Sunday, November 30, 2008

Death by Consumption on Buy Nothing Day

Taking its usual delight in reporting on the freakishness of life in the United States, Le Monde reported the death of a New York Wal-Mart employee, crushed to death by the stampeding crowd of 2000 shoppers rushing in to fill their baskets on what is apparently known as "Black Friday" (I remember the sales on the day after Thanksgiving, the biggest shopping day of the year in the US, but this is the first I've heard of Black Friday). The special irony was that this tragic event occurred as the day was dawning in some parts of the world on the annual "Buy nothing day" (poster above), begun in 1992 in the United States and Canada with the cry "Enough is enough !"and taken up by the French organization Casseurs de Pub (Adbusters). The goal is to make people aware of the human and environmental costs in producing all that we consume and in discarding all that we can't or don't eat, reuse or recycle. Yet here where there is fairly strong anti- and alter-globalization sentiment, the day has received almost no coverage in the press. Despite the precipitous drop in spending power since the introduction of the euro now aggravated by the global economic crisis, the focus is on pushing consumption to shore up the economy. Le Monde's linking of these two stories on its websites seems like a subtle call to push back.

On November 30

... 1943 (65 years ago today), Etty Hillesum perished at Auschwitz, the Nazi concentration camp in Poland. Given the name Esther when born 29 years earlier in Middleburg, the Netherlands, Hillesum (right) earned a law degree at the University of Amsterdam and then began studying Slavic languages. In 1941 she began to keep a diary of life in Nazi-occuped Netherlands; a year later, expecting to be sent to Camp Westerbork, she asked to be sent there to do social work as a representative of the Jewish Council. She and her family were ordered transferred to Auschwitz in September 1943.

... 1962, the U.N. General Assembly unanimously elected Burmese diplomat U Thant (left) to become the 3d Secretary-General of the United Nations. He had been acting in that position since his predecessor, Dag Hammarskjöld, died in a plane crash in September 1961, and would go on to serve until December 1971.

Saturday, November 29, 2008

Read On! Women's International Human Rights

Looking for innovative new course materials on women and international law? Check out a welcome addition to the options by Susan Deller Ross. Professor of Law and Director of the International Women’s Human Rights Clinic at Georgetown University Law Center (photo above).
Women’s Human Rights: The International and Comparative Casebook (University of Pennsylvania Press, 2008) Cloth, 688 pages) is one of the newest volumes issued by the Pennsylvania Studies in Human Rights series.
Deller Ross, a top U.S. women’s civil rights advocate and scholar, now provides a much-needed legal bird’s eye view on women’s international human rights in a format suitable for new courses or seminars. Among the complex and controversial legal and policy issues addressed (and which IntLawGrrls contributors and readers regularly discuss):
Women’s Rights in Marriage and Family Life (e.g., child marriage, property and inheritance rights in divorce or widowhood);
Violence against Women, whether officially sanctioned or culturally-enforced (e.g., rape as a weapon of war or civil conflict, marital rape, domestic violence/”honor” killings, female genital mutilation/female genital cutting);
The Economic and Social Status and Rights of Women (e.g., labor and employment rights and reproductive rights). The book analyzes leading cases in both international and comparative perspective. Such efforts will, one hopes, lead to more inclusive and effective law school curricula as well as advocacy on the human rights of more than half the world’s population.

Arrogant? Nous?

A site calling itself Typealyzer has opened a virtual couch on which to analyze a blog's personality. (hat tip)
Here's what it has to say about IntLawGrrls:
The Thinkers
The logical and analytical type. They are especially attuned to difficult creative and intellectual challenges and always look for something more complex to dig into. They are great at finding subtle connections between things and imagine far-reaching implications. They enjoy working with complex things using a lot of concepts and imaginative models of reality.
So far, so good. Same for the image above left, which accompanies the description. But then there's this:

Since they are not very good at seeing and understanding the needs of other people, they might come across as arrogant, impatient and insensitive to people that need some time to understand what they are talking about.
Impatient, yes; that's part of being a 'Grrl.
But arrogant? Insensitive? Nous?
Now, this "evaluation" from 1 of the world's typealyzers (this site appears to have Swedish roots) is, of course, silly-season stuff. The description's an exercise of negative/positive blather familiar to anyone who's ever read an astrology column. Still, it invites thought.
We posted earlier on the tendency to link blogging with other traits often coded as masculine. Is this simply another example of that genderization? Maybe, maybe not. Could be that law professors -- as many of us are -- become accustomed to hearing their own voices, to speaking (impatiently) to those who "need some time to understand what" they "are talking about."
It's a twist on the question of balance raised more than a year ago by IntLawGrrl Hari M. Osofsky: Does legal work require one to leave the right brain at home? Should it?

