Thursday, July 31, 2008

Guest Blogger: Annie Gell


I am pleased to introduce our newest guest blogger, Annie Gell.
Annie is a summer Legal Associate at the Documentation Center of Cambodia (DC-Cam); she discusses her research on provisional detention at the Extraordinary Chambers in Cambodia in her guest post below. She will begin her third year at Columbia Law School this fall, where she is an Articles Editor for the Jailhouse Lawyers Manual and a Kent Scholar. Annie’s experience in field of human rights includes working at Human Rights Watch US Division, Médecins Sans Frontières, Sarai in Delhi, India, and Legal Aid Juvenile Rights in the Bronx. She received her undergraduate degree cum laude with a major in history focusing on 20th century U.S. foreign policy from Columbia University in 2003.
Welcome Anne!

De Facto Segregation of ECCC Provisional Detainees

Thanks for giving me the opportunity to guest blog on my research in Cambodia on the regime of provisional detention within the Extraordinary Chambers (left).
The Office of the Co-Investigating Judges (OCIJ) at the Extraordinary Chambers in the Courts of Cambodia (ECCC) has imposed an unprecedented de facto segregation regime on the five provisional detainees since the beginning of their detention. The detainees are prohibited from interacting with each other with the exception of limited visits between the married couple, Ieng Sary (below right) and Ieng Thirith (bottom right). This means that the detainees’ options for human contact are limited to the prison staff and occasional, OCIJ-approved visits from lawyers and family members. This regime is not only detrimental to the Tribunal’s work because it strains the detainees’ health, but arguably legally impermissible in light of the ECCC Internal Rules and international precedent.
In determining the propriety of coercive measures imposed on provisional detainees, Rule 21(2) of the ECCC Internal Rules requires that the fundamental rights of the detainees be balanced with the necessity of the measure and the gravity of the charged offense. This approach is mirrored in the Regulations of the International Criminal Court (ICC) and the Rules of Detention of the International Criminal Tribunal for the Former Yugoslavia (ICTY).
Though there is little precedent on this issue, the limited precedent available from ICC and ICTY suggests that de facto segregation is rarely proper even in cases involving co-defendants accused of the gravest of crimes. (See Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui at the ICC and Delalic at the ICTY).
In applying the balancing test to the ECCC provisional detainees in light of international precedent, there are many factors weighing against a de facto segregation regime.
► First, unlike the cases of Ngudjolo Chui and Delalic, the ECCC Office of the Co-Prosecutor has not requested segregation of the detainees. Rather the OCIJ has imposed this regime on its own and in a non-transparent manner.
► Second, although the OCIJ has expressed worry that the detainees will collude if allowed to interact, the OCIJ has not publicly identified any concrete evidence of attempted collusion as required under international precedent. Delalic holds that the worry of collusion alone absent concrete evidence is not sufficient to overcome the strong presumption against infringements on provisional detainees’ fundamental rights.
► Finally, there are strong arguments that the segregation regime is a punitive gesture that provides little benefit to the Tribunal. On the one hand, consistent, long-term segregation is likely damaging the psychological health of the detainees, thereby threatening the work of the Tribunal as a whole. On the other hand, the detainees are allowed visits from friends, family, and lawyers. Though these visits might not be frequent enough to compensate for the potential psychological harm caused by the segregation of the detainees, such visits could provide opportunities for the detainees to collude via third parties.
This makes the segregation regime vulnerable to criticism that it is a formalistic measure intended to make the provisional detainees uncomfortable rather than protect the proceedings from prejudice. The Tribunal therefore must carefully consider the legal basis and consequences of a provisional de facto segregation regime, particularly as the Tribunal strives to adhere to the highest standards of human rights and justice.

Really big news about global justice

The last few weeks seem to indicate that international courts are getting some teeth, or, at least, are teething ...
► First, the International Criminal Court’s Prosecutor, Luis Moreno-Ocampo, gets Belgium to arrest Jean-Pierre Bemba, the loser in the 2006 presidential election in the Democratic Republic of Congo and head of one of the more infamous militias in that country. Perhaps to avoid charges of political meddling in DRC politics, Bemba has been charged at the ICC (left) not with crimes at home, but with involvement in mass rapes in the next-door Central African Republic.
► Then the ICC Prosecutor really gets serious, issuing an indictment for the president of Sudan, Omar al-Bashir. (IntLawGrrls posts below, here, here, and here.) That should take some of the wind out of the sails of those ICC skeptics who pointedly asked why, after a nearly 3-year investigation, the ICC had managed only the indictments of a mid-level militia commander and a single Sudanese minister. They asked: Was the Prosecutor focusing just on non-state actors rather than powerful state figures? The Al-Bashir indictment is Moreno-Ocampo’s answer. But it leads to another question: Will the U.N. Security Council use the leverage Moreno-Ocampo has given it to push for real concessions from the Sudanese government, or will it squander the chance?
► Finally, Radovan Karadžić has come in from the cold; he's due to appear in court at The Hague today. (Prior IntLawGrrls post here.) The onetime self-proclaimed president of the Bosnian Serb Republic was arrested by his erstwhile Serbian ex-backers. They are now apparently more interested in securing for Serbia a place in the European Union than in thumbing their nose at the International Criminal Tribunal for the Former Yugoslavia (right).
So far, so good. But it is still true that prosecutions by international courts of high-ranking military and government officials remain few and far between.
The really interesting story is the rise in national-level prosecutions of such officials:
► In the same few weeks, Alberto Fujimori (on whose extradition IntLawGrrls posted here) continued to stand trial in Peru, with military officers confirming that the former president indeed knew of the killings carried out in the name of combating subversion. Fujimori, like Slobodan Milosevic, had delayed the proceedings due to ill-health, but trial is now scheduled to be completed by the fall.
► Then, Argentine courts convicted the Butcher of Córdoba, Benjamín Meléndez, of orchestrating killings and secret death camps during the 1976-83 dictatorship. Since the country’s Supreme Court annulled prior amnesty laws, courts have convicted a number of the top military and police officials, and even a military priest accused of abetting torture. Trials continue throughout the country.
► Next door in Chile, the head of the secret police and his henchmen were convicted of blowing up General Carlos Prats, the former army head, and his wife, in a 1974 bombing in Buenos Aires. And that’s just on one continent. (credit for Chilean Supreme Court photo below left)
Indeed, according to a soon-to-be-published book on trying heads of state, edited by Ellen Lutz and Caitlin Reiger, since 1990, no fewer than 57 heads of state from around the globe have been indicted, at a minimum, for misconduct while in office. True, about half these are corruption cases, not violations of human rights or humanitarian law. True as well, in far fewer cases do the indictments turn into trials and convictions, and fewer still result in actual prison stints. Nonetheless, there is clearly a trend, and it points to the diffuse – but key – influence of the new architecture of international justice on national judges and courts.
That’s the really big news.


