting systems, are allowed. Companies like Honeywell, IBM and United Technologies are supplying not just cameras, but systems capable of analyzing and cataloging people and behavior. Once the Olympics are over, these systems will almost certainly be converted to use in China’s recently embraced program to render more than 600 cities “safe” through video surveillance. Cameras may be trained not only on criminals, but dissidents. As Steve Vickers, a former Hong Kong criminal intelligence officer said,
I don’t know of an intelligence-gathering operation in the world that, when given a new toy, doesn’t use it.

On December 30, ...

... 1964, in Resolution 199, the U.N. Security Council called upon states not to intervene in internal affairs of, and for a ceasefire in, Congo. It further encouraged the Organization of African Unity to press for reconciliation of the conflict. The vote was 10 in favor, with France abstaining.
... 1960, U.S. Rep. Heather Wilson (R-N.M.), a member of the Select Committee on Intelligence, was born in Keene, New Hampshire.
... 533, foundational works of law, the Digest and the Institutes, or Elements, of the Roman Law, came into effect. Complementing the the Code of Justinian, or Corpus Juris Civilis, the works were the result of a multiyear effort to codify the law of the Roman Empire.

Saturday, December 29, 2007

Crimen Sine Lege

One of the most fundamental defenses to a criminal prosecution is that of nullum crimen sine lege, nulla poena sine lege (“no crime without law, no punishment without law”), also known by the acronym NCSL. Notwithstanding that respect for NCSL is a hallmark of modern national legal systems and a recurrent refrain in the omnibus human rights instruments, many jurists have argued that international criminal law (ICL) has to date failed to fully implement this principle. Having just finished a casebook in the field with Ron Slye of University of Seattle School of Law, I have been exploring that question.
The absence of a rigorous manifestation of NCSL within ICL can be traced to the dawn of the field. In the post-WWII period, NCSL was at the heart of the defendants’ challenge to the legality of the near-identical Charters governing the international military tribunals at Nuremberg and Tokyo. The Allied representatives drafting the Charters could have easily relied solely on the well-established constellation of war crimes to prosecute the WWII defendants. Instead, they opted to innovate and assert jurisdiction over two additional crimes, not theretofore codified: crimes against the peace (the crime of aggression in today’s lexicon) and crimes against humanity. War crimes, while deserving of opprobrium, did not fully capture the Nazi atrocities, which radiated outward in acts of aggression and penetrated inward as persecutory pogroms against compatriots.
The judges of the Nuremberg Tribunal (above left), in reasoning that was to be later echoed by their brethren on the Tokyo Tribunal, rejected the defense with a troika of analytical claims:
► The first move qualified the very application of the maxim, which the Tribunal argued is “not a limitation on sovereignty, but is in general a principle of justice.” This implied, of course, that states could override the principle in the collective exercise of their executive, legislative, or judicial powers.
► Second, having assigned the defense to the more flexible realm of equity, the Tribunal concluded that prosecution was justified, because the defendants could not have reasonably thought their conduct was lawful and it would be unjust to exonerate malefactors:

To assert that it is unjust to punish those who in defiance of treaties and assurances have attacked neighboring states without warning is obviously untrue, for in such circumstances, the attacker must know that he is doing wrong, and so far from it being unjust to punish him, it would be unjust if his wrong were allowed to go unpunished.

► Third, the Tribunal ruled that the Charter was an “expression of international law existing at the time of its creation.” With the NCSL defense neutralized, the Tribunal rendered judgment on all counts in the Indictment.
Proving that there is nothing new under the sun, these arguments are repeated in the modern ICL jurisprudence. Where states have failed to enact comprehensive ICL, judicial institutions have engaged in a full-scale refashioning of ICL through jurisprudence addressed to their own jurisdiction, the elements of international crimes, and applicable forms of responsibility. Along the way, courts have updated and expanded historical treaties and customary prohibitions, upset arrangements carefully negotiated between states, rejected political compromises made by states during multilateral drafting conferences, and added content to vaguely worded provisions that were conceived more as retrospective condemnations of past horrors than as detailed codes for prospective penal enforcement. By reviewing these cases, it is possible to construct a taxonomy of analytical claims made by tribunals adjudicating international criminal law to evade or neutralize the defense of NCSL. These arguments turn on a complex interplay of immorality, illegality, and criminality and depend in large part on the multiplicitous sources of international law.
Collectively, these cases -- in which defendants have been made subject to new or expanded criminal law rules -- have the potential to raise acute concerns about the rights of criminal defendants before today’s international criminal tribunals. Nonetheless, the methodology developed by the European Court of Human Rights (right) to enforce the articulation of the NCSL principle in its constitutive document, the European Convention for the Protection of Human Rights and Fundamental Freedoms, suggests that the NCSL jurisprudence has not compromised the fundamental fairness of ICL. Indeed, defendants were on sufficient notice of the foreseeability of such jurisprudential innovations in light of:
► extant domestic penal law;
► universal moral values expressed in international human rights law;
► developments in international humanitarian law and the circumstances in which it has been invoked; and
other dramatic changes to the international order brought about in the post-World War II period.
I am exploring these ideas in a paper I posted here. I welcome your comments.

David Hicks goes home free

The only detainee ever convicted by a military commission at Guantánamo -- by guilty plea, not by trial -- is no longer in custody.
Australia let David Hicks out of prison yesterday, 7 months after he'd been transferred to serve out the balance of the 9-months' suspended sentence received at Gitmo.
Having agreed in his plea bargain not to speak to the media for another 4 months (prior posts here), on release Hicks, 32, said only, through his attorney:

I would like to recognise the huge debt of gratitude that I owe the Australian public for getting me home.
I will not forget, or let you down.