On November 29

On this day in ...
... 1957, Janet Napolitano (left) was born in New York City. She grew up in Pittsburgh, Pennsylvania, and Albuquerque, New Mexico, and earned degrees from Santa Clara University and the University of Virginia School of Law. She began practicing law in Phoenix, and eventually became U.S. Attorney for the District of Arizona, Arizona's 1st woman Attorney General, and, since 2003, Governor of Arizona. She is said to be President-Elect Barack Obama's top choice to become Secretary of the Department of Homeland Security.
... 1984, on conclusion of a 3-day tour of the region, James P. Grant, Executive Director of the U.N. Children's Fund (UNICEF), told The New York Times that more than 6 million people were "'in serious distress' as a result of the Ethiopian famine," adding that 1 million of them were children under the age of 4. Before its end a year later the famine would claim 1 million lives in the country whose flag is at right.

Friday, November 28, 2008

India Weeps

As Americans celebrated the Thanksgiving holiday yesterday, the world yet again watched in shock and horror a scene now eerily familiar: coordinated bombings, this time in Mumbai, that targeted civilian locations (particularly those frequented by American and British tourists) and were stunning and terrifying in their boldness and scope. The thoughts of a nation and its diaspora were with the families of the victims, those who lost mothers, brothers, uncles, and nieces to this senseless violence.
One can only hope that these attacks are not used as excuses for further violence against Muslim minorities in India; that the world has learned from the attacks of September 11 and the excesses and abuses of Abu Ghraib and Guantanamo that terror must be met with due process and fairness; that India's beautiful and vibrant democracy can overcome those who seek to destroy it without resorting to undemocratic means. History does not inspire confidence; prior terrorist threats have led India to institute draconian antiterrorism laws (the Terrorist and Disruptive Activities Act in the late 1980s and the Prevention of Terrorism Act (POTA) after 9/11) that were eventually scrapped because of serious civil rights violations (allowing detention for 180 days without charge; using confessions to police as evidence in court). And Indira Gandhi's infamous State of Emergency, which suspended not only civil rights but also elections, ominously reminds us how national security threats can be used to perpetrate further rights abuses. Prime Minister Manmohan Singh has thus far avoided the errors of the past; one of his first acts in office was the dismantling of POTA. His focus on ending financing for terrorist groups and using existing laws to fight terrorism seems promising. Here's hoping that Singh's balanced approach stands up through this crisis.

On November 28

On this day ...
... 1843 (165 years ago today), as described at the website of the Unrepresented Nations and Peoples Organization, the governments of Britain and France entered into this Anglo-Franco proclamation regarding what are now known as the Hawaiian Islands (left):

Her Majesty the Queen of the United Kingdom of Great Britain and Ireland, and His Majesty the King of the French, taking into consideration the existence in the Sandwich Islands of a government capable of providing for the regularity of its relations with foreign nations, have thought it right to engage, reciprocally, to consider the Sandwich Islands as an Independent State, and never to take possession, neither directly or under the title of Protectorate, or under any other form, of any part of the territory of which they are composed.

The 2 thus officially gave recognition to the Hawaiian Kingdom, which then "entered into treaties with the major nations of the world and ... established over ninety legations and consulates in multiple seaports and cities." Observance of the date as a national independence holiday, Ka La Ku'oko'a, was suspended after U.S. intervention a half-century later, but has been revived in recent years.
... 1943 (65 years ago today), amid World War II, leaders of 3 Allied states met in Tehran, Iran. U.S. President Franklin D. Roosevelt, British Prime Minister Winston Churchill, and Soviet Premier Josef Stalin (right) discussed the waging of the war and sketched postwar plans. They would issue a Declaration at the end of the conference on December 1.

Thursday, November 27, 2008

A day to give thanks ...

(credit for Farm Security Administration photo by Marjory Collins of the Landis family Thanksgiving dinner, Neffsville, Pennsylvania, 1942, courtesy of the Library of Congress)

...and to give condolences...

.. for the victims of last night's coordinated attacks in Mumbai, India -- the scores of civilians who have died, the indeterminate number of other persons who, at this writing, still are being held hostage by presumed terrorists.

On November 27

On this day in ...

... 1967, French President Charles de Gaulle announced that he would veto Britain's application to become a member of the European Economic Community. It was the 2d time that de Gaulle had said "Non," even though the other 5 members, Belgium, the Netherlands, Luxembourg, Italy and Germany, were willing to begin negotiations to admit Britain. Britain would not be accepted until 1969, after de Gaulle had fallen from power.

... 1992, in Caracas, "[d]isgruntled air force units, allied with civilian leftists," attempted a military coup against the President of Venezuela (flag at right). The attempt failed. But the President was removed on account of corruption charges several months later, and eventually a leader of the 1992 unrest, Hugo Chávez, would gain power in the country.

Wednesday, November 26, 2008

Witness Proofing & International Criminal Law

In a series of procedural rulings, the International Criminal Court is asserting its inquisitorial character. One decision in particular has caught my attention: that concerned with the practice of a party meeting with a witness in advance of trial to prepare him or her to give testimony, often called witness proofing.