'Nuff said

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

Critics claim that Ocampo has imperiled peace negotiations -- but those negotiations were not progressing even before the ICC prosecutor named Bashir.


-- our colleague James C. O'Brien, a principal at The Albright Group, and Presidential Envoy for the Balkans during the Clinton Administration, in a Los Angeles Times op-ed comparing and contrasting this month's application for an arrest warrant against Sudanese President Omar al-Bashir (above left) by International Criminal Court Prosecutor Luis Moreno-Ocampo (IntLawGrrls posts above, here, here, and here) with the 1999 indictment of Serbian President Slobodan Milosevic (above right) by International Criminal Tribunal for the former Yugoslavia Prosecutor Louise Arbour.

On July 31

... 1998 (10 years ago today), Britain announced that it would ban the use of landmines unconditionally. Legislation passed a month earlier "after public pressure to do so" -- would have permitted "British troops to deploy mines in 'exceptional circumstances.'" On this day, however, that exception was removed. This paved the way for British ratification, on this same day, of the 1997 treaty banning landmines; that is, the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer or Anti-Personnel Mines and on Their Destruction. Britain's action came a month before the 1st anniversary of the death of Princess Diana, a vocal advocate of the treaty.
... 1811, Janie Currie Blaikie Hoge was born in Philadelphia, Pennsylvania. A welfare worker, fundraiser, and wartime nurse, she worked to recruit other nurses to care for wounded Union troops during the Civil War. Hoge wrote of her work in The Boys in Blue (1867) (left). Following the war, she helped to establish the Evanston College for Ladies. Among the leaders of the college was temperance advocate and suffragist Frances E.C. Willard; when the institution merged with Northwestern University, Willard became dean of the university's Women's College.

Wednesday, July 30, 2008

Sierre Leone Prosecutor on the ICC's Darfur Indictment

For all of us watching the debate generated by the Darfur indictment (prior IntLawGrrls posts here and here), I highly recommend David Crane's July 21, 2008, editorial inthe Baltimore Sun. David (left), who was the Chief Prosecutor of the Special Court for Sierre Leone, opens as follows:
On June 4, 2003, as Liberian President Charles Taylor walked up the steps for the opening ceremony of the Accra Peace Accords in Ghana, I stood in front of the world's press and announced that I had unsealed an indictment charging him with 17 counts of war crimes and crimes against humanity. The international community reacted with praise - and condemnation.
Politicians and diplomats voiced concern that my announcement had jeopardized the newly organized peace process and hopes for stability in West Africa. Some even said that the indictment put lives at risk. Yet five years later, Liberia is stable, and a fairly elected government is in place with a real possibility that it is on the correct path to a sustainable peace under the leadership of the first woman ever elected a head of state in Africa. Mr. Taylor sits in The Hague on trial before a judicial chamber of the Special Court of Sierra Leone.
You can read the whole editorial here.

Guest Blogger: Hannah Buxbaum

It's IntLawGrrls' great pleasure to welcome Hannah Buxbaum (left) as today's guest blogger.
Associate Dean for Research and Professor of Law at Indiana University School of Law in Bloomington, Hannah teaches Comparative Law, Contracts, International Business Transactions, and International Litigation. Her publications, which have appeared in English and in German, treat issues of of private international law and international litigation and jurisdiction. Her guest post below examines U.S. courts and what she call the "foreign-cubed" class action.
Hannah earned her B.A. and J.D. degrees from Cornell University, Ithaca, New York, and an LL.M. from the University of Heidelberg in Germany. Before joining Indiana's faculty, she worked in the New York and Frankfurt offices of Davis Polk & Wardwell. A member of the Executive Committee of the American Society of Comparative Law, Hannah serves as co-book review editor of the American Journal of Comparative Law, is a member of the International Academy of Comparative Law and the American Law Institute, and has served on the Executive Council of the American Society of International Law (the last body, coincidentally, is discussed today in another post below).
Hannah would like to dedicate her guest post to a transnational pioneer: her mom, Wiebke Buxbaum, who was born and raised in Germany. She received her doctorate in law from the University of Cologne and then an LL.M. from the University of California at Berkeley. After deciding to make her home in the United States, she "started over," as Hannah puts it, earning a J.D. from Berkeley and joining Brobeck Phleger & Harrison, where she specialized in corporate and banking law and became the 1st woman to make partner at that San Francisco firm.


