Monday, August 31, 2009

Taking on Islamophobia

I was pleased to see that Pankaj Mishra has addressed head-on fear mongers like Niall Ferguson and Christopher Caldwell who argue that the increase in Muslim immigration to Europe risks "Islamicization" and the decline of liberal Enlightenment values. In his recent book review, "A culture of fear", Mishra points out not only the statistical inaccuracies but also the political and philosophical flaws of such an approach. In Mishra's words:
Multi-ethnic Europe is an immutable fact, and needs, appropriately, a more inclusive, open-ended identity, one derived more from its pluralistic and relatively peaceful present, and supranational future, than its brutishly nationalist and imperialist past. Writing in 1937 about the minority then most despised in Europe, Joseph Roth predicted that "Jews will only attain complete equality, and the dignity of external freedom, once their 'host nations' have attained their own inner freedom, as well as the dignity conferred by sympathy for the plight of others". This proved to be too much to ask of Europe in 1937. But the moral challenge has not gone away - civilisation remains an ideal rather than an irreversible achievement - and the dangers of leaving it unmet are incalculable.
Well worth a read!

On the Job! Immigration clinic director

(On the Job! pays occasional notice to interesting intlaw job notices) Qualified candidates are sought to become the next Director of the University of Baltimore Immigrant Rights Clinic, a tenured/tenure-track position that would begin in the 2010-2011 academic year.
Particularly invited: "candidates who have a distinguished academic background, a record of or the promise of both teaching excellence and scholarly distinction, and a commitment to service in the law school and the community."
If interested, apply now to Elizabeth J. Samuels, Chair, Faculty Appointments Committee, The University of Baltimore School of Law, 1420 North Charles Street, Baltimore, Maryland 21201-5779, (Hat tip to our colleagues at ImmigrationProf Blog)

On August 31

On this day in ...
... 1989 (20 years ago today), the 1989 Ramon Magsaysay Award for Community Leadership was given to Kim Im-soon (right). Born in Sanjoo, Korea, in her 20s Kim fled to Koje Island after her husband vanished during the Korean War. (photo credit) There Kim founded an orphanage and other social service institutions, work that prompted this award that, as we've posted, is known colloquially as an Asian Nobel Prize. The foundation that honored Kim wrote that she
has energized community life on all of Koje. She has helped aid-giving organizations find the neediest groups and individuals and led in founding Koje-do Christian Hospital. She has taught local villagers about family planning, helped organize a credit union benefiting thousands, and opened a library for children. Recently she established the Koje branch of the Korean Legal Aid Center for Family Relations. KIM's good works have inspired others to follow her lead, one reason why her grateful neighbors call her the 'Queen of Koje Island.'

(Prior August 31 posts are here and here.)

Sunday, August 30, 2009

Guest Blogger: Susan Harris Rimmer

It's IntLawGrrls' great pleasure today to welcome Dr. Susan Harris Rimmer (left) as a guest blogger.
Susan is a Research Officer at the Centre for International Governance and Justice (prior post), where she works with IntLawGrrls guest/alumna Hilary Charlesworth, Centre Director, on the building of democracy after conflict. Susan graduated from the University of Queensland in 1997 with a bachelor' degree in government and an LL.B., both with honors, having received a University Medal in 1996. In December 2008 she earned a Doctor of Juridical Science from the Australian National University College of Law for her thesis, which Routledge will publish as Gender and Transitional Justice: The Women of East Timor in 2010. In 2006 the University of Texas School of Law awarded Susan the Audre Rapoport Prize for Scholarship on the Human Rights of Women.
Susan currently serves as a member of the Board of UNIFEM Australia and is President of the Australian Lawyers for Human Rights.
Her career before entering academia was diverse. After some volunteer work with the U.N. High Commissioner for Refugees and the International Criminal Tribunal for the Former Yugoslavia, Susan did her articles of clerkship with national law firm Blake Dawson Waldron, and was admitted as a solicitor in March 2000. Since then, Susan has pursued human rights and refugee advocacy work with the National Council of Churches in Australia, the Australian Council for International Development, and the UNHCR. From 2005 until 2008, Susan was a Research Specialist at the Parliamentary Library, advising Australia's Federal Parliamentarians on legal issues relating to refugees and terrorism.
In her guest post below, Susan describes the continuing struggle, by women in post-independence East Timor, against sexual and gender-based violence.
Susan dedicates her post to Shirley Perry Smith (1924-1998), better known as Mum Shirl (below right). Susan explains:
Mum Shirl was a prominent Aboriginal Australian and activist committed to justice and welfare of Aboriginal Australians. Smith began to visit Aboriginal people in prison after one of her brothers was incarcerated, and she discovered that her visits were beneficial to other prisoners as well. Her community activism also saw her accompanying indigenous people who were unfamiliar with the legal system to court when they had been charged with a crime. Her nickname came from her habit of replying, 'I’m his Mum,' whenever officials queried her relationship with the prisoners.
Mum Shirl also spent considerable time and money finding homes for children whose parents could not look after them, and helping displaced children to find their own parents again. The children with nowhere to go often ended up living with her. By the early 1990s she had raised over 60 children. Likewise, many people with no family or friends in Sydney arrived at Mum Shirl’s house seeking shelter.
She was a founding member of the Aboriginal Legal Service, Aboriginal Medical Service, Aboriginal Tent Embassy, the Aboriginal Children’s Service, and the Aboriginal Housing Company in Redfern, a suburb of Sydney, Australia.

Today Smith joins other IntLawGrrls foremothers in the list below our "visiting from ..." map at right.
Heartfelt welcome!