Zoe's Ark crew home, but not free

Half a world way from the Adelaide prison where David Hicks went free yesterday (see above), 6 French nationals arrived in Paris to serve sentences they'd received earlier in the week in Chad.
As we've posted, the 6 workers for L'Arche de Zoé (Zoe's Ark), and were arrested in October as they tried to leave Chad with 103 children who they claimed were Darfurian orphans destined for adoption in Europe. The children turned out, however, be Chadian non-orphans.
The 6 workers were convicted and sentenced to 8 years' hard labor. (A Sudanese and Chadian convicted of complicity remained in Chad.) The sentences of the 6 are expected to be "adjusted" in France, which also may open its own investigation into the incident.
As for the children, they remain in orphanages in Chad, and have yet to be reunited with their families.

On December 29, ...

... 1893, Vera Brittain was born at Newcastle-under-Lyme, England. When World War I broke out, she urged her brother and his best friend, with whom she'd fallen in love, to enlist. Even before both were killed in that conflict, Brittain began to turn away from war and toward pacifism. In 1993, she published her memoir of that time, Testament of Youth. She has been an inspiration to IntLawGrrl Elizabeth Hillman.
... 1972 (35 years ago today), a 5-year moratorium that had been placed on executions in Canada ended. In that period support for the death penalty seemed to have increased. By a narrow vote the country abolished capital punishment in 1976. The penalty continues in Canada's neighbor to the south, of course, although abolition by New Jersey just this month (the global consequences of which our Opinio Juris colleague Peggy McGuinness posted here and here) reduced the number of U.S. retentionist jurisdictions to 38 -- 37 states plus the federal government -- though compared with prior years there were fewer executions in 2007. A reporter's even envisioned what a United States without the death penalty would look like.

Friday, December 28, 2007

Benazir Bhutto (1953-2007)

Posted just a few short months ago about an essay that Benazir Bhutto had published in Huffington Post. We posted yesterday on her assassination, at age 54, in Rawalpindi, the city where her father was executed in 1979. He too had been Prime Minister of Pakistan.
Efforts to try to process this news have recalled parts of her essay. She wrote:

Pakistan is truly at a turning point. Almost a decade of military dictatorship has devastated the basic infrastructure of democracy. Political parties have been assaulted, political leaders arrested, and the judicial system manipulated to force party leaders into exile. NGOs have been under constant attack, especially those that deal with human rights, democratic values and women's rights. ... And in the battle against terrorism, we look on with dismay as the government of Pakistan ceded sections of our nation that previously had been governed by the rule of law to Taliban sympathizers and to Al Qaeda ....

She wrote of

a growing sense of hopelessness of the people of Pakistan, and a total disillusionment with the political system's ability to address their daily problems.

She worried

that extremism has been making inroads against moderation amongst the Pakistani polity. I have always believed that the battle between extremism and moderation is the underlying battle for the very soul of Pakistan. Yet moderation can prevail against the extremists only if democracy flourishes and the social sector improves the quality of life of the people.

She wrote of relations with incumbent President Pervez Musharraf:

I had a choice. Engage in dialogue, or turn toward the streets. I knew that street protests against the Musharraf dictatorship could lead to the deaths of hundreds. I thought about the choice before me very carefully. I chose dialogue; I chose negotiation; I chose to find a common ground that would unite all the moderate elements of Pakistan for a peaceful transfer to a workable political system ....

She asked:

Are we making progress towards that goal? I still am unable to say.

She returned to her country, and persevered despite immediate violence, despite Musharraf's declaration of a state of emergency in which human rights lawyers were among those detained. Before returning, she recalled her father's fate:

When my democratically elected father, Prime Minister Zulfiqar Ali Bhutto was arrested in 1977 and subsequently murdered, the mantle of leadership of the Pakistan Peoples Party, our nation's largest, nationwide grassroots political structure, was suddenly thrust upon me. It was not the life I planned, but it is the life I have. My husband and children accept and understand that my political responsibilities to the people of Pakistan come first, as painful as that personally is to all of us.

She concluded:

I didn't choose this life. It chose me.

Not nearly enough said by this woman, who in 1988 had become "the first woman to lead a modern Muslim country."

On December 28, ...

... 1967 (40 years ago today), after "passionate debates," France's National Assembly approved a law authorizing the use of contraceptives, though it did not permit reimbursement for contraceptives by the government's social security agency. The new law, dubbed Loi Neuwirth after the Assembly member who proposed it, displaced a 1920 law that had banned all contraception. Abortion would remain illegal in France until 1975. Here and here are Le Monde's retrospectives on the law that it says made "2 children, 3 years apart" the French standard.
... 1694, England's Queen Mary II died from smallpox in London, where she'd been born 32 years earlier. Brought up as a Protestant notwithstanding her parents' conversion to Catholicism, at age 15 Mary (right) married her cousin, William of Orange, and lived with him in Holland. After William invaded England and deposed her father, she and her husband became co-rulers of England. The College of William and Mary in Williamsburg, Virginia, was chartered by the couple in 1693.

Thursday, December 27, 2007

Bhutto Assassinated

Benazir Bhutto, twice prime minister of Pakistan and leading opponent of President Musharraf, was assassinated at a rally today. See our recent discussions of Bhutto here, here, here and here, explaining her return from exile and attempts by opponents to silence her. May she rest in peace.

On December 27, ...

... 1979, fighters aided by the troops from the Soviet Union deposed and executed Hafizullah Amin, President of Afghanistan. "The Afghan radio announced in a broadcast monitored here that Mr. Amin had been sentenced to death at a revolutionary trial for 'crimes against the state,'" according to the New York Times. The coup marked the beginning of Soviet involvement the Central Asian country that would last for a decade, ending in 1989 when "[t]he last Soviet soldier came home from Afghanistan ... leaving behind a war that had become a domestic burden and an international embarrassment for Moscow."
... 1985, a few weeks before she would have turned 54, the San Francisco-born woman who had devoted her life to the study and preservation of the mountain gorillas, Dr. Dian Fossey, was found dead from machete wounds in her cabin in Karisoke, Rwanda. The crime never was solved. A Fund continues the work of Fossey, pictured above with the gorilla she named Puck.