The "foreign-cubed" class action & U.S. courts

My thanks to IntLawGrrls for inviting me to provide this guest post about my recent article, Multinational Class Actions Under Federal Securities Law: Managing Jurisdictional Conflict, published in the Columbia Journal of Transnational Law.
The project grew out of some earlier work on the topic of transnational regulatory litigation, which considered the circumstances under which domestic regulatory law might be applied to curb global economic misconduct. This piece focused on a particular kind of transnational regulatory case: the “foreign-cubed” securities class action. These lawsuits involve fraud claims brought by foreign investors against foreign issuers, based on harm arising out of investment transactions on foreign securities exchanges. While such claims appear insufficiently connected to the United States to warrant application of U.S. securities law, courts have in some cases incorporated them into class actions brought by U.S. investors against the same issuer.
This article draws on a study of 45 foreign-cubed claims brought between 1996 and 2005. It looks at the arguments made by foreign investors who seek to justify the application of U.S. law to their claims –- arguments that use the interconnections among the world’s capital markets as the basis of an expansive theory of legislative jurisdiction. It also analyzes judicial disposition of such claims at various stages of litigation (including class certification).
Ultimately, the article concludes that the current jurisdictional framework used in securities cases, which relies on outdated and ambiguous “conduct” and “effects” tests, is not up to the task of managing the sort of regulatory conflicts that foreign-cubed claims present. It therefore supports a jurisdictional limit in such cases based on the location of the relevant investment transaction.

Take the lead

The American Society of International Law is looking for a few good leaders.
ASIL's Nominating Committee's seeking nominations for 1 academic member to be President-Elect, 2 academic- and 1 practitioner-member Vice Presidents, 9 Executive Council members, and 8 nonvoting, honorary Counsellors. Deadlines are coming up fast: for President-Elect nominations, it's this Friday, August 1; for all others, it's August 15. All terms will commence at the Society's annual meeting, to be held March 2009 at the Fairmont Hotel in Washington, D.C.
Meanwhile, ASIL's premier publication, the American Journal of International Law, invites nominations for members of its Board of Editors, to be chosen "based primarily on scholarship and creativity, as demonstrated in books, articles, and other written work appearing over a period of years, including but not limited to publications in the Journal," as well as on "areas of expertise or professional perspective or discipline." Deadline is September 15, 2008.
Details on how to nominate yourself or your colleagues for any of these positions are available here.

On July 30

On this day in ...
... 1893 (115 years ago today), Fatima Jinnah was born in Karachi, in what was then British India and is now Pakistan. Raised by her older brother after her father's death when she was a child, Jinnah was educated at Dr Ahmad Dental College, and in 1923 she opened her own dental clinic in Calcutta, "at a time when taking up a profession was considered inappropriate for girls from Muslim families." Eventually she gave up her practice to care for her extended family. She accompanied her brother, Mohammad Ali Jinnah, "the leader of Muslim India" and 1st leader of independent Pakistan, on official visits; she told his story in her posthumously published book, My Brother (1987). In 1941 she helped form the All India Muslim Women Students Federation. In 1965, she ran unsuccessfully for President of Pakistan. Jinnah, who died 2 years later in the city of her birth, was honored on the stamp at above left in 2003.
... 1942, half a year after the United States entered World War II, President Franklin D. Roosevelt signed into law the Navy Women's Reserve Act, establishing the WAVES -- Women Accepted for Volunteer Emergency Service -- as a women's auxiliary agencyfor the U.S. Navy. "By the end of the war, over 84,000 women served in WAVES with 8,000 female officers, which constituted 2.5% of the US Navy's personnel strength."

Tuesday, July 29, 2008

Read On! "The Dark Side"

(Read On! ... occasional posts on writing we're reading)

The Dark Side: The Inside Story of How the War on Terror Turned into a War on American Ideals (Doubleday, 2008) by Jane Mayer (below right) is making a big splash this summer. It’s landed on the New York Times bestseller list and sent its author to countless interviews, including appearances last week with Bill Moyers and David Letterman.
Despite its grim title, Mayer’s book does more than call out villains (a fairly despicable David Addington stars as Public Enemy No. 1, but many others lurk alongside). In both her book (its dedication professes her “love of American history and admiration for those who have fought to fulfill the promise of the country’s ideals”) and interviews (on Letterman she said that there are “many good guys in the military, and in the FBI”), Mayer is careful to give credit to those who resisted “the dark side”.
Among those who come out best in her account are uniformed military lawyers. Mayer documents how the JAG corps was bypassed, ignored, and isolated while key decisions were made about military commissions, the laws of war, and the rules regarding the treatment of prisoners. This is not a new interpretation; Mayer’s narrative echoes charges made repeatedly in press coverage (including her own work in The New Yorker, about which IntLawGrrls earlier posted here and here) of the White House’s frequent dismissal of military legal expertise. For example, in the drafting of the military commission order, the services’ top lawyers were “marginalized,” in the words of Rear Admiral Donald J. Guter (88) (Guter is now Dean of Dusquesne Law School in Pittsburgh), and ultimately blind-sided by the rash proposal to authorize a new version of military commissions. The infamous “torture memos” triggered shock and outrage from many military lawyers, Mayer writes on p. 232:

The memos from uniformed lawyers to the politically appointed general counsel were brimming with barely concealed disbelief at the direction the Justice Department was proposing for soldiers to take.
Mayer draws on interviews, government reports, legal analyses, and an already extensive body of scholarship to build a damning critique of post 9/11 legal conclusions and political actions. But not yet answered is the central historical question: Why did the U.S. adopt legal and military practices so wrongful in the face of such powerful opposition? Judge advocates and other officials who realized, in real time, that grave mistakes were being made could not stop the Bush administration despite what Mayer casts as truly valiant efforts.
The hubris of a few misguided individuals may be enough explanation for now. But eventually, we have to reconcile the impotence of Mayer’s “good guys” with her faith in American ideals-- and her hope for the future.

