Wednesday, December 31, 2008

Iraq on the couch

Iraq on the SOFA, is more like it.
SOFA, of course, is the acronym for Status of Forces Agreement, the generic term for a pact concluded between a country wishing to send its troops to a foreign land and a country that’s willing to receive foreign troops.
Governments in the United States and Iraq are about to implement a pact designed to define relations between the 2 countries for the next 3 years. Media have referred to the pact as a SOFA, and the text available here does include the expected provisions; for example, one setting forth which country has primary jurisdiction over which persons in the event a criminal case arises. (Private contractors are destined to lose immunity from Iraqi jurisdiction.) This pact is more than an ordinary SOFA, however, as its full name belies:
Agreement Between the United States of America and the Republic of Iraq On the Withdrawal of United States Forces from Iraq and the Organizations of Their Activities during Their Temporary Presence in Iraq.
Indeed, it is Article 24, “Withdrawal of the United States Forces from Iraq,” that provokes perhaps the widest interest. Article 24 specifies that U.S. forces -- which invaded Iraq, leading a “coalition of the willing,” in March 2003 – “shall withdraw from all Iraqi territory no later than December 31, 2011.” Withdrawal from parts of the country is to occur much sooner:
All United States combat forces shall withdraw from Iraqi cities, villages, and localities no later than the time at which Iraqi Security Forces assume full responsibility for security in an Iraqi province, provided that such withdrawal is completed no later than June 30, 2009.
On November 17, the 2 states’ executive officers subscribed to this speedy timetable, along with the rest of the pact. There is a proviso, however; each state’s government must secure domestic approval.
In the United States, criticism has been muted (though not entirely absent; Tom Hayden colorfully called the pact Frankenstein in Mesopotamia). The Administration of President George W. Bush managed to quell debate by resort to a “sole executive agreement” – a pact that the President concludes with another country and without having to secure the approval of Congress. (Our colleague Frederic L. Kirgis has posted a most helpful international-agreements primer here.) But that decision in itself drew criticism. Indeed, law professors Oona Hathaway (right) and Bruce Ackerman have argued here and here that the Constitution requires Congress’ input for this kind of pact – either the OK of both Houses or the advice and consent of 2/3 of the Senate. Hathaway reiterated her objections at the Northern California International Law Scholars’ roundtable earlier this month. Pointing in particular to the pact's abrogation of contractor immunity, she maintained that if U.S. officials had negotiated the pact with the knowledge that they would have to “sell it to Congress,” the result would have been better. In her view, the lack of any need to get an OK at home “made them weaker, not stronger.”
In Iraq, debate was both more widespread and more heated. Last month “tens of thousands” of Iraqi protesters marched to the Baghdad square where, years earlier, another crowd famously toppled statue of Saddam Hussein. There, “to denounce” the pact, they “dragged down … an effigy of President Bush.” “A fistfight broke out in Iraq's parliament,” NPR reported. Soon, however, Iraq legislators approved the pact, by a vote of 149 to 35, with 14 members abstaining and another 77 absent for the vote. Iraq completed its internal adoption process on December 4, when the 3-member Presidential Council approved the pact.
Along with a similar resolution pertaining to British and other non-U.S. troops, the pact thus takes effect tomorrow, New Year’s Day.
The U.N. mandate authorizing foreign troop presence expires, like this year, at midnight.

(With thanks to California-Davis law student Veronica Capron, whose research interest in this pact piqued my own)

On December 31

On this day in ...

... 1963 (45 years ago today), a 10-year-old entity (left) formed by British initiative, the Central African Federation, officially dissolved into 3 units. What had been Northern Rhodesia become independent Malawi; Nyasaland, Zambia. The remaining territory, "Southern Rhodesia[,] refused to hand political control over to its African majority"; it would not become independent Zimbabwe until 1980.

... 1930, Odetta Holmes was born in Birmingham, Alabama. At age 10, not long after she and her family had moved to Los Angeles, the girl's talent for singing was discovered. At age 19 she performed in the chorus of Finian's Rainbow, and while supporting herself through housecleaning, she pursued a career as an entertainer. Eventually Odetta would be known as the mother of folk music and a queen of the blues. She also was active in the U.S. civil rights movement, marching with the Rev. Dr. Martin Luther King, Jr. at Selma, Alabama, and singing at the 1963 March on Washington (above right) where King gave his renowned "I Have a Dream" speech (prior posts here and here). Odetta passed away at the beginning of this month, a few weeks shy of her 78th birthday. In the video clip below, Odetta delivers a powerful rendition of an old prison work song, Water Boy.

Tuesday, December 30, 2008

... and counting ...

(Occasional sobering thoughts.) It is hard these days to know where to count:
► Headlines report that the death toll in Gaza has surpassed 350 children, women, and men since Israeli air strikes began on Monday.
► In a state we've discussed as a 3d front in the U.S. campaign against terrorism, a Taliban attack left "[m]ore than 30 people ... killed and more than two dozen wounded" in Pakistan Sunday, as voters waited to cast ballots in a legislative election in Sharibandi, in the northwest of the country. As might be expected from an attack on a school, some of these victims also were children.
► At a Catholic church in eastern Congo near the Sudan border, 189 persons, mostly children and women, were massacred the day after Christmas, in an attack that U.N. officials have blamed on the Lords Resistance Army.
► South of the U.S. border, 6,836 children, women, and men have died since Mexico's declaration in 2007 of a war on drugs in the country. The Los Angeles Times notes,
That's more than the U.S. fatalities in the Iraq war.

