Tuesday, March 31, 2009

New Subscription Feature for Followers of IntLawGrrls

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Happy reading!

Guest Blogger: Tracy A. Thomas

It's IntLawGrrls' great pleasure today to welcome Tracy A. Thomas (left) as a guest blogger.
Professor of Law and Director of Faculty Research and Development at the University of Akron School of Law in Ohio, Tracy teaches Remedies, Women’s Legal History, and Family Law.
She was graduated Order of the Coif with her J.D. from Loyola Law School in Los Angeles, where she was also Production Editor of the Loyola of Los Angeles International and Comparative Law Review (then called Journal). She also holds a a B.A., cum laude, from Miami University in Oxford, Ohio, and an M.P.A. from California State University-Long Beach.
Prior to joining the Akron Law faculty in 1998, she clerked for Judge Ferdinand F. Fernandez on the U.S. Court of Appeals for the Ninth Circuit, and was an attorney for Covington & Burling and Neighborhood Legal Services in Washington, D.C.
Tracy's publications include numerous articles and essays on equitable remedies, and she is newly a co-editor of Remedies: Public and Private (West, forthcoming 5th ed.). Much of her scholarship forms a part of the nascent field of women's legal history, about which she guest-posts below. Among Tracy's current research projects is a book, under contract with New York University Press, entitled Elizabeth Cady Stanton and the Feminist Foundations of Family Law. Not surprisingly, she chooses to dedicate her guest-post below to her research subject. Stanton (prior IntLawGrrls posts) is depicted below in 1856 as she holds 1 of her daughters, Harriot. (credit)
Tracy writes that
Elizabeth Cady Stanton was a formidable intellect, whose holistic concepts of gender equity enabled her to envision individual, collective, and systemic change. She was able to articulate legal philosophies that are much of the basis of our work today. She did all of this while mothering (single-handedly) seven children. Her radical ideas led to her historical ostracization even though it was she at the time, rather than her colleague, Susan B. Anthony, who was the familiar national figure.
Today Stanton joins other honorees (albeit, we note, not yet Anthony) on the list of IntLawGrrls' transnational foremothers just below our "visiting from ..." map at right.

Heartfelt welcome!

On women's legal history

(My thanks to IntLawGrrls for this opportunity to guest-post.)

Women's legal history in the United States is developing as a new and exciting field that provides alternative perspectives on legal issues both past and present. Feminist legal history seeks to examine both the ways in which law historically has informed women's rights and how feminist discourse has shaped the law.
A recent symposium edition of the Akron Law Review provides a sampling of the promising work underway in this nascent field. The articles found in that edition originate from a 2007 conference entitled “The New Face of Women’s Legal History” and held at the University of Akron School of Law’s Constitutional Law Center. (photo credit) As summarized in my introduction to the conference, the papers include explorations of the gendered origins of nuisance law, the feminization of criminal “problem-solving” courts, the use of trust and estates law to free Southern slave women, and the assertion of public citizenship by mixed-race women. In their articles the authors -- Professors Felice Batlan (Chicago-Kent), Mae C. Quinn (Tennessee), Bernie D. Jones (Suffolk), and Taunya Lovell Banks (Maryland) (prior IntLawGrrls post) -- draw upon the active scholarship in women’s history that may be found in the academic traditions of law, history, women’s studies, and political science.
Additional research on the broader picture of U.S. feminist legal history is being published in Feminist Legal History: Women’s Agency in the Law, a collection that I am editing along with T.J. Boisseau (below right), my colleague in Akron's Department of History. Contributing authors to this book employ the core theme -- women's use of the law for feminist discourse -- in a variety of historical contexts to reframe and illuminate such topics as: women's rights in the family; women's participation in the military; and women's role in legal activism in social justice movements.
Chapters explore women in in a variety of contexts, such as:
► marriage,
► anti-miscegenation cases,
► labor,
► temperance,
► tort law,
► suffrage,
► problem-solving courts,
► sexual harassment, and
► legal aid organizations.
Women’s historical engagement with the law is thus revealed. The collective story is one of agency, of the ability of women to gain active control over their lives and social circumstances. Rather than remaining passive as the law decided for them, or ignored their experiences and realities, women took the law into their own hands and acted affirmatively for their own benefit and for the benefit of a larger social justice. Even as the legal rules established barriers to women’s equality and denied women public and political rights, women continued to appeal to the legal process as a venue for change. They asserted their rights, demanded new legal responses to their lived experiences, and integrated their gendered notions of justice into an unwelcoming system.
Feminist legal history offers a pragmatic, or “applied,” scholarship to feminist legal studies. It is concerned with the personal, private experiences of women. Like other feminist legal theory projects it is -- to quote this apt description of the work of Martha Fineman (prior IntLawGrrls posts) -- “born of the world, responding to real lives and needs, reflecting the law and society tradition of reasoning from the world to law.” This kind of “applied legal scholarship” seeks to make history directly relevant to modern legal discourse, with the hope it will impact future changes in the law that are responsive to the lived realities of women.

On March 31

On this day in ...
... 1917, the Caribbean isles known then as the Danish West Indies and today as the Virgin Islands were formally transferred to the United States, in exchange for "a U.S. payment to Denmark of $25,000,000 in gold coin." The islands of St. Thomas, St. John, and St. Croix remain part of the United States to this day.
... 1938, the eldest of what would be 3 daughters was born into "a non-political family in Punjab’s Kapurthala district." The eldest became active in politics following her marriage, and represented India at the U.N. Commission on Status of Women from 1984 to 1989. Since 1998 Sheila Dikshit (left) has served as Chief Minister, or Mayor, of Delhi, India; she also represents her area in her country's legislative assembly.

(Prior March 31 posts are here and here.)