'Nuff said

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


Terrorism: In the State of the Union address, the new president should immediately renounce the term "War on Terror" and reframe terrorism as a violation of international norms.

-- Among the many recommendations for the U.S. administration that will begin on January 20, 2009, contained in Rebranding America, a project by students at Los Angeles' Occidental College, directed by their professor and our colleague, Derek Shearer, U.S. Ambassador to Finland from 1994 to 1997. (Aside: Presumptive Democratic Presidential nominee Barack Obama spent his 1st 2 years at Oxy before transferring to Columbia.)
IntLawGrrls welcomes blogreaders' own recommendations for the new administration!

On July 29

On this day in ...

... 1968 (40 years ago today), media coverage focused on a new encyclical entitled Humanae Vitae, in which Pope Paul VI (right) rebuffed the recommendation of a majority of a Pontifical Commission, and thus "confirmed a ban on the use of contraceptives by Roman Catholics." Among the pope's "the most controversial" acts, it was reaffirmed in 1995 by a successor, John Paul II. This year's anniversary has stirred the issue again: among those commenting are "[m]ore than 50 dissident Catholic groups from around the world," which last week published, in an Italian newspaper, "an open letter asking Pope Benedict XVI to lift the church's ban on birth control." This group focused on HIV/AIDS as a reason for change; other commentators cited opposition among Catholic laypeople, sometimes by "majorities exceeding 80 percent," as well as links between overpopulation and global warming. Meanwhile, in the Philippines, Manila's archbishop supported the ban with this argument:

'If there is discipline in the marital bed, then there is discipline in the streets, there is discipline in schools, there is discipline in the government.'

... 1993 (15 years ago today), an Israeli appellate court overturned the conviction of John Demjanjuk. The court found insufficient evidence to support charges that Demjanjuk had committed war crimes as "Ivan the Terrible, a gas chamber operative at the death camp Treblinka, in Poland." Demjanjuk had been extradited to Israel by the United States. On his return, the United States undertook to deport him; however, no country has agreed to accept the Ukraine-born man, who'd immigrated to the United States in 1951. Earlier this month, a Spanish court announced that it would proceed with a war crimes action against Demjanjuk and 3 others. Initiator of the suit -- brought pursuant to the principle of universal jurisdiction -- was the NGO Equipo Nizkor. (credit for 1987 photo of Demjanjuk on trial in Israel)

Monday, July 28, 2008

... and counting ...

(Occasional sobering thoughts.) Amid news that:
► the mid-July death by natural causes of Air Force Technical Sergeant of Jackie L. Larsen (below right), a 37-year-old paralegal from Tacoma, Washington, marked the 100th death of an American woman servicemember in Iraq since a U.S.-led coalition invaded that country in March 2003; and
► officials of the United States and other NATO countries "have launched investigations into three separate U.S.-led airstrikes that Afghan officials say killed at least 78 civilians this month";
here's the available count of casualties in those 2 conflicts in the 5 weeks since we last reported. According to Iraq Body Count, between 86,312 and 94,174 Iraqi women, children, and men have died in the conflict. That's an increase of between 1,589 and 1,760 deaths in the last 5 weeks. According to the U.S. Defense Department, 4,124 American servicemembers have been killed in Iraq. Total coalition fatalities: 4,438 persons. That's 24 servicemember deaths in the last 5 weeks, all but 1 of them Americans. Military casualties in the conflict in Afghanistan stand at 560 Americans and 329 other coalition servicemembers, an increase of 37 and 3, respectively, in the last 5 weeks.
Typically "...and counting..." has not included figures on civilian casualties in Afghanistan, for the reason that we've been unable to find a source for consistent counting like those linked above for other counts. But the news of the new investigation offered some figures on civilians in Afghanistan:
An estimated 698 civilians were killed in the first six months of this year, compared with 430 during the same period last year, the United Nations says. Of those, 255 were killed by NATO forces.

On July 28

On this day in ...
... 1945, in a move that New York Times reporter James B. Reston termed the payment of "a first installment on an old debt," the U.S. Senate voted 89-2 to ratify the Charter of the United Nations (right). The "debt" to which Reston referred: the Senate's 1920 rejection of a post-World War I precursor to the post-World War II Charter, the Covenant of the League of Nations. Debate in 1945 lasted "only six days," compared with the nine-month Senate debate over the League. Voting against the Charter were 2 Republicans, Henrik Shipstead of Minnesota and William Langer of North Dakota; the latter maintained that the Charter "would mean 'perpetual war' and the 'enslavement' of millions of poor people from Poland and India."
... 2003 (5 years ago today), Lady Valerie Goulding (below left) died in a nursing home in Shankill, County Dublin, Ireland. Born in England in 1918, she'd moved to Ireland following her marriage to "a fertiliser manufacturer and art collector, Sir Basil Goulding." In Dublin in 1951, she founded the Central Remedial Clinic for the care of 2 persons with physical disabilities; it now serves 4,000 patients. This launched her life's work on behalf of the disabled. She served by appointment to Seanad Éireann, Ireland's Senate, from 1977 to 1981; lost 2 bids for election to the Dail, Ireland's principal parliamentary chamber; and was considered as a candidate for Uachtarán na hÉireann, President of Ireland, in 1983. (photo credit)