Despite this tragic competition, "...and counting..." will keep to its original task: as best as possible, keeping count of the civilian and servicemember casualties in Iraq and Afghanistan. These are, of course, the 2 theaters of combat in this U.S. troops are directly engaged. The 1st is 1 from which President-Elect Barack Obama repeatedly has pledged to disengage by means of U.S. troop withdrawal. This may occur, however, as military commitments in the 2d increase, as stories like this one indicate. It's a prospect that this IntLawGrrl hopes is undertaken with the height of caution.
With those thoughts in mind, here is the count in the 6 weeks since our last post:
Iraq Body Count reports that between 90,147 and 98,412 Iraqi women, children, and men have died in the conflict in Iraq since the U.S.-led invasion in March 2003, representing an increase of between 1,200 and 1,327 deaths in the last 6 weeks. According to the U.S. Defense Department, 4,219 American servicemembers have been killed in Iraq. Total coalition fatalities: 4,535 persons. That's 26 servicemember deaths in the last 6 weeks, all but 2 of them Americans.
As for the conflict in Afghanistan, military casualties in Afghanistan stand at 630 Americans and 412 other coalition servicemembers. That's an increase of 4 and 31, respectively, in the last 6 weeks, and a total servicemember casualty count 1,042. As for civilians and nonmilitary personnel, numbers are harder to come by. The New York Times reports:
A day after a suicide bomber killed at least 16 people, including 13 schoolchildren, in a region bordering Pakistan, a new rash of bombings shook different areas of Afghanistan on Monday, killing two civilians north of Kabul and two more in Kandahar Province.

That news comes fast upon other headlines that give little comfort:
Violence against Afghan children rising, U.N. says
UN chief in Afghanistan: Protect civilians
Now there's a thought.

On December 30

On this day in ...
... 1891, the United States' 1st electric car, dubbed the Electrobat, appeared. The 1st version was heavy and slow, but later models, like that at left, were lighter and able to go as fast as 20 mph. As all know, electric cars soon gave way to those powered by gas engines. Given the financial, environmental, and geopolitical problems associated with oil extraction, perhaps this story is about to come full circle.
... 1919, Lincoln's Inn (coat of arms at right), 1 of London's 4 ancient lawyers' societies known as the Inns of Court, admitted its 1st woman bar student.

Monday, December 29, 2008

Scholars state detention changes

Seems everyone has notions these days about how to close the detention camp for terrorist suspects that the Bush Administration opened on January 11, 2002. Some are included in a report by a coalition of more than 20 organizations, entitled Liberty and Security: Recommendations for the Next Administration and Congress. IntLawGrrls’ own Fiona de Londras, in an excellent post, recently offered hers. I’ve my own, too, and will post them in due course. They begin with a pre-eminent concern, on which I posted more than a year ago. In closing Guantánamo as he has promised to do, the new President also must close “Guantánamo” – the abusive policies of detention, interrogation, and rendition now given that metaphoric label even if in point of fact they occur far away from the 45 square miles that comprise the U.S. naval base at Guantánamo Bay. (12/08 photo of Camp Justice, Guantánamo Bay, Cuba, by Diane Marie Amann)
Today’s post is intended to point readers to the Scholars’ Statement of Principles for the New President on U.S. Detention Policy: An Agenda for Change. Drafted by our colleague Catherine Powell, also author of a human rights Blueprint on which we’ve posted, and signed by more than 2 dozen other scholars, among them yours truly, IntLawGrrl Jenny Martinez, and our colleagues Fionnuala Ní Aoláin, Sarah H. Cleveland, Deborah Pearlstein, Hope Metcalf, Martha Minow, Judith Resnik, Margaret L. Satterthwaite, and Ruti Teitel. The Statement begins with an explication of how “the existing detention system,” -- “viewed as unprincipled, unreliable, and illegitimate” -- “undermines our national security.” It then sets forth 4 principles on which any new policy ought to be based:
► Observe the rule of law
► Liberty is the norm
► Individualized process
► Transparency
Then follows a host of recommendations for the new administration. As one would expect, it calls on the President to “Close Guantánamo” – to close it in the broader sense. Detainees who can be released are to be released; those should be prosecuted are to be transferred to the United States for prosecution before “established U.S. courts,” and not the military commissions. The Statement urges the Administration to attend to U.S. detention at other sites, “primarily in Iraq and Afghanistan.” It calls for an end to extraordinary rendition, and it admits no tolerance for abuse during detention or interrogation.
In short, the Statement's a document essential to thorough consideration of what to do to undo post-9/11 detention policies.

On December 29

On this day in ...
... 1998 (10 years ago today), an uneasy truce continued to hold in Kosovo, amid warnings that fighting between Serbian forces and the Kosovo Liberation Army could resume if international ceasefire monitors withdrew.
... 1815, Sawtche, a Khoikhoi woman born around 1789 in what is now South Africa, died in Paris, France. As a slave she'd also had the name Saartjie Baartman. Because the posterior part of her body seemed unusually large, she had became an "object of curiosity among white colonizers," who bestowed upon her the ignominious nickname "Hottentot Venus." She was taken to Europe in 1810. "After having been immodestly 'studied' by naturalists from the Muséum national d'histoire naturelle," recounts the caption to this French caricature, she died "in the most severe misery." At her death she was 25 years old, and had turned to prostitution when "scientific" interest in her waned. In 2002 her remains were returned to Cape Town; in the words of this article:
... Sarah Baartman is home, and has finally had her dignity restored by being buried where she belongs -- far away from where her race and gender were so cruelly exploited.