A Luta Continua! The struggle for gender justice in East Timor 10 years after the independence ballot

(My thanks to IntLawGrrls for the opportunity to contribution this guest post)

One of the bravest but least known acts during the East Timorese resistance to Indonesian occupation occurred in November 1998, when over 20 Timorese women told their stories of surviving sexual violence to crowds of hundreds at a public meeting in Dili. The stories were collated into a 1999 book called Buibere, which means ‘woman’ in Mumbai, the second most common Timorese language after Tetum. It was written only in English, published in Australia, and intended as an advocacy document for the international community. The persecution, as described first-hand in these collected testimonies, was intense, and included rape, torture and other inhumane acts.
Today marks the tenth anniversary of the popular consultation held in Indonesian-occupied East Timor on 30 August 1999. On 4 September 1999, it was announced that 78.5% of the population had voted against East Timor remaining as part of Indonesia, despite intimidation and full knowledge of the likely reprisal. Independence was granted to the territory after 25 years of brutal invasion. The announcement of the ballot result on 4 September 1999 resulted in immediate acts of violence, a scorched earth policy, looting, massive evacuations, and forced deportation of the population. In the months surrounding the 1999 vote, pro-Jakarta militias killed an estimated 1,400 people, burned towns to the ground, destroyed 80% of the territory's infrastructure, and forced or led more than a quarter of a million villagers into Indonesian-ruled West Timor.
In November 2001, in an independent East Timor controlled by a UN mission, the local women’s rights nongovernmental organization, FOKUPERS, released a second version of Buibere, in Tetum, at a public event, with many of the women who contributed stories to the book present. The second edition is intended to formally respect and honour both the contribution of East Timorese women to independence and the high price they paid during the Indonesian occupation.
Some of the problems that continue to face the women of East Timor were graphically outlined by advocate Sister Maria de Lourdes Martins Cruz at the launch:
A luta continua!’ she said, and described how the women of East Timor were still second-class citizens in their own land. ‘A luta continua!’ and she described how girls still don’t receive the same educational or employment opportunities as men. ‘A luta continua!’ and she told of domestic violence still rampant, women still serving as slaves in their own homes, women bought and sold like commodities under the tradition of bride price, and men leaders still unwilling to accept East Timorese women as equals. Ovation after ovation shook the hall.
Given the serious nature of the crimes outlined in Buibere, Sister Lourdes’ speech is striking in that in the eyes of those survivors present that day, independence did not necessarily mark the end of violence against women, but rather just a new manifestation of violence and subordination. (credit for 1998 photo by Jude Conway of demonstration in Dili challenging violence against women; the sign says "STOP Murder!")
I contend that Sister Maria was correct in stating that the problems facing Timorese women in the independence period are linked to the problems women faced during the occupation. Recognition and redress under the law for gender-based violence in war is linked to recognition and redress for domestic violence and socio-economic rights in the ‘peace’.
The danger for East Timorese women now is what I term the ‘changing the curtains’ phenomena — that fundamental changes in the sovereignty of the State in the form of independence may mean that the basic conditions of women’s lives, or their potential to claim their legal rights, does not change in any meaningful sense, as described in the call to arms by Sister Lourdes. Despite some important efforts to include women and their experiences in the justice mechanisms established in East Timor since 1999, Timorese women such as Sister Maria may indeed have cause to be disenchanted.
This then raises the crucial question — transitional justice rests on the assumption that there has been a transition from a state of conflict to a state of peace, however uneasy. If women are still experiencing serious levels of domestic violence and economic deprivation, commensurate with their experience of violence during the proclaimed conflict, have they entered a state of transition at all? If we ask the question — transition to what? — then the next logical question is therefore — justice for whom?

(See further: CAVR Final Report Chega!, and Independent women. The story of women’s activism in East Timor, by Irena Cristalis and Catherine Scott.)

On August 30

On this day in ...
... 1821, Anita Ribeiro was born in a town in southern Brazil 1 year before it became independent from Portuguese colonizers. She was forced into marriage at age 15; her husband is believed later to have abandoned her. At age 18, she joined forces with Italian revolutionary Giuseppe Garibaldi and became his partner in love and war. They took part in insurgent battles in Brazil and Uruguay. The couple married in 1842. Soon after they went to Italy to join the revolution of 1848. Fighting in the unsuccessful defense of Rome while pregnant with her 5th child, 27-year-old Anita Ribeiro di Garibaldi (right) fell sick and died on August 4, 1849, near Ravenna, during the retreat of the Garibaldian Legion. (credit for 1839 portrait)

(Prior August 30 posts are here and here.)