Monday, March 30, 2009

Go On! Women in Africa & Reproductive Rights

(Go On! is an occasional item on symposia of interest) On Friday, 3 April 2009, the Washington and Lee School of Law Journal of Civil Rights and Social Justice is sponsoring a symposium on "Reproductive and Sexual Health and the African Women's Protocol."
The conference focuses on the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa ("Maputo Protocol") and its implications for the health of women and girls.
Panels address such issues as declining access to health services for women, the HIV/AIDS pandemic, violence against women, the health impact of harmful traditional and modern practices, abortion, and overall sexual health.
Check out the full program and the stellar line-up of panelists from Africa and the Americas here.

Extradition silly season

For the 3d time in a month The New York Times has disserved readers interested in matters pertaining to international or transnational criminal law.
1st there was the uncritical puff piece on the unprecedented anonymity of the newly sworn-in bench of the Special Tribunal for Lebanon.
Then there was the uncritical call for unilateral air strikes against Sudan, without any consideration of whether international law might forbid the United States or any state from engaging in such use of force.
And now there is yesterday's uncritical story on Spain and 6 Bush Administration lawyers.
This IntLawGrrl had decided the day before the Times story appeared to write nothing on this at this time, for the reason that a close read of the Spanish media on which the story is based revealed little more than a leak of a trial balloon -- a tentative signal that a criminal investigation might be opened respecting these lawyers' involvement in U.S. interrogation abuses post-9/11. Unless things have changed radically in 2 days, Spain seems far from indicting anyone. The New York Times nonetheless chose to publish the names and photographs (perhaps better described as mugshots, given the nature of the photos chosen) of all 6.
But it's not that choice that galls. What galls is the 1st clause of paragraph 23 of the Times 25-paragraph story:

The United States, however, would be expected to ignore an extradition request for former officials, ....
This declaration, made without attribution -- without even the feint of an unnamed source -- is legal nonsense.
Extradition is a treaty-based process by which 2 nation-states promise to hand over fugitives upon request; this statement of promise in the U.S.-U.K. Extradition Treaty is typical:

Obligation to Extradite
The Parties agree to extradite to each other, pursuant to the provisions of this Treaty, persons sought by the authorities in the Requesting State for trial or punishment for extraditable offenses.

Not every request will result in extradition, however. Such treaties often are quite detailed, and conditions for extradition vary from treaty to treaty. I have been unable to locate the text of the original and supplementary U.S.-Spain extradition treaties online. Still, certain common restrictions might well be part of the U.S.-Spain framework. For instance:
Double criminality: The offense for which the fugitive (called the "relator") is sought must have been, at the time it was allegedly committed, a felony under the laws of both countries.
Specialty: If extradited, the relator may be tried in the requesting country only for offenses properly named in the extradition request.
Political Offense: In some treaties, extradition will be blocked if the underlying offense is of a political nature.
Double Jeopardy/Ne Bis in Idem: There will be no extradition if the relator already has been tried for the same offense.
Hearing: The requested state typically will consider the relator's challenges to extradition, not only on factors like those above, but also on fundamental due process concerns, such as whether the person in custody is in fact the person sought for extradition, and whether the requesting state's statement of the bases for suspecting the relator of the stated offense is sufficient. In the United States such additional conditions are spelled out at Title 18, ch. 209 of the U.S. Code.
If the requesting state fails to meet all the requirements agreed upon in the extradition treaty and law, the requested state is fully justified in refusing the request.
Such a refusal, however, would fall far short of "ignoring" an extradition request, for it would have come after examination of the matter at hand; that is, only after the state had discharged its obligations under the extradition treaty to give due consideration both to its treaty partner's request for extradition and to the relator's challenges to same.
For the Times to suggest that the United States would do anything less evinces a lack of understanding about the law and casts innuendo where none is yet warranted.

On March 30

On this day in ...
... 1999 (10 years ago), reports were that Kosovo was in dire straits. Typical was a report for the U.S. Office of Foreign Disaster Assistance, which stated that: "All relief organizations have evacuated Kosovo at this time, including the International Committee of the Red Cross and Medecins Sans Frontieres (MSF), which had remained in Kosovo after the NATO bombing campaign" against Serbia began on March 24; that "[o]ver 100,000 people have been displaced from Kosovo since March 24"; and that surrounding areas, such as Albania and Macedonia, and even as far away as Bulgaria and Turkey, had swelled with Kosovar refugees.
... 2001, the administration of President George W. Bush "notified state Medicaid directors that Medicaid funds could not be used to cover RU-486, the so-called abortion pill, except in cases involving rape, incest, or when the life of the mother is in danger."

(Prior March 30 posts are here and here.)

Sunday, March 29, 2009

Closing Guantánamo: Legal and Policy Issues

It was a pleasure to see so many Int’l L Grrls (and their readers) at the American Society of International Law Annual Meeting this weekend. A couple of us will be offering "reports" from the conference. Here, I’ll present a summary of one of the more eagerly awaited panels on “Closing Guantánamo: Legal and Policy Issues" chaired by Bobby Chesney (Wake Forest). The panelists were David Glazier (Loyola of L.A.), Deborah Pearlstein (Princeton), Joanne Mariner (Human Rights Watch), and Glenn Sulmasy (U.S. Coast Guard Academy). A discussion of the crux of the problem of detention in non-international armed conflicts going forward will appear in a subsequent post. (Apologies if I jhave mischaracterized anyone’s position; clarifications welcome).

Chesney introduced the panel by describing the two executive-order task forces currently at work on detainee issues.
  • One is reviewing detainee files case-by-case with an eye toward reaching individualized dispositions.
  • The other will take a longer perspective and attempt to devise a detainee policy for the future.
In the meantime, the administration has been forced to take positions (see post here) in habeas cases pending in federal courts (see post here).

Prof. Glazier (right) emphasized that the decision to close GTMO was the easy part; the “how” is where the challenge lies. Glazier identified three potential outcomes:
  1. release,
  2. prosecute (or transfer for prosecution), or
  3. continue to detain.
Of the 240 or so detainees, about 60 men have already been cleared for release. In his estimation, about 80 individuals might still qualify as “high value,” but it is likely that most are minor functionaries along the lines of Salim Hamdan. Federal courts represent the only place to credibly prosecute individuals for whom there is sufficient evidence. Anything short of an Article III process will be perceived as a shortcut. Glazier raised concerns about the transfer paradigm: if the United States can’t fairly prosecute them here (for lack of admissible evidence or viable substantive charges), then it is unlikely other states could either. To transfer detainees for prosecution would put the detainees at risk of further detention without trial or of sham proceedings that might violate international human rights protections.