IntLawGrrls' guest/alumna Judith Weingarten's Zenobia blog post on Sawtche may be found here. The above poster is from Venus, a play about this woman, by Suzan-Lori Parks (right).

Sunday, December 28, 2008

Guest Blogger: Lisa Laplante

It's IntLawGrrls' great pleasure today to welcome guest blogger Lisa Laplante (right).
A Visiting Assistant Professor at Marquette University Law School in Milwaukee, Wisconsin, Lisa's worked in human rights for more than a decade, with institutions such as Human Rights Watch, the International Institute of Human Right in Costa Rica, and the Center for International Justice and Law. She also won a Furman Fellowship at Human Rights First.
Lisa's field experience began as a researcher with the Peruvian Truth and Reconciliation Commission, about whose work she writes in her guest post below. It discusses her article entitled "The Law of Remedies and the Clean Hands Doctrine: Exclusionary Reparation Policies in Peru's Political Transition," recently published by the American University International Law Review. As indicated by her many publications on the subject, Lisa's work in Peru continued for several years; for example, as legal advisor for victims groups litigating before the Inter-American human rights system and as co-founder and deputy director of Praxis Institute for Social Justice.
Lisa holds a J.D. from New York University School of Law, where she was a Root-Tilden-Kern Public Interest Scholar, a master's degree in education from the University of Massachusetts-Amherst, and a B.A. from Brown University with a concentration in Public Policy and Education.

Heartfelt welcome!

Reparations for "terrorists"?

(In this guest post, Lisa Laplante discusses her recent article examining whether the award of reparations victims of human rights violations turns on the status of those victims.)

Should victims of human rights violations with alleged or certain ties to groups that use terrorism receive reparations? This complex and sensitive dilemma has begun to arise in countries implementing reparation programs pursuant to the recommendations of their truth and reconciliations commissions.
Reparations law has special relevance to the transitional justice paradigm, as countries seek to respond to widespread human rights abuses — situations in which the line between victim and perpetrator often blurs. New case studies reveal the serious challenges of implementing administrative plans of reparations that first require that recipients be qualified. While some issues are purely technical and logistical, others — those that hold potential to generate new forms of harm and even new rights violations — beg further discussion and clarification. Certainly, as the recognition of the right to reparation grows, so do the legal issues pertaining to its practical application. In the realm of international human rights law, new cases offer opportunities to continue defining the parameters of this right, as noted in an ever-growing jurisprudence with respect to remedies law. Such is the case with equity's Clean Hands Doctrine, which dictates that an injured party's wrongdoing may limit his or her claim to reparations. When applied in cases in which victims of human rights violations seek relief, however, this doctrine conflicts directly with the well-established legal principle of nondiscrimination.
Should a person's innocence or guilt factor into whether he or she deserves to be repaired?
In answering this question, it is important to ask some others:
► What actions, allegiances and beliefs constitute a basis for exclusion, as well as what the standard is for determining wrongdoing-such as a firm criminal conviction or mere allegations?
► What if a person suffered torture, rape, unjust imprisonment and perhaps even was disappeared or killed, but was alleged to have connections to "subversive" and "terrorist" organizations, sometimes called "illegally armed groups"?
► Who determines whether such a person qualifies as a victim with a right to reparations?
There is only limited and inconsistent jurisprudence on the Clean Hands Doctrine in international law. In this article I argue that, in relation to human rights law, the Clean Hands Doctrine does not and should not apply. The very nature and purpose of human rights protections and guarantees protect against as much state abuse and domination as against state negligence. Thus, a state’s failure to observe international norms should result in the victim received a remedy for harm suffered regardless of the status of the victim. A contrary standard would read that, but for the wrongful conduct of the person, he or she would not be subject to state control, and thus would not have suffered harm. In other words, a person who committed a wrong would lose the protections enjoyed by “non-delinquents.” This would create a two-class tier of rights holders.
Given that the overarching purpose of human rights protection is to curb state abuse, one could argue that carving out exceptions where human rights violations have no consequences presents a worrisome precedent. Arguably, this approach has been assumed by the organs of the inter-American system, including the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights (below left). Although neither of these international human rights bodies has ruled directly on the issue, decisions issued by each suggest that neither body considers the character or status of the victim as a factor relevant to the determination of reparations. In effect, this reading supports the general rejection of the Clean Hands Doctrine in relation to reparations for human rights violations.
Nonetheless, states that have confronted politically divisive transitions from repressive regimes and internal armed conflict have not necessarily assumed this general rejection of the Clean Hands Doctrine.
For example, a transitional justice project was launched in 2001 by Peru's Truth and Reconciliation Commission (above right). (photo credit) Formed in the wake of twenty years of internal armed conflict between the state and illegally armed groups, the Commission presented its Final Report in 2003, and included recommendations for a Plan Integral de Reparaciones (Integral Plan of Reparations), which adopts a partial rejection of the Clean Hands Doctrine. Yet, as the Peruvian government now attempts to implement this Plan, it confronts the controversial and divisive issues related to how it can, and must, approach victims of state abuse who allegedly have, or had, ties to illegally armed groups. Due to political pressure, the national legal norms codifying the Plan include exclusionary clauses that reflect a full adoption of the Clean Hands Doctrine.
Peru's policy has generated much tension with respect to the implementation of the law. The situation grew more contentious when the inter-American system ordered reparations for survivors/victims of a massacre that occurred in 1992, during a state lockdown of a prison in which persons were held on suspicion of terrorist activity (many had not been convicted). This case, Miguel Castro Castro Prison v. Peru (2006), threatened to unravel the implementation of domestic reparations.
Local rejections of equitable reparations present serious political challenges for emerging democracies as they attempt to build the rule of law and respect for human rights.

