Friday, October 31, 2008

Deja Vu in the Congo

As 45,000 Congolese flee the internally displaced persons camp near Goma where they sought refuge, it's become clear that the festering wound of the Eastern Democratic Republic of Congo (DRC) has once again burst open. The political origins of the crisis are too complex to go into here (or, quite frankly, for yours truly to understand); suffice to say that the North and South Kivu provinces of the DRC have been the epicenter of massive refugee flows since 1994. Though I've never been, I have vivid pictures of the beauty of Lake Kivu and its surrounding region in my head, imprinted by my earliest asylum clients, who had fled the area after the violence resulting from the Rwandan genocide. After the Tutsi-led Rwandan Patriotic Front gained control of Rwanda, the Hutus fled into the Kivus, resulting in years of border skirmishes and at least two wars between the Hutus and Tutsis on either side of the border. MONUC, the UN Mission in the DRC, has been in place (under Chapter 7 of the UN Charter) for nearly ten years, since 1999. Today, 850 Indian soldiers from MONUC are the only military force in Goma, as the government soldiers have fled and the rebels have announced a unilateral cease fire before taking Goma so that civilians can flee. While the European Union "considers all options" and the UN sends in 80 more Guatemalan soldiers from its 17,000 strong MONUC forces, by all accounts chaos has broken out in Goma, and its population is forced to flee once more.
And so it's deja vu all over again; the bitter internecine tribal feuds, the hand-wringing and delays on the part of the international community, the neighboring countries all too eager to get involved in return for their share of mineral wealth, and the suffering of the residents of the region, particularly the women and girls, who have been sexually assaulted by all comers including UN troops. The crisis highlights the impotence of international law in controlling, accounting for, and preventing such atrocities; the law is simply overwhelmed by the short-term self-interest of all of the power players involved. (map credit)
How can we put an end to the vicious cycles of violence that have plagued the Eastern Congo for nearly fifteen years? Can we possibly put this Humpty back together again? In an ideal world, we would seek a solution both more local and more global than those we've seen thus far (posted about here and here and discussed in IntLawGrrl Elena Baylis' excellent article here); more local in that it would be rooted in relevant moral authority and speak to all sides in the conflict and more global in that it would recognize the culpability of all players -- including other nations -- in creating and perpetuating the violence in the Eastern Congo. But all the king's horses and all the king's men have a long way to go before we can even begin to think about post-conflict justice for Goma.

Write On! Cutting-edge papers for ASIL

(Write On! is an occasional item about notable calls for papers.) In preparation for its next annual meeting, to be held March 25-28, 2009, in Washington, D.C., the American Society of International Law has issued a call for abstracts of papers to be presented at a "Cutting Edge Panel." Papers must relate to the conference theme, "International Law as Law."
All applicants -- students as well as junior and senior practitioners and academics -- are invited to submit proposals to be reviewed in a competitive selection process. Selected speakers must be Society members by the time of their presentation. Strong preference will be given to papers not already published.
To enter, submit:
► a 1,000-to-2,000-word abstract of the paper (applicants who've already completed their paper are welcome but not required to submit it at this time);
► a statement of 200 or fewer words explaining the stage of progress of the paper (e.g., yet to be drafted, fully drafted but not yet accepted for publication, accepted for publication, published);
► contact information; and
► a statement of whether the applicant would or would not also like to be considered for a new poster session format.
Details here. Submissions should be e-mailed to 2009annualmeeting@asil.org by the deadline of December 1, 2008.

On October 31

On this day in ...

... 1883 (125 years ago today), Marie Laurencin was born in Paris. Her mother sent the teenaged Marie to Sèvres, home of a famed porcelain-painting factory. When she returned to Paris she entered an art academy and became acquainted with artists who would form the Cubist School, among them Georges Braque, Pablo Picasso, and Guillaume Apollinaire. Her own paintings featured "mainly lyrical motifs like graceful, dreamy young girls in pastel coloring and soft shading," a "color-sensitive inventiveness" that "leads to a variation of repetitions of form and motifs." "During World War I Laurencin took refuge in Spain where, feeling painfully exiled, she produced few works. " In addition to her paintings, Laurencin is known for designing sets for Serge Diaghilev's ballets and for illustrating a 1930 edition of Lewis Carroll's Alice in Wonderland. She died in Paris in 1956. (credit for photo of Laurencin; credit for her 1923 painting, "Portrait of Mademoiselle Chanel")

... 1968 (40 years ago today), in a televised speech dubbed an "October Surprise," U.S. President Lyndon B. Johnson announced that he was halting "all air, naval, and artillery bombardment of North Vietnam" effective the next day. Five days later, Johnson's preferred successor, his Vice President Hubert Humphrey, lost the Presidential election to Richard M. Nixon (right), the Republican who had served as President Dwight D. Eisenhower's Vice President in the previous decade. The Vietnam War continued for another 7 years.

Thursday, October 30, 2008

Breaking News! Taylor (Chuckie) Convicted

CNN has just reported the conviction of Charles "Chuckie" Taylor, Jr. for torture and conspiracy to commit torture, the first conviction ever under the U.S. statute providing for universal jurisdiction over acts of torture. (The courtroom sketch at right is from the CNN blurb). The statute in question (18 U.S.C. sec. 2340) provides:

(a) Offense.— Whoever outside the United States commits or attempts to commit
torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.

(b) Jurisdiction.— There is jurisdiction over the activity prohibited in subsection (a) if—

(1) the alleged offender is a national of the United States; or
(2) the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender.


(c) Conspiracy.— A person who conspires to commit an offense under this section shall be subject to the same penalties (other than the penalty of death) as the penalties prescribed for the offense, the commission of which was the object of the conspiracy.

We've discussed the case before here. Now we know it can be done.