Climate Change and Interdisciplinarity

The New York Times reported today that climate change is such a big threat that academics are being forced to collaborate across disciplines. The starting point of the article, that “rarely do researchers cross disciplinary lines” seems fundamentally inaccurate. From the vantage point of international legal academia, I see so many people involved in interdisciplinary efforts, the vast majority of whom do not work on the problem of climate change. And, of course, interdisciplinary centers are not a particularly new phenomenon. In the 1920s and 1930s, many leading U.S. universities developed interdisciplinary centers focused on the social sciences, many of which included law. The New York Times article even includes a quote comparing the current centers to those focused on “ethics, innovation, or globalization” fifteen years ago.
Moreover, interdisciplinary work on the issue of climate change (and other environmental issues for that matter) is not a recent development. The IPCC has for many years brought together interdisciplinary work on climate change in its series of reports, and few would question that this problem requires serious collaborative work. From the science to the policymaking, climate change involves multiple scales--from the individual to the global—and a vast array of vexing intellectual quandaries. As the just-concluded dialogue in Bali reflected, meaningful conversations about emissions and impacts require a fluency in science, social science, and law/politics that it’s difficult for people to individually attain.
And yet the article has a point that there’s clearly something unusual happening around the issue of climate change right now which is reinforcing interdisciplinarity. I often marvel at the sudden explosion of new public, private, and academic attention. Only two years ago, I had someone question the relevance of studying climate change litigation during a faculty workshop. It was hard to imagine Al Gore and the IPCC collaborators winning a Nobel Peace Prize, not to mention the Supreme Court's decision in Massachusetts v. EPA. As universities establish sustainability institutes and leading law schools expand their environmental faculties, my hope is that this energy translates into the innovative solutions and political will that climate change and many other challenging multiscalar environmental problems demand.

Wednesday, December 26, 2007

"Women, Peace, Security"

Check out this ASIL Insight on the recent U.N. open debate on issues close to IntLawGrrls' hearts, "Women, Peace, and Security."
The occasion for the debate was the 7th anniversary of Security Council Resolution 1325 on that subject, Harvard Law Lecturer Cora True-Frost (left) writes. Adopted unanimously in October 2000, the resolution
recognizes women's role in preventing and resolving conflict, and calls for the equal participation and full involvement of women in efforts to maintain and promote peace and security.

Among the resolution's good effects:

► [T]he Council’s situation-specific resolutions increasingly address issues relating to women’s involvement in conflict and peace operations.
► [S]ome UN Member States have developed national action plans to monitor implementation ... including by tying aid delivery to the goals of 1325.

As might be expected, though, implementation has not been 100%. True-Frost suggests that "new 'soft law' norms regarding women in armed conflict may be developing," but that that development's "likely to remain controversial."

On December 26, ...

... 2007 (today), is celebrated the 1st day of Kwanzaa, which lasts through January 1. Founded in 1966 by California-based Professor Maulana Karenga, it's an "African American and Pan-African holiday which celebrates family, community and culture"; "its origins are in the first harvest celebrations of Africa from which it takes its name." This year's theme: "Creating a Shared Good in the World."
... 1996, 90 days after receipt of the 50th ratification, the U.N. Convention to Combat Desertification entered into force. From its home in Bonn, Germany, the Convention Secretariat works "with the secretariats of other relevant international bodies and conventions," such as the "Framework Convention on Climate Change," as well as "the Convention on Biological Diversity," to fight "the problem of land degradation in arid, semi-arid and dry sub-humid areas."

Tuesday, December 25, 2007

'Nuff said




On December 25, ...

... 2007 (today), many in the world, including this IntLawGrrl, celebrate Christmas. 'Nuff said.

Monday, December 24, 2007

Accountability - perhaps. Deterrence - no.

The Prosecutor of the International Criminal Court chose as his first case to bring charges against Thomas Lubanga, a Congolese militia leader, for the war crime of recruiting and using child soldiers. These charges were intended to demonstrate the seriousness of this crime and to deter others from continuing the practice – the Rome Statute commits the court to prosecute the perpetrators of international crimes in order to “contribute to the prevention of such crimes.” But the Lubanga trial is not the most salient fact on the ground in the Democratic Republic of Congo. Even as the prosecution moves forward (the trial is currently scheduled to begin on March 31, 2008), the British charity Save the Children reported that since the DRC government began a new military offensive, Congolese militias have been kidnapping increasing numbers of children and forcing them “to fight, carry ammunition, or become their sex slaves.” In light of the exigencies of combat situations, should supporters of the ICC even hope for its prosecutions to have any deterrent effect? And when abuses are so widespread, can the prosecution of a single militia leader have any impact on the public perception of impunity? At least in the short term, it seems that the most the ICC can hope for is individual accountability for Thomas Lubanga alone.

On December 24, ...

... 1914, in Europe, troops took a pause from the global conflict launched a couple months earlier to declare what's now known as the "Christmas Truce." This pause from the bloodshed of World War I has become the stuff of myth and film, among them Joyeux Noël. Though on many battlefields the truce was in fact less than complete, one commentator writes:
In the public's mind the facts have become irrevocably mythologized, and perhaps this is the most important legacy of the Christmas Truce today. In our age of uncertainty, it comforting to believe, regardless of the real reasoning and motives, that soldiers and officers told to hate, loathe and kill, could still lower their guns and extend the hand of goodwill, peace, love and Christmas cheer.