On December 28

On this day in ...

... 1973 (35 years ago today), U.S. President Richard M. Nixon signed into law the Endangered Species Act. It lists 2 categories of protected species, "threatened" and "endangered," and empowered 2 agencies, the Fish and Wildlife Service (logo at right) and the National Oceanic and Atmospheric Administration Fisheries Service (NOAA), to implement protections. "In July of 2008, there were a total of 1,238 threatened or endangered animals protected under the act; and a total of 747 threatened or endangered plants protected under the act."

... 1522, a daughter, Margaret, was born out of wedlock to Charles V, then the Holy Roman Emperor, and Johanna Maria von der Gheest, a servant of a Flemish nobleman. Raised by aunts who were governors of the Netherlands, Margaret (left) -- known as Margaret of Austria, Duchess of Parma, Regent of the Netherlands -- governed the Netherlands in the name of her brother until her resignation in 1567. The Roman Catholic regent's rule was marked by erratic treatment of heretics.

Saturday, December 27, 2008

Information Technology and Human Rights

The Purposes of the United Nations are:…To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion….
--Article 1(3), Charter of the United Nations

(1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
(2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
--Article 27, Universal Declaration of Human Rights

One thing is clear. The “solutions” to the current global economic crisis (and the longstanding poverty crisis that affects most of the world) will not originate exclusively from the top down, nor will they flow solely from Global North to Global South. (Photo Credit, above left: African Recovery.)
Local, indigenous, transnational, traditional, and contemporary forms of knowledge--all must be deployed to address the global mess we find ourselves in. Concerns about the environment, jobs and living wages, food and water distribution, and an end to discrimination and violence will not be solved by self-appointed experts without the wisdom of farmers, social scientists, health care workers, midwives, historians, entrepreneurs, economists, and traditional storytellers.
Appropriate and sustainable technology (including information technology) will be a crucial tool in this massive problem-solving exchange The need for a transnational approach to global problems is not a new concept. It was even enshrined in the 1945 Charter of the United Nations and the 1948 Universal Declaration of Human Rights. (See also a 1993 UN University report on The Impact of Technology on Human Rights: Global Case-Studies.)
Many NGOs have, of course, used the internet successfully to raise awareness cross-culturally about everything from violence against women to “globalization from below.” Increasingly, governments, foundations, universities, and even multinational businesses are also said to be using information technology in furtherance of human rights or other social justice goals. Some efforts involve developing or transferring new media technologies to places where they were not previously available. Others involve the use of technology to share traditional knowledge or otherwise enhance cross-cultural dialogue through open software and low-cost hardware platforms.
Such interdisciplinary initiatives are being explored under various umbrellas: “social entrepreneurship,” human rights and business, economic development, as well as in trade and intellectual property debates.

Recent efforts include the following:
The Association for Progressive Communications (APC), which describes itself as
a global network of civil society organisations whose mission is to empower and support organisations, social movements and individuals in and through the use of information and communication technologies.
APC also publishes an annual report titled Global Information Society Watch
The Feminist Technology Exchange: A workshop on women and technology organized by the Women’s Network Support Program of the APC prior to the 2008 Association of Women’s Human Rights in Development meeting in South Africa;
One Laptop Per Child: a non-profit aimed at providing low-cost laptops to poor children.

It remains to be seen how the various information technology initiatives will result in sustained progressive change, given the range of actors involved and their disparate interests. There are dangers as well as opportunities in any such new venture. (For a discussion of the harmful effects of top-down globalization on local traditions and knowledge, see interview with Vandana Shiva, an Indian physicist, environmentalist, and activist.)

Human rights concerns about the rapid growth and pervasive use of information technology include internet privacy, government monitoring or censorship, industry or governmental capture, exploitation or theft of traditional knowledge, and inequitable access for marginalized groups such as minorities, women and girls (UNESCO press release linked here), and people with disabilities (see previous posts here and here).

But a human rights approach that centers the benefits of creativity, ownership, and control among the people most affected and the special measures necessary to counteract discrimination in educational and training access are indispensable criteria for measuring future success. That success will also be measured by the increasing presence and respect for voices from the Global South in solving the problems that affect all of us. (Photo credit above right, UNESCO.)

A poem for Rita Maran on her 80th birthday

(It's the 80th birthday of Dr. Rita Maran (center at right), the University of California, Berkeley, lecturer who aptly described herself in a June 2008 manual, Human Rights for the University Classroom, as "lecturer, author, activist in International Human Rights." Active in the United Nations Association-USA, author of Torture: The Role of Ideology in the French-Algerian War (1989), and a founding member of the Board of Directors of Human Rights Advocates, she's a friend and mentor to many. So here's a birthday party poem for Rita, by Naomi Roht-Arriaza, and also from Connie, Michelle, Diane, and all Rita's IntLawGrrls friends).

We've gathered here to celebrate
Your years of living well
To toast and dance, twist and gyrate
To say we think you're swell

You've worked out how to have it all
You're quite a fine role model
Your engines never seem to stall
We toast you by the bottle

The secret to long life, you've said
Is never to be bored
Keep new thoughts running through your head
And a goal you're working toward

A published author, Ph.D.
On torture in Algeria
On human rights we all agree
Your writings are superia

You don't stop there as monthly
You assemble us for dinner
To strike a blow 'gainst rights abuse
But we don't get any thinner

Your UNA work's quite a task
Fighting the latest menace
Yet with all you do there, we all ask
How'd she find time for tennis?