Saturday, August 29, 2009

In Passing: The Human Rights Senator

Upon the passing of U.S. Senator Edward Moore Kennedy (1932-2009) we reflect on his enormous impact on the United States and beyond (above, photo credit). This timeline from the John F. Kennedy Presidential Library website lists just a few of the thousands of pieces of key legislation on which Senator Kennedy was a key actor.
Making Human Rights Real
The Senator’s work embodied a commitment to international and domestic human rights. And its reach exemplified the ideal expressed in the Vienna Declaration and Programme of Action on Human Rights: “All human rights are universal, indivisible and interdependent and interrelated.”
It is difficult to name an issue of fundamental human rights with which the Senator was NOT involved. The range includes civil, political, economic, social, and cultural rights:
Equality Rights and Civil Rights (voting rights and legislation prohibiting discrimination against racial minorities, immigrants, girls and women, gay, lesbian, bisexual, or transgendered persons, and persons with disabilities).
Economic, Social, and Cultural Rights (including access to education, food, housing, fair wages and working conditions, substantive rights for people with disabilities, reproductive rights, major steps on the path to health care for all, support for the arts, and equal participation in sport).
His foreign policy influence was felt everywhere from South Africa to Haiti, from Ireland to the former Soviet Union.
Many of us spent the past few days (indeed, the 14 months since learning of his final illness) sharing personal stories about the Senator. I’m glad that he got to hear many of those stories himself and to bask in the standing-room-only crowds at the many award ceremonies over the past year. I'm glad he made it to the presidential inauguration. His final appearances, including to make legislative votes, were a demonstration of courage, selflessness, and will beyond belief. And I am glad to know that his surviving family is witnessing, and comforted by, the outpouring of appreciation and personal and public reflection on the incredible impact he, and his recently departed sister Eunice Kennedy Shriver (1921-2009) (right, photo credit), had on the world.
A legacy of wealth, celebrity, and political power is one thing. But it is less common for the powerful to leave the world better than they found it. Both siblings, born to a life of privilege and influence as well as personal tragedy, used those experiences for the benefit of others.
They joined and supported the struggles of human rights advocates. They galvanized others to help make social change longer lasting through legislation and through social movements in which millions continue to participate.
Many among those less famous millions who struggle for change leave the world without media recognition; we need to honor and treasure those legacies as well. But what has been so poignant and obvious about the passing of this brother and sister is the sense that they need not have done what they did for others. Yet they believed it was important to do what they could.
A Personal Touch
The lovely, unpretentious wake/celebration for the Senator at the John F. Kennedy Presidential Library last night was full of moving and hilarious memories and stories. The powerful and famous from a variety of political leanings told of personal encounters with the senator. They talked about key legislation and the need for comprehensive health care and immigration reform to proceed of course. They also focused on what so many now know—he had a genuine gift for an authentic personal touch.
The phone calls to hospital bedsides, the visits to colleagues who had lost family members, the loyalty to trusted friends, and the basic respect and human decency he showed on a personal level even to tough political opponents.
Even more moving have been the stories from “the common people.” Thousands stood in line, or sat in wheelchairs, to attend the viewing at the Kennedy Library, but more than celebrity or a chance to touch history was at work. Many expressed the desire to say a personal “thank you.” Families of soldiers killed in war who received not only condolences, but legislative action to provide better defensive equipment or an end to war. The students in literacy classes and anti-poverty programs with whom he worked directly and who are now attending college. People with disabilities whose full participation in society was further enabled. People of color who worked with him to end discrimination in voting, housing, employment, and education. Girls and women who fulfilled their dreams of becoming athletes. Immigrants and refugees who escaped political or economic oppression at home. Family members who could take leave to care for the sick with less fear of losing their jobs.
Massachusetts has no shortage of hands-on politicians. It was Tip O’Neill who said that “all politics is local,” after all. But the actual ability to have such broad and deep local and global impact is all too rare a gift. Memories, Inspiring…
So I find myself compelled to share my own small, “brush with Kennedy” stories. More than twenty years ago I was a young lawyer at TransAfrica Forum, the research and educational arm of TransAfrica, the African-American lobby on U.S. foreign policy toward Africa and the Caribbean. Back then, the organization had a total of maybe 8 staff (led by the great Randall Robinson, our executive director). We worked from a small storefront office in southeast Washington, DC, and believed we could change the world.
Staffers who worked on or near Capitol Hill often referred to DC power elites in hushed tones—“the Congressman,” “the Senator,” “the Chairman,” “the White House.” Congressional staffers were often judged by their supervisor's prestige or reputation as well as by their own merits.
Needless to say, “the Senator’s” staff was legendary; a call from Senator Kennedy’s office was a game-changer in most venues—it still is today. It was also clear that the staff who worked there were talented in their own right and serious about the Senator's agenda.
That is why Senator Kennedy’s support for the Anti-Apartheid Act of 1986 was so important. Passed over the veto of then President Ronald Reagan, that Act helped show substantive solidarity with the struggles of millions of Black South Africans for democracy, human rights, and an end to the horrendous system of apartheid.
One of the most memorable moments of my career, therefore, was watching the final votes to override the veto from the Senate gallery. Senator Kennedy’s office had sent passes for us TransAfrica staffers to do so.
Some hours after we celebrated the vote (and began thinking about next steps), I found myself the last one to leave the TransAfrica office. The phones had been ringing off the hook and the overworked receptionist had finally called it a day.
As I headed home, the phone rang again. It was the Senator himself, calling to speak with Randall Robinson.
I somehow managed to find my voice, telling him (he had, quite unnecessarily, introduced himself as “Ted Kennedy”) that Randall was gone for the day. The Senator said “Thanks. Well, please be sure to tell Randall that I called personally to congratulate him.”) Well. After thanking him for introducing and supporting the legislation, I got off the phone, tracked Randall down, and then started calling family and friends to tell them that I had just “spoken with the Senator”!
At the time, that would have been exciting enough for me, but the Senator also showed up at our small office a few days later to personally shake hands with staffmembers. Each of us had that dazed, star-struck look in our eyes (some had grown up with pictures of Martin Luther King, Jr., President John F. Kennedy, Jr., and Senator Robert Kennedy on our walls). But he did his best to make us feel as if we had done a little bit to help change the world.
…and the Hilarious
The second story is more along the lines of the absurdly funny (to me, anyway). Perhaps a couple of years later, a good friend and I wanted to see the prize-winning August Wilson play, The Piano Lesson, then in its first run at the Kennedy Center for the Performing Arts. Driving by one evening, we decided to pick up some hard-to-get tickets. We noticed a surprisingly large number of stretch limos and motorcycle police outside when we pulled up. Still, we just needed to pick up a few tickets, what could it hurt to go inside?
Wearing what President Nixon might have described as “good Republican cloth coats” (in fact, we were good Democrats) and casual clothes, we followed a small woman wearing a rather large fur coat through the glass doors. Lining both sides of a very long red carpet inside were crowds of photographers and people in evening wear. We still did not quite “get it.”
As we made our way up the red carpet, a mystified-looking usher gestured us toward the main hall. We asked him where we could get tickets to the Piano Lesson. Even more mystified, he told us that the box office was closed for the evening. At that moment, we both turned and saw Senator Kennedy near us greeting people who were standing behind the rope barriers. Horrified, we blurted out simultaneously, “it’s the Kennedy Center Honors!” That event is a star-studded annual gala at which the Center honors performers for their contributions to the arts.
Mortified, we shrank back against the ropes so as to avoid drawing further attention to ourselves. The tuxedo crowd behind us literally pushed us back onto the red carpet, complaining that we were blocking their chance to meet the Senator. They were there first. Who were these under-dressed interlopers?
By then, the Senator reached me, smiled quizzically (either because my face was vaguely familiar from the TransAfrica event, or because we looked so obviously disconcerted), shook our hands, and moved on.
In shock, we then tried to make our escape back down the red carpet. But not before getting caught up in a photo session with Harry Belafonte (an honoree that night) and his entourage near the door. We smiled for the cameras and pretended to be long-lost Belafonte cousins….
The latter is not a politically, socially, or economically significant story. But I think of it when I think of the Senator; it always makes me smile. The fact that I remember it more than 20 years later is significant. It says something about the esteem and yes, awe, with which people of certain generations hold that family. In the end, however, it was the power to inspire others that mattered most.
Our heartfelt condolences to the Kennedy family and to the people whose lives were changed for the better by the Human Rights Senator and by his tireless advocate of a sister. Peace.