... 1943, Tarja Halonen (left), President of the Republic of Finland since 2000, and its Minister of Foreign Affairs from 1995-2000, was born in Helsinki. In naming her the world's 50th most powerful woman this year, Forbes pointed to her support in drafting a new European treaty, and added that she
backs policies that focus on human rights and 'international solidarity.' She also opposes Nato membership and has called herself a 'relative pacifist,' where she is against disarmament but is still for a strong military.
Though Halonen was the 1st woman to lead her country or its foreign affairs department, there's been a sea change there, according to Forbes:
In April, Finland appointed the world's most female-dominated cabinet; 60%, or 12 of the 20 ministers, are women.

Sunday, December 23, 2007

Nepalese news break

A petition filed by the Blue Diamond Society, Nepal’s primary gay rights association, resulted Friday in the Supreme Court ordering the government to guarantee the equal rights of gay and transgendered people. The government apparently has a certain degree of latitude in interpreting the ruling, but theoretically, transgendered people should now be able to identify themselves as members of a “third sex” on job applications or ID cards, for example. It’s unclear whether the Court’s ruling will result in the decriminalization of homosexuality or in recognition of same-sex marriages, but in conservative Nepal, an important step has been taken.

On December 23, ...

... 1867 (140 years ago today) , Sarah Breedlove was born to former slaves still living on a plantation in Delta, Louisiana. Orphaned at age 7, she worked cotton fields with her older sister and married at age 14; by age 20 she was a widow with 1 small daughter. A scalp ailment led her to hair products made by Annie Malone, for whom she became a sales agent in 1905. After marrying a St. Louis newspaperman, Charles Joseph Walker, and renaming herself "Madam C.J. Walker," she used $1.25 in capital to launch what would become a cosmetics megabusiness, based in Indianapolis. Walker was, as her New York Times obituary noted, a philanthropist:

She said herself two years ago that she was not yet a millionaire, but hoped to be some time, not that she wanted the money for herself, but for the good she could do with it. She spent $10,000 every year for the education of young negro men and women in Southern colleges and sent six youths to Tuskegee Institute every year. She recently gave $5,000 to the National Conference on Lynching.

... 1982 (25 years ago today), the United States' Centers for Disease Control recommended that all the 2,000 residents of Times Beach, near St. Louis, leave their homes on account of dioxin contamination. The Environmental Protection Agency had just confirmed the problem, attributed to the city's spraying 10 years earlier of waste oil, which unbeknownst to anyone contained the killer chemical, onto unpaved roads. The U.S. government ended up purchasing the land, cleaning it at a cost of $200 million, and opening it in 1997 as a state park.

Saturday, December 22, 2007

I-minus-12

That's "Iowa-minus-12" days, for anyone who's not yet been following the U.S.
presidential election cycle closely.
Very soon, on January 3, 2008, Iowans will kick off the New Year by caucusing to choose their top candidate in each of the 2 main political parties. A handful of states will follow up with primaries the same month, as detailed in this calendar. Then comes so-called Super-Tuesday, February 5, when the following states hold primaries or caucuses: Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Georgia, Idaho, Illinois, Kansas, Minnesota, Missouri, Montana, New Jersey, New Mexico, New York, North Dakota, Oklahoma, Tennessee, Utah, and West Virginia. It's likely that the nominations well may be sewn up on that date, even though the national conventions at which nominees formally are chosen won't take place till summer 2008.
Seems high time, then, to highlight some election resources.
The American Society of International Law has compiled the candidates' views on international law and foreign policy. Included are responses to candidate surveys (kudos to the 4 Democratic candidates who took time to respond (no Republican did so)) and, from ASIL officers and Executive Council members, thoughts on U.S. restoration of global status (note that more than half the "ASIL Leaders" respondents are women).
Keep an eye out at ImmigrationProf blog, which has started to post on immigrant roots of various candidates (2 posts already, here, here, here, and here; more to come).
Opinio Juris wants to hear from academics who've been giving IntLaw advice this cycle. (We IntLawGrrls would, too.)
And here at IntLawGrrls, we've posted a number of times on various candidates:
Democrats
We've posted on 'em all: Joseph Biden, Hillary Clinton, Christopher Dodd, John Edwards, Mike Gravel, Dennis Kucinich, Barack Obama, and Bill Richardson.
Republicans
We've posted on Rudoph W. Giuliani, Mike Huckabee, Duncan Hunter, John McCain, Ron Paul, and Mitt Romney. (Not a word in IntLawGrrls, till today, on Alan Keyes or Fred Thompson.)

On December 22, ...

... 2007 (today), at 1:08 a.m. Eastern Standard Time, begins the Northern Hemisphere's Winter Solstice. At dawn, light seeps into a specially made, 5,000-year-old chamber at Newgrange, Ireland. For 14 minutes the shaft of light illuminates stone carvings like that at left. Then it disappears for another year.
... 1812 (195 years ago today), at age 25, the Native American woman who guided Lewis & Clark through the American West, Sacagawea, died after giving birth to her 2d child at at Fort Manuel, fur-trading post in what is now South Dakota. With her was Toussaint Charbonneau, the French-Canadian soldier to whom she was sold as a slave, at about age 12, and claimed as wife. Selling her was a band of Indians who had kidnapped her from her people, the Shoshones. She is inspiration to IntLawGrrls' Kristine A. Huskey.