You've seen a lot, been everywhere
From Bosnia to Jakarta
Done missions that could raise the hair
But they've only made you smarta

At Int'l Law Grrls we agree
In the field you're a pioneer
A lifetime commitment is the key
A toast from the blogosphere!

Work On! Comparative law workshop

(Work On! is an occasional item about workshops, roundtables, and other fora for scholarship-presentation-without-publication) Papers on comparative law are being sought for presentation at the annual Comparative Law Works in Progress Workshop, to be held February 6 and 7, 2009, at Princeton University (logo below left) in New Jersey.
Organized by our colleagues Mathias Reimann, Jacqueline Ross, and Kim Lane Scheppele, the workshop presents an opportunity for comparative law scholars to engage in sustained and substantive discussion, by up to 20 comparative law scholars, of up to 6 scholarly projects. Cosponsors are the American Society of Comparative Law, University of Michigan Law School, University of Illinois College of Law, and Princeton’s Program in Law and Public Affairs.
Deadline for electronic submissions, to be sent to Professor Scheppele at next Wednesday, December 31, 2008. Details respecting requirements for submission and the workshop itself may be found by clicking on "Programs" here.

On December 27

On this day in ...

... 1703 (305 years ago today), in Lisbon, England and Portugal signed a commercial treaty that guaranteed that Portugal would accept English textiles and that port, Portugal's signature wine, could enter England at tariffs lower than those imposed on wines from France. Named after the British negotiator, this Methuen Treaty "played a major part in the development of the port wine industry."

... 2004, Viktor Yushchenko (below right), the opposition leader, was declared the winner of Presidential elections in Ukraine -- elections necessitated by the annulment of balloting the previous month that was declared fraudulent. Though heralded as the "Orange Revolution," Yushchenko's election has not brough prosperity to Ukraine, where "[e]conomic growth has slowed and prices have risen." (photo credit)

Friday, December 26, 2008

Boxing Days Future

Today is Boxing Day, a holiday traditionally celebrated in Commonwealth countries such as Australia, Canada, New Zealand, and the United Kingdom by giving cash or durable goods to "those less fortunate." It seems, then, an appropriate day to reflect on the effects of the current financial crisis on American foreign assistance spending. As we tighten our belts in response to the economic meltdown and in fear of an ongoing credit crunch, limiting aid to the developing world might seem a sensible step. However, Laurie Garrett, a Senior Fellow for Global Health at the Council on Foreign Relations, explains:

[I]n so doing Congress risks not only reversing all that has been achieved with U.S. tax dollars since 1990, but endangering the lives of millions of people. Furthermore, any backpedaling in U.S. support risks undermining disease surveillance and response capabilities, thereby directly threatening American security.

As we reel from news of Ponzi schemes and corporate implosions that impact the uber-rich to the working class here in the United States, it is all too easy to forget that the cost of a severe recession will be amplified in the developing world. In the words of Robert Zoellick, President of the World Bank:

While people in the developed world are focused on the financial crisis, many forget that a human crisis is rapidly unfolding in developing countries. It is pushing poor people to the brink of survival.

High food prices will push an estimated 44 million of the world's poorest people into malnutrition this year. Despite economic hardships in the United States, this is no time to turn our back on those who will suffer the most from the financial crisis. The Obama administration should do its utmost to ensure a strong commitment to foreign assistance, as further detailed by groups such as the Modernizing Foreign Assistance Network. Here's hoping that's what we'll see on Boxing Days future.

On December 26

On this day in ...
... 1928 (80 years ago today) , the Fleer Corp. 1st tested a "new gum, composed of natural ingredients," at a small candy store in Philadelphia. Dubble Bubble is a favored pink confection to this day.
... 1938 (70 years ago today), as World War II continued to rage, the 8th Conference of American States ended in Peru. The conference produced the Lima Declaration, in which Pan American countries set forth as principles

[t]hat the peoples of America have achieved spiritual unity through the similarity of their republican institutions, their unshakable will for peace, their profound sentiment of humanity and tolerance, and through their absolute adherence to the principles of international law, of the equal sovereignty of states and of individual liberty without religious or racial prejudices;
and then declared

[t]hat faithful to the above-mentioned principles and to their absolute sovereignty, they reaffirm their decision to maintain them and to defend against all foreign intervention or activity that may threaten them; ....

Thursday, December 25, 2008

Christmases past

This holiday season brings great hope for good change. Hopes are tempered, however by the reality of grave economic plight. Amid reports on plans for massive U.S. economic stimulus in the New Year, perhaps it will bring comfort to ponder seasons past, when government investment in America's cultural infrastructure, by means of the Works Progress Administration, helped bring joy to job-starved communities.
These images, both of WPA theater posters circa 1936-41, appear at IntLawGrrls courtesy of a favorite site, the American Memory Project of the Library of Congress. (credits here and here)

On December 25

On this day in ...
... 1998 (10 years ago today), Khieu Samphan and Nuon Chea, 2 former leaders of the Khmer Rouge regime that had reigned in terror over Cambodia 2 decades earlier, published letters asking to come out of hiding and return to society as "ordinary citizen[s]." At the time Prime Minister Hun Sen welcomed the request. But today both former leaders await trial before an internationalized criminal tribunal, as various IntLawGrrls have documented in our Khmer Rouge Accountability series.
... 2002, sports history was made when, her "blond hair cascad[ing] out of her helmet," "[h]er fingernails ... painted cherry red," Katie Hnida became the 1st woman to play Division I-A college football. Hnida tried in vain to kick an extra point for her team, the New Mexico Lobos, in a Las Vegas Bowl contest against the UCLA Bruins. She would succeed in a game the next year. Later Hnida (right) would reveal that while on her prior team, in Colorado, she had suffered sexual assault and sexual harassment. Earlier this year, she tried out for a minor league football team in Colorado.