Sugar and Spice in Sports

According to this week's New York Times, the International Association of Athletics Federations, which governs international track and field events, is investigating the eligibility of runner Caster Semenya (left) of South Africa. The IAAF plans to conduct sex-determination testing to confirm her eligibility after concerns were raised during a track and field competition in Berlin. Barry Bearak is the author of the Times piece; he describes Semenya as a "muscular, husky-voiced 18-year-old."
This is a troubling case.
It troubles me that we still expect female athletes to be feminine in their athleticism. Perhaps Semenya would not have been the target of an investigation had she been less muscular, although she might not have handily won the 800-meter race in Berlin with a more petite, more feminine, and less muscular frame. As IntLawGrrls posted during last year's Olympic Games, we are markedly more comfortable with the sport of beach volleyball (right), in which women compete in bikinis, and in which we may easily assess both their sexuality and their athletic skills. (I still remember the collective public angst when American Olympian Kerri Walsh lost her wedding ring in the sand during a 2008 beach volleyball match).
In her NYT article about the IAAF investigation of Semenya, Alice Dreger observes that
sex is so messy that ... science can and will inform [the I.A.A.F.'s] decision, but they are going to have to decide which of the dozens of characteristics of sex matter to them.
Dreger concludes that the IAAF decision will be one based on sport, such as the number of "points awarded for a touchdown," rather than "natural" sex. After all, rigid, naturalized notions of sex and gender do not reflect the experience of many people whose sex and gender are located along a continuum of masculinity and femininity. (One such athlete was Stella Walsh Olsen, on whom IntLawGrrls posted a while back.)
Although many of the early IAAF sex-based eligibility investigations focused on women from the former Soviet Union, Semenya's case involves not only stereotypes of gendered behavior but also implicates issues of race. The sexuality of African women has long been the subject of voyeuristic colonialist study and speculation. Bearak's article notes the comparison to a woman on whom IntLawGrrls has posted: Saartjie Baartman, or Sawtche, the so-called Hottentot Venus, who was
'taken to Europe in the early 19th century and exhibited like a wild beast....'
The colonial fascination with African women's sexuality is well-documented by Anne McClintock in her book Imperial Leather: Race, Gender, and Sexuality in the Colonial Contest (1995), in which she describes how the African woman "became the prototype of the Victorian invention of primitive atavism." The international perception of Semenya's femininity, or lack thereof, reflects a similar postcolonial racial bias.
If the IAAF has its way, genetic testing will determine Semenya's precise chromosomal constitution. Unfortunately, the results will not encourage us to question our own assumptions either about gender and race or about the ways such stereotypes affect female athletes all over the world.

Different take on women at Nuremberg

Research for my lecture this Monday on "Women at Nuremberg" turned up a 75-year-old reminder that not only ethnic status, but also gender status, was a target of totalitarianism during that era.
"Hitler Condemns Women in Politics" declared an Associate Press article published in a September 1934 edition of The New York Times.
The article reported on a speech in Nuremberg, at which Adolf Hitler, who’d become Germany’s Chancellor a year earlier, said:
‘Liberalism has a large number of points for women’s equality. The Nazi program has but one: this is a child. ‘While man makes his supreme sacrifice on the field of battle, woman fights her supreme battle for her nation when she gives life to a child.’
He linked notions that women might play other roles in society to his least-favored ethnic group – of course – and also to the apparent curse of "‘intellectualism.’"
In short, Hitler "derided the mixing of women in political matters," and "added that he believed parliamentary life tended to degrade women."
His audience?
Two thousand "woman politicians," Nazi Party organizers who "applauded his statements energetically."

(credit for photo of September 1934 rally at Nuremberg)

On August 29

On this day in ...
... 1991, as detailed in this Canadian Broadcasting Co. clip, "two judges have filed their report on Manitoba's Aboriginal Justice Inquiry" (logo below left). Based on 3 years' testimony from "a thousand witnesses," the report detailed how the justice system discriminated against aboriginal Canadians, and recommended that they "have their own police forces and courts if they're to have any chance of fair treatment." Among the cases that spurred the inquiry was that of a 19-year-old Cree woman named Helen Betty Osborne (right); the AJI's final report issued in 1999 would devote an entire section to her. As reported by the CBC, Osbourne "was raped and stabbed to death by four white men in 1971. But a conspiracy of silence in the town where it happened meant it took 16 years to bring anyone to justice." (photo credit; logo credit)

(Prior August 29 posts are here and here.)