He acknowledged that some subset of detainees cannot be tried (because any evidence against them was obtained by torture or mistreatment, any crime for which they might be tried was enacted after they acted, or because there is simply no or inadequate evidence available against them) but remain dangerous. For this group, the U.S. should establish a preventive detention regime that is based on the law of war (to which GTMO doesn’t come close to complying). This paradigm must reflect the model of a communal camp setting with access to the outside world, etc.

Deborah Pearlstein (right) emphasized that the problem of what to do with GTMO is to a certain degree sui generis, because our options are informed and limited by what we’ve already done (which includes the commission of acts of torture, incommunicado detention, removal from battlefield, the failure to hold GC III Art. 5 hearings, etc.). For these individuals, there may be no good options available, so we’re left to sort through the “less bad” options. In so doing, we should attempt to do as little violence to international law as possible. This process of resolving GTMO should be cabined off from the larger problem of defining a detention process going forward; we can’t let the hard case of GTMO make permanent bad law or policy for the future.
Taking off on Glazier’s three categories of detainee, Pearlstein noted that the individuals slated for release represent a diplomatic, rather than a legal, problem. Many of these individuals may not be able to be sent home because of widely-shared treaty obligations under the Refugee or Torture Conventions. For those individuals who might have been prosecutable, there were more options available upon capture (courts martial, legitimate and lawful military commissions). Now, we’re left with federal courts as the only legitimate option.

For those who present security risks and might need to be further detained, the law of war may not provide any affirmative authority to detain individuals (either combatants or civilians who directly participated in hostilities) who were captured either in the context of a non-international armed conflict (NIAC) or outside of a conflict situation entirely (such as in Zambia). In addition, the Authorization to Use Military Force (AUMF) may not constitute sufficient domestic authority to detain these individuals. Thus, we would need express domestic authority in the form of new legislation to continue to detain them.

One positive outcome of the recent Obama administration filing beyond the welcome demise of the "enemy combatant" nomenclature is the good faith statement that the Administration intends to be in compliance with IHL. IHL quite clear and detailed on what detention authority exists in IACs. This, however, brings into sharp focus the need to look closely at the nature of the authority to continue to detain GTMO and other detainees given that the law governing NIAC provides no treaty-based authority to detain, on the presumption that domestic claw would provide the necessary authority outside of a state-to-state conflict where international law would be necessary.

Anticipating arguments by Commander Sulmasy, Pearlstein opposed the establishment of any separate national security court on the grounds that such a system won’t solve the GTMO problem and could never be established in time, given the legal challenges that would inevitably follow. She referenced a Human Rights First study demonstrating that the federal courts are sufficiently flexible to handle terrorism cases.

Commander Sulmasy (left) emphasized that even when we resolve the GTMO cases, there are hundreds of detainees at Bagram Air Base whose lawyers are also attempting to get into the U.S. court system. We still have not yet fully resolved the question of whether the situation with Al Qaeda is an armed conflict or a law enforcement problem or some hybrid of the two. The typical Al Qaeda member is part-international criminal, part-warrior.

Although he was thin on details, Commander Sulmasy advocated a hybrid national security court that would combine aspects of the military commission scheme as it was originally conceived (to dispense rapid justice) and Article III courts. (Sulmasy conceded that the military commissions, which should have begun trials in 2003, never achieved their intended purposes and that his support for the existing system eroded over time). This might involve proceedings that would be closed to the public (but not the detainee). This would not constitute preventative detention, as the process would be an adjudicative one rather than an adaptation of the Combatant Status Review tribunal system. Sulmasy questioned the ability of Article III courts to deal with terrorists and unprivileged combatants, noting that many of the terrorism cases reported on to date preceded 9-11.

Joanne Mariner (left) agreed that the immediate decision to close GTMO represented a meaningful break with the most reviled of the many unsavory Bush Administration policies. She was concerned, however, that some of the solutions being put forward are—and will be perceived to be—mere tinkering with the existing machinery. (She specifically noted the Obama Administration’s deliberate use of the term “refining” in its pronouncements). This, she emphasized, will not fool our European allies or the Muslim world for that matter, which may actually be the most important audience to convince that we’re genuinely changing our approach to fighting terrorism. In her estimation, we need the Muslim world’s support to fight terrorism effectively. In this regard, Mariner was disappointed in the most recent filing in the detainee litigation which, while it rejected the rhetoric of the Bush administration and laid to rest the controversial and unsupported term “enemy combatant”, resulted in only a slight modification to the Bush approach to preventative detention in practical effect.

With respect to the detainee categories, those who have been implicated in crimes should be prosecuted. The federal courts have already demonstrated that they are capable of this and may, indeed, have been overly harsh in certain terror cases (e.g., Padilla). The indictment of al Marri was an encouraging sign that President Obama has put some faith in the federal court system to deal with these cases.
Of the persons who cannot be tried and should be released, there is the concern that many of the GTMO conditions will be replicated overseas. Human Rights Watch researchers, for example, interviewed high government officials in Yemen, who implied that the Bush Administration had sought to create a proxy detention regime there with only a thin veneer of rehabilitation. In order to convince our allies in Europe to help us resettle these individuals, we’re going to have to set good faith example and accept some of these individuals into the United States. Immediately resettling the Uighurs, for example, would have jump started resettlement negotiations with Europe.

In terms of the problem of characterizing the current situation, Mariner noted that the Bush Administration capitalized on ambiguity between the formal war in Afghanistan and the so-called “global war on terror.” She noted that although NATO passed a resolution endorsing a military response to 9/11 (one that was focused on Afghanistan just as the AUMF), the UN Resolutions subsequent to the attacks all have Al Qaeda in mind and call for traditional law enforcement responses with no reference to war rhetoric. Indeed, Mariner noted that many of our closest allies have argued that applying a war paradigm to the global terrorism challenge is counter-productive and feeds into perception of the Muslim world that this is a war on Islam.