Friday, December 21, 2007

Schengen Expands Eastwards

The big news in Europe today is that the European Union has expanded its passport-free "Schengen zone" to include nine countries: the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovenia, and Slovakia. The Schengen acquis takes two steps to increase mobility within the European Union: it removes internal border checks between member states and "harmonizes" entry conditions for individuals crossing borders with non-member states. After today, all individuals travelling between these countries will no longer face immigration and customs controls and land and sea borders (with air border controls to follow in 3/08), and a Schengen visa will allow entry into nine additional countries. The agreement also includes the nine newbies in the Schengen Information System, a shared security and law enforcement information database accessible to law enforcement and judicial authorities of member states. Austria and Slovakia launched the Schengen expansion ceremonies yesterday by cutting down a frontier barrier between their two countries. Their festivities mark an enormous step -- the fifteen current Schengen participants of Western Europe (Austria, Belgium, Denmark, Finland, France, Germany, Greece, Iceland, Italy, Luxembourg, the Netherlands, Norway, Portugal, and Sweden) are bringing over half as many former Eastern-bloc countries into the fold. Opposition to the expansion has come from all fronts -- a recent poll found that 75% of Austrians were opposed to the lifting of barriers, concerned about an increase in crime. The Slovaks, of course, think that criminals will enter their country from Austria, and the Poles worry about increased illegal immigration. And German border police demonstrated against the border opening due to concerns that "the Eastern European states did not have the same security standards as Germany and had problems with corruption, equipment and police cooperation." Moreover, higher external borders may increase friction with neighboring states and force immigrants from elsewhere into unsafe migration routes. On the positive side, analysts argue that increased labor mobility should help to address unemployment in former communist countries and labor shortages in Western Europe. Not only is this a huge step for international migration law, but it presents an interesting test of the EU's ability to harmonize standards while expanding into countries with less robust infrastructure (will the rising tide lift all boats or will it be a race to the bottom?) and about the EU's authority to govern from the top down (will the expansion lead to greater unity or will it result in planned future expansion going the way of the EU constitution?).

On December 21, ...

... 1988, Pan Am Flight 103 crashed in Lockerbie, in southern Scotland. The death toll was 270, including persons aboard the flight and 11 on the ground. Decades later 2 Libyan nationals were put on trial before Scottish judges sitting specially in a courtroom at a former military base in the Netherlands; one was acquitted, the other convicted.
... 1937 (70 years ago today), movie icons like Charlie Chaplin, Judy Garland, Shirley Temple, John Barrymore, Clark Gable and Carole Lombard converged at Carthay Circle Theatre in Los Angeles for world premiere of Walt Disney Co.'s 1st-ever feature-length animated film, "Snow White." Disney recounts:
[C]hildren were paying a dime to get into the theaters in 1937, and the film, of course, had great appeal to that age group. The original worldwide gross was $8.5 million, a figure that would translate into several hundreds of millions of dollars today. In England, the film was deemed too scary for children, and those under 16 had to be accompanied by a parent.

... 1947 (60 years ago today), U.S. Rep. Zoe Lofgren (D-Cal.) was born in San Mateo, California.

Thursday, December 20, 2007

In Argentina, at least, justice

"Looks like justice has arrived in Argentina, at least."
This was my mother's response to articles yesterday, by the Associated Press and Página/12, reporting that an Argentine court had convicted 7 former military officers and one ex-police official of crimes against humanity for acts of kidnapping, torture, and disappearances committed during Argentina’s 1976-1983 military regime. The men were sentenced to 20-25 years in prison.
Not sure if she meant it that way, but I took the “at least” as a reference to my own quixotic quest for accountability in the United States of today. The comparison may seem severe to some – but probably not to many Latin Americans. Having been born under that dictatorship and raised hearing stories of torture, disappearances, habeas suspension, surveillance, secret trials of subversives, and (of course) amnesty laws, I have never found the association so far-fetched. (For a more developed comparison between 1970s Argentina and today’s US, see Charles H. Brower II, Nunca Más or Déjà Vu?, 47 Virginia Journal of International Law 525 (2007).)
So maybe this is a preview of the justice that we, too, might see 30 years from now – but only if we lay the groundwork now. As is always the case, we will have no transition because (haven’t you heard?) we are already a democracy. We will get no truth commission because those are reserved for the brown people south of the equator, not civilized societies like ours. Instead, we get Harry Reid and Nancy Pelosi, soon, maybe, Hillary Clinton – or, if we’re “really” lucky, Barack Obama. And life will go on as it used to in the Bill Clinton years, easy to ignore the torture neatly tucked away under the rug. Mainstream Democrats play nice and ignore the crimes they now reserve the power to commit, clumsily trying (and failing) to win political points by pursuing petty misdemeanors instead. (Proof of their pusillanimity's here, here, here, and here.)
As advocates, we fight the legal battles and sweat hard for the New York Times coverage. These are important, but not nearly enough. Without protest, without emotion, without people, we get nowhere. The Argentine courts did not wake up one day and realize that amnesty was unconstitutional. It took politics to change the courts, and it took people to change politics. In Argentina, a generation of angry youth took to the streets, organized communities, and raised a collective voice to shame the torturers when the law fell silent. Those youths played a small but tangible part to wake the country from its stupor.
To translate, roughly, Pascual Guerrieri, the words of one of the convicted officers:

' I reject the term repressor. We were soldiers paid by the people, those who stand behind me and around me. We went out there to restore order. We do not look like murderers. We look like soldiers who fulfilled their duty.'

I’m eerily reminded of John Kiriakou, the former CIA agent whom the Times described as a "43-year-old father of four," and of all those nice-looking torturing CIA agents and lawyers whose reputations and careers Professor Jack Goldsmith, in the same article, mourns in advance.

The choice is yours, mine, all of ours: Will we be agents of change? Or the ones whom the torturer thinks he serves?


(See below for details on today's guest blogger, Deborah Popowski.)