Friday, August 28, 2009

CEDAW and Forced Displacement

Alice Edwards of the University of Nottingham (about whose work we've blogged previously here) has just released a new UNHCR background paper entitled Displacement, Statelessness, and Questions of Gender Equality under the Convention on the Elimination of All Forms of Discrimination Against Women, which she drafted for a joint seminar between UNHCR and the Committee on the Elimination of All Forms of Discrimination Against Women that took place in July. As I've discussed previously (here, here, and here), "displacement arising from armed conflict, persecution and other serious human rights violations can intensify [gender] discrimination and inequality." These two principles, equality and non-discrimination, lie at the heart of CEDAW and form the framework of analysis for the paper.
Edwards notes that international treaties protecting refugees and the stateless fail to include explicit prohibitions on gender discrimination and inequality, and offers CEDAW's provisions as a complement to these laws. Not only is CEDAW more comprehensive in the scope of its protections of gender equality, but it also applies to more women than the narrower forced migration treaties. CEDAW's affirmative obligations to eliminate discriminatory laws, policies and practices as well as social and cultural norms and stereotypes that discriminate against women ensure that violence and inequality will be addressed within both the public and private sphere. This is important for displaced and stateless women, who suffer significant discrimination within the home.
Edwards explains that gender inequality and discrimination can be a cause of migration, an obstacle to freedom of movement for women attempting to flee, a risk factor for food insecurity in camp situations, and a limitation on women's ability to find a durable solution, be it integration, resettlement, or return. Moreover, the stresses of forced displacement frequently exacerbate the risks of sexual and gender-based violence. The citizenship laws of many countries directly or indirectly discriminate against women in ways that leave them more vulnerable to statelessness then men.
Edwards' suggestions for reform? She explains the benefit of the independent monitoring role of the CEDAW committee in the context of forced migration, given that the Refugee Convention has no periodic reporting requirement and that UNHCR is often unable to act completely independently of local authorities where it needs to protect forced migrants within a state's borders. Edwards then lays out several mechanisms through which UNHCR and the CEDAW Committee can collaborate to protect the rights of displaced and stateless women. Well worth a read!

On August 28

On this day in ...
... 1955, at 2 in the morning, a 14-year-old Chicagoan named Emmett Till was kidnapped at gunpoint from his great-uncle’s cabin in Money, Mississippi. Three days later his body would be found floating in the Tallahatchie River; he was so disfigured that he was identified by the ring on his finger, which once belonged to his late father. Two white men -- relatives of a woman to whom Till (left) was supposed to have paid attention at a country store -- were tried and acquitted for the murderous attack. Nonetheless, as stated on the National Public Radio website dedicated to the case:
The murder and the trial horrified the nation and the world. Till's death was a spark that helped mobilize the civil rights movement.

Till's name has been in the news this summer: 4 workers at Burr Oak Cemetery, the suburban Chicago graveyard where Till is buried, have been indicted for digging up some graves and reselling the plots. Till's family has just donated his original casket to the Smithsonian.

(Prior August 28 posts are here and here.)

Thursday, August 27, 2009

Guest Blogger: Jennifer Lind

It's IntLawGrrls' great pleasure to welcome Dr. Jennifer Lind (left) as today's guest blogger.
Jennifer's an Assistant Professor in the Department of Government at Dartmouth College in Hanover, New Hampshire, where she teaches International Politics, East Asian Security: Theory and Practice, and The Politics of Memory. The courses correspond to her research interests, which include East Asian international security, Japanese security policy, U.S. foreign and military policy, and historical memory in international relations.
Among her publications is Sorry States: Apologies in International Politics (2008), which she discusses in her guest post below.
Jennifer's worked as a consultant for RAND and for the Office of the Secretary of the U.S. Department of Defense, and also has lived and worked in Japan. She received a Ph.D. in Political Science from the Massachusetts Institute of Technology, a Master’s in Pacific International Affairs from the University of California, San Diego, and a B.A. from the University of California, Berkeley.
Heartfelt welcome!

Sorry States

(My thanks to IntLawGrrls for this opportunity to contribute this guest post)

As a graduate student studying international relations, I watched Japan’s wartime atrocities haunt its foreign affairs. Koreans and Chinese fumed when a Japanese leader visited a controversial war shrine (below right), when a new history textbook glossed over past events, or when a Japanese official blurted out a denial of a past atrocity. In contrast, I noticed that Germany had offered remarkable contrition for its past atrocities and aggression, and also had successfully reconciled with its wartime adversaries. I decided to write a book showing that countries needed to apologize and otherwise remember past violence before international reconciliation was possible.
Well, as I doubt I have to tell the savvy 'Grrls of this blog, things don’t always work out as planned. I didn’t write that book.
Examining the cases of South Korean relations with Japan and French relations with Germany, my book, Sorry States: Apologies in International Politics (2008), shows that denials of past atrocities fuel distrust and inhibit international reconciliation. Japan’s denials damage its relations with South Korea, China, and Australia, more than sixty years after the war. In contrast, Bonn’s willingness in the 1950s to acknowledge Nazi-era crimes, coupled with the absence of denials among mainstream West Germans, reassured Germany’s World War II adversaries. Sorry States thus argues that a country's acknowledgment of past misdeeds is essential for promoting trust and reconciliation after war.
My book, shows, however, that many countries have been able to reconcile without much contrition at all. In the early years after the war, Bonn offered very little: although it offered a lukewarm apology and paid reparations to Israel, West German commemoration, education, and public discourse ignored the atrocities Germany had committed, and instead mourned German suffering during and after the war. Nevertheless, at this time West Germany and France concluded a stunning reconciliation. Bonn’s most famous gestures of contrition — wrenching apologies, candid history textbooks, and memorials to Germany’s victims (below left) — had not yet occurred. Many other World War II enemies (Japan and the United States; Britain and West Germany; the United States and West Germany; Italy, Austria, and their neighbors) reconciled despite little or no contrition.
Finally, Sorry States points out that contrition is highly controversial domestically, so can actually be counterproductive. As evident in Japan and elsewhere, expressions of contrition often prompt a backlash. Conservatives in particular are likely to offer a competing narrative that celebrates — rather than condemns — the country’s past and justifies or even denies its atrocities. Thus contrition can be counterproductive: foreign observers will be angered and alarmed by what the backlash suggests about the country’s intentions. The great irony is that well-meaning efforts to soothe relations between former enemies can actually inflame them. Remembrance that is less accusatory, conducted bilaterally or in multilateral settings, holds the most promise for international reconciliation.
I describe my argument further in "The Perils of Apology," published in the May/June 2009 issue of Foreign Affairs. For additional engaging and fascinating reading, I recommend Troubled Apologies Among Japan, South Korea, and the United States (2008), by one of my favorite 'Grrl scholars, Dr. Alexis Dudden, Associate Professor of History at the University of Connecticut.