Sunday, July 27, 2008

Peace through Pastry

I would like to follow up on Jaya's horror story of Friday with a story of one attempt to "humanize the other". As Jaya points out, making human rights norms applicable to immigration authorities both means and requires humanizing immigrants. In Europe, human rights norms are applicable to immigrants and asylum seekers through the European Convention on Human Rights, though their enforcement often leaves much to be desired. As human rights activists well know, humanizing the other - including immigrants and, as Hope discussed yesterday, persons with disabilities - is a process of education key to developing and enforcing human rights norms. For example, Amnesty International and other such groups publicize individuals' stories to make abstract legal concepts concrete. Humanizing the other is also key to making and maintaining peace, and a group of French Jewish and Muslim women called the Bâtisseuses de Paix (Peace Builders) has taken on the task of humanizing each other and their respective communities (though they don't use this term) in a delectable way--by making pastry.
One thing I've learned about "Islamic" terrorism is that it is fueled or reinforced by the Israelo-Palestinian conflict. In reading about the bâtisseuses, I learned that this conflict also fuels hostility between the Jewish and Muslim populations in France (the largest such communities in Europe), as French Jews identify with Israelis and French Muslims identify with Palestinians. To build solidarity between the two groups, former journalist Annie-Paule Derczansky founded the group in 2002 after a trip to the Middle East during the second intifada revealed that despite the breakdown of political communication, women's mixed Israeli-Palestinian cultural groups remained intact and functioning. Back in Paris, Derczansky created a space where Jewish and Muslim women could share recipes in an attempt to block the transfer to France of the conflict in the Middle East. The problem for detractors of the group's method is that its golden rule is to discuss anything and everything but that conflict: they see only hypocrisy and little to no chance of having any affect on resolving issues between Jews and Muslims, either in France or in the Middle East. Supporters such as Evelyne Berdugo, head of the Jewish women's organization Coopération Feminine, see it as "practical work on the ground....[No] big words [or] speeches, but action with regular people." One participant sees it as separating the Israelo-Palestinian conflict from one's daily life in France so that it doesn't pollute relationships with neighbors, and they all seem to recognize that their work, like their pastry, is for their children. If it helps them grow up without knee-jerk hostility based on a foreign conflict, perhaps they will be able to address that conflict in a spirit of neutrality and solidarity. And maybe given time, even if the group's golden rule doesn't bend, some the participants will take on the "elephant in the room" in another setting. As a staunch supporter of grassroots projects to bridge religious or cultural divides, even with flour and butter, to reduce humans' inhumanity to humans, I say "pass the cornes de gazelle" (image credit).

McCain on Nuremberg redux for bin Laden

CNN reports that the Republicans' presumptive nominee for President supports some kind of international prosecution for Osama bin Laden should that al Qaeda leader be captured. Specifically:
Sen. John McCain on Friday said as president he would consider bringing Osama bin Laden to justice through a Nuremberg-like international trial.

... 'We have various options. The Nuremberg Trials are certainly an example of the kind of tribunal that we could move forward with. I don't think we'd have any difficulty in devising an international -- internationally supported mechanism that would mete out justice. There's no problem there.'
McCain said it would be a 'good thing to reveal to the world the enormity of this guy's crimes, and his intentions, which are still there.'
Unclear what kind of trial the Senator from Arizona (above right) means by "a Nuremberg-like international trial," nor why he'd rule out a domestic trial for a man whom Mary Jo White, then the U.S. Attorney in Manhattan, indicted a decade ago. Interesting nonetheless.

On July 27

On this day in ...
... 1857, in Mount Pleasant, Ontario, Canada, a daughter, Ann Augusta, was born to suffragist physician Emily Howard Stowe and her carpenter husband, John Stowe. In 1883 the daughter married Dr. John Benjamin Gullen and, moreover, earned her M.D. from the Faculty of Medicine at Victoria University, Toronto. Augusta Stowe-Gullen was the 1st woman to graduate from a Canadian medical school (left). Stowe-Gullen was active in suffrage, temperance, and other social movements, "and she succeeded her mother as President of the Dominion Women's Enfranchisement Association in 1903." She was awarded the Order of the British Empire in 1935, 8 years before her death in Toronto. A medical professor and practitioner at numerous hospitals in Canada, she was a founding member, in 1909, of the Women's College Hospital in Toronto, site of this anecdote:

One day, a visitor remarked upon the hospital's extensive female staff and asked whether everyone in the hospital was female. 'Of course not,' Gullen replied. 'Half the babies born are male.'

... 1953 (55 years ago today), in a purpose-built hall at Panmunjom, a village on the de facto border dividing the northern and southern portions of the Korean peninsula, representatives of 16 U.N. member states signed an armistice "ending hostilities in the three-year-old Korean war." The truce document was not a final peace accord:

... [T]hough the shooting would cease within twelve hours after the signing, only an uneasy armed truce and political difficulties, perhaps even greater than those of the armistice negotiations, were ahead.

The agreement remains to this day the lone basis for cessation of the conflict.


Saturday, July 26, 2008

Multidimensional Human Rights: Disability Rights and the Global South

(Part II in a series on the implications of the new Convention on the Rights of Persons with Disabilities)

Are disability human rights a priority only for the peoples of the Global North? Don’t governments and activists in the Global South have more important human rights issues to prioritize (among them international trade inequities; war, armed conflict, and the trade in small arms that fuels them; the lack of affordable food, housing, and clean water for the poor; torture and sexual violence; and trafficking in people)? (Photo: Market stall owner in Uganda courtesy of "Disability Rights in Uganda Research Blog")
In reality, no government, international organization, or NGO will be able to develop effective legal or political measures to fully address any of those issues without also taking into account the rights, perspectives, and contributions of persons with disabilities (PWD).