The rest of the panelists opposed Commander Sulmasy’s proposal for any sort of a national security court. Glazier acknowledged that terrorists have dual characteristics (criminal/warrior), but queried whether we need new law and institutions to bridge this gap. Depending on the circumstances, we can freely choose between existing bodies of law to respond to dangerous individuals, as long as we faithfully adhere to domestic and international legal standards. He is concerned that national security courts will inevitably involve departures from core due process protections that we hold dear out of mere expediency. Otherwise, why would we need them? He is also concerned that if we make arguments about why we need such courts based on the difficulty of invoking standard criminal law processes, it will be too easy to expand this “special” process to other “tough cases,” such as drug smugglers and organized crime members.

On the question of whether we need a more formal preventative detention regime, Pearlstein noted that many human rights organizations do not categorically oppose security detention. (Indeed, it is affirmatively authorized in the 4th Geneva Convention for non-combatants who post security risks). The question remains: is such a system sensible as a matter of US policy and counter-terrorism strategy? This requires a consideration of whom we are talking about preventively detaining. Where people are apprehended engaging in violent acts, they can be prosecuted for such crimes as providing material support for terrorism, even if the acts in question were committed extraterritorially. So, any preventative detention regime would likely be used for mere members of dangerous groups for whom there is insufficient evidence that they actually did anything. Detaining and thus incapacitating a marginally low-level and expendable Al Qaeda member will serve some minor specific deterrent effect. If we detain too many of his brethren, however, it might also risk radicalizing his inevitable replacements. The long-term strategic rationale for such a system is questionable.

France called on the rights-of-the-child carpet

France is famous for its bureaucracy. For decades, records were kept on oversized index cards called fiches (photo credit), which come in pretty pastel shades of green, blue, yellow and pink, as well as the ubiquitous white. And unlike the oh-so-scholastic lines one finds on index cards in the US, the standard French fiche has a neat scientific grid. Bureaucratic fiches, however, resemble disembarcation cards, with little boxes to check or fill in with specific information. I filled out 2 every year my daughter was in elementary school: one with medical information in case of an emergency, and one with general contact information. I never could understand why we had to fill them out every year - you'd think it would be simpler (and more ecological) to request that parents submit new ones only if any information had changed. Well, in its search for greater efficiency, the National Education Ministry switched in 2004 to an electronic database (middle schools and high schools began using one in 1995). Good-bye tedious little green cards, hello Big Brother! Or at least, that's how some parents and teachers feel about it. And they've been able to convince the UN Committee on the Rights of the Child they are not simply paranoid: France must explain to the Committee before April 6 "what public service purpose is served" by maintaining a database at the national level that contains among its 50 elements not only students' names, but also their nationality, year of arrival in France, medical and psychological history, and handicap. France will also have to explain why parents do not enjoy the right to oppose having such information appear in the database, or what the consequences of refusing to provide the information are. Never before was such information kept by the Education Ministry, whose business is education, not administration. Instead, the local town hall kept the rolls of who was enrolled in school and who was not, the schools kept scholastic records, and that was that. Many parents and teachers think this is just as it should be. But the new database is managed by the Education Ministry; the local town hall may consult only portions of it.
While none of us like the idea that our names are on a blacklist somewhere, the French have a particularly strong reaction to what's called fichage (being on a fiche) and, more recently, flicage (being watched or at least kept track of by the cops; from flic, a slang word for policeman). The preoccupation with nominative, rather than anonymous, administrative databases stems from the fichage of Jews and other "undesirables" and their subsequent rounding up for deportation to concentration camps during WWII. The concern is particularly strong with respect to school children, because at least some of those shipped off to the camps were denounced by their teachers (credit photo left of a typical plaque commemorating deported schoolchildren). Two other concerns are grounded in recent events that pose a more immediate threat than does a new occupation of France. One, the database could help the administration identify and round up illegal immigrants or, as in the case of Jaya's post Friday, the parents of child citizens. Two, the idea was recently circulated that a child's future as a delinquent can be determined as early as age 3, if not before. Since French children begin school at age 3 (nursery schools are public), the database could be used to peg kids as future criminals. These concerns have led some teachers to boycott the database despite sanctions including salary reductions, and a group of parents and teachers, joined by the International Federation of Human Rights, has brought lawsuits to try to have the law instituting the database abrogated. So far they've been unsuccessful. It will be interesting to see what the UN has to say.

On March 29

On this day in ...
... 1970, Dr. Anna Louise Strong (right) died in Communist China, where she had moved in 1958, at age 72, and had become "one of few Westerners to gain the admiration of Mao Tse-tung." She had been born in Friend, Nebraska, to "middle-class liberals who were active in missionary work and the Congregational Church." After earning a Ph.D. from the University of Chicago at age 23, she became active in child welfare and labor movements, 1st in Chicago and then in Seattle. She was elected the latter city's only woman school board member in 1916. The same year the New York Post hired her to cover a bloody labor dispute in her home state between the Industrial Workers of the World, or Wobblies, and mill owners. She would go on to become a radical writer and pacifist, traveling 1st to the Soviet Union and eventually to the People's Republic of China.
... 1849 (160 years ago today), just over 2 weeks after the Sikh army had surrendered to it, Britain's East India Company "annexed" the Punjab (left) and rendered it a province of British India, by concluding a treaty with the maharajah of Lahore. (credit for 1909 map)

(Prior March 29 posts are here and here.)

Saturday, March 28, 2009

Proposals: Organizations for Indigenous Women and Girls

Upcoming deadline: Wednesday, 8 April 2009, 5 p.m.

The Tides Foundation's Indigenous People's Fund is inviting grant applications specifically targeted to organizations that work for indigenous women and girls.
The Tides request for proposals (RFP) calls for “ general operating proposals from indigenous organizations working to preserve and enhance the rights, health, safety, and education of women and girls in native communities.”
(Logo above: UN Permanent Forum on Indigenous Peoples).
Grants range from $15,000 to $40,000 each. Check out further information and application materials here, but act quickly—proposals are due by April 8!