European Court of Human Rights considers domestic violence

This October the European Court of Human Rights (left) heard arguments in the case of Opuz v Turkey (ECtHR press release) in which the applicant claimed a violation of the Convention on the basis of Turkey’s alleged failure to take action against the applicant’s husband who repeatedly subjected her to domestic abuse and killed her mother. The applicant complained of violations of her right to life (Art. 2), the right to be free from torture, inhuman and degrading treatment or punishment (Art. 3), the right to an effective remedy (Art. 13) and the right to be free from discrimination (Art. 14--in this case it was a claim of gender discrimination). (photo credit)
The case is particularly important as it opens the vista for a recognition at ECtHR level that states have enforceable and justiciable positive obligations to take reasonable steps to protect individuals from domestic violence. Of course, states’ positive obligations in relation to the right to life and to the right to be free from torture, inhuman and degrading treatment or punishment have been long-established under the ECHR, but a finding that domestic violence engages those obligations would be enormously important from the perspective of effective protection. Should the Court find in Mrs. Opuz’s favour, this could significantly chip away at the public/private divide which has traditionally obstructed attempts to use international law to protect vulnerable individuals (and especially women and children) from intimate forms of violence. The Court has already held that states have positive obligations to protect children from sexual abuse and corporal punishment from their parents (Z v United Kingdom (2002) and A v United Kingdom (1998), for example) and so the integrity of this public/private dividing line is not in issue, but whether it will be pierced from a gender perspective remains to be seen. [Aside: this is not intended to deny that men are at times the victims of domestic violence, but rather to reflect the fact that such victims are primarily women].
It seems to me to be quite probable that the applicant will succeed under Arts. 2 and 3, particularly since the violence was frequently reported and the state did not effectively investigate and protect, but success under Art. 14 (non-discrimination) is arguably somewhat less likely. Nevertheless, the case represents an important opportunity for the Court to make a decisive mark against a ‘hands off’ approach to domestic violence and rather to recognise that such violence must be combated. The date of the judgment is not yet known, but there is little doubt that it will be noted and discussed here on IntLawGrrls!
INTERIGHTS are a joined party in this case and their summary of the arguments is available here.

International Crimes and Statutes of Limitation

We’ve blogged before on open doctrinal questions that will face the Extraordinary Chambers in the Courts of Cambodia (below right) once they face the merits of the allegations against the former Khmer Rouge defendants in custody. An obvious additional question relates to the applicable statute of limitations, if any, in light of the fact that the ECCC are an exercise of historical justice, whose jurisdiction is limited (pursuant to Article 1 of their constitutive instrument) to crimes committed in 1975-1979 when the Khmer Rouge held power.

The ECCC have jurisdiction over the core international crimes (genocide, crimes against humanity, and war crimes). In addition, Article 3 of the establishing law grants the Chambers jurisdiction over certain domestic crimes that were penalized by the 1956 Code Pénal et Lois Pénales (homicide, torture, and religious persecution), which remained extant—but unenforced—during the Khmer Rouge era. Pursuant to the latter provisions, the ECCC is essentially charged with interpreting “dead law,” which has not been applied for a generation.

A multilateral treaty promulgated in 1968, the U.N. Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, declared that international crimes are not subject to statutes of limitation. The operative section provides:
No statutory limitation shall apply to the following crimes, irrespective of the date of their commission:
(a) War crimes as they are defined in the Charter of the International Military Tribunal, Nürnberg, of 8 August 1945 … the “grave breaches” enumerated in the Geneva Conventions of 12 August 1949 for the protection of war victims;
(b) Crimes against humanity whether committed in time of war or in time of peace as they are defined in the Charter of the International Military Tribunal, Nürnberg, of 8 August 1945 and confirmed by resolutions 3 (I) of 13 February 1946 and 95 (I) of 11 December 1946 of the General Assembly of the United Nations, eviction by armed attack or occupation and inhuman acts resulting from the policy of apartheid, and the crime of genocide as defined in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, even if such acts do not constitute a violation of the domestic law of the country in which they were committed.

This treaty entered into force in 1970, prior to the Khmer Rouge's ascent to power. But it has only 52 members at the moment.

A similar treaty within the Council of Europe, dating from 1974, abolishes statutes of limitation for genocide, grave breaches of the Geneva Conventions, “any comparable violations of the laws of war,” and “any other violation of a rule of custom of international law which may hereafter be established and which the Contracting State concerned considers … as being of a comparable nature.” The treaty applies only to offenses committed after its entry into force or to prior crimes whose statutory limitations have not yet expired. This treaty entered into force in 2003, although has only 4 ratifications (Belgium (2003), Netherlands (1981), Romania (2000), and Ukraine (2008)) and 2 additional signatories (Bosnia-Herzegovina (2008) and France (1974)).

These treaties might suggest a customary law basis for overcoming any defense of prescription by the Khmer Rouge defendants with respect to the international crimes for which they have been charged. They do not, however, expressly apply to any domestic crimes, even where such crimes provide the predicate act for international crimes. Accordingly, Article 3 of the law establishing the ECCC extended for an additional 30 years the applicable statute of limitations for these crimes:

The statute of limitations set forth in the 1956 Penal Code shall be extended for an additional 30 years for the crimes enumerated above, which are within the jurisdiction of the Extraordinary Chambers.

Under the old Cambodia Penal Code, felonies (designated as crimes) carried a 10-year statute of limitation from the date of commission as compared to misdemeanors (délits), which carried a 5-year statute of limitation. Khmer Rouge defendants will undoubtedly advance arguments that any effort to resuscitate penal liability for these domestic crimes, which lapsed due to the passage of time, constitutes impermissible ex post facto legislation.