Wednesday, December 24, 2008

Insight into ICC endeavor against aggression

With a year to go before the 1st review conference for the 1998 Rome Statute of the International Criminal Court, a panel is hard at work on one of the ICC’s knottier problems – how to render the crime of aggression an offense fully within the jurisdiction of the permanent international court.
Article 5 of the ICC Statute lists aggression – the foremost offense tried at Nuremberg, there given the more descriptive name “crimes against the peace” – as 1 of 4 crimes “within the jurisdiction of the Court.” But then it adds a caveat: no charge of aggression may be adjudicated until “a provision ... defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime.” Thus aggression is not a crime within the current prosecutorial quiver, a fact that sets it apart from the others listed in Article 5, genocide, crimes against humanity, and war crimes.
A Special Working Group is endeavoring to activate this jurisdiction following the 2010 Statute review conference. As explained in this ASIL Insight by Dr. Anja Seibert-Fohr (above left), head of the Minerva Research Group at the Max Planck Institute for Comparative Public Law and International Law, Heidelberg, Germany, the Working Group is nearing agreement on a definition of aggression, based on U.N. General Assembly Resolution 2625 (1970):

The current draft amendment takes a conservative approach, defining the crime of aggression as a ‘leadership crime’ which only applies to manifest violations of the UN Charter. Among the listed acts of aggression are: (1) the military invasion or attack of another State’s territory; (2) bombardment of such territory; (3) military blockage of foreign ports and coasts; and (4) attacks on land, sea and forces of another State.
Yet key aspects of this problem are still unresolved, among them:
► Whether jurisdiction over charges of aggression ought to depend on referral by the U.N. Security Council, as preferred by the only 2 ICC states parties that are also permanent Council members, or whether the Council’s role should be limited to blocking of undesired referrals;
► Whether to allow states parties an effective opt-out from the provision relating to aggression, thus permitting 2-tiered application of the ICC treaty; and
► The procedural mechanism for proper adoption of the new provision, a question that gives rise to another respecting the percentage of states parties that must agree.
Seibert-Fohr’s incisive essay concludes as do many respecting the role of international law in our contemporary world:

Whether the Conference will eventually adopt an amendment is still open and largely depends on political momentum.

On December 24

On this day in ...
... 1814, British and American representatives signed the Treaty of Ghent in the Belgium city of the same name. Thus ended the War of 1812, an event celebrated in the contemporary drawing at right. (credit) Diplomats had labored 4 months to negotiate the pact; the U.S. Senate would give its advice and consent in February 1815. For the most part the treaty restored U.S.-British relations to what they had been before the war began.
... 1989, Nicolae and Elena Ceausescu, the deposed President and 1st Lady of Romania, were "shot by a firing squad after a secret military tribunal found them both guilty of crimes against the state." Demonstrations erupted throughout the country, and about 100 persons died before unrest subsided.

Tuesday, December 23, 2008

Go On! Liberty & security amid global threats

(Go On! is an occasional item on events of interest) While many of us in the United States have sought to expose the devils in the details of post-9/11 policies, an esteemed Paris colleague has taken on the valuable task of drawing the big picture.
The work of Mireille Delmas-Marty (above), Professor of Comparative Legal Studies and the Internationalization of Law at the Collège de France (below lelft), 1st reminds us that there is a big picture – that contemporary issues of liberty and security, even when manifested at the national level, cannot be contained within the frame of law of any single nation-state. 2d, she illustrates the complex analysis – not only of national, regional, international, and supranational legal regimes, but also of social science disciplines – that must be undertaken in order properly to identify and understand the myriad concerns at stake in any moves to suppress liberty in the name of safety.
Delmas-Marty will refine this study in Libertés et sureté dans un monde dangereux (Liberty and Security in a Dangerous World), the public course she will deliver weekly this winter at the Collége. The description:

By a law enacted on February 25, 2008, France instituted a “retention of security,” which permits the state to continue to detain a prisoner who has completed his sentence for a year, a period that is renewable indefinitely by reason of “dangerousness.” The way for this measure having been prepared by a succession of laws on recidivism, this law thus established a rupture in the relation of guilt, responsibility, and sanction. It is a rupture that risks dehumanizing criminal justice.
How did this come about? The answer cannot be reduced to a discussion within France itself (that is, that the right wing is repressive, the left wing permissive). Keeping in mind the convergence of other systems, such as the European and international systems, we hypothesize an indirect effect from the attacks of September 11, 2001, which in symbolic and legal ways freed policymakers from the duty to respect the proper limits of the rule of law, and thus unleashed shock waves that rendered issues less controllable matters that previously had been confined to the domestic legal framework.
Besides its purely national aspects, the question in fact relates to the interdependencies that lie at the heart of law’s internationalization. Confronted by genuine threats to persons, states, and even the planet, the entanglement of national, European, and global normative spaces doubtless contributes to incertitude in response. Whether it is a matter of transformation of social control, of mutation in the rule of law, or in fluctuation in the global order, it favors all at once results and reactions to them, problems and the solution to problems.

Details on specific lectures here.
The course will lay the groundwork for a June 8, 2009, conference entitled Les politiques sécuritaires à la lumière de la doctrine pénale des 19ème et 20ème siècles (Security Policy in Light of 19th and 20th Century Criminal Law Jurisprudence), organized along with Professors Geneviève Giudicelli-Delage, Université de Paris 1 (Panthéon-Sorbonne), and Jean Louis Halpérin, École Normale Supérieure, Ulm.