Preparing witnesses in advance of trial has been expressly condoned by the ad hoc tribunals, notwithstanding that they draw personnel from a variety of procedural backgrounds and systems. For example, in Karemera, one of the defendants, Édouard Karemera (left) (photo credit), had sought an order from a Trial Chamber of the International Criminal Tribunal for Rwanda preventing the Prosecution from preparing its witnesses prior to their giving testimony. Rejecting the motion, the Trial Chamber, at paragraph 15, sanctioned the practice under the following conditions:

Provided that it does not amount to the manipulation of a witness’s evidence, this practice may encompass preparing and familiarizing a witness with the proceedings before the Tribunal, comparing prior statements made by a witness, detecting differences and inconsistencies in recollection of the witness, allowing a witness to refresh his or her memory in respect of the evidence he or she will give, and inquiring and disclosing to the Defence additional information and/or evidence of incriminatory or exculpatory nature in sufficient time prior to the witness’s testimony.

The Appeals Chamber affirmed, noting that in the absence of an express rule on point, Rule 89(B) of the Tribunal’s Rules of Procedure and Evidence generally confers discretion on the Trial Chamber to apply

rules of evidence which will best favour a fair determination of the matter before it and are consonant with the spirit of the Statute and the general principles of law.

Indeed, a survey of national law revealed wide variations in witness preparation practices, suggesting no general principle of law and no consensus that the practice is inherently unethical or prejudicial to the accused. The Chamber noted that the defendant is free to explore issues of witness coaching or manipulation on cross-examination.

A Trial Chamber of the ICC has taken an opposite approach, and this raises concerns with respect to witness preparation in general and with the prosecution of gender crimes in particular. In the case of Thomas Lubanga Dyilo (left) (photo credit), the ICC Pre-Trial Chamber specifically prohibited the Prosecution from proofing its witnesses on the ground that the Prosecution had failed to show that the practice is widely accepted in international criminal law, which would enable it to be considered part of the applicable law of the Court pursuant to Article 21(1). The Pre-Trial Chamber reasoned that witnesses “belong” to neither the Prosecution nor the Defence, but are rather witnesses of the Court. A Trial Chamber affirmed the decision on a motion for reconsideration, noting that the ICC’s procedures differ markedly in a number of ways from the procedural regimes of the ad hoc tribunals. It determined that while it may be appropriate for a witness to review his or her prior statements, there should be no discussion of the topics to be dealt with in court that might result in a “rehearsal” of trial testimony. As it now stands before the ICC, the general familiarization with the courtroom and its proceedings are to be conducted by the Registry rather than by either party.

The ICTR position seems the better one in the context of international criminal law, where trials may happen years from the events in question and involve traumatized witnesses with little experience with legal institutions or processes. Allowing the parties to meet with witnesses in advance of their testimony can enable witnesses to
► refresh their recollections of events;
► review any prior statements;
► fully identify relevant facts (including exculpatory evidence);
► work on presenting their evidence in a more complete, orderly, and structured manner; and
► prepare for cross-examination.

Having witnesses take the stand “cold” threatens to
► render them unprepared to testify effectively before the Court,
► set them up for re-traumatization during any cross-examination, and
► risk their being discredited where their testimony is stilted, confused or diverges from statements that may have been taken years prior.

Victims of sexual violence, in particular, may find it difficult to testify about what happened to them without the benefit of some prior preparation.

If the Lubanga decision is adopted by the entire ICC, it will be crucial for the ICC judges to manage the trial process so that it does not devolve into an adversarial proceeding for which witnesses will be ill-prepared. Allowing witnesses to be aggressively cross-examined by either side without warning or preparation could be severely re-traumatizing and would undermine any rehabilitative potential of participating in a justice process.
International criminal law procedural rules are, no doubt, sui generis. The risk is, however, that international criminal tribunals simply pluck particular procedural rules out of their larger context without recognizing that these rules exist in an inter-locking and inter-dependent system. The result can be a Frankenstein's monster of procedural rules that does nothing to promote efficiency or fairness.

Write On! International economic law

(Write On! is an occasional item about notable calls for papers.)

The American Society of International Law's International Economic Law Interest Group is soliciting proposals for its first "outside-the-beltway" research colloquium.
Scheduled for Friday, February 13, 2009 at the University of California, Los Angeles, School of Law, the colloquium is the first in an annual series of colloquia which will be organized by the interest group. Submissions may address any area of international economic law.
Apologies for the short notice: The deadline for submissions is December 8, 2008!

On November 26

On this day in ...
... 1997, Thelma Chalifoux (left) began a term in the Canadian Senate. The 1st Métis woman to become a senator, Chalifoux, a native of Calgary, Alberta, served until reaching the age of 75 in April 2004. (photo credit)
... 1968 (40 years ago today), the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, about which we've posted, was adopted. It entered into force on November 11, 1970. Today it has 52 states parties; the United States is not among them.