In connection with domestic prosecutions for World War II defendants, the European Court of Human Rights has addressed efforts to abolish statutes of limitation for international crimes. In 1964, France enacted a law (No. 64-1326 of Dec. 26, 1964) providing that crimes against humanity, as discussed in and defined by General Assembly Resolution 3 (concerning the extradition and punishment of WWII war criminals) and the Nuremberg Charter, “are imprescriptible by their nature.” In the 1980s and 90s, France prosecuted several World War II defendants—including Paul Touvier (left) (photo credit) and Maurice Papon (right) (photo credit)—for crimes against humanity in reliance on this legislation.
Both Touvier and Papon challenged their convictions before the ECHR on the grounds that they ran afoul of Article 7 of the European Convention on Human Rights, which provides:

No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according the general principles of law recognized by civilized nations.

In both cases, the ECHR ruled that the French law fell within the exception to retroactivity recognized in sub-section 2 above, as the Nuremberg Charter did not contain a period of prescription for its crimes.

Because this analysis depends on the prior criminalization of the crimes at Nuremberg, under a constitutive charter with no reference to an applicable statute of limitations, it will be of only limited use to Khmer Rouge defendants who might challenge any counts brought pursuant to domestic law.

Under U.S. law (Stoger v. California, 539 U.S. 607 (2003)), a law extending a criminal statute of limitations after the existing limitations period has expired violates the U.S. Constitution's ex post facto clause when it is applied to revive a previously time-barred prosecution. Such a statute creates the kind of “manifestly unjust and oppressive” retroactive effects that the ex post facto clause seeks to avoid, because it essentially aggravates a crime as compared to when it was committed. A vigorous dissent from the Court’s conservative wing in Stoger argued that the California statute should have been left standing because:
  1. it did not criminalize previously innocent conduct,

  2. the punishment was limited to what could be assigned at the time the offense was committed so there was no aggravation of the offense,

  3. it did not alter the government’s burden vis-à-vis the elements of the crime, and

  4. Any concern about stale evidence can be dealt with by the jury and the applicable burden of proof.
Assuming defendants are charged with these domestic crimes, the ECCC will have to determine the legality of reviving criminal liability. It remains to be seen whether the ECCC will consider itself subject to a robust ex post facto prohibition (the International Covenant on Civil and Political Rights is loosely incorporated by reference into the Cambodian Constitution) or whether it will fashion a generous tolling regime in light of the existence of repression, war, instability, amnesia, fear, etc.….

Go On! "Transcending the Boundaries of Law"

(Go on! is an occasional item on symposia of interest) Next week, from Thursday to Saturday, the Feminism and Legal Theory Project (FLTP), now hosted at Emory Law School, will celebrate 25 years of cutting edge scholarship in feminist legal theory with a major conference entitled Transcending the Boundaries of Law. The conference will feature papers from some of the most prominent legal academics working in feminist legal theory across various different areas of law and society. The incredibly impressive programme is available here, and, inter alia, features papers from a number of people working in international law (including myself, Laura Spitz, Fionnuala ní Aoláin and Siobhán Mullally).
The FLTP was founded by Professor Martha Fineman (below right) while she was in the University of Wisconsin, Madison, and it travelled with her as she progressed through her career at Columbia, Cornell (where she held the first endowed chair in feminist jurisprudence in the United States), and most recently, Emory. (photo credit) In a recent interview with our colleagues at Feminist Law Professors, available here, Martha explained her motivation for establishing the FLTP thus:

My tenure decision at the University of Wisconsin was delayed a year when one of the [liberal] senior professors pulled his letter of support from my file because I published an article arguing that formal equality was not the model to use for family law reform. He was outraged that I rejected liberal precepts. He later changed his mind and apologized. Another colleague condescendingly told me that even if I questioned formal equality he knew I didn’t want any “special treatment” simply because I was the single mother of four children. I told him I didn’t want special treatment, but perhaps deserved some recognition that I had managed to meet all the tenure requirements while balancing family circumstances that probably would have defeated many others on the faculty (I meant him, with his stay-at-home wife who not only raised the children, but also edited his papers). Those and other encounters taught me there was a real need for a supportive environment to encourage feminist work, particularly of the kind that challenged traditional assumptions and received wisdom, and was based on women’s lived experiences.

For many of us--myself included--the Project and Martha have offered (and, indeed, continue to provide) a supportive and warm environment in which rigorous debate, scholarship and lots of writing have taken place. All the indications are that next week’s conference will carry on in precisely that refreshing, challenging and creative vein.

On October 30

On this day in ...
... 1938 (70 years ago today), on the eve of Hallows Eve, Americans were thunderstruck by CBS' nationwide announcement that Martians had landed "in giant machines with metal legs" and "destroyed everything in their path with a heat ray." Within minutes switchboards jammed. Even before the end of Orson Welles' radio broadcast "War of the Worlds" -- adapting H.G. Wells' 1898 novel -- the Associated Press "issued a bulletin at 8:48 pm that there was no invasion from Mars," and the host of the next radio show began with these words:
'Mr. and Mrs. America, there's no cause for alarm. America has not fallen.'
... 1995, voters in the Québec province of Canada narrowly answered "No" to a secession referendum, which asked in relevant part: "Do you agree that should become sovereign, after having made a formal offer to Canada for a new economic and political partnership ....?" The razor-thin margin -- 50.56% opposed -- led to the 1998 Canada Supreme Court decision holding that Canada was respecting and ensuring the right of self-determination of the people of Québec (flag at left), so that those people had no right under law to secede from the state.