The Heights of Disability Access
Recent news stories about Isaac Lidsky, who is said to be the first blind law clerk to work for the United States Supreme Court are inspiring. Lidsky obtained the highly-competitive position after attending top schools and working for the U.S. Department of Justice. Similarly, the recent appointment of David Paterson, who is legally blind, as Governor of New York brought attention to the heights that have been and can continue to be achieved by individuals with disabilities.
Like other U.S. lawyers, judges, political leaders, and law professors who are blind or have vision impairments, they use some of the wide range of adaptive strategies and technologies available to increase independence and access to work, social, and community life. Depending on the nature and extent of vision issues, we use helpful devices that range from the low-tech (the ubiquitous white cane or guide animals) to the high-tech (software and scanners that allow computers to enlarge and read printed text aloud).

First World Privileges?
But are disability rights a luxury issue that only rich Northern states can afford to address? Do the vast majority of PWD even in wealthy countries have access to their basic needs, much less the heights of professional status or media attention? Should disability rights be treated as low priority for those working toward economic and social development and those fighting discrimination and abuse based on racial, ethnic, gender, class, and migration status?

“Weeded Out”
The startling statistics below (excerpted from a recent United Nations Fact Sheet) leave no doubt that the response to all of these questions is a resounding “no”:
► Around 10 per cent of the world’s population, or 650 million people, live with a disability. They are the world’s largest minority.
► Eighty per cent of persons with disabilities live in developing countries, according to the UN Development Programme (UNDP).
► The World Bank estimates that 20 per cent of the world’s poorest people are disabled, and tend to be regarded in their own communities as the most disadvantaged.
► Women and girls with disabilities are particularly vulnerable to abuse. A small 2004 survey in Orissa, India, found that virtually all of the women and girls with disabilities were beaten at home, 25 per cent of women with intellectual disabilities had been raped and 6 per cent of disabled women had been forcibly sterilized.
► Mortality for children with disabilities may be as high as 80 per cent in countries where under-five mortality as a whole has decreased below 20 per cent, says the United Kingdom’s Department for International Development, adding that in some cases it seems as if children are being “weeded out”.
► An estimated 386 million of the world’s working-age people are disabled, says the International Labour Organization (ILO). Unemployment among the disabled is as high as 80 per cent in some countries. Often employers assume that persons with disabilities are unable to work.
► For every child killed in warfare, three are injured and permanently disabled.

Legal, Political, and Moral Obligations
The rights of persons with disabilities are human rights, inherent in their humanity, and to be universally promoted and respected for moral as well as legal reasons. States in both Global North and Global South have recognized the norms of the (now 60-year-old) Universal Declaration of Human Rights and most have also ratified the core treaties that comprise the International Bill of Rights. These legally binding rights apply to PWD wherever they may live. States and the international community have an obligation to respect, protect, fulfill, and promote them for all human beings.
The practical issues involved in implementation cannot serve as an excuse for the failure to recognize or implement the rights of PWD. International law recognizes disparities in economic capacity among states and therefore allows for “progressive realization” of certain rights. But as has been demonstrated, “progressive realization” does not mean “non-realization.” And protecting any human rights (civil, political, economic, social, or cultural) was never a cost-free enterprise.
Often, reasonable accommodations within a specific context are less costly than employers and non-disabled people are led to believe. For example, the UN Fact Sheet notes that a

U.S. survey of employers conducted in 2003 found that the cost of accommodations was only $500 or less; 73 per cent of employers reported that their employees did not require special facilities at all.
Economic disparities among states and inadequate technical capacity and infrastructure are realities that pose significant obstacles for both PWD and non-disabled people. Of course, global, regional, and national struggles over the equitable distribution of natural and economic resources continue. Those struggles must be conducted in a context in which the fundamental rights and well-being of people are the primary object.
Still, each government, rich and poor, must also take on the good faith responsibility for ensuring at least that those resources that are available are distributed in a non-discriminatory way, that targeted policies are put in place through law and education to address discriminatory attitudes toward PWD, and to provide reasonable accommodations that allow PWD to participate fully in employment, education, housing, health care, family life, sport, and other aspects of social and political life in their home countries. Such an approach contributes to economic and social development rather than undermines it.
Article 32 of the Convention on the Rights of Persons with Disabilities (CRPWD) provides for the mainstreaming of disability rights in the creation and implementation of international development programs. The international community (and the individuals and groups who can hold our governments and institutions accountable--see "We Can Do" and "People with Disabilitites--Uganda" websites) should therefore commit to assisting (and learning from) developing countries with regard to the economic resources, the mutually beneficial transfer of culturally-specific information and technology, and other assistance needed to make human rights for PWD a reality.
The non-profit sector has begun to recognize the importance of disability human rights in the Global South. For example, Executive Director Diana Samarasan recently announced the creation of a Disability Rights Fund dedicated to helping countries in the developing world implement the new convention.

Global South Participation
As reported in Part I of this series, the CRPWD was negotiated, adopted, and entered into force rapidly and with widespread acceptance by the international community. Although delegations from the Global North were influential, the negotiation process included active input from developing countries. NGOs from South and North built an important coalition that energized the creation of the convention.
The many official and NGO delegations that were particularly active in the negotiation process included those from Mexico, China, Ireland, Thailand, Canada, Germany, Japan, South Africa, Uganda, India, South Korea, Jamaica, Venezuela, Slovenia, Colombia, Lebanon, Sierra Leone, Morocco, New Zealand, Sweden, Mali, Serbia-Montenegro, and Russia. Click here for the archives of the negotiations and here for the daily summaries. (Photo: South African human rights lawyer and World Bank Advisor on Disability, Charlotte McClain-Nhlapo )
Some countries from the Global South, such as Mexico, played high profile roles in the negotiations. As previously reported, Jamaica was the first country to ratify the new convention. China is preparing to host the Paralympics this Fall, although its participation in the CRPWD process and hosting of the event is undermined by its own record of continuing human rights violations.
Let’s hope that the multidimensional nature of disability human rights will gain much needed attention as jurisprudence and action around the CRPWD develops. Social justice and human rights demands it, for PWD and for all.