Guest Blogger: Deborah Popowski

Today IntLawGrrls welcomes its 2d guest blogger, Deborah Popowski, author of the above post on accountability, in Argentina and in the United States.
A 3d-year law student at Harvard, Deborah (left), along with fellow student Fernando Delgado, cofounded Stop Torture: The Harvard Anti-Torture Coalition. This Anti-Torture Group's a division of HLS Advocates for Human Rights, a student organization of which Deborah's also co-president. The group provides volunteer support to the Harvard International Human Rights Clinic, coordinates its own projects under faculty supervision, and engages in public education, lobbying, and direct action. Additionally, Deborah's worked on human rights issues in Latin America, Africa, and the Middle East. She interned for Manfred Nowak, the United Nations' current Special Rapporteur on Torture; for Gitanjali Gutierrez, staff attorney for the Guantánamo division of the Center for Constitutional Rights; and for Justiça Global, a Brazilian NGO that litigates before the Inter-American human rights system.
After receiving a degree in political science and social though from the University of Virginia, Deborah worked in journalism and in international development -- including 2 years' service with the Peace Corps. An Argentina-born naturalized U.S. citizen, she is proficient in 5 languages.
Deborah dedicates her post to her own IntLawGrrls inspiration, the suffragist Alice Paul.
Heartfelt thanks for your contribution, Deborah!

On December 20, ...

... 1992 (15 years ago today), Yugoslav-Communist-turned-nationalist Slobodan Milosevic was re-elected President of Serbia with 56% of the vote in an election riddled with accusations of fraud. He would go on to become President of the Federal Republic of Yugoslavia, to be indicted and put on trial by the International Criminal Tribunal for the former Yugoslavia, and, before entry of any verdict, to die in custody in 2006.
... 1988, the U.N. Convention against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances was adopted in Vienna, Austria. "This Convention provides comprehensive measures against drug trafficking, including provisions against money laundering and the diversion of precursor chemicals. It provides for international cooperation through, for example, extradition of drug traffickers, controlled deliveries and transfer of proceedings," as stated by its monitoring agency, the International Narcotics Control Board (logo above).

Wednesday, December 19, 2007

Transnational criminal law: No le gusta a la nueva Presidente

Just days after succeeding her husband as President of Argentina, Cristina Fernández de Kirchner (right) complained in a televised speech last week:

There is some garbage in international politics that holds back development and seriousness in international relationships.
The cause for her concern? The arrest and filing of federal criminal charges against a U.S. citizen, Guido Alejandro Antonini Wilson of Miami, Florida, and 4 noncitizens, all alleged to have been smuggling into Argentina $800,000 in cash, found stuffed in a suitcase on Antonini's arrival in August at the Buenos Aires airport.
U.S. prosecutors say that the 5 were acting on behalf of Venezuelan President Hugo Chávez, and so they've charged them with "conspiring to act as agents of the Venezuelan government within the United States, without having notified the attorney general" of the United States.

'This president may be a woman, but she’s not going to allow herself to be pressured,' Mrs. Kirchner said in a televised speech. She said she would 'continue affirming our friendship with all Latin American countries and also with the Bolivarian Republic of Venezuela.'
Well and good, but scarcely an answer to the law of the case. President Fernández seems unaware of various principles by which a state may exercise extraterritorial criminal jurisdiction -- principles that the United States, in particular, has employed quite expansively, to combat a host of transnational offenses, such as drug trafficking, money laundering, terrorism, and public corruption. In this case that exercise surely would seem justified with regard to the U.S. citizen, and likely as to the others, given that a part of the conduct at issue is alleged to have taken place inside the United States. The case thus would seem noncontroversial as a matter of law.
Politics, of course, is a whole 'nother thing.


(Incidentally, Fernández is not the only public figure less than perfectly schooled in this law. For a very different example of the problem, see our colleague Roger Alford's transnational criminal law critique of the steroids-in-baseball report here.)

On December 19...

... 2003, in "a surprise announcement," Libya said it would "destroy its arsenal of weapons of mass destruction," and allow immediate and unconditional oversight by weapons inspectors. A few months later the country would report to the United Nations on its prior program, admitting that it had had "a 20-ton stockpile of deadly mustard gas, as well as large amounts of chemical agents used in the manufacture of sarin and other toxins." Libya's move led to restorations of diplomatic relations and summit conferences. The most recent was last week's controversy-ridden meeting between French President Nicholas Sarkozy with Libyan leader Muammar Gaddafi -- the latter's 1st visit to Paris in 34 years. LeMonde's recap: a week in "Calvary" for Sarkozy.
... 1848, at age 30, "as she stood with one hand on the mantlepiece of the living room in the Haworth parsonage" in Yorkshire, England, Emily Brontë died of tuberculosis just 1 year after publishing the romantic tragedy, Wuthering Heights. Still a classic, that novel has been translated into 30 languages. (The portrait of Emily Brontë at right is by her brother, Branwell Brontë.)

Tuesday, December 18, 2007

Kudos to new (Int)Law Deans

Heartfelt congratulations to 2 international/comparative law colleagues who've just been named law school deans.
1st is Nora V. Demleitner (left), who moves on New Year's Day from incoming to permanent Dean at the Hofstra University School of Law, Hempstead, New York.
As detailed here, Nora earned a J.D. from Yale and an LL.M. with distinction in International and Comparative Law from Georgetown, and clerked for the Hon. Samuel A. Alito, Jr., then a federal appellate judge, now a Justice on the U.S. Supreme Court. She "teaches and has written widely in the areas of criminal, comparative, and immigration law." Recent publications, among them The Avena Case in the International Court of Justice -- Crime and Immigration: Domestic, Regional and International Consequences and Abusing State Power or Controlling Risk?: Sex Offender Commitment and Sicherungsverwahrung, evince that interest.
The 2d, just announced this morning, is David Wippmann (right), Vice Provost for International Relations and Professor of Law at Cornell. He's to be the new Dean at the University of Minnesota Law School. As detailed here, David, who earned a J.D. from Yale and clerked for 2d Circuit Chief Judge Wilfred Feinberg, worked as Director of the National Security Council's Office of Multilateral and Humanitarian Affairs from 1998-99. His scholarship focuses on international law, human rights, and ethnic conflict. His most recent publication is Can Might Make Rights? Building the Rule of Law after Military Interventions (2006), co-authored with our colleagues Jane Stromseth and Rosa Brooks.