Wednesday, October 29, 2008

New (to us) international tribunal finds Niger liable for failure to protect from slavery

Just when we thought we knew the gamut of new international and internationalized courts and tribunals, along comes this news:
On Monday Niger was found liable for having failed to prevent enslavement, and thus was ordered to pay € 15,000 ($19,000), plus costs and interest, to its enslaved national, Hadijatou Mani (above).
A dozen years ago, at the age of 12, Mani was sold for $500, Le Monde reports, "to a master who exploited her not only as a domestic and agricultural servant, but also as a wahiya, a sexual slave." This "master" was a friend of someone who "years earlier, had reduced Mani's mother into slavery." Eventually Mani "desired to marry someone else," and sought recourse in Niger's courts. For her trouble, she was convicted of bigamy under local customary law, and put in prison. (credit for Agence France-Presse photo by Boureima Hama)
Aided by the NGOs Anti-Slavery International, Interights, and Timidria, Mani sought recourse in an international tribunal: the ECOWAS Community Court of Justice, established 17 years ago as part of the Economic Community Of West African States (ECOWAS), a 23-year-old regional international organization comprising the 15 member states of Benin, Burkina Faso, Cape Verde, Côte d'Ivoire, Gambia, Ghana, Guinea, Guinea Bissau, Liberia, Mali, Nigeria, Senegal, Sierra Leone, and Togo -- and, of course, Niger. (map credit)
Decisions of the 7-member Court are binding and nonappealable. The Court has jurisdiction to hear allegations that a state has violated a right articulated in the Universal Declaration of Human Rights. Article 4 of that 1948 instrument states:
No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.
Monday's decision marked the 1st time that Niger's been found liable for failing to protect a citizen from slavery -- notwithstanding the NGO estimate that as many as 43,000 of Niger's 12,000,000 people are slaves.
Anti-Slavery International's Romana Cacchioli said of the decision:
It demonstrates that a woman from the least favored class in society has rights.
To which Niger's representative replied:
We obey the law and will respect the decision.
Mani herself had this to say:
I am very happy with this decision. I feel that I am a human being like everyone else.

On October 29

On this day in ...
... 1863 (145 years ago today), in Switzerland, a committee set up by the Geneva Public Welfare Society to work to implement Henry Dunant's proposals for alleviating some of the suffering in armed conflict (see prior post) concluded a 4-day conference of states, organizations, and individuals. The meeting ended with adoption of the Resolutions of the Geneva International Conference, calling for national relief bodies organized under the auspices of what would become the International Committee of the Red Cross.
... 1938 (70 years ago today), in Barcelona, Spain, Dolores Ibárruri, the Communist Party activist whose nom de guerre was La Pasionaria, gave a resounding farewell to the International Brigades, the non-Spaniards who had fought fascism during the Spanish Civil War and now were retreating by order of a commission that expelled all foreign fighters. (Note: Various sites give various dates in this same week for these events.) Now an artifact on a website entitled "Modern American Poetry," Ibárruri's speech included these words:
Mothers! Women! When the years pass by and the wounds of war are stanched; when the memory of the sad and bloody days dissipates in a present of liberty, of peace and of well­being; when the rancors have died out and pride in a free country is felt equally by all Spaniards, speak to your children. Tell them of these men of the International Brigades.
(credit for photo of La Pasionaria rallying troops in Madrid)


Tuesday, October 28, 2008

Workplan on Business & Human Rights

In June 2008, John Ruggie, the Special Representative to the U.N. Secretary-General on the Issue of Business and Human Rights (SRSG) issued his final report under his 2005 mandate. I have summarized and analyzed that report here and blogged on it here. After unanimously welcoming the framework established in that report, the Human Rights Council extended the SRSG’s mandate for another three years, asking that he use his renewed mandate to “operationalize” the framework.
The framework is built on three principles: first, the State duty to protect against human rights abuses; second, corporate responsibility to respect human rights; and third, the need for more and improved access to remedies for victims of abuses.
The new mandate addresses each of these principles and requests that they each be furthered.
Earlier this month, the SRSG released a preliminary work plan for his current mandate. It provides illustrations of the policy and legal approaches the SRSG is committed to or is considering pursuing. They include a number of facets, as follows.

Under the state duty to protect:
► Improving access to judicial remedies.
► Continuing the SRSG’s work on investment treaties and host government contracts.
► Examining the role of export credit and investment guarantee agencies.
► Exploring the particular difficulties of operationalizing the framework in conflict zones.
► Encouraging a corporate culture of respect through various means, including the possibility of using corporate law tools to this end.

Under the corporate responsibility to respect:
► Developing “a set of guiding principles on the corporate responsibility to respect and related accountability measures.”
► Further elaborating concepts such as “the scope and nature of corporate due diligence to avoid human rights abuses.

Under access to remedies:
► Identifying legal and practical obstacles to accessing judicial remedies.
► Developing information dissemination and collection tools regarding non-judicial grievance mechanisms.
► Identifying prospects for improving and/or increasing the number of non-judicial mechanisms.
►Exploring the relationship between judicial and non-judicial remedies.

Readers interested in the work of the SRSG can follow developments here.

(Cross-posted at The Conglomerate business/law/economics/society blog)

Write On! I•CON explores citizenship

(Write On! is an occasional item about notable calls for papers.) Editors of the International Journal of Constitutional Law -- which goes by the snappy acronym of I•CON -- are seeking papers for a symposium edition on citizenship.
The focus of the symposium will be the "evolving concept of citizenship in constitutional law"; that is, "the constitutional dimensions of citizenship," approached by "exploring contemporary similarities between and differences among nation-states." Papers should address at least 1 of these themes:
► the effects of international law on national citizenship;
► citizenship in ethnically divided societies; and
► the effect of international migration on citizenship.
To submit an entry, send a 500-word abstract; a cover sheet including your name, institutional affiliation, and contact information; and your c.v. to law.icon@nyu.edu. Authors of abstracts that are chosen will be notified in early January and asked to produce a manuscript of 10,000–15,000 words, including footnotes, by June 1, 2009. Much nearer in time is the abstract-submission deadline: next Tuesday, November 4, 2008.
Questions? E-mail I•CON Managing Editor Karen L. Barrett, karen.barrett@nyu.edu
.