(Next: Some Resources on Disability Human Rights)


Speaking power to a truth

A truth:
In mid-July, Swiss authorities arrested Hannibal Gadhafi, the youngest son of Libyan leader Moammar Gaddafi, on charges that he and his wife severely beat 2 of their servants, a Moroccan man and a Tunisian woman, "at a luxury hotel in Geneva," the lakeside city renowned for the Jet d'eau at left. Gadhafi, whom a French court had given a 4-month suspended sentence and fined the equivalent of $790 for having hits his then-girlfriend, "were released after Libyan diplomats apologised." The Gadhafis were released and left Switzerland.
Power:
This week Libya halted all oil shipments to Switzerland in retaliation for the arrest. The North African country supplies more than half of the Alpine country's crude oil imports.
Switzerland has warned its nationals not to travel to Libya.

On July 26

On this day in ...
... 1847, Joseph Jenkins Roberts proclaimed Liberia to be an independent republic. Roberts, an African-American man born in Virginia, had moved to Liberia in 1829. The West African land had been purchased from indigenous West Africans in 1822 and maintained as a colony by a U.S.-based group known as the American Colonization Society. The new republic's 1st Constitution was proclaimed in September 1847, and soon after Roberts became its 1st President. The Library of Congress' website observes: "Still a country today, Liberia deals with conflict between descendants of African Americans and indigenous tribes." (credit for photo of 1862 Liberian dollar)
... 1948 (60 years ago today), President Harry S. Truman issued Executive Order 9981, which desegregated the U.S. armed forces. The Order began:

1. It is hereby declared to be the policy of the President that there shall be equality of treatment and opportunity for all persons in the armed services without regard to race, color, religion or national origin. This policy shall be put into effect as rapidly as possible, having due regard to the time required to effectuate any necessary changes without impairing efficiency or morale.

Friday, July 25, 2008

The Limits of Human Rights Law

As a nursing mother, the story in Sunday's NY Times of an undocumented immigrant who, nine months pregnant, was jailed after a traffic stop, nearly brought me to tears. For those who didn't see the article, Juana Villegas went into labor in jail, was taken to the hospital in handcuffs, and was cuffed to the bed by one foot until the final stages of her labor. County officers prohibited Ms. Villegas from seeing or speaking with her husband during childbirth, and a sheriff's officer stood guard in her hospital room throughout her labor. She was shackled again six hours after giving birth, compromising her efforts to perform the basic hygiene necessary after childbirth. Two days later, she was sent back to jail without her newborn son; her husband was allowed to pick up the baby but not to speak to or see his wife. A nurse at the hospital tried to give Ms. Villegas a breast pump to take to jail with her, but a sheriff's deputy prohibited her from taking it. Her breasts became infected and her infant developed jaundice. Her crime? None; she was driving without a license and had returned to the United States after a prior deportation.
When I told my husband, a Latino immigrant, this story, he looked visibly shaken and asked me not to share my human rights stories with him right before bedtime. A powerful article by Jane Guskin describes how the nurses at Ms. Villegas' bedside cried when the sheriff's deputy refused to remove her shackles, and lists other tales of tears shed over the treatment of immigrants in the United States, from the separation of families (described here) to

strip searches and genital and anal cavity inspections following meetings with attorneys; detainees affected by an outbreak of food poisoning were denied medical treatment for many hours; a group of detainees transferred out of the facility by plane to Alabama -- to clear room there for workers arrested in a raid -- were refused access to the bathroom and were forced to sit in their own
excrement for the duration of the flight.

What is your gut reaction to these descriptions? Most readers, I would imagine, respond compassionately, as me, my husband, nurses, community leaders, attorneys, church staff and volunteers have done in the face of these human rights abuses. Viewing immigrants as humans, as one of us, we tear up with empathy at these depictions of human suffering. My burning question of the day, then, is to understand the mental gymnastics that enable officials to justify such mistreatment of those who have committed no crime. What allows someone to coolly stand guard while a nursing mother is separated from her newborn? To watch indifferently as other humans sit in their own excrement? It is only by understanding this mindset that we will be able to change it -- but is human rights law up to the task? In my most recent article, I argue that human rights law should be used in immigration enforcement agencies to create an institutional culture that values individual rights. Can law create compassion? Perhaps, as Lesley Wexler argues, it can simply humanize immigrants in the eyes of officials, which may be the first step. We can only hope.

On July 25

On this day in ...
... 1806, Maria Weston was born in Weymouth, Massachusetts. The eldest of 8 children, she was educated in England. She returned to the United States in 1828 to work as a high school principal. Eventually she married a Boston merchant active in the antislavery movement and, as Maria Weston Chapman, became a noted abolitionist. She served as an officer in antislavery organizations and as an abolitionist writer. Her work took her outside the United States -- she spent considerable time in Haiti an France. After U.S. emancipation, Chapman (right) "devoted herself to education for the former slaves" until her death in 1885.
... 2000, 10 miles north of Paris, a Concorde jet bound for New York crashed moments after takeoff, a tire having caught fire as it left the ground. The tragedy killed 113 persons. Immediately after the accident all the supersonic jets (left) were grounded. Flights resumed in 2001, but passengers did not return, and the last commercial flight took place in October 2003.