On March 28

On this day in ...
... 1979 (30 years ago today), about 10 miles southeast of Pennsylvania's capital, Harrisburg, "a water pump broke down at the Three Mile Island nuclear plant," releasing "radioactive steam" into the atmosphere. "[D]escribed as the worst ever at an American nuclear generating plant," the accident initially was said not to endanger workers or area residents -- even though dozens of workers at the plant (left) were contaminated. According to the BBC, "Research released in 2002 showed incidences of cancer in the area were not significantly higher than elsewhere."
... 2003, fewer than 2 weeks after a U.S.-led coalition invaded Saddam Hussein's Iraq, the U.N. Security Council adopted Resolution 1472, which extended the U.N. "oil for food" program by 45 days "to facilitate the delivery and receipt of goods contracted by the Government of Iraq for the humanitarian needs of its people."

(Prior March 28 posts are here and here.)

Friday, March 27, 2009

The Best Interests of All Children

March has seen serious and thorough studies on underreported aspects of the mistreatment of immigrants in the U.S. Last week, I blogged on recent coverage of violations of the reproductive rights of immigrant women in detention. This week, my topic is the devastating effects that contemporary immigration law and policies can have on children of undocumented immigrant parents (about which I've also blogged here and here). The law firm Dorsey & Whitney published this week a painstakingly researched report, Severing a Lifeline: The Neglect of Citizen Children in America's Immigration Enforcement Policy detailing the barriers to family unity created by immigration law and the impact of immigration raids and other harsh enforcement policies on citizen children. They tell the paradigmatic story of one young boy affected by the raids:
Miguel (a pseudonym) was a second-grade student attending elementary school in Worthington, Minnesota. His mother, an undocumented immigrant from El Salvador, was employed at the Swift & Company plant in Worthington. Miguel was described by his teacher as a “happy little boy,” making real progress in school ... until December 12, 2006. On that day, armed agents from U.S. Immigration and Customs Enforcement (“ICE”) raided the Swift plant in Worthington, detaining Miguel’s mother and more than 200 other immigrants who came to this rural community in southwestern Minnesota seeking a better life for themselves and their children. Returning home after school, Miguel discovered his mother and father missing, and his two-year-old brother alone.
For the next week, Miguel stayed at home caring for his brother, not knowing what had become of his parents. Not until a week after the raid, when his grandmother was able to make her way to Worthington to care for her frightened grandchildren, was Miguel able to return to school. According to his teacher, this previously “happy little boy” had become “absolutely catatonic.” His attendance became spotty at best. His grades plummeted. At the end of the school year, Miguel was not able to advance to the third grade with the rest of his class.
The report calls for a reassessment of immigration law to take into account the best interests of the child in determining whether to deport their parents. In an op-ed in Ms. magazine, Prof. Patricia Zavella (pictured right) presents a similar call for a feminist perspective on immigration reform -- one that would prioritize the unity of families and the best interests of children caught up in the inequities of immigration enforcement. The Child Citizen Protection Act, H.R. 182, would do just this by allowing immigration judges to weigh the best interests of the U.S. citizen children in their parents' removal hearings, authorizing judges to decline deportation where it would be clearly against the best interests of the child. The bill seems a quixotic hope, but the horror stories recounted in the Dorsey & Whitney report make it all too clear that our immigration system is shamefully broken and needs fixing before more innocent children are harmed.

On March 27

On this day in ...

... 1989 (10 years ago today), millions of Russians went to the polls for the 1st time in decades that they were permitted to vote for parliamentary candidates other than those endorsed by the Communist Party. Many Communists were turned out of office.

... 1924 (85 years ago today), Sarah Vaughan was born in Newark, New Jersey, to a father who was a carpenter and amateur guitarist and a mother who was a laundress and a church vocalist. Sarah began studying music and singing in church while still a child, and as an adult became a renowned jazz and pop vocalist. The woman nicknamed "Sassy" and "The Divine Sarah" died in 1990 in Los Angeles. In the 1965 video clip below, she sings " I Can't Give You Anything But Love" at a concert in Australia.

(Prior March 27 posts are here and here.)

Thursday, March 26, 2009

Write On! Human trafficking conference

(Write On! is an occasional item about notable calls for papers.) Papers and poster presentations are sought for the 1st annual Interdisciplinary Conference on Human Trafficking: What We Know and What We Need to Know, to be held October 29-31, 2009, at the University of Nebraska-Lincoln.
Organizers intend to develop a research agenda by bringing together researchers from many disciplines, as well as persons from government and from nongovernmental organizations who have responsibility for anti-trafficking efforts.
Papers from disciplines such as the social sciences, economics and business, law, journalism, womens’ and gender studies, public health, math and statistics, and education are welcome, on topics that may include:
► Causes, routes and patterns, and the extent of the problem domestically and globally
► Successes and failures in combating human trafficking
► Corporate social responsibility
► Prostitution demand and human trafficking
► Illegal immigration, human smuggling, and human trafficking
► Corruption
► Finding, identifying, and rehabilitating victims
► Economic analyses
► Public awareness
► Organ trafficking
► Trafficking in children and adoption fraud
► Training anti-trafficking workers
► Analyses of existing and needed laws and of international cooperation and institutions
Abstracts are due soon, March 30, 2009, and should be sent to Roméo Guerra at rguerra2@unl.edu. Details about the conference, for which Dr. Kevin Bales (prior posts) will be the keynote speaker, are here; about paper and poster presentation submissions, here; about registration, here.