On October 28

On this day in ...
... 1983 (25 years ago today), the United States vetoed a U.N. Security Council resolution "'deeply deploring' ... as a 'flagrant violation of international law,'" the invasion that the United States had led into Grenada. The United States -- which had intervened militarily after the previous week's coup in the Caribbean island state -- stood alone in opposition to the resolution. The 11 countries voting in favor included U.S. allies France, the Netherlands, and Pakistan; among the 3 abstainers was another U.S. ally, Britain. (credit for photo of leaflet dropped during U.S. intervention)
... 1914, having entered the 1st World War being fought in Europe, Canada announced wartime measures at home. Thus Canada's "War Cabinet order[ed] the registration of all 'alien enemies,'" and further "provide[d] for establishment of 'concentration camps' to house internees and their families in exchange for work such as clearing bush and cutting lumber in the national parks." The measures had grave effects on recent immigrants to Canada. (credit for 1916 photo of internees at work camp, Otter Creek, British Columbia)

Monday, October 27, 2008

Guest Blogger: Chimène Keitner

It's IntLawGrrls' great pleasure to welcome as our guest blogger today Chimène Keitner (right).
An Associate Professor of Law at the University of California, Hastings College of the Law, San Francisco, Chimène specializes in International Law and International Tribunals, International Law in U.S. Courts, Comparative Law, and Complex Litigation. Among her publications is her 2007 book, The Paradoxes of Nationalism: The French Revolution and Its Meaning for Contemporary Nation Building.
Born in Canada, Chimène earned her bachelor's degree from Harvard; her J.D. from Yale, where she was awarded a Paul & Daisy Soros Fellowship for New Americans, served a student director of the immigration clinic and an editor of the Yale Law Journal and the Yale Journal of International Law; and her doctorate from Oxford, where she studied as a Rhodes Scholar. Following law school she clerked for the Chief Justice of the Supreme Court of Canada, then practiced at a firm in San Francisco before entering academia. She's worked on human rights litigation and advocacy in cooperation with the American Civil Liberties Union, Human Rights First, and the Center for Justice and Accountability.
She guest-posts today on her forthcoming article respecting the Alien Tort Statute -- a most timely topic, given the début today in San Francisco of a trial based on that human rights statute.
Chimène wishes to honor Emily Greene Balch, the 1946 Nobel Peace Prizewinner whom we've profiled below.
Heartfelt welcome!


Complicity & the Alien Tort Statute

Many thanks to IntLawGrrls for inviting me to say a few words about my forthcoming article, Conceptualizing Complicity in Alien Tort Cases, in this guest post.
As many of you know, corporate liability for violations of international law under the Alien Tort Statute (ATS) remains hotly contested as a matter of domestic law and policy. (Prior IntLawGrrls posts, on the statute and on many of the cases I discuss, may be found here here.)
U.S. State Department Legal Adviser John B. Bellinger III recently lamented the failure of the U.S. Supreme Court to muster a quorum to consider the cert petition in Khulumani v. Barclay National Bank, an ATS case alleging corporate wrongdoing in conjunction with South African apartheid. Other pending corporate ATS cases include Presbyterian Church of Sudan v. Talisman Energy, which is awaiting oral argument before the Second Circuit, and Bowoto v. Chevron, which is about to be tried to a jury in federal court in San Francisco (voir dire is scheduled for today). Although legal issues in Bowoto may resurface on appeal, the factual dispute revolves around whether Chevron assisted the Nigerian government in using lethal force to remove peaceful protesters from one of Chevron’s offshore platforms, or whether Chevron legitimately sought help from Nigerian forces to displace a violent band of hostage-takers from the platform. (credit for photo of Chevron facility in Nigeria)
In the absence of Supreme Court guidance, lower courts have failed to agree on a consistent doctrinal approach to liability in corporate ATS cases. My article clarifies an important, and disputed, puzzle in these cases: whether U.S. law or international law governs the standard for aiding and abetting liability under the ATS. I conclude that international law governs aiding and abetting liability, and that the prevailing international law standard holds accomplices liable for knowingly providing assistance that has a substantial effect on the principal’s commission of a violation. I respectfully disagree with Bellinger, who suggested in his remarks that the Supreme Court’s 2004 decision in Sosa vs. Alvarez-Machain, which did not involve corporate liability, should be interpreted to bar virtually all of these cases. Courts may certainly invoke Sosa to support a finding of lack of subject matter jurisdiction in cases where plaintiffs have not alleged a sufficiently well established violation of international law, just as they may invoke a range of abstention doctrines to decline to exercise jurisdiction in appropriate circumstances. As it stands, however, courts have failed sufficiently to differentiate these aspects of their analyses, resulting in confusion over the proper application of the ATS and the scope of liability for aiding and abetting international law violations.
On a more reflective note:
We as academics may justifiably wonder if courts actually read what we have to say about doctrinal questions. (I must confess that, when I clerked for the Canadian Supreme Court, I relied almost entirely on case law and rarely, if ever, took a detour into scholarly literature to inform my legal analyses.) On the question of accomplice liability, however, I would respectfully suggest that no court opinion has yet articulated what I believe to be the most accurate and compelling analysis. My article presents this analysis, which I hope other scholars and, ultimately, judges, will find helpful and persuasive.