'Nuff said

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

'I took a decision that led me to be kidnapped and there's no point crying about it. I was held captive for six years because I went along with a friend at a moment when I thought I could change the world. Would I do it again? Never.'
-- Clara Rojas (left), in a San Francisco Chronicle interview. Rojas once was a candidate for Vice President of Colombia, on a ticket with Presidential candidate Ingrid Betancourt (right); both were abducted by the Revolutionary Armed Forces of Colombia (FARC). Rojas spent 6 almost years as a hostage of the before her release to the Red Cross last January. (photo credit) Betancourt was freed by a commando raid half a year later.

On December 23

On this day in ...
... 1948 (60 years ago today), 7 former leaders of Japan were executed for war crimes by hanging at Sugamo prison (left) in Tokyo. The previous month the group, which included Generals Hideki Tojo and Kenji Doihara, had been convicted following a 2-1/2-year trial before the International Military Tribunal for the Far East. (photo credit)
... 1997, economic news was glum amid reports that Moody's Investors Services Inc., "one of the world's largest credit-rating agencies," had "downgraded the sovereign debt of South Korea, Indonesia and Thailand to 'junk' status." The move "seriously impair[ed] the countries' ability to raise the money needed to work through the region's wrenching downturn." Eventually the International Monetary Fund would step in, and economies seemed to be recovering 2 years later. (photo credit)

Monday, December 22, 2008

The Gravity of International Crimes

As we’ve discussed before (see here and here), one of the primary justifications for the international or extraterritorial prosecution of international crimes is that grave crimes should not go unpunished. The international criminal law tribunals are specifically charged in their founding documents with concentrating on the most serious crimes of international concern or upon high level defendants who are most responsible for the commission of international crimes. At several points within the Statute of the International Criminal Court (ICC, left), gravity operates as an express limitation on the Court’s jurisdiction and as a guide to the exercise of prosecutorial discretion. And yet, there is little in the Court’s Statute, Elements of Crimes, or other constitutive documents elucidating the quantitative or qualitative contours of this key concept.
An Appeals Chamber of the ICC has recently made public its first ruling on gravity and set forth a blueprint for determining when crimes are sufficiently grave to justify ICC jurisdiction. In so doing, the Appeals Chamber appropriately refocused this inquiry on qualitative rather than quantitative factors, ensuring flexibility in pursuing cases and enhancing the deterrent power of the Court. The ruling is significant not only within the context of the ICC, but also as a source of guidance for other international, hybrid, and national tribunals that must determine which international crimes deserve the exercise of extraordinary jurisdiction. As we’ve discussed before, this very question is of acute relevance before the Extraordinary Chambers in the Courts of Cambodia, which are now considering a disagreement between that tribunal’s Co-Prosecutors as to whether they should expand their investigations beyond the five high-ranking individuals already in custody.

The concept of gravity permeates the ICC Statute at several key points. According to Article 5(1), the “jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole.” The prosecutor’s decisions (1) to initiate an investigation into a situation and then (2) to commence a prosecution against a specific individual are premised in part on a determination of a case’s admissibility under Article 17. Article 17(1), in turn, invokes the concept of gravity and provides that a case will be considered inadmissible if it “is not of sufficient gravity to justify further action by the Court.” In addition, pursuant to Article 53, the prosecutor may decline to initiate either an investigation or prosecution where there are “substantial reasons to believe that an investigation would not serve the interests of justice,” taking into account the gravity of the crime and the interests of the victims. Decisions to decline to initiate either an investigation or a prosecution are subject to some oversight by the Pre-Trial Chamber. In the case of a referral from the Security Council or a State Party, the Pre-Trial Chamber can “request the Prosecutor to reconsider [his or her] decision” not to proceed if so requested by the source of the referral. A decision by the prosecutor not to proceed with an investigation or prosecution on the basis of the “interests of justice” (which includes a consideration of the crime’s gravity and the interests of victims) is “effective only if confirmed by the Pre-Trial Chamber.” On the basis of these provisions and prevailing interpretations thereof, gravity concerns are thus relevant before the ICC at two key moments: during the identification of potential situations to investigate and in the choice of particular cases (i.e., crimes or individuals) to investigate and prosecute.
Although crucial investigative decisions are premised upon an objective assessment of gravity, the Statute provides little in the way of concrete guidance about how to undertake this assessment. In his published criteria for the selection of cases and situations, the ICC Prosecutor (left) has indicated that in assessing gravity, he will focus in part on the number of victims of particularly serious crimes, with reference to the scale of the crimes and the degree of systematicity in their commission. At the same time, he indicated that other more qualitative factors would also be relevant, such as whether the crimes are planned, cause “social alarm,” are ongoing or may be repeated, exhibit particular cruelty or reflect other aggravating circumstances, target especially vulnerable victims, are discriminatory in their execution, or involve an abuse of power. In addition, the prosecutor announced that he will consider “the broader impact of the crimes on the community and on regional peace and security, including longer term social, economic, and environmental damage.” By way of example, he noted that the situations currently under consideration in Central and East Africa involved thousands of displacements, killings, abductions, and large-scale sexual violence.
The ICC adjudicated these gravity provisions for the first time in the cases arising out of the ongoing regional war being waged in the Democratic Republic of Congo (map right). The rulings emerged in the context of the prosecutor’s request to the ICC’s Pre-Trial Chamber for the issuance of arrest warrants against two defendants: Thomas Dyilo Lubanga (Lubanga) and Bosco Ntaganda
(left)pursuant to Rule 58(1) of the ICC Statute. In this matter of first impression, the Pre-Trial Chamber determined that it had to confirm the admissibility of the case prior to issuing any arrest warrant. In so doing, the Pre-Trial Chamber looked to several factors.