(credit for top right photo of Yakusuni shrine; credit for bottom left photo of Berlin Holocaust Memorial)

On August 27

On this day ...
... in 1873, Beulah Maude Durrant is believed to have been born in Toronto, Canada (different sources give different dates; some even alter her birth name). In her 20s she studied piano in Berlin, Germany. After her brother was executed in 1898 for murdering 2 women in San Francisco, California, where she had grown up, she changed her name to Maud Allan and abandoned the piano for dance. Allan, who once published a sex manual, is best known for her "Vision of Salome" dance (above), and for her involvement in a salacious defamation trial. She traveled throughout the world during her career, and died in Los Angeles in 1956. (credit for photo ca. 1906-1910)

(Prior August 27 posts are here and here.)

Wednesday, August 26, 2009

The Crime of Aggression: United States, wherefore art thou?

(Part 1 in a series on the crime of aggression before the ICC)

Crimes against the peace (the crime of aggression in today’s lexicon) was the centerpiece of the Nuremberg Trial, which was to be the “trial to end all wars.” Indeed, the Nuremberg Judgment reasoned that aggressive war was the proximate cause of the other crimes within the jurisdiction of the Nuremberg Tribunal—war crimes and crimes against humanity. Notwithstanding its prominence in the postwar period, the crime of aggression all but disappeared in the pantheon of international criminal law after WWII. Instead, the postwar architects of the United Nations enshrined a prohibition on the use of force directed at states in the U.N. Charter. Article 2(4) of the Charter reads:
All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

None of the post-Cold War international tribunals included the crime of aggression within its subject matter jurisdiction, even though the crime was arguably relevant to the Yugoslavian, Sierra Leonean, and East Timorese contexts, at a minimum.

Reports of the death of the crime of aggression proved premature, however. As the ICC Statute gradually took shape during the 1990s, many smaller states—with the backing of former Nuremberg-era prosecutors such as Ben Ferencz (left) and the late Henry King (below right on the right with Nuremberg defendant Albert Speer)—insisted that the crime of aggression be revived. Negotiations on the precise contours of the crime proved contentious, however, and during the waning hours of the 1998 Rome Conference, delegates effectively punted. Article 5(2) of the Statute currently contains a placeholder indicating that Court will exercise jurisdiction over the crime of aggression once a definition is achieved:

The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations.
This process has been ongoing in the form of the proceedings of a Working Group (now disbanded) dedicated to the crime and a number of informal sessions with states, NGOs, and academics. It is expected that a definition of the crime, and its formal elements, will be adopted at the Review Conference to be held next summer in Uganda.

A decision has apparently yet to be made on whether the United States will participate in the remaining discussions on the crime of aggression. The final negotiation session of the Special Working Group on the Crime of Aggression was held in New York in January and February 2009—immediately after President Obama took office. The U.S. did not participate (the SWGCA is open to non-parties). Nor did it participate in either an informal retreat or an intersessional meeting held in April and July 2009. The U.S. will need to make a decision about its future participation soon, as the next negotiation session involving the Assembly of State Parties is slated for November 18-26 in The Hague.

John Bellinger (right)—the Legal Advisor to the State Department under President George W. Bush—has cogently argued in a recent op-ed that the U.S. should be at the negotiation table going forward, even if the U.S. has no plans to join the Court in the immediate future. Bellinger is right; it is squarely within the United States’ interests to ensure that the ICC Statute contains a legitimate and appropriate definition of the crime of aggression given the crime's potentially critical impact on international affairs and the U.N. system of peace and security. In addition, the Security Council will play an important role in any prosecution for aggression; as a permanent member of the Council, the U.S. should ensure that the ICC Statute properly defines the relationship between the Court and the Council with respect to the ICC crime that most acutely implicates the Council’s bailiwick. Making constructive contributions to these negotiations will also enable the Obama Administration to signal a new, more engaged, relationship with the Court and its Assembly of States Parties.

Although many foundational issues have been resolved over the years, a number of open questions about the scope and contours of this crime remain subject to potential U.S. influence in advance of the 2010 Review Conference. The two primary outstanding issues with respect to the definition of aggression are
  • the precise definition of the crime (as set forth in draft Article 8bis and explicated in the Elements of Crimes) and
  • the conditions for the exercise of jurisdiction (draft Article 15bis).
Subsequent posts will focus on the details of each of these issues.

Compassion in Scotland

Late last week the Scottish Justice Minister, Kenny MacAskill (below left), decided to release the man convicted of the Lockerbie bombing in 1988 on compassionate grounds. That man, Abdelbaset Ali al-Megrahi, is suffering from terminal prostate cancer. He was released home to spend his remaining time with his family.
MacAskill's decision has provoked varied reactions:
► For many, the decision is one that smacks of disrespect for those who died on Pan Am Flight 103, who, of course, were not given the opportunity to spend their last moments with their loved ones.
► For others, it constitutes the provision of succour to terrorists.
► For yet more, there are hints of some kind of political dealing with the Libyan government centred, of course, on oil.
All of these perspectives have their own validity, especially perhaps the first. However, I have been struck by the conviction with which MacAskill defended his decision in the Scottish Parliament as one that was fundamentally concerned with abidance by essential principles of the Scottish legal system, including the principle of compassion.
To show compassion to someone who himself has shown so little of it is of course a difficult thing to do. To have that compassion met with the kind of triumphalism that was seen in Tripoli upon al-Megrahi's return perhaps makes it even harder (BBC report). While MacAskill's disappointment that Libya did not honour the assurances that were allegedly provided, of a "low-key" return, may smack of some naivete, it seems important to rememer that how we treat those who have committed such wrongs says much about what a State and a people stand for. To show compassion to this man, in my view, showed evenhandedness and political bravery that are rarely in evidence, especially in the extremely emotive area of terrorism. It is difficult for me to disagree with our colleague William Schabas, who also blogged about this issue saying:

Compassion is part of human rights. Someone who violates human rights does not forfeit their entitlement to our compassion. That’s why we campaign for the abolition of the death penalty, and the prohibition of torture, even for those who ‘deserve it’. Of course, it is too bad that the Libyan authorities tried to put their own spin on this, but their bad behaviour, which is no doubt very painful for the victims, is not a reason to deny Megrahi a touch of compassio[n] as he is about to die.