(Thanks to Brian Leiter for the head's up.)

On December 18, ...

... 1892 (115 years ago today), at the Maryinsky Theater in St. Petersburg, Russia, a ballet written by Igor Tchaikovsky and choreographed by Marius Petipa and Lev Ivanov, had its world premiere (above). Initial reviews panned the spectacle, yet "The Nutcracker" went on to "become the most attended holiday ballet ever produced."
... 1944, the U.S. Supreme Court issued 2 decisions respecting the country's internment of more than 100,000 U.S. citizens and residents of Japanese ancestry during World War II. In Ex parte Endo, the Court unanimously granted the habeas petition of Mitsuye Endo (right), who had been a typist for the Department of Motor Vehicles in Sacramento and was interned notwithstanding her undisputed loyalty to the United States. In Korematsu v. United States, the Court affirmed, by a vote of 7 to 2, the conviction of Fred Korematsu (above left), a 22-year-old Bay Area welder, for having violated the exclusion order that preceded detention. "[P]ressing public necessity" justified the deprivation of liberty, Justice Hugo Black wrote for the Court. The conviction would be voided in 1984 via the order by which U.S. District Judge Marilyn Hall Patel (left) granted Korematsu's petition for a writ of coram nobis.

Monday, December 17, 2007

Bali dancing

A "U.S. U-turn" resulted in "a deal to launch two years of talks on a broad new climate treaty involving all countries." The change took place on Saturday, a full day after the 2-week U.N. Climate Change Conference in Bali, Indonesia, was supposed to have ended.
Here's Reuters' highlights of the last "dramatic 90 minutes" on the road to what's being called the "Bali Roadmap":
1:00 p.m. ... Developing nations led by India and China are demanding that rich countries do more to lead the way in fighting climate change. The demands arose overnight, partly after the European Union bowed to U.S. pressure and toned down calls for the final text to lay out clear 2020 guidelines for rich nations to axe greenhouse gas emissions.
1:20 p.m. - U.N. Secretary-General Ban Ki-moon, making an unscheduled return after leaving Bali on Friday for East Timor, enters the conference hall with Indonesian President Indonesian President Susilo Bambang Yudhoyono.
'I am disappointed at the lack of progress,' Ban said. 'Everybody should be able to make compromises.'
'The worst thing we can do is for this project to crumble because we can't find the right wording,' Yudhoyono said. 'The world is watching anxiously and I beg you not to let them down.'
As "[d]elegates strongly applauded" the speeches, the EU backed down, prompting more applause. Then:
1:55 p.m. - Paula Dobriansky [right], under secretary of state for democracy and global affairs leading the U.S. delegation, reaffirms U.S. opposition, bringing boos.
No country spoke in support of the United States; to the contrary:
1:56 p.m. - ... Papua New Guinea delegate Kevin Conrad wins wild applause by addressing Dobriansky and saying:
'We ask for your leadership, we seek your leadership ... if you can't give us what we want, please get out of the way.'
Then, the "U.S. U-turn":
2:19 p.m. - Dobriansky backs down, saying 'We will go forward and join consensus,' triggering applause.
Consensus reached; roadmap in place.
Reason for the switch? Reuters reports:
Dobriansky said she changed her mind because the developing country speakers convinced her that they were serious about acting to fight climate change. She said she did not consult Washington before changing her mind.
Final comment from Bali:
Bill Hare of environmental group Greenpeace said he believed it was the first time since 1996 that Washington had won applause at a U.N. climate meeting.
Not so fast: For today's New York Times editorial popping the Bali bubble of good feelings, see here.

On December 17, ...

... 2005, protesters opposed to the World Trade Organization held rowdy demonstrations during the WTO's summit in Hong Kong. Photo at left; blogging here.
... 1942 (65 years ago today), British Foreign Minister Anthony Eden read in Parliament a declaration of the United Nations, as the countries allied against Axis powers called themselves, denouncing Nazi massacres of Jewish persons in occupied Poland. The declaration
condemned 'in the strongest possible terms this bestial policy of cold-blooded extermination' and made a 'solemn resolution to ensure that those responsible for these crimes shall not escape retribution.'

Sunday, December 16, 2007

First step toward banning waterboarding

Thursday, despite the threat of a presidential veto, the House of Representatives voted to prohibit waterboarding (pouring water over a prisoner's mouth and nose to simulate drowning) and other harsh interrogation methods used by the CIA. The Senate is less apparently likely to pass the measure, which would allow use of only those techniques authorized by the US Army Field Manual, which prohibits physical force. President Bush apparently thinks that not being able to torture terrorism suspects would inhibit his ability to protect Americans. He also seems to think it necessary to limit military lawyer independence, so has proposed that promotions within the Judge Advocate General (JAG) Corps, the military legal force, be “coordinated” with politically appointed Pentagon lawyers. According to former JAG officers, subjecting JAG lawyer promotion to political supervision would remove the check on executive power provided by these lawyers. Oddly, turning a critic into a chief military commission judge may accomplish the same thing: Marine Col. Ralph H. Kohlmann wrote in his master’s thesis in 2002 that military commissions established pursuant to President Bush’s Military Order of Nov. 13, 2001 would suffer credibility problems, primarily due to the military judges’ “apparent lack of independence” and suggested that through past organized crime and terrorism cases, the US criminal justice system has proven itself perfectly capable of handling cases in which “potential defendants have scary friends”. Now chief judge of the military commissions at Guantánamo, Kohlmann says he was incorrect when he wrote that commission trials would not provide fundamental fairness. One wonders what techniques made him change his story.