  • First, the Trial Chamber considered the existence of systematic or large-scale crimes.

  • Second, Pre-Trial Chamber indicated that it would look to the “social alarm” caused within the international community by the relevant conduct.

  • Third, the Pre-Trial Chamber indicated that it would consider the position of the accused and whether he or she fell within the category of the most senior leaders engaged in the situation under investigation, taking into account the role of the suspect in the state or organization implicated in the abuses. The Chamber reasoned that such an interpretation would maximize the deterrent effect of the Court by focusing on those individuals most capable of preventing the commission of international crimes.
Although the Pre-Trial Chamber issued the arrest warrant for Lubanga, it determined that Ntaganda was not a central figure in the decision-making process of his group and lacked any authority over the development or implementation of policies and practices (such as the negotiation of peace agreements). This was notwithstanding the fact that Ntaganda was in a command position over sector commanders and field officers. As such, the case against Ntaganda was deemed inadmissible, and the arrest warrant did not issue.
The Prosecutor appealed this decision, arguing that the Pre-Trial Chamber committed an error of law in defining gravity too narrowly for the purpose of considering the issuance of an arrest warrant against Ntaganda. The Appeals Chamber ruled as a preliminary matter that an admissibility determination was not a pre-requisite to the issuance of an arrest warrant. Turning to the issue of gravity, the Appeals Chamber determined that the Pre-Trial Chamber had erred in its interpretation of gravity in several key respects.

  • First, it noted that imposing requirements of systematicity or large-scale action contradicted the guiding threshold language of Article 8(1) governing war crimes, which provides for jurisdiction only “in particular” when war crimes are committed “as part of a plan or policy or as part of a large-scale commission of such crimes” and duplicated aspects of the definition of crimes against humanity requiring a showing that the charge acts were part of a widespread or systematic attack against a civilian population.

  • The Appeals Chamber also took issue with the concept of “social alarm,” which it noted depends on “subjective and contingent reactions” to crimes “rather than upon their objective gravity.”
    Finally, the Appeals Chamber noted that the deterrent effect of the Court will be maximized where all categories of perpetrator may be brought before the Court. It also noted that “individuals who are not at the very top of an organization may still carry considerable influence and commit, or generate the widespread commission of, very serious crimes.”
The Court thus reversed the finding of inadmissibility and remanded the case to the Pre-Trial Chamber to determine on the basis of Article 58(1) alone whether an arrest warrant against Ntaganda should issue. The Pre-Trial Chamber recently unsealed the arrest warrant against Ntaganda charging him alongside Lubanga with enlisting, conscripting and using child soldiers in armed conflict. Ntaganda remains at large.

On December 22

On this day in ...
... 1998 (20 years ago today), South Africa signed a pact agreeing to withdraw from southwest territories -- thus paving the way for Namibian independence -- in exchange for "an end to Soviet and Cuban involvement in the long civil war in neighboring Angola." The agreement was known as the New York Accords because it was signed at U.N. headquarters (left) in that city.
... 1967, Justice Minister Pierre Trudeau announced a sweeping reform of Canada's criminal laws. His Omnibus Bill proposed inter alia to increase restrictions on guns drunk driving, and to relax them on matters such as abortion, divorce, and homosexuality. With regard to the last of those 3, Trudeau (right), who would go on to serve as Prime Minister uttered, as may be seen in this Canadian television clip, "unforgettable words":
There's no place for the state in the bedrooms of the nation.

Sunday, December 21, 2008

Gag orders unconstitutional

Kudos to the ACLU, whose case Doe v. Mukasey resulted in the 2nd Circuit Court of Appeals' striking down Patriot Act provisions that impose gag orders on those who receive national security letters. A national security letter (NSL) is a document that allows the FBI to obtain information about you without first getting a warrant from a judge, which means without your 4th Amendment rights against unreasonable search and seizure being protected. Not surprisingly, after the Patriot Act made it easier to use national security letters, their use - and abuse - increased dramatically. One of the problems in challenging NSLs has been the gag order (image credit) that accompanies it - the recipient may not tell anyone they've received the NSL. In Doe v. Mukasey, the recipient of the NSL represented by the ACLU is an internet service provider who is still subject to a gag order after more than 4 years, even though the FBI was no longer seeking the information it had requested. As a result, the ACLU cannot reveal their clients' name and the provider cannot say it received the NSL
The court invalidated provisions that required NSL recipients to initiate judicial review of gag orders and limited that review. It held that the government must bear the burden of going to court to justify silencing NSL recipients, and that the limits placed on judicial review essentially required the courts to defer entirely to the executive branch. Such deference runs counter to "well-settled First Amendment standards and deprive[s] the judiciary of its important function as a protector of fundamental rights," according to Arthur Eisenberg, Legal Director for the New York Civil Liberties Union. As a result of the ruling, the government will have to justify the gag order on this NSL recipient.

On December 21

On this day in ...

... 1948 (60 years ago today), the Dail passed legislation by which what once had been known as the Irish Free State left the British Commonwealth and became the Republic of Ireland. In May 1949 the British House of Commons would acknowledge the independence of the Republic in the south, yet retain claim on Northern Ireland.

... 1913 (95 years ago today), the 1st published crossworld puzzle, depicted at left, appeared in the Sunday edition of the New York World. Clues and solution to the puzzle are here.