Tuesday, November 25, 2008

What Obama Might Learn From JFK

Even before the transition to power, the Obama Administration is facing a crisis to his presidency. The current economic crisis promises to be the Goliath that will take all of Barack Obama's brains and guts to slay. While some argue the level and extent of the crisis has led us to unchartered waters, it seems important to learn from history as the new administration moves forward.
Another young, inspiring, and out-of-the-ordinary president faced similar challenges in the early days of his presidency. In 1961, John F. Kennedy became the nation's thirty-fifth president. He came to power at a time of uncertainty for the United States: The Cold War was in full gear, the economy was troubled, and both special interests and the "Joe The Plumbers" of his day called for a time of retrenchment and isolation. What did Kennedy do? The exact opposite. Kennedy recognized America needed to provided leadership not only locally but globally. He set an ambitious international agenda, and one of the centerpieces of his strategy was his agenda. Despite opposition from members of his own party, and special interests he needed to appease, Kennedy successfully persuaded Congress to grant him the greatest trade negotiating authority of his day. Although he did not live to see his trade agenda implemented, Kennedy's legacy lives on in the results of the Kennedy Round of trade negotiations, the most successful trade round of its time. What might Obama learn from Kennedy? John F. Kennedy ultimately learned that a robust trading system was the best defense against economic collapse. While Obama has made numerous pronouncements on his economic policy, he remains silent on his trade agenday. I suggest Obama take notice of Kennedy's strategy and focus also on trade to help the nation out of this economic crisis.

On Art! Beyond federal court

(In this installment of IntLawGrrls "On Art!" series on artifacts of transnational culture, guest blogger Judith Weingarten, an archaeologist, returns to the blog with an account of legal issues swirling about a new show at a leading U.S. art museum)

The latest archaeological blockbuster at New York's Metropolitan Museum of Art is Beyond Babylon: Art, Trade and Diplomacy in the Second Millennium B.C.
The exhibit, which opened a week ago today, runs through March 15, 2009, and is the subject of this New York Times review, is the direct sequel to the Met's 2003 Art of the First Cities, which covered the third millennium B.C. But unlike the 2003 show, which took place as American troops invaded the heartland of ancient Mesopotamia, there is a gaping hole in the new show: 55 pieces from Syria — stone sculptures; frescoes; goldwork, including this stupendous bowl from the ancient city of Ugarit (below left) – were not sent as promised to New York.
In a wall card near the beginning of the show, the Met thanks the Syrian government for its willingness to lend such important objects, and expresses "deep regret that recent legislation in the United States has made it too difficult and risky for the planned loans to proceed." That legislation, an amendment made in January to the Foreign Sovereign Immunities Act, permits private individuals claiming to be victims of state-sponsored terrorism to file liens against property belonging to that state whenever the property is in the United States. Property loaned to museums may fall within the ambit of this amendment.
This is the almost inevitable sequel to the legal battle over the Persepolis tablets.

What are the Persepolis Fortification Tablets?
In size and durability, the Achaemenid Persian Empire had no equal before the creation of the Roman Empire and, like the Roman Empire, it created an area of political, economic, and cultural connections of an unprecedented scale. The Great King Darius I (522–486 B.C.) built
an imperial residence complex at Persepolis – today, Iran. This empire came to a brutal end when Alexander the Great conquered, looted, and burned the city in 330/329 B.C. Even in ruins, the massive platform, lofty columns, sculptured walls, and staircases were imposing, and for many centuries they attracted visitors.
But it was not until 1931 that The Oriental Institute of the University of Chicago began to excavate what lay beneath these standing ruins. One entirely surprising discovery was a large group of 15,000 to 30,000 or more cuneiform clay tablets. Together, these tablets constituted proof that behind the splendid palaces and sculptured façades that were the setting for the court of the Great Kings stood an administrative apparatus that controlled movements of food, animals, and labor in the region around the palaces, relying on an information system that was as complex and sophisticated as any in the ancient world.
Until their discovery, the main written sources for the Persian Empire were those written by foreigners — notably the Hebrew Bible and Greek sources such as Herodotus and historians of Alexander’s campaigns. These accounts, quite naturally, gave a partial and biased picture of the
Persian Empire.
The Persepolis tablets thus have a very deep modern significance as irreplaceable items of cultural heritage for the people of Iran. Persepolis and the Persian Empire are central symbols of their cultural identity.
It was therefore an extraordinary act of trust and international scholarly cooperation for when the Iranian government to allow the tablets to be brought to the Oriental Institute in 1936 on a long-term loan for purposes of conservation, translation and analysis. The massive quantity and fragile physical condition, coupled with the challenges of reading the texts. have made their analysis and publication a difficult, long-term project. Already it has extended for seventy years, and it is still far from completion. (Details on the tablet archive project are here.)