On March 26

On this day in ...
... 1979 (30 years ago today), in a televised White House ceremony hosted by U.S. President Jimmy Carter, Israeli Prime Minister Menachem Begin and Egyptian President Anwar al-Sadat shook hands to mark the signing of a peace treaty that had evolved out of the Camp David peace accords. The treaty was intended to bring to an end more than 3 decades of hostilities between the 2 countries. (photo credit)
... 1995, the Convention Implementing the Schengen Agreement (sometimes called the Schengen acquis) "took practical effect" nearly a year and a half after it entered into force. The delay was caused be the time it took to put in place "the necessary technical and legal prerequisites such as data banks and the relevant data protection authorities." As described on this official German site, the Convention's

key points relate to measures designed to create, following the abolition
of common border checks, a common area of security and justice. Specifically it is concerned with
► harmonizing provisions relating to entry into and short stays in the Schengen area by non-EU citizens (uniform Schengen visa),
► asylum matters (determining in which Member State an application for asylum may be submitted),
► measures to combat cross-border drugs-related crime,
► police cooperation, and
► cooperation among Schengen states on judicial matters.

Countries that have fully implented Schengen include Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland.

(Prior March 26 posts are here and here.)

Wednesday, March 25, 2009

Shocked, shocked

Casablanca's Captain Renault (below) would have put it this way*:

I'm shocked, shocked to find that an expert in transnational law might advise the State Department!

That in a nutshell is how 3 National Review Online bloggers attacked Harold Hongu Koh the day after his nomination to become State's Legal Adviser.
Koh, as we posted yesterday, is the Dean and Gerard C. & Bernice Latrobe Smith Professor of International Law at Yale Law School. His list of other achievements includes service as the Assistant Secretary of State for Democracy, Human Rights and Labor, as a member of the Secretary of State's Advisory Committee on Public International Law, and as an Attorney-Adviser in the Office of Legal Counsel at the Department of Justice.
Yet these 3 bloggers seem to see Dean Koh not as an accomplished and respected legal expert. He is, rather, a "transnationalist." And they mean that in a bad way.
One wrote:

Koh is a leading proponent of transnationalism, which would subordinate American national interests to perceived global interests. In his new post, Koh would be well positioned to turn his academic theories into reality—threatening severe damage to American sovereignty and subjecting American citizens to rule by a transnational elite of left-wing lawyers appointed to various international bodies.

In an apparent effort to signal a like-minded groundswell, that post then pointed the reader to posts by 2 others -- without mentioning that all 3 appear on the same NRO site.
One post stated that the Constitution by its own terms, and not a treaty, is the supreme law of the land. Given that this is a given for any international lawyer operating within the framework of U.S. law, the effort to use the principle as a trump card against transnationalism confounds the reader. So too the suggestion that a state's sovereignty is "sapped" simply because the state engages in consensual cooperation with other sovereign states.
As for these bloggers' "T" word (not "torture," which Koh has condemned in no uncertain terms, but rather "transnationalism"):
It is no novel idea, but rather a concept that traces to lectures published a half-century ago by Dr. Philip C. Jessup, himself an American diplomat, scholar, and judge. Jessup's 1956 insight was about reality, not theory. He observed that the categories of private and public law were blurring, and that law increasingly was crossing borders. "Transnational" law was worth study for the simple reason that it trained attorneys to spot these developments and thus to adapt their practice, to make choices of law. Koh's work -- including his co-authorship of a casebook containing judgments that illustrated these developments -- built upon this recognition of the world as it is.
In essence these 3 bloggers thus claim that expertise in the real world of law disqualifies someone from advising our government about the law.
Now that is shocking.

* Forgive the transnational cultural reference to the utterance of a French officer played by an English-born naturalized American in an American-made movie set in Morocco during a global war in which America won a leading role.

On March 25

On this day in ...
... 1802, France and Britain signed the Treaty of Amiens, which, as the political cartoon at right illustrates (credit), was intended to be a "definitive" peace accord between the 2 countries. The agreement broke down within a couple years.
... 1994 (15 years ago today), U.S. troop withdrawal from Somalia was virtually complete, with

[o]nly a few hundred marines remain[ing] offshore to assist with any noncombatant evacuation mission that might occur in the event violence broke out that necessitated the removal of the over 1,000 U.S. civilians and military advisers remaining as part of the U.S. liaison mission. All UN and U.S. personnel were finally withdrawn almost a year later in March 1995.

The withdrawal came 5 months after the "Blackhawk Down" incident about which we posted here.

(Prior March 25 posts are here and here.)

Tuesday, March 24, 2009

One Stop Researching

We’ve blogged before on the principle of legality in international criminal law, the purported inapplicability of statutes of limitation for war crimes and crimes against humanity, the thorny problem of combatant/civilian classification under international humanitarian law (IHL), and existing war crimes under treaty or customary international law. A relatively recent case from the European Court of Human Rights (ECHR--photo at right) Kononov v. Latvia touches on all these issues at once.

The case concerned WWII-era allegations that a commando unit composed of members of the Soviet Red Partisans (propaganda poster at left) attacked a Latvian village that had been occupied by the Germans on suspicion that the villagers had earlier collaborated to expose another commando unit hidden in the village. In reprisal, the Partisans brutally murdered about a dozen inhabitants (some of whom were burned alive) and pillaged their belongings. Mr. Vassili Makarovich Kononov was alleged to have been part of the group, although he claimed that he had not entered the village with his unit because he had been raised there and feared for the safety of his parents. In defense of the actions of his unit, he argued that the victims had all been armed collaborators rather than innocent civilians.