On August 26

On this day ...
... 1789 (220 years ago today), the Constituent Assembly of France adopted the Déclaration des Droits de l'Homme et du Citoyen (left), an instrument that, as I've discussed in this article, remains not only part of the French legal structure, but also a global human rights inspiration, to this day. Odd that no one dubbed it a Legal Wonder of the World in IntLawGrrls' contest of the same name.
... 1910, Jessie Gray (below right) was born in Augusta, Georgia. As an adult she would become one of a handful of leading cancer surgeons in North America, and thus earn the nickname "Canada's 'first lady of surgery.'" Among her other "1st" achievements: in 1934, 1st woman to receive a gold medal in medicine at the University of Toronto; in 1939, 1st woman to obtain the master of surgery degree; 1st woman resident surgeon at the Toronto General Hospital; in 1941, 1st woman fellow of the Royal College of Surgeons; 1st woman member of the Central Surgical Society of North America; and in 1966, 1st woman to be elected to the Science Council of Canada. In 1941 Dr. Gray joined the staff at Women's College Hospital in Toronto, and she held the post of surgeon in chief from 1945 until her retirement 2 decades later. She died in Toronto in 1978.

(Prior August 26 posts here and here)

Tuesday, August 25, 2009

2¢ on interrogation review

See the last item at The New York Times' "Room for Debate" for my thoughts on the news that, as foreseen by IntLawGrrl Beth Van Schaack, Attorney General Eric H. Holder, Jr. (left) has instructed Assistant U.S. Attorney John Durham to conduct a "preliminary review" of post-9/11 interrogations by the CIA to see whether U.S. law was violated. Prompting the order was release of a 2004 CIA report.
International criminal law point of comparison:
The 1999 "internal analysis," by the Office of the Prosecution at the International Criminal Tribunal for the former Yugoslavia, into whether NATO's air strikes against Serbia violated laws of war.

Jawad goes home

The United States' criminal case against Mohammed Jawad (right), the alleged child soldier about whom IntLawGrrls have posted here, ended yesterday when he was flown out of Guantánamo and home to Afghanistan. The U.S. Department of Justice said of Jawad, who was between 12 and 16 years old when seized in 2002:
Jawad’s transfer was carried out under an arrangement between the United States and the government of Afghanistan. The United States has coordinated closely with the government of Afghanistan to ensure the transfer takes place under appropriate security measures and will continue to consult with the Afghan government regarding Jawad.

It remains to be seen whether an arrangement between the United States and the government of Canada one day will benefit the alleged child soldier at left, Canada-born Omar Khadr.

On August 25

On this day in ...
... 1934 (75 years ago today), Lise Bacon (left) was born in Valleyfield, Beauharnois County, Quebec, Canada. (photo credit) After studying humanities and social sciences, she worked in the insurance industry before and after her 1977-79 service as a Canadian Citizenship Court Judge. Bacon also served as an officer in organizations focusing on women's and children's issues. In 1973 she was elected a member of the Quebec National Assembly, and headed a number of ministries before retiring from provincial politics in 1994. That year she was appointed to the Senate of Canada, a post she continues to hold. Bacon, a member of Canada's Liberal Party, has been an official representative on missions in Africa, Europe, Asia, North America, and Australia.
... 1997, a German national court in Berlin sentenced Egon Krenz, former leader of East Germany, to 6-1/2 years in prison following his conviction on charges of incitement to manslaughter for instigating a shoot-to-kill policy employed by border guards against people trying to escape to West Germany via the Berlin Wall. His appeals and his application to the European Court of Human Rights were rejected. He would enter prison in 2000 and be released in 2004. (credit for circa 2004 photo of memorial to persons killed trying to cross into West Germany)

(Prior August 25 posts are here and here)

Monday, August 24, 2009

Remember the right to health?

This time last year we blogged in wonderment on how the rhetoric of a right to health pervaded Democratic discourse in the United States.
We quoted longtime health care advocate Sen. Edward M. Kennedy of Massachusetts, of course, but also Speaker of the House Nancy Pelosi of California, and, most significantly, the preamble to the Democratic Party platform, which declared:

We believe that quality and affordable health care is a basic right.
It was a heady moment. Many of us recall far too vividly the health-reform debacle of the 1990s,. Have spent far too many hours in hospitals and on health-benefits websites. Have endured far too intimately the hardships of our uninsured (and underinsured) clients, friends, and family. Last August we found reasons for hope.
Fast forward a dozen months. This August, as in the '90s, fringe distortion dominates the mainstream media. Voluntary end-of-life counseling is transmuted into the dark fantasy of a "death panel." The fact that many health professionals already conduct such counseling as a matter of routine fades in this feat of political prestidigitation. Lost entirely are truly critical facts: 77 percent of us support the choice of a public option, and 47 million children, women, and men in the United States need health insurance.
In this topsy-turvy tumult it is easy to bewail deprivations of the right to health, to complain that the Democrats, the Executive Branch, President Obama, are not doing enough to protect that right. In the hope of aiding understanding of what's happening right now, this week my class will begin to learn about Human Rights by studying the concept, scope, and enforcement-or-not of the right to health. Even before we begin that study, however, I can't help but remember what a Oliver Wendell Holmes, Jr. had to say about human rights, nearly a century ago. As I've written (n.176), in 1916 the renowned U.S. Supreme Court Justice stated

that he did not ‘respect the rights of man . . . except those things a given crowd will fight for ...’
As a matter of theory, Holmes' hostile statement is of course troubling. But as a matter of practice, it is right on point. It requires hard work to entrench even the most basic of human rights. Change will happen only when it is not only some few officials in Washington, but also all U.S. supporters of health care, who do their part to make it happen.
Put another way:
What have you done for the right to health lately? What will you do once Congress' odd August recess comes to an end?