Thursday, July 24, 2008

Counterterrorism's spillover effect

News that an antiterrorism measure intrudes on settled civil liberties at times is met with a shrug. Case in point, a conversation I had with a self-proclaimed liberal law professor not long after the New York Times revealed in 2006 that U.S. officials had engaged in warrantless electronic surveillance. His response? A shrug, accompanied by, "Doesn't affect me."
Keep that response in mind while considering news in Britain: Local governments have been using a counterterrorist tool -- the Regulation of Investigatory Powers Act 2000 -- to aid investigations with no link to terrorism. The Times of London reports:
Official ‘surveillance’ requests for details of telephone and internet records have surged to 1,400 a day, according to figures published yesterday.
The annual number of ‘spying’ requests for private communications data jumped to almost 520,000 last year, compared with an average of less than 350,000 in the two previous years.
Local councils have been criticised for seeking the information to tackle under age drinking, dog fouling, littering and even to find out whether a family lived in a school catchment area.
Translation: An antiterrorism mechanism's being utilized to police poop-scooping. And here, with inestimable understatement, is the article's next paragraph:
Although local authorities made up only a small proportion of the overall number of requests in 2007, they were criticised for misunderstanding the concept of proportionality in when ‘spying’ is justified to tackle a problem.
This spillover effect ought not to surprise. Nor should it surprise that an inurement to a context-specific curtailment of liberty might engender acceptance of an across-the-board curtailment. Indeed, Britain experienced some of this during The Troubles: measures passed to respond to terrorism in Northern Ireland, having been found to ease prosecution, eventually were embraced for all investigations in all areas of Britain.
Shruggers of the world might want to reconsider their response.

On July 24

On this day in ...
... 1823 (185 years ago today), Chile abolished the slave trade. Abolition was a legislative act of the Republic of Chile, which had been established after the South American country won independence from Spain in 1818. Such measures are detailed in James Ferguson King, The Latin-American Republics and the Suppression of the Slave Trade, 24 Hispanic American Historical Review 387 (1944). (map credit)
... 1923 (85 years ago today), in Switzerland, Britain, France, Greece, Italy, Japan, Romania, Turkey, the United States, and Yugoslavia signed the post-World War I Treaty of Lausanne, which established a Republic of Turkey in part of what had been the Ottoman Empire, and further provided for protection of the Greek ethnic minority within those borders. (map credit)

Wednesday, July 23, 2008

ASIL Book Awards -- Please Submit!

The American Society of International Law is seeking nominations for its annual book awards.
The awards, known as ASIL Certificates of Merit, are given for:
► preeminent contribution to creative scholarship;
► a specialized area of international law; and/or
► high technical craftsmanship.
Authors and publishers are encouraged to submit appropriate works for consideration by the Committee on Annual Awards, which this year is chaired by me, Janie Chuang (American University), and includes another IntLawGrrl, Christiana Ochoa (Indiana-Bloomington), as well as law professors Tai-Heng Cheng (New York) and Susan Franck (Washington and Lee), and Devashish Krishan, an associate at Baker Botts in London.
Books by authors of any nationality, in any language, and published anywhere within the 24 months preceding February 1, 2009, are eligible.
To nominate works of scholarship, sending 6 copies by September 30, 2008, to: Rosemary Kurtz, American Society of International Law, 2223 Massachusetts Avenue N.W., Washington, D.C. 20008.
Good luck!

Challenges posed by brand-new military commissions

The first trial under the Bush administration's awkward new military commission rules has begun at Guantánamo Bay, as Diane posted yesterday, with Salim Ahmed Hamdan facing a commission of 6 U.S. officers. (credit for photo of Gitmo courthouse)
The presiding military judge started with a mixed set of rulings on the admissibility of evidence obtained through coercive means; so far, the judge, Navy Captain Keith J. Allred, has rejected information elicited while Hamdan was interrogated in Afghanistan but admitted data collected in American-run prisons.
The DefenseLink military commission site maintains an extensive collection of filings and scheduling information on the Hamdan trial and the commissions in general. Reviewing the documents posted there suggests how daunting it is to create, sui generis, a brand-new criminal justice system. Dozens of motions and hundreds of exhibits (most heavily redacted) demonstrate the struggle facing prosecutors, defense counsel, judges, and commission members as they try to fit the familiar practice of courts-martial and federal criminal trials into the byzantine rules of the military commissions. Uncertainty persists at every turn, from bureaucratic detail to animating concepts:
► Were counsel appropriately detailed or inappropriately replaced?
► Whither expert witnesses?
► What constitutes "armed conflict"?
► And of course, the most remarked-upon feature of the trials, the battle over the potential admissibility of evidence obtained via torture. In the World War II Nazi saboteur case, the most frequently cited historical predecessor to the new commissions, there were but a handful of military lawyers and officers who worked for but a few weeks; today, there have already been hundreds of attorneys and military officers involved during the nearly seven years since the President's first military order regarding the trial of detainees.

On July 23

On this day in ...
... 1974, the military junta that had seized power in Greece in 1967 collapsed, and soon after "crowds gathered" at Athens airport to greet Constantine Karamanlis (right), the former prime minister, as he returned from exile. He would go on to serve 2 terms as President of the re-established Republic of Greece. (photo credit)
... 1904, at the St. Louis World's Fair, home to the giant Ferris wheel at left, Missourian Charles Menches "started filling pastry cones with two scoops of ice cream," and so launched sales of the 1st ice cream cones. (photo credit)