Honoring Emily Greene Balch

A few words about Emily Greene Balch (left), whom today's guest blogger, Chimène Keitner, has chosen to honor:
Born in 1867, Balch was a member of the 1st class to graduate from Bryn Mawr College; thereafter she studied sociology and economics in Europe and, eventually, back in the United States. She started teaching at Wellesley College in 1896, and became a Professor there 15 years later. During this time she was active in movements for women's suffrage, racial justice, and fair treatment of immigrants.
When World War I broke out in 1914, she found her life's calling; that is, "furthering humanity's effort to rid the world of war." Among many other activities, Balch:
► took part in the 1915 International Congress of Women at The Hague;
► helped to found what's now known as the Women's International League for Peace and Freedom;
► collaborated with Jane Addams and others on Women at The Hague: The International Congress of Women and Its Results (1915); and
► participated in the work of the League of Nations that was formed in the wake of World War I.
(credit for photo below right of American delegation to the 1915 Hague Conference; Balch is standing at far left in the 3d row from the front, while Addams is sitting 2d from left in the front row)
By the time that Balch was named a Nobel Peace Prizewinner in 1946, she had altered "her strong pacifistic views" somewhat on account of the "the excesses of nazism." She came "to defend the 'fundamental human rights, sword in hand'" in World War II, even as she "concentrated on generating ideas for the peace, most of them characterized by the common denominator of internationalism." Today Balch, who died in 1961 at the age of 94 years + 1 day, joins Addams -- her friend and a 1931 Peace Prizewinner -- and other distinguished women on IntLawGrrls' transnational foremothers list at right, just below our "visiting from ..." map in our righthand column.

On October 27

On this day in ...
... 1968 (40 years ago today), a month shy of her 90th birthday, Lise Meitner (right) died in Cambridge, England. The 3d of 8 children born into a Viennese family, Meitner surmounted "Austrian restrictions on female education" to enroll in 1901 at the University of Vienna, where she earned a doctorate in physics, then went to Berlin, where eventually she and a collaborator, Otto Hahn, "achieved important results in the new field of nuclear physics, competing with Irène Curie" and other scientists. The rise of Nazism forced Meitner to emigrate in 1938; this forced separation "led to the Nobel committee's failure to understand her part in the work" that she and Hahn did in the development of nuclear fission -- work for which he alone received the 1944 Nobel Prize in Chemistry. She has been otherwise recognized, however; as 1 example, the radioactive element Meitnerium (abbreviated Mt, No. 109 on the periodic table) was named after her. (photo credit)
... 1983 (25 years ago today), the U.N. General Assembly adopted a resolution demanding the retreating of all "foreign forces" from Cambodia (flag at left) -- a country then occupied by Vietnam.

Sunday, October 26, 2008

Security Council Resolves to Fight (Some) Piracy

As I mentioned in an earlier post about a French ship's run in with pirates in the Gulf of Aden, France asked the Security Council (right) for action, particularly in the form of “regular international surveillance” and changing the definition of "piracy" in the Law of the Sea Treaty to allow states to pursue pirates even in the coastal waters off Somalia. Earlier this month, acting under Chapter VII of the UN Charter, the Security Council unanimously adopted Resolution 1838, which authorizes states to take action against acts of piracy and armed robbery against vessels off the Somalian coast. Having determined
that the incidents of piracy and armed robbery against vessels in the territorial waters of Somalia and the high seas off the coast of Somalia exacerbate the situation in Somalia which continues to constitute a threat against international peace and security in the region,
the Security Council encourages states to deploy "naval vessels and military aircraft" in the area (photo credit). Leery of establishing a precedent, the Council clearly states that the Resolution applies only to Somalia and "underscores in particular that this resolution shall not be considered as establishing customary international law." Interesting.
Apparently, the Security Council was not willing to go as far as France had proposed: it authorizes military undertakings in Somalia's coastal waters to combat piracy as a tributary to or aggravating factor in the international-peace-threatening situation in Somalia, but the definition of "piracy" would still seem to limit the crime to acts on the high seas. Though piracy was the original threat to collective security, giving birth to universal jurisdiction and providing the model for actions against today's perpetrators of international crimes, it no longer seems to be considered as such. Instead, in this particular situation, it is a hook for a sort of externalized R2P--we intervene at water's edge to protect our interests on the theory that this will improve, or at least help keep from worsening, the situation within Somalia.

On October 26

On this day in ...

... 2001, as congressional leaders looked on, Pub. L. 107-56 was signed into law by U.S. President George W. Bush. Formally titled "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism," this USA PATRIOT Act included the easing of surveillance and hundreds of pages of other measures adopted in near-immediate response to the September 11, 2001, terrorist attacks in New York and Washington.

... 1956, the Statute of the International Atomic Energy Agency was opened for signature "by all States Members of the United Nations or of any of the specialized agencies." That same month "81 nations unanimously approved" the founding instrument of the IAEA, set up a year later in the temporary headquarters at right. The Vienna-based agency now has 145 member states.


Saturday, October 25, 2008

All-Inclusive Rights: Resources on International Disability Rights

(Part of a series on human rights and disability.)

“Miss Lou” can’t think about anything but the global economic crisis and the U.S. presidential elections these days. Turns out, though, both are relevant for this series on disability human rights. Persons with disabilities, who already experience high rates of joblessness and poverty, will be further marginalized as federal and municipal governments tighten their belts and cut public programs.
But politicians who dismiss the rights and concerns of persons with disabilities do so at their own peril. There are more than 30 million PWD who are of voting age in the U.S. alone. For the U.S. presidential candidate positions on disabilities, see:
Americans with Disabilities for McCain-Palin 2008
Americans with Disabilities for Obama
Full disclosure: Miss Lou is a staunch Obama supporter. Both PWD and non-disabled persons must pressure candidates to maintain or increase their commitment to these issues during difficult economic times. 'Nuff said.

Resources on Disability in International Perspective
The following brief resource list is intended only as an eclectic starting point for those interested in learning more about disability in international legal perspective. It is by no means comprehensive; I encourage IntLawGrrls readers to add resources and citations in the comments section.
Michael Stein, Executive Director of the Harvard Project on Disability and Professor of Law, William and Mary School of Law (above left) is among the growing number of legal scholars who take an international perspective on disability issues. (See also upper right photo of Chai Feldblum, Professor of Law, Director, Federal Legislation and Administrative Clinic, Georgetown University Law Center, a leading advocate who helped draft key U.S. federal legislation on disability, and middle right photo of Wendy Parmet, George J. and Kathleen Waters Matthews Distinguished University Professor of Law, Northeastern University, an expert on U.S. disability law and health law.) Many thanks to Northeastern University School of Law student Matthew Moore for his excellent research assistance.