After Latvia’s independence from the Soviet Union was restored in 1990, its Supreme Council on April 6, 1993 amended the Latvian Criminal Code to include provisions criminalizing genocide, crimes against humanity and peace, war crimes, and racial discrimination. In particular, a new Article 68-3 enumerated several war crimes, with a range of sentences up to life imprisonment. The same legislation included two important provisions:
  • Article 6-1, which permitted the retrospective application of the criminal law with respect to crimes against humanity and war crimes, and
  • Article 45-1, which exempted such offences from statutory limitation.
The applicant (all the other individuals involved had since passed away) was eventually prosecuted for war crimes in violation of the laws and customs of war as contained in Hague Convention of 1907, the 4th Geneva Convention, Protocol I, and the Nuremberg Charter. Much of the evidence introduced at trial, including a draft autobiography, suggested that the defendant played a more active role than he was admitting. Although the trial court convicted him, the judgment was quashed on the grounds that the questions of whether the victims were civilians or combatants and whether the territory had been occupied by the Soviet Union as well as Germany were insufficiently reasoned. On the second go-round, the defendant was convicted of banditry, but acquitted of war crimes, on the grounds that although the operation was carrying out an order from a military court against the victims, the Partisans had exceeded their lawful authority in its execution. Banditry, however, remained subject to a statute of limitations and so the second conviction was also quashed.
On appeal, the conviction for war crimes (specifically acts of treacherous killing, attacks on undefended villages, attacks on family honor, violence to life and person, murder, collective penalties, reprisals, and pillage) was reinstated (although there was insufficient evidence that the defendant himself had murdered or tortured certain individuals so these charges were dropped). The appeals court reasoned that the victims all remained civilians, even if they may have:
  • received arms from German occupiers to defend themselves,
  • assisted the German occupying army in locating Partisans hiding among them, and
  • been members of the Latvian National Guard so long as they did not take part in military operations organized by the armed forces of a belligerent party.
The fact that the territory may have been under dual German/Soviet occupation, such that the victims and perpetrators may have shared an effective nationality, was also of no moment. There was no evidence that any of them had performed any military function, and all had posthumously been “rehabilitated” on a finding that there was no evidence they had committed crimes against the peace, against humanity or taken part in political repression by the Nazi regime. The applicant, by contrast, was determined to be a combatant, privileged to participate directly in hostilities by virtue of being a member of a platoon organized and led by the armed forces of one of the belligerent parties. The applicant’s appeal was rejected by the Supreme Court Senate on the ground that the crimes in question were not subject to any statutory limitation and in any case the limitations period had tolled by virtue of Soviet occupation.

Kononov, with Russia intervening, appealed his conviction to the European Court of Human Rights (right), arguing a violation of Article 7, which sets forth the principle of legality and specifically the prohibition against ex post facto legislation. ¶¶ 94-107. In defense of the conviction, Latvia argued that
  • the acts in question violated general principles of law and customary IHL—even though the extant treaties did not give rise to individual criminal responsibility—and Latvian/Soviet domestic law, which at the time included so called “military crimes”;
  • there was continuity in the local law such that the defendant could not have presumed that the acts had been de-criminalized;
  • the acts in question had never been entirely subjected to statutory limitations; and
    that the applicant could not reasonably have thought his conduct was lawful under the circumstances. ¶¶ 77-93.
In a close (4-3) vote, an ECHR Chamber found the prosecution violated Article 7 of the European Convention. On the question of whether the domestic or international law applied to applicant’s acts was sufficiently accessible and foreseeable at the time he acted, the Chamber noted that only the 1907 Hague Convention was in existence during WWII, although neither the USSR nor Latvia had ratified it. Nonetheless, its provisions constituted customary law and were applicable to the “impugned events”. ¶ 120-21. Turning to the facts, the Court ruled that it could not be concluded, especially in light of the domestic courts’ summary reasoning, that the attack in question was not per se contrary to the laws and customs of war as codified within the Hague Convention. ¶ 137. In particular, it noted that the Red Partisans had legitimate grounds to assume that the villagers were not “peaceable inhabitants” under the circumstances, but rather were active collaborators with the German Army. ¶ 130. Accordingly, the villagers must have known that they were vulnerable to attack/reprisal by siding with one of the belligerent parties. ¶ 130.
There is an interesting gendered perspective on this ruling, as the Court considered the conduct of the male and female villagers separately. ¶ 126. With regard to the women, the Court surmised that they too may have lost their civilian status by virtue of “by providing genuine, concrete assistance to [the group] who collaborated with the Nazi occupier” (the women had apparently guarded the barn where the killed Partisans had been hiding while the men went to fetch the German forces). ¶ 139. Had the women’s deaths been due to an abuse of authority, that crime—which existed only under general law—had become time barred and it would be impermissible for Latvia to “revive” liability by later extending the statute of limitations. ¶ 143.

The Court rejected Latvia's retroactive applicability of the definition of civilian or the presumption of civilian status contained in Article 50 of Protocol I; rather, the Court looked to Article 5 of the 4th Geneva Convention, which acknowledges that civilians may lose certain protections if they abuse their civilian status. ¶ 131. The Court also summarily concluded that the act could not be regarded as criminal according to the general principles of law recognized by civilized nations either. ¶ 147. All told, the Court ruled that the accused could not have foreseen that he might be prosecuted for the events in question given the state of international and domestic law at the time. The case is on appeal to the Grand Chamber.
Stay Tuned!

IntLawDean Koh tapped to lead "L"

President Barack Obama has nominated our colleague Harold Hongju Koh (right) to be the next Legal Adviser at the U.S. State Department.
If approved by the Senate, Koh would succeed John B. Bellinger III, who for the last several years has held the top post at "L," as insiders call State's legal department.
A White House press release issued yesterday noted Koh's many achievements, highlights of which we now detail:
► "Dean and Gerard C. & Bernice Latrobe Smith Professor of International Law at Yale Law School' -- indeed, he is 1 of the IntLawDeans whom we've noted in past posts.
► "Assistant Secretary of State for Democracy, Human Rights and Labor" (1998-2001), plus prior service "on the Secretary of State's Advisory Committee on Public International Law."
► Former law clerk to Judge Malcolm Richard Wilkey of the U.S. Court of Appeals for the District of Columbia Circuit and to Supreme Court Justice Harry Blackmun.
► Former Attorney-Adviser, Office of Legal Counsel, Department of Justice.
The list goes on, yet omits important qualifications:
Koh, whose devotion to rights and law is made evident in Storming the Court (2005), a book about litigation that led to the Supreme Court's 1st, and pre-9/11, Guantánamo decision in Sale v. Haitian Centers Council (1993), has been an inspiring colleague and mentor, role model and friend to many of us in the intlaw community.
Heartfelt congratulations!

And in other nominations news ...