On December 16, ...

... 1901, a daughter was born in Philadelphia to Edward and Emily Fogg Mead. An economics professor at the University of Pennsylvania, the father told his daughter, "It's a pity you aren't a boy; you'd have gone far." In 1928, the daughter published Coming of Age in Samoa; she's pictured at left during her field work. In 1929, she earned her Ph.D. from Columbia University and, as Dr. Margaret Mead, went on to become 1 of the most influential anthropologists of her century. Mead died from cancer in 1978, just a few years after serving as the 2d woman ever to lead the American Association for the Advancement of Science.
... 1966, the U.N. General Assembly adopted 2 treaties designed to make enforceable the 1948 Universal Declaration of Human Rights. They were the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). The latter treaty entered into force on January 3, 1976; the former a few months later, on March 23. Though the rights that the UDHR set forth as one were divided on the premise, in part, that not all states would subscribe to both groups of rights, today nearly all countries have ratified both treaties. An exception is the United States, which signed both but only ratified the ICCPR, and then only in 1992. A longtime holdout, Cuba, has just announced that it soon will sign both covenants, for reasons that a Cuban newspaper details here.

Saturday, December 15, 2007

Sex and politics in South Africa

A demand that all government offices be filled equally by women and men is roiling the Republic of South Africa.
Earlier this month in Pretoria, "[h]undreds of women brought traffic in the capital to a standstill" as "they marched ... to hand over a memorandum demanding an equal gender representation in all state sectors." Among those who voiced their support for the proposal was the country's Minister of Communications, Dr. Ivy Matsepe-Casaburri (left), who urged the crowd: "Let's work collectively and confront hierarchy, no compromise and no going back."
The 50-50 proposal seems now to have fallen prey to the power struggle between factions of the African National Congress. Among those in the midst of that struggle is Dr. Nkosazana Dlamini-Zuma (right). Appointed the 1st woman Minister of Foreign Affairs for the Republic by President Thabo Mbeki, she is a reputed candidate to succeed Mbeki, and also the ex-wife of Mbeki's rival, Jacob Zuma. At a public meeting yesterday Dlamini-Zuma slammed opponents of the equity plan. Her core point in favor of equity:

Women in the majority of countries, if not in all, form more than half the population. And they produced the other half.

On December 15, ...

.... 2005, legislators of Latvia gave constitutional status to a statutory ban on same-sex marriage. Criticized by many of the country's leaders, the change came in the wake of altercations waged by opponents during the country's 1st gay pride march, which occurred in summer 2005.
... 2007 (today), the United States marks Bill of Rights Day, in recognition that on this date in 1791 the Bill (right) entered into force. In 1941, on the 150th anniversary of this date, Franklin D. Roosevelt proclaimed the day. The Bill of Rights is comprised of the 1st 10 amendments to the Constitution; its contents have served as a normative source for many subsequent national constitutions and international human rights instruments.

Friday, December 14, 2007

Death on the High Seas

On Tuesday and Wednesday, the United Nations High Commissioner for Refugees held a Dialogue on Protection Challenges to address protection needs for "refugees and migrants around the world [who] risk their lives every day in desperate attempts to find safety or a better life." The numbers are shocking: of West African migrants attempting to reach the Canary Islands, more than 1,000 have been reported missing in 2007; of Ethiopians and Somalis fleeing the violence of their home states by sea to Yemen, 1,221 were reported missing this year. (See here for "Immigration everywhere," a prior, related post.)
You can view here the terrifying stories of several of these migrants, as well as the touching testimony of an Italian coastguard commander haunted by the bodies of dead children he has retrieved from the sea. As the video notes, the increasingly tight borders in Europe have taken a heavy human toll, and are unrealistic in this age of globalization. While UNHCR points to the duty of States to protect the human rights of "people living outside their country of origin, whatever their legal status or their location in the world" and to protect the rights of their citizens, whether at home or abroad, it seems that these desperate migrants are increasingly falling through the cracks. Despite the particular rights that attach to refugees and those fearing torture, and the right to life endowed in all human beings, migrants face "detention and imprisonment; destitution and exploitation; trafficking and smuggling; physical abuse and harassment; racial or ethnic discrimination; interception, abandonment and drowning at sea; as well as return or transfer to remote and dangerous locations." The solution? UNHCR suggests that States and international organizations provide and promote safe, legal, and organized opportunities for migration. We've seen this already with Spain's trailblazing program to offer legal passage and a one-year renewable work visa to young Africans -- a solution that not only prevents deaths at sea but fills Spain's increasing labor needs. As Americans debate the appropriateness of immigration platforms presented by presidential candidates, let's keep in mind the many lives that are at stake on both sides of the Atlantic. (Photos courtesy of UNHCR.)

IntLawJobs

On Friday, November 30, the American Society of International Law's Women in International Law Interest Group held a panel discussion on opportunities for young women in the field of international law. Even if you missed it, you can listen to the presentations and the Q&A sessions here. The panel offers many different views of an international law career, from the law firm angle, represented both by commercial litigation representing states and individuals and pro bono work representing Guantanamo detainees in habeas petition in US courts; to academia, illustrated by an adjunct professor position teaching international advocacy and coaching an international moot court team; to international criminal law work for the United Nations, clerking for the Office of the Prosecutor for the International Criminal Tribunals for Rwanda and the Former Yugoslavia; to international legal options within the U.S. government, at the Department of Justice as a senior trial attorney at Office of Special Investigations at DOJ and as Deputy Chief Counsel for the ranking member of the Senate Committee on Foreign Relations; to the non-profit realm, at the Bill and Melinda Gates Foundation as a program officer in Global Health Advocacy division. Well worth a listen for those considering a career in international law!