International Law and Disability
Convention on the Rights of Persons with Disabilities and Optional Protocol, G.A. res. A/61/611 (2006)
UN Enable
►UN Office of the High Commissioner for Human Rights, “Disability Rights”
►Disability Rights - International Library of Essays on Rights (P. Blanck, ed., Ashgate, 2005)
Human Rights and Disability: The Current Use and Future Potential of United Nations Human Rights Instruments in the Context of Disability (Gerard Quinn & Theresia Degener, eds., Geneva, (2002))
►Wendy Scott, Guide to Sources in International and Comparative Disability Law, 34 Syracuse Journal of International Law & Commerce 621 (2007) ( special journal issue on international and comparative disability law) (See photo of Wendy Scott, Assistant Director for Faculty & Outreach Services and Adjunct Professor of Law, Syracuse University College of Law (bottom right))
►Michael Stein, Disability Human Rights, 95 California Law Review 75 (2007)

Africa
African Decade of Disabled People (2001-2009)

The Americas
Americans with Disabilities Act of 1990
ADA Amendments Act of 2008
Inter-American Convention on the Elimination of All Forms of Discrimination Against Persons With Disabilities, AG/RES. 1608, 7 June 1999
Asia-Pacific
►Asia-Pacific Forum of National Human Rights Institutions, “Now the real work starts: implementing the UN Disability Convention”

Europe
►European Human Rights Law and Disability – Critical Issues (Gerard Quinn and O. DeSchutter, eds. (2007)

NGO Resources
Disability Rights Fund
Human Rights Yes! Action and Advocacy on the Rights of Persons with Disabilities, (Nancy Flowers, ed. 2007) (training manual)
Mental Disability Rights International, “Resources”
Rehabilitation International
UN Enable, Non-governmental Organizations Accredited to the Ad Hoc Committee

University Resources
American University, Washington College of Law, “The New UN Disability Rights Convention: Building Support in the United States for Ratification and Implementation” (April 9, 2007) (webcast)
ArchiveADA (historical materials on ADA and ADA-AA maintained by the Georgetown University Law Center)
Harvard Project on Disability, Harvard University
Centre for Disability Law and Policy, National University of Ireland (Galway)
Center on Human Policy, Law, and Disability Studies, Syracuse University College of Law, “International and Comparative Disability Law Web Resources” (comprehensive site)
University of California, San Francisco, Disability Statistics Center, “Resources”
University of Minnesota, Human Rights Law Library, "Rights of Disabled Persons"

Disability in Sport
Center for the Study of Sport in Society, Northeastern University, “Disability in Sport”
Human Rights Watch, “China: As Paralympics Launch: Disabled Face Discrimination”
Paralympic Games (Beijing, China, September 2008)
►Elise C. Roy, Aiming for Inclusive Sport: the Legal and Practical Implications of the United Nation’s Disability Convention for Sport, Recreation and Leisure for People with Disabilities, Entertainment and Sports Law Journal (August 2007)
Team Darfur


On October 25

On this day in ...
... 1971, the Republic of China (flag at left), a charter member of the United Nations which once had controlled the mainland but had been confined to the island of Taiwan since 1949, was stripped of membership in the U.N. General Assembly. The so-called "China seat" -- including permanent membership in the U.N. Security Council -- would be given to the People's Republic of China (flag at right).

... 1892, a girl named Helen Foster-Barham was born in Victoria, British Columbia. Under the stage name of Nell Shipman (left), she would become "one of the first women in the world to direct her own films and establish her own production company." The Canadian-born "silent film pioneer" died in California in 1970. (photo credit)

Friday, October 24, 2008

A Koala That's Not So Cuddly . . .

Most readers likely remember the horrific stories of stinking waste dumped from a cargo ship in Abidjan in August 2006, a stunning example of what's been termed "toxic waste colonialism." The toxic sludge, which killed 17 and caused over 100,000 Ivorians to seek medical treatment, was dumped from the Probo Koala, a Panamanian-registered cargo ship operated by Trafigura, a British and Dutch multinational corporation. Trafigura had hired Compagnie Tommy, run by a Nigerian national, to dump almost 20,000 cubic feet of gasoline residues, sulphur, and caustic soda in Abidjan after it had failed to agree on deals to get the waste properly treated in the Netherlands or Nigeria. The contract was awarded to Tommy by Puma Energy, an Ivoirian company in which Trafigura and members of President Laurent Gbagbo's family held shares. On Wednesday, an Ivorian court sentenced the head of Tommy to 20 years in prison and sentenced a shipping agent at the Port of Abidjan who had recommended Tommy to Trafigura to 5 years. Noticeably absent were sentences for those responsible at Puma Energy -- the head of the company, who was supposed to be a witness, left the country several days before the trial -- and at Trafigura, whose executives were freed last year after it settled with the Ivorian government for over $200 million, but maintains that its "slops" did not cause the illnesses suffered by Abidjan's residents.
This failure of accountability underscores the need for expanded international jurisdiction over corporations such as Trafigura, whose prior misdeeds include violating the embargo provisions of the UN "Oil for Food" program in Iraq. To be sure, this is just the first battle in a longer war -- the Dutch Public Prosecutor has charged Trafigura in connection with its stay in Amsterdam before steaming to Abidjan and Leigh Day and Co., a British law firm working with Greenpeace, has instituted a class action lawsuit against Trafigura on behalf of those injured by the toxic waste. Moreover, the UN Special Rapporteur on the adverse effects of the illicit movement and dumping of toxic and dangerous products and wastes on the enjoyment of human rights (try saying that 10 times quickly!) has visited Cote d'Ivoire and called on the international community to assist in clean-up efforts. But the Special Rapporteur's website illustrates exactly the problem with international law's vision of the world -- it focuses on the obligations of States to monitor the disposal of hazardous wastes and the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (to which all the nations involved are parties), rather than on the corporations responsible for the harm. Those corporations, of course, haven't signed any treaties, and are thus able to hide in the shadows of international law, cuddling their Probo Koalas while decimating the lives of hundreds of thousands of victims who can seek recompense only in weak national courts or the corporations' home courts.