On August 24

On this day in ...
... 79 (1,930 years ago today), in the Italian coastal region near the Bay of Naples, Mount Vesuvius erupted, and the lava that flowed from the volcano buried the cities of Pompeii and Herculaneum and killed tens of thousands of inhabitants. Excavations beginning in the 18th C. unearthed artifacts like the fresco at left. (photo credit) Other "effusive eruptions" of Vesuvius (below right) (credit) occurred sporadically between 1631 and 1944. Today "[m]any towns are located on the volcano's flanks, and several million people live within areas potentially affected by eruptions of Vesuvius."
... 1816, 3 U.S. commissioners plenipotentiary concluded a treaty of "Peace, Friendship, and Limits," with leaders of several Native American tribes. By this Treaty of St. Louis the chiefs ceded land in what is now the Midwest of the United States in exchange for monetary compensation.

(Prior August 24 posts are here and here)

Sunday, August 23, 2009

Guest Blogger: Cindy Galway Buys

It's IntLawGrrls' great pleasure to welcome Cindy Galway Buys (left) as today's guest blogger.
Associate Professor of Law and Director of International Programs at Southern Illinois University School of Law in Carbondale, Cindy directs both the Immigration Detention Project and the summer study-abroad program in Ireland. Her courseload includes International Law, International Business Transactions, Constitutional Law, and Immigration Law, and her publications (here and here) reflect her expertise in these fields.
Cindy holds an LL.M. in International and Comparative Law, with distinction, from the Georgetown University Law Center, where she earned the Chetwood Prize for the Most Outstanding Academic Performance. She earned her J.D. and an M.A. in International Relations from Syracuse University in New York, where she served as an associate editor of the Law Review.
Before entering academia in 2001, Cindy practiced in the private and public sectors in Washington, D.C. At the U.S. Department of Commerce, she defended agency decisions before the Court of International Trade, the U.S. Court of Appeals for the Federal Circuit, and panels of the World Trade Organization.
She completed a stint as a Fulbright Senior Specialist in Vilnius, Lithuania, last year; her numerous professional affiliations include service as Co-Chair of the Teaching International Law Interest Group of the American Society of International Law and member of the Executive Committee, Section on International Law, Association of American Law Schools.
In her guest post below, Cindy posits a way forward respecting the United States' obligations under international law in the aftermath of recent Vienna Convention on Consular Relations litigation, before the U.S. Supreme Court and the International Court of Justice. Another topic of current research is linkage between Nottebohm (Liechtenstein v. Guatemala) (International Court of Justice, 1953) and the World War II-era U.S. detention program in Latin America.

Heartfelt welcome!

The better to implement U.S. obligations

(Thanks to IntLawGrrls for this opportunity to contribute this guest post)

Increasingly, the proper implementation of the United States’ international obligations in domestic law has presented difficult challenges in the structural context of the U.S. legal system. Challenges are evident at multiple levels of that structure; that is, among the branches of the federal government and between the states and the federal government.
In my recent article, The U.S. Supreme Court Misses the Mark: Towards Better Implementation of the United States’ International Obligations (2008), I use the efforts of the White House (below right) to implement the judgment of The Hague-based International Court of Justice (courtroom above), in the Case Concerning Avena and Other Mexican Nationals (2004), to illustrate some of the problems presented by this issue.
International law scholars, not to mention IntLawGrrls readers of these prior posts, will remember the backstory:
In Avena, the ICJ found that that the United States had breached its obligations under Article 36 of the 1963 Vienna Convention on Consular Relations, for the reason that authorities within the United States had not informed certain arrestees, Mexican nationals, of their treaty-based rights to consular notification. The ICJ further found that the appropriate reparation would consist of providing, by means of the United States’ own choosing, review and reconsideration of the convictions and sentences of the Mexican nationals that were the subject of the case.
In the domestic implementation stage of that decision, a 2005 memorandum by President Bush asserted the power to order state courts to provide review and reconsideration of the Mexican nationals’ judgments in state criminal proceedings. The President’s claim to such authority was troubling, because it appeared to violate structural principles of separation of powers and federalism. Ultimately, the U.S. Supreme Court (below left) rejected the President’s claim to such unilateral authority in Medellín v. Texas (2008), in a decision that leaves unanswered many questions regarding the proper implementation of the United States, international obligations.
My article analyzes the strengths and weaknesses of arguments that were made in the Medellín litigation regarding the proper way to implement the ICJ judgment consistent with the United States' constitutional structure. It then places the litigation in the larger context of the debate regarding the implementation of the United States’ international obligations, examining: from a separation-of-powers perspective, the proper role of each branch of the federal government; and from a federalism perspective, the interplay between the state and federal governments. Finally, the article provides some suggestions as to how the United States can better handle implementation of these obligations in the future:
1st, the U.S. Supreme Court should pay more than lip service to its own statement, at footnote 9 of Chief Justice John G. Roberts' opinion for the Court, that ICJ decisions are entitled to “respectful consideration.” The article describes how a true respectful dialogue between the two courts might proceed.
2d, with respect to the political branches, when ratifying a treaty the Senate (left) and the President should provide clearer directions as to how the treaty ought to be implemented, and whether and what types of private claims will be allowable under the treaty.
3d, the federal and state governments should establish a better consultation process, particularly for treaties that affect areas of traditional state regulation.
Through these methods, it is hoped that treaties will be implemented more effectively in U.S. law, and that better relations will result, both externally with the United States’ treaty partners and internally among the various branches and levels of government.