Wednesday, September 30, 2009

'Nuff said

(Taking context-optional note of thought-provoking quotes)
Although this genre of military commissions may disappear, as such, a national debate looms within government and outside among the press and public: should al-Qaeda adherents and other terrorists accused of war crimes against the United States be tried in our regular civilian courts or military courts-martial or instead be relegated to military commissions or to special 'national security courts' which would operate under different rules as to openness, use of classified information, availability of privileges against self-incrimination and admissibility of evidence secured by coercive methods? Before giving serious consideration to the creation of a separate and less restrictive system of criminal justice for one group of defendants, we would do well to look at how this military commission experiment has played out so far and what if any lessons can be learned from its initial phase.
-- Patricia M. Wald (below left), in her Foreword to the Military Commission Reporter, available here and reprinted in the new edition of Green Bag 2d. Her essay introduces the newest publication service of the National Institute of Military Justice: the 500-plus-page Military Commission Reporter, volume 1 -- 1 M.C. -- a compendium of decisions of rulings issued between October 2006 and June 2009 by the Guantánamo commissions. (image credit) (The 1st issue of volume 2 is available online here.) Wald's foreword draws on her experience as the Judge on the International Criminal Tribunal for the former Yugoslavia and as Chief Judge of the U.S. Court of Appeals for the District of Columbia Circuit in evaluating the operations so far of the Guantánamo commissions. A sample nugget:
'... I was struck by the almost hopeless lopsidedness of the process.'

On September 30

On this day in ...
... 1966, a region in southern Africa about the size of the U.S. state of Texas, which had been known since 1885 as the British protectorate of Bechuanaland, declared itself the independent state of Botswana. Elected under the terms of the 1965 Constitution was the 1st President, Seretse Khama, who served by re-election until his death in 1980. The country enjoys "flourishing multiparty constitutional democracy."

(Prior September 30 posts are here and here.)

Tuesday, September 29, 2009

Clinton chairs Security Council Wednesday

U.S. Secretary of State Hillary Clinton is slated to chair Wednesday's session of the U.N. Security Council.
Clinton (left) is due to return to the Council's headquarters (prior post) and gavel the session to order at 10 a.m. Eastern time tomorrow, September 30. (photo credit)
The subject is "Women, Peace, and Security," and the Council is expected to vote on a U.S.-sponsored resolution concerning sexual violence in armed conflict. The new resolution will follow up on S.C. Res. 1820 (2008), on which IntLawGrrls guest/alumna Doris Buss posted recently. Resolution 1820 is itself a followup to S.C. Res. 1325 (2000).
Check for live webcast here.

Ex-Guantánamo detainees arrive in Ireland

Last weekend two Uzbek nationals who had been detained in Guantánamo Bay for seven years but who were found not to be a threat to national or international security arrived in Ireland (Irish Times article). The former detainees could not be returned to their own country because of a real risk that they would be subjected to persecution there. The former detainees are, it seems, to be granted leave to remain by the Minister for Justice, Dermot Ahern.
As a legal status, leave to remain is normally granted where someone has been unsuccessful in an asylum application but there are also humanitarian reasons for not returned the person to their country of origin. This is provided for under s. 17 of the Refugee Act 1996. However, leave to remain can be granted in broader circumstances than this as it is a discretionary status.
What is somewhat unusual about the present circumstances is that normally leave to remain is granted where an individual is already within the territy of the state and is a means of avoiding deportation (see the interesting paper by Brian Ingoldsby here). In the case of the former detainees who arrived in Ireland this weekend, however, the Minister had announced that he would grant them the right to reside here by means of leave to remain before they ever entered the territory of the state or made an application for asylum. In the Irish Times article yesterday, however, it provides that "[b]oth men will be given leave to remain" (my emphasis) suggesting that the status will formally be given post entry to the state, although the entry to the state was clearly facilitated by the government itself. The process seems, therefore, somewhat irregular.
In addition, persons with leave to remain do not have a right of family reunificiation but in the case of these two individuals the prospect of freeing them from Guantánamo Bay and from seven years without their families and then not permitting their families to come and reside here with them seems a cruel irony. The Department of Justice has not, as far as I know, made any announcements as to the status of these persons' families but it is to be hoped that family reunification will be facilitated in these cases.
The decision by the Irish government to accept former detainees is an important one that ought to be welcomed; it has by now become clear that the United States has no intention of allowing former detainees to reside within the US itself and therefore other countries' co-operation is neeed to facilitate the closure of the prison there. Thus, this action is a very positive one by the government. Putting that aside, however, this use of leave to remain and the means of deploying that status in this particular case is a little curious.

(Cross-posted at Human Rights in Ireland)

On September 29

On this day in ...
... 1944 (65 years ago today), Prof. Dr. Lerke Osterloh (right) was born in Holle (Oldenburg), Germany. She received her Dr. jur. degree in 1978, having completed a dissertation on a question involving property in civil law and public law). She completed her Habilitation, with a thesis relating to fiscal law, in 1989, the same year that she became a Lecturer at the Faculty of Law of the University of Heidelberg. Subsequently she's held Chairs of Public and Fiscal Law at the University of Trier and the Johann Wolfgang Goethe University in Frankfurt/Main. Since 1998 Osterloh has served as a Judge of the Federal Constitutional Court in Germany.

(Prior September 29 posts are here and here.)