On October 24


On this day in ...

... 1648 (360 years ago today), the Peace Treaty between the Holy Roman Emperor and the King of France and their respective Allies was signed at Westphalia. This Peace of Westphalia ended the 30 Years War that had devastated the European continent. Yet its legacy extends far beyond that achievement: the "Westphalian system," by which nation-states are deemed sovereign, independent, equal, and primary actors in international law and politics, retains influence to this day. (credit for Gerard Terborch's 1648 painting of the treaty signing)
... 1962, as of 2 p.m. Greenwich time, by an order that President John F. Kennedy had given 2 days earlier, "U.S. armed forces" were instructed "'interdict the delivery of offensive weapons and associated material to Cuba,'" thus beginning the blockade that was a key component of the Cuban Missile Crisis. (photo credit)


Thursday, October 23, 2008

On Legality & Delay of Justice in the ECCC

(2d of a 2-part post, part of IntLawGrrls' ongoing Khmer Rouge Accountability series. Part 1 is here.)

Yesterday, I detailed the circumstances leading to Co-Prosecutors to appeal the Indictment of Khmer Rouge suspect Kaing Guek Eav, known as "Duch," on the ground that the Co-Investigating Judges of the Extraordinary Chambers in the Courts of Cambodia erred when, on August 21, 2008, they limited indictment to:
► war crimes (grave breaches of the 1949 Geneva Conventions); and
► crimes against humanity under principles of direct and accomplice liability.
In my view, the Prosecutors are smart to have filed this appeal, which contends that Duch should also have been charged with:
► the domestic crimes of murder and torture; and
► the commission of all the charged crimes pursuant to a joint criminal enterprise, or JCE.
One of the most difficult aspects of adjudicating the legal liability of surviving members of the Khmer Rouge will be to identify the state of the law in 1975-1979 in keeping with the principle of legality. That is because many developments in international criminal law that are most relevant to the atrocities of the Khmer Rouge era post-date that era, as they are the result of the work of the two ad hoc tribunals in the late 1990s. These developments include:
► the almost complete convergence of the law on war crimes relevant to internal and international armed conflicts;
► the official abandonment of the war nexus for crimes against humanity; and
► the adoption of the subjective approach to protected group identity and membership for genocide.
A particular point of controversy will undoubtedly be whether a state of armed conflict existed in Cambodia during the Khmer Rouge era. Certainly, a low-level conflict existed between the Khmer Rouge central government and a resistance movement made up of members of the prior regime and others; however, many of the violations of international criminal law most associated with the Khmer Rouge were more in the nature of organized repression against actual or perceived dissidents, in the absence of any credible armed resistance. Many other violations may have had no nexus to whatever armed conflict did exist.
Eventually, Vietnam began to intervene in the Eastern zones of Cambodia, and then later launched a full-scale invasion that ousted the Khmer Rouge completely (photo upper left, credit). The moments when this conflict began to trigger the application of humanitarian law, and when the conflict officially became an international armed conflict, remain questions for litigation.
The existence of a state of armed conflict is relevant not only for any war crimes counts, but perhaps also for any crimes against humanity that might be charged. When crimes against humanity first emerged as an international law offense after World War II, the crime remained intimately tied to a state of war. Specifically, the postwar Nuremberg and Tokyo tribunals required the prosecution to demonstrate a “nexus” between the charged crime against humanity and the war of aggression launched by Nazi Germany or Imperialist Japan, because the Charters of those tribunals defined crimes against humanity as
murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial, or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

The Nuremberg Tribunal interpreted the passage that I've italicized to preclude the prosecution of events preceding the commencement of World War II, which it pegged to Germany’s invasion of Poland in 1939. This rendered crimes against humanity a sort of byproduct of war rather than an autonomous offense.
The war nexus served two important purposes in the post-World War II proceedings. First, it helped to satisfy the principle of legality by tying the new charge of crimes against humanity to the relatively well-established prohibition against war crimes. Second, it justified the intrusion of international law into the domestic affairs of a sovereign state. Crimes against humanity effectively trumped domestic authority by criminalizing acts “whether or not in violation of the domestic law of the country where perpetrated.” The war nexus ensured that only after a state had already breached international peace by committing acts of aggression would crimes committed internally be susceptible to international scrutiny and prosecution.
Over time, these legality and sovereignty concerns have become less acute on account of the rise of the human rights movement, which is premised on the idea that the way in which a state treats individuals within its territory and under its control is now beyond doubt a matter of international concern. Modern jurisprudence confirms that crimes against humanity are now entirely autonomous from a state of war. When exactly that happened, however, remains an open question that will no doubt be litigated before the ECCC.
As a result of the Co-Prosecutors’ appeal, the trial of Duch, which was supposed to commence this fall, has been continued until next year. The Pre-Trial Chamber has announced that it plans to issue its decision on the appeal concerning the Closing Order on or about December 5, 2008. At that point, the case file will be transferred to the Trial Chamber to commence trial proceedings with the exchange of witness lists, a Trial Management Meeting, the Initial Hearing, etc. ....

The Cambodian people have been waiting decades for justice -- what is another couple of months at this point?