President Barack Obama's nomination (prior post) of Dawn Johnsen (left) to become the Assistant Attorney General in charge of the Office of Legal Counsel, U.S. Department of Justice, is now before the U.S. Senate following a favorable vote last week in the Judiciary Committee. But the tally was close -- 11 to 7 -- and SCOTUSblog predicts "a lengthy and contentious floor debate" in the full Senate. Issues Republicans have raised about this Indiana Law professor, an IntLawGrrls' guest/alumna? According to SCOTUSblog:
►"[S]he has served as legal counsel for NARAL, a pro-choice reproductive rights political group," and
►"She has strongly criticized the Bush administration’s OLC legal memorandums and positions on executive power," going so far "[d]uring her nomination hearing" as to "explicitly cal[l] waterboarding a method of torture when asked by Sen. Dianne Feinstein (D-Calif.)."
'Nuff said.
Meanwhile, another Obama nominee about whom we've posted, former Harvard Law Dean Elena Kagan, was presented sworn to the Supreme Court yesterday, having been sworn in as Solicitor General of the United States, the government's chief advocate before the Court, on Friday. Kagan (left) is the 1st woman to hold her post -- as would be Johnsen if confirmed.

On March 24

On this day in ...
... 1944 (65 years ago today), at Rome's Ardeatine Caves, members of the Nazi German SS shot 335 Italians dead in reprisal for the deaths of 32 German police officers in a bombing the previous day. The victims were said to range from "from 14 year old boys to 75 year old men," and 75 were Jewish. The caves were then mined. In the 1990s, 1 of the SS officers present, Erich Priebke (right), was extradited from Argentina, where he had been living openly, since, to Italy to stand trial. (photo credit) After 2 trials and much litigation, Pribeke was sentenced to 15 years in prison, of which he was supposed to serve less because of time served. He is now reportedly 85 years old and under house arrest, though a recent article asserted that "Italy lets" him "zoom around Rome on a moped." Jacinto Antón, "La guerra es malísima para la memoria," El Pais, December 29, 2008, at 4. The site of the 1944 massacre, depicted at left, is now an Italian national monument. (photo credit)
... 1950, U.S. Rep. Ann Kirkpatrick (D-Ariz.) was born in McNary, Arizona. The onetime state legislator was elected to Congress in November 2008.

(Prior March 24 posts are here and here.)

Monday, March 23, 2009

Law alone is not enough: the global struggle for LGBT rights

Earlier this month I presented my article From Fretté to E.B.: The European Court of Human Rights on Gay and Lesbian Adoption at the Global Arc of Justice, a conference convened by the Williams Institute, the International Lesbian and Gay Law Association, and the City of West Hollywood. In it, I examine the legal and social changes in the six years between the cases of Fretté v. France (2002) and E.B. v. France (2008) that allowed the European Court of Human Rights to reach its result in the E.B. case, that is, that it is impermissible for member states to discriminate in the adoption process on the basis of sexual orientation. (Prior IntLawGrrls post.)
My take on the case is overwhelmingly positive. I suggest that the ECHR expanded the applicability of article 14 (the nondiscrimination provision of the Convention for the Protection of Human Rights and Fundamental Freedoms) to the point of holding France, a nonsignatory, to the equality standards of Protocol 12. I also posit that that by privileging the right to a private life free from discrimination over the national interest in protecting children, the ECHR reduced the deference given to States when it reviews State laws that have a discriminatory effect on gays and lesbians.
It turns out that in the case of Ms. E.B., a lesbian woman wishing to adopt, that even with such a strong statement by the ECHR behind her, the result may not change in her case. In early March, it was reported that Ms. E.B.’s application to adopt has again been denied. The relevant department insists that the denial has nothing to do with her sexual orientation. Instead, they claim it is about the undefined role Ms. E.B.’s partner plays in the plan to have a child. This was identified as an issue by the department during Ms. E.B.’s first application, and resultantly when on appeal in the Nancy Court, it was stated that the denial of her application to adopt had nothing to do with her “choice of lifestyle.” (see E.B. v. France, § 24). Similarities aside, whether Ms. E.B. will be successful in again challenging this determination remains to be seen.
This sad bit of news underscored for me that too often in the case of LGBT rights, advances in the courts don’t always translate to wins on the ground. As we know from the example of the United States, court decisions favoring same-sex couples are frequently met with a legislative backlash that undoes the work of the litigation.
In the closing plenary of the conference, Paula L. Ettelbrick, Executive Director of the International Gay and Lesbian Human Rights Commission, reminded the attorneys in attendance that our role as advocates in the global struggle for LGBT human rights is a complimentary one; legal changes must happen in conjunction with community-building and public education campaigns. I applaud her for this sentiment. While the law is of utmost importance and interest to me, as we see in the case of the struggle for LGBT rights, law alone is not enough.
Perhaps to state the obvious, the interplay of activism, media, and law is vital to creating change. Activism and media can shape attitudes and stop such brutal attacks as recently seen in Colombia, the United States, and South Africa, before they happen. Activists can also work to educate about the rights of LGBT partnerships and parenting, so that individuals like Ms. E.B. don’t continue to be denied their rights under thinly veiled pretenses. Lawyers can pick up the pieces and work for change in the aftermath of such incidents – but they can also preemptively develop the soft law that is used symbolically by governments and activists alike, as in the example of the Yogyakarta Principles and the UN Statement on Human Rights, Sexual Orientation, and Gender Identity (which the U.S. just endorsed, about which IntLawGrrls has posted here and here).
Yet I think this concept is often not obvious, as those working on LGBT issues tend to operate in their specific sphere of expertise -- and think locally and regionally but rarely globally. This, to me, was the greatest value of the Global Arc of Justice conference. It brought together lawyers, judges, scholars, activists, and other interested people with an incredibly diverse set of perspectives and experiences, yet all with the common goal of LGBT equality. As I discovered, such a check-in with one another is a wonderful reminder that human rights work does not happen in a vacuum, and that such a meeting can be an incredible resource for developing more nuanced strategies to change our world.
If only it happened more than once every four years.