Monday, September 28, 2009

Guest Blogger: Máiréad Enright

It's IntLawGrrls' great pleasure to welcome Máiréad Enright (right) as today's guest blogger.
Máiréad is a Ph.D. Candidate in Law and the EJ Phelan Fellow in International Law, 2008-2010, at University College Cork, Ireland. She's completing a thesis on the reception of Muslim divorce law in secular legal systems. Her guest post below discusses British law and culture with respect to forced marriage and arranged transnational marriage.
Her work at Cork forms part of a 3-year thematic research project on Gender, Multiculturalism and the Law in Ireland, directed by her supervisor, Dr. Siobhán Mullally, Senior Lecturer and Co-Director Centre for Criminal Justice and Human Rights at University College Cork. Funding the project is the Irish Research Council in the Humanities and Social Sciences.
Called to the Irish Bar in 2006, Máiréad was awarded a visiting fellowship to the Feminism and Legal Theory Project at Emory Law School in Atlanta, Georgia, in Spring 2009 and a visiting fellowship to Osgoode Hall Law School, York University, Toronto, Canada, in Summer 2009, and next month will be a visitor at Queen Mary, University of London, England.
Máiréad dedicates her contribution to the Irish poet Eibhlín Dhubh Ní Chonaill, of whom she writes:

Eibhlín was born in 1743 in Derrynane, at left, in my county of Kerry, to a wealthy family with a tradition of producing women poets. She is best known as the author of the famous poem, Caoineadh Airt Ui Laoghaire, a 'keen,' or lament, for her dead husband. Eibhlín's husband Art was killed by a local magistrate who had offered to buy the Catholic noble's racehorse for an insultingly low price. When Art refused, thus flouting the Penal Laws designed to limit Catholics' civil and political rights and undermine their culture, he was murdered. He left behind his pregnant wife and two small sons. His murderers were never punished.
In choosing to commemorate Eibhlín Dhubh Ní Chonaill, I wanted to think about the many women harmed by colonisation and by the brutal law that inevitably accompanies it, and about the damaging echoes of colonisation which persist in countries, such as Ireland, that have gained their independence. In 1829, Eibhlín's nephew, the barrister Daniel O'Connell, finally secured Catholic Emancipation: for this achievement he is remembered as 'The Liberator'. O'Connell's statue, at right, is on Dublin's main street, which is named after him. There is no surviving picture of his aunt.
Today Ní Chonaill joins other transnational foremothers in IntLawGrrls' list below the "visiting from..." map at right.
Heartfelt welcome!

Law & forced & arranged marriages

(My thanks to IntLawGrrls for the opportunity to guest post on my work on forced marriage and transnational arranged marriage.)

My article called ‘Choice, Culture and the Politics of Belonging: The Emerging Law of Forced And Arranged Marriage’, recently published at 72 Modern Law Review 331 (2009), generally reflects my interest in the construction of the female citizen subject in legal discourse. (photo credit)
The majority of reported victims of forced marriage in the United Kingdom are young women of South Asian Muslim origin. Because of this fact, the forced marriage project must be read critically against the background of a wider politics of British Muslim belonging, which is linked to the counter-terrorism and social cohesion agendas. This politics operates to exclude some British Muslims from full membership in the ‘we group’ of British citizens. The ground for exclusion is that of ‘excessive’ or ‘difficult’ culture. Those British Muslim who are presented as most bound up in cultural practice, I argue, have become the British citizen’s ‘other’, and are subject to law’s discipline on that basis.
I trace the developing construction of the act of forcing another to marry as the exemplar performance of difficult culture, and as the exemplar rejection of British values – particularly the value of autonomy – in the major policy statements on forced marriage prevention.
Within the article are two points of critique:
► First, the focus on culture borne of the present need for the politics of belonging to define its other as a ‘cultural’ other leads to an effective culturisation of forced marriage. This means that much effective work has been done to tackle the considerable ‘internal cultural’ obstacles to exit from an unwanted marriage. The third-party and secondary-offender provisions of Lord Lester of Herne Hill QC's Forced Marriage (Civil Protection) Act 2007 are excellent examples. A focus on culture also, doubtless, sparked the involvement of specialist women’s organisations such as Southall Black Sisters in the drafting of the initial bill, and this is a good thing.
On the other hand, I argue that the focus on culture has been almost entirely to the exclusion of other socio-economic factors which also contribute to the difficulty of ‘exit’.
So, for instance, it is very telling that, at the same time that the Forced Marriage Act was being birthed, many specialist women’s refuges and domestic violence services – the support organisations which are invaluable to women seeking to leave a difficult family situation – were struggling to remain open for lack of adequate government funding. The focus on culture served to hide the state’s contribution to women’s oppression.
► A second point flows from the influence of the politics of belonging on the forced marriage project. We might imagine that, in this arena, the relative (particularly the father, because a deeply gendered construction of the violence of forced marriage is at play) who forces a young woman into marriage occupies the most precarious position in the schema of British Muslim citizenship. But some perhaps counter-intuitive exclusions also take place when, particularly in the new immigration legislation:
  • the often vulnerable immigrating spouse in a transnational marriage is reduced to perpetrator status, by virtue of his or her ‘foreign’ culture; or
  • the young British Muslim citizen is the subject of wide-ranging protective intervention which has the effect of disciplining those who choose ‘with’ culture and in favour of transnational arranged marriage.
Questions arise about who is ‘permitted’ to occupy the ‘victim slot’ in the forced marriage debate, and about whether the right to make certain marital choices, and to claim that right from a position of