Return of the Texts
From the time of the tablets’ first arrival in Chicago, researchers at the Oriental Institute were keenly aware of the texts’ importance as the cultural heritage of the Iranian people, and of their scholarly responsibility not only to translate the tablets but also to ensure their return as loan objects back to Iran once analysis and recording were complete. The most recent return of loaned tablets, in 2004, received extensive in the international media. It therefore came as a complete shock when, several months later, the Oriental Institute was served with legal
documents demanding that it surrender the Persepolis tablets to satisfy the legal claims for damages in a lawsuit by victims of a Hamas bombing attack in Israel.
(Details on the litigaton may be found here and here and here.)
The Oriental Institute found itself caught in the middle of a complex legal drama that began in Jerusalem in 1997 and is now playing out in a federal courthouse in Chicago. In 1997, a group of American tourists fell victim to a bombing attack in Jerusalem. The Palestinian organization Hamas claimed responsibility for the bombing. The surviving victims and the families of those who died argued that the Islamic Republic of Iran had funded Hamas and should therefore be held accountable to pay compensation. When the case was heard in federal court in Rhode Island, representatives of the state of Iran did not appear to contest the case. As a result, a default judgment was entered against Iran for over $400 million in damages. Because the tablets are on loan from Iran to the Oriental Institute, the plaintiffs are attempting to appropriate and sell them to satisfy the claim for damages. The Oriental Institute and the University of Chicago maintain that the law does not allow for the seizure of cultural heritage as compensation.

Whose tablets are these anyway?
The tablets are not commercial assets like oil wells, tankers, or houses. Instead, these types of culturally unique and important materials fall within a special protected category and are not subject to seizure. This trove of tablets has never been a commercial item to be bought or sold. The tablets have never been a source of profit either to Iran or to the Oriental Institute. They are non-commercial items of cultural heritage, every bit as unique and important as the original document of the Constitution of the United States. (Imagine if a future Iraqi government were to put a lien on that document.) The stakes are enormous. If the lawsuit prevails, this would do irrevocable harm to scholarly cooperation and cultural exchanges throughout the world.
That is already starting to happen. The Syrian government had offered to lend the Met invaluable parts of their cultural heritage: many of these objects that had never left the country before. Of American institutions, only the Met has the resources to pull off such a project, which depends as much on personal contacts as on cash.
That little card on the wall doesn’t say it all.
The Met submitted applications for immunity from seizure for all the borrowed foreign works — including pieces from Armenia, Georgia, Greece, Lebanon and Turkey, as well as Syria — but finally decided that the FSIA amendment jeopardized the Syrian loans. Though not on display, the 55 Syrian objects are in the catalog. There you can see how important a role they played in the internationalist narrative conceived by Joan Aruz (right), the curator in charge of the Met’s department of ancient Near Eastern art.

On November 25

On this day in ...

... 1988 (20 years ago today), the instrument of U.S. ratification of the Convention Against Genocide was deposited with the United Nations. The United States had signed the treaty, which today has 140 states parties, on December 11, 1948.

... 1973 (35 years ago today), the Greek military rolled tanks into Athens and staged a coup amid "growing unrest in Greece," "eight days after student uprisings in which 13 people died and hundreds were injured." The regime lasted only a few months.

Monday, November 24, 2008

California marriage equality back in Court

'I think people are beginning to look at it differently, I know it’s happened for me. I started out not supporting it. The longer I’ve lived, the more I’ve seen the happiness of people, the stability that these commitments bring to a life. Many adopted children who would have ended up in foster care now have good solid homes and are brought up learning the difference between right and wrong. It’s a very positive thing.'

-- U.S. Sen. Dianne Feinstein (D-Cal.), quoted yesterday in Maureen Dowd's column. Feinstein (above right) was among the precious few high-ranking politicians who cut a television ad against Proposition 8, the ballot initiative that aimed to limit marriage in California to opposite-sex couples. (Prior posts here and here.)
Prop 8 passed by a margin of 52.1% to 47.9%. But it remains to be seen whether it will take effect. The California Supreme Court (below) has agreed by this order to hear petitions contending that the simple-majority-rules initiative process cannot be used to take a fundamental right like marriage away from a group that the Court has declared a suspect class -- as the Court did for same-sex couples in In re Marriage Cases (May 2008) (prior post). Invoking the Equal Protection Clause, petitioners argue that the only way to effect such a deprivation is by the state's more cumbersome, super-majority-needed "revision" process.
Throughout the course of this new round of litigation, filings by litigants and the many amici curiae may be found here.

On November 24

On this day in ...

... 2003 (5 years ago today), a NewsHour reporter declared "the dawn of a new era" in Georgia, a day after 200 guardsman turned against the sitting President, who'd threatened to declare a state of emergency after election irregularities in the Caucasus state whose flag is at right. The events are known as the Rose Revolution. IntLawGrrls posts on more recent events in the country are here.

... 1898 (110 years ago today), diplomats and police officials from 21 European countries began the International Conference of Rome for the Social Defense Against Anarchists. The meeting ended a month later with a final protocol setting forth mechanisms for international law enforcement cooperation against anarchist organizations.

Sunday, November 23, 2008

Still married after all these proceedings

The other shoe has finally dropped: the Court of Appeals in Douai (France) has ruled that the couple whose marriage was annulled because the bride was not a virgin is still married. As you may recall, the young bride on her wedding night admitted she was not a virgin and was taken back to her parents by her displeased father-in-law and husband, who then won an annulment on the grounds that he had made a mistake as to the bride's "essential qualities." Initially Rachida Dati (left), the Minister of Justice who herself had had an early marriage annuled, defended the annulment as protecting the parties by avoiding divorce, as divorced Muslim women are frowned upon. While protecting the parties interests is indeed one of law's essential functions, many of us quibble with the lower court's acceptance of virginity as an essential bridal quality. The Court of Appeals agrees with us:
a lie that does not concern an essential quality is not a valid basis for annuling a marriage...This is particularly true when the alleged lie concerns the past love life of the future wife and her virginity, which is not an essential quality as its absence has no effect on married life.
I must confess this ruling did not surprise me, given all the hoopla. But I've just been teaching my Introduction to Law students about judicial independence and impartiality and equality before the law and realize that aside from any hoopla or disagreement as to whether or not virginity is an essential bridal quality, there is an issue of equality before the law buried in this case: what non-Muslim couple would be allowed to annul their marriage on such grounds? Indeed, the report of the appellate judgment, unlike reports of the annulment, indicates not that both parties requested the annulment, but that the "roughly 20-year-old" bride only gave in to her "roughly 30-year-old" husband's request for fear of a long, drawn out legal proceeding. Were divorce as easy (ie lawyer/judge-free) in France as it is elsewhere, the bride's interests would have been much better protected than Dati thought they were by annulment on retrograde grounds. As it is, the girl who feared long proceedings is now apparently going to sue for atteinte à la dignité (damage to her dignity).

On November 23

On this day in ...
... 1978 (30 years ago today), the Commission for Racial Equality, a nongovernmental body formed in Britain 2 years earlier by the Race Relations Act, issued its 1st non-discrimination notice, ordering a popular Birmingham nightclub "to open its doors to black and Chinese people." The order culminated a yearlong investigation prompted by 2 complaints. In 2007, the commission merged with 2 other rights groups to become the Equality and Human Rights Commission.
... 1981, President Ronald Reagan signed National Security Decision Directive 17, which authorized the Central Intelligence Agency to conduct "'paramilitary'" operations "'against Cuban presence and Cuban-Sandinista support infrastructure in Nicaragua and elsewhere in Central America.'" NSDD-17, a facsimile of which is available here, launched U.S. support of Contra rebels.

Saturday, November 22, 2008

JCE before the ECCC

As we’ve blogged before, the August 8, 2008 Closing Order (Indictment) filed before the Extraordinary Chambers in the Courts of Cambodia (ECCC) (its first) with respect to defendant Duch. Duch, who ran the detention, interrogation and execution camp S-21, a.k.a. Tuol Sleng (above) (photo credit), has been indicted for crimes against humanity (imprisonment, enslavement, torture, rape, murder, extermination, persecution, other inhumane acts) and war crimes (unlawful confinement, depriving rights to a fair trial, wilfully causing great suffering, torture and inhumane treatment, willful killing). In terms of the applicable forms of responsibility, Duch (left) is alleged to have committed, ordered, planned, instigated, aided, and abetted the crimes in question. In addition, he has been indicted under the doctrine of superior responsibility by virtue of the fact that he exercised effective command and control over the staff of S-21. The Closing Order limits his “commission” of crimes to those incidents in which Duch “personally tortured or mistreated detainees.”

The Co-Prosecutors have appealed the Closing Order, arguing inter alia that Duch should also have been indicted for his participation in crimes pursuant to a joint criminal enterprise (JCE). The ECCC Law does not specifically mention the availability of JCE as a form of commission, but the International Criminal Tribunal for Yugoslavia (ICTY) in the landmark Tadić decision treated JCE as a prosecutable form of “commission,” even though its Statute is also silent as to this form of responsibility and excludes conspiracy except with respect to the crime of genocide (in keeping with Article III of the Genocide Convention).

The ECCC invited Professor Antonio Cassese (left), among others, to submit an amicus curiae brief focused on the availability of the doctrine of JCE before the ECCC, with a particular emphasis on its applicability during the Khmer Rouge era. Incidentally, another defendant, Ieng Sary (below left), moved to disqualify the brief on the ground that it would be “result determinative” given that Cassese served on the appellate panel of the International Criminal Tribunal for the former Yugoslavia that rendered the Tadić opinion. The Pre-Trial Chamber rejected the disqualification challenge for lack of standing.
As Sary prophesied, the brief, which was filed on October 27, 2008, largely tracks the ICTY’s reasoning in the Tadić case. In particular, it identifies a collection of cases from the post-World War II prosecutions that were based on theories of common purpose or design and argues that these doctrines had crystallized into customary international criminal law prior to 1975. In addition, the brief argues that JCE liability would have been sufficiently established and assessable in domestic legislation and case law (including from France and Cambodia) to provide adequate notice to the accused in keeping with the principle of nullum crimen sine lege (no crime without law).

JCE is traditionally conceived of as encompassing three overlapping forms.
► The first (“basic”) mode provides for liability where an individual intentionally acts collectively with others to commit international crimes pursuant to a common plan.
► The second (“systemic”) form provides for liability for individuals who contribute to the maintenance or essential functions of a criminal institution or system, such as a concentration or detention camp.
► The third, and most controversial form, provides for extended liability, not only for crimes intentionally committed pursuant to the common design, but also for crimes that were the natural and foreseeable consequence of implementing the common design.
The theory with this latter form is that participants in the JCE willingly took the risk of the commission of additional non-intentional but foreseeable crimes.

Most relevant to S-21, of course, is the second JCE form. Under this form, Duch could be held liable not only for crimes he personally committed or ordered, but also for crimes that were committed throughout S-21 pursuant to the prison’s criminal mission. (Photo at right is a display from S-21, now a museum, showing dozens of the thousands of people who passed through the prison. More photos are available here). The punishment accorded to the defendant can be modulated at the sentencing phase to reflect the precise degree of an individual’s involvement in, and thus culpability for, the crimes of the JCE.

It is not clear how many crimes might escape prosecution in the absence of JCE allegations in the indictment.
► As chairman of S-21, Duch can be held responsible for any crimes committed by his subordinates when he knew, or should have known, about such crimes and failed to take adequate steps to prevent or punish them.
► He can also be held directly liable for ordering or planning crimes, or for otherwise aiding or abetting them through the knowing or intentional provision of substantial assistance to the direct perpetrator.
The only crimes that seem to fall through the cracks without JCE liability are crimes committed by non-subordinates (individuals over whom Duch did not exercise effective command or control), crimes of which he was not aware and could not have reasonably been aware, or crimes that he did not order, plan, or substantially assist.

The third, extended, form of JCE could also be utilized to hold Duch responsibility for crimes (such as rape and other forms of sexual violence) that he did not order, did not intend to be committed, or did not know had been committed, but were nonetheless foreseeable given the abject conditions of detention prevailing at S-21.

Given the volumes of direct evidence against Duch, including his own partial confessions and admissions as detailed in the Closing Order, he is unlikely to escape responsibility entirely. Nonetheless, the Co-Prosecutors are no doubt looking to the future to ensure that JCE liability is available for other defendants in the dock who were likely very far from the commission of crimes, but nonetheless could be alleged to have participated in, indeed launched, a vast JCE to establish a utopian agrarian state, through violence where necessary, and to rid Cambodia of enemies of the revolution.

Write On! ECHR @ Copenhagen

(Write On! is an occasional item about notable calls for papers.) Next year will be the 50th anniversary of an institution whose reach and influence extend far beyond the region it serves. It's the European Court of Human Rights, which hears cases, arising from the 47 member states of the Council of Europe, that invoke the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms.
The University of Copenhagen Law Faculty's Center for European Constitutionalization will mark this milestone with a symposium entitled A Unique European Institution: The European Court of Human Rights after 50 Years, to be held March 21-22, 2009, in the city center of Denmark's capital. Planned speakers include Dr. Luzius Wildhaber, the European Court's former President; Dr. Rachel A. Cichowski, University of Washington, Seattle; Dr. Stéphanie Hennette-Vauchez, European University Institute, Florence, Italy.
To supplement their presentations, papers are sought, from junior and senior scholars alike, on topics such as:
► Law, politics, and the genesis of the European Court
► The political challenge of the European Court
► The institutional orientation of the European Court
► The European Court in society
► The European Court and the European human rights space
► The European Court and the global human rights regime
Abstracts should be submitted no later than December 20, 2008, to; selections will be made the following month of papers to be presented and, it is planned, published. Details here.

On November 22

On this day in ...

... 1963 (45 years ago today), President John F. Kennedy died after he was shot by a sniper while riding in a convertible, part of a motorcade parade through the streets of Dallas, Texas. Vice President Lyndon Baines Johnson was sworn in to succeed Kennedy, who was 46 years old at the time of his assassination. (credit for photo of motorcade, with the President and 1st Lady Jacqueline Kennedy in back, before shooting)

... 1906, in Berlin, Germany, the International Radio Telegraphic Convention adopted SOS as the global distress signal. In Morse Code, the communications system most in use at the time, the letters are heard as dot-dot-dot dash-dash-dash dot-dot-dot.

Friday, November 21, 2008

Xenophobia Rising?

The economy, of course, is on everyone's minds these days, and when asked how it's likely to affect my field -- immigration -- I think of the obvious: fewer jobs, fewer remittances to send home, and eventually, fewer immigrants, particularly the low-skilled and undocumented. But here's a grimmer possible outcome: increased xenophobia and violence against immigrants. We've seen it before, from Marseilles to Johannesburg -- when unemployment rises, so does anti-immigrant sentiment, which quickly turns to violence against those whom even the police often don't protect. Indeed, we see politicians exploiting racial hatreds in order to get elected, and local officials at best turning a blind eye to abuse of migrants, and at worst, participating in the violence.
This concern may underlie yesterday's press release in which the UN Independent Expert on minority issues, Gay McDougall (right), and the UN Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related forms of intolerance, Githu Muigai (left), expressed "grave concern" over the recent increase in violence against Roma in Europe. The Roma, who migrated to Europe from India in the 11th century, have continually suffered extreme discrimination by state actors, from genocide at the hands of the Nazis to recent reports of coercive sterilization by the Czech government and police brutality in Greece and Romania. In McDougall's words, “Extremists may feel they have license for their attacks when the message they receive from government activities in other spheres is also that the Roma are a problem.”
So what does this all have to do with immigration? While Roma may be citizens of the country in which they reside, their nomadic lifestyle may lead them to cross borders without authorization. Even in states where they are citizens, Roma may face numerous obstacles to obtaining residency documents including exclusion as the "other". This lack of regularized legal status combined with government neglect or hostility is an explosive combination that may lead to severe violence, such as the incident in the Czech Republic that prompted the UN experts' press release, in which far-right extremists attempted to attack a Roma community with stones and petrol bombs. As the world economy faces perilous times, we must be particularly vigilant in ensuring that financial woes aren't translated into increased assaults against migrant communities. As McDougall suggests:

Governments must strongly condemn such actions. Moreover they must be committed to finding ways to create safe environments for all by carefully monitoring and strengthening their own anti-racism activities, through leadership and public education, by swiftly denouncing hate speech and prosecuting the racist and violent actions of others in society.

'Nuff said.

On November 21

On this day in ...
... 1898 (110 years ago today), radium was discovered by Marie Sklodowska Curie and her husband Pierre Curie. It was 1 of 2 elements the couple isolated that year; the other was polonium. Together the discoveries of la radioactivité -- the word she coined the same year -- brought the world a step closer to the nuclear age. Born in Warsaw on November 7, 1867, Marie Curie (left) would become the 1st woman professor at the Collège de France, the Paris institution of higher education founded in 1530. She's the only woman ever to have won 2 Nobel Prizes, Physics in 1903 for and in Chemistry in 1911. (As we've posted, the 1st depended on her husband's intervention.) She died in Savoy, France, in 1934. (photo credit)
... 2004, having met for 5 days, the "informal group of official creditors" known as the Club de Paris/Paris Club agreed to a 3-phase reduction, by 80%, of Iraq's external debt, a move that amounted to tens of billions of dollars of debt relief.

Thursday, November 20, 2008

Blueprint to bring human rights home

Soon after the election, IntLawGrrl Connie de la Vega posted a moving call for the United States to reaffirm the commitment it made 60 years ago by endorsing the Universal Declaration of Human Rights.
Just before the election, the American Constitution Society released a road map on how America might do just that.
In 33 pages, Human Rights at Home: A Domestic Policy Blueprint for the New Administration traces the history of the U.S. commitment and recent shortcomings evident in, for example, the mistreatment of persons detained in the wake of 9/11 and in the failure to protect its own nationals in the wake of Hurricane Katrina. (It's a litany not unlike that which I set forth in this essay, published earlier this year.) The ACS report, written by our colleague Catherine Powell (right) of Fordham Law School, then recommends ways that the new President could set the United States back on a human rights path. A few examples:
► Issue an Executive Order (proposed text at Appendix B) reconstituting the Interagency Working Group on Human Rights, 1st established in 1998, as a means to coordinate federal governmental "promotion and respect of human rights and the implementation of human rights obligations in U.S. domestic policy";
► "Seize opportunities" to act soon to reaffirm obligations the United States already has shouldered by continuing reporting dialogue respecting the International Convention on the Elimination of All Forms of Racial Discrimination (subject of an IntLawGrrls series);
► Establish 2 types of human rights bodies, the 1st the Interagency Working Group, which would implement human rights domestically, and the 2d, a new, nonpartisan, independent body that would monitor compliance with human rights laws; and
► Support ratification of human rights treaties, with all necessary implementing legislation, such as, to cite a few examples, the Convention on the Rights of the Child, the Convention on the Elimination of All Forms of Discrimination Against Women, the Convention on the Rights of Persons with Disabilities (also the subject of an IntLawGrrls series), the American Convention on Human Rights, the International Convention for the Protection of All Persons from Enforced Disappearance, and the International Covenant on Economic, Social and Cultural Rights.
I'm proud to have served on the Blueprint Advisory Board along with a host of other academics, NGO representatives, and former government officials, all named in Appendix A.
Looking forward now to seeing some of those recommendations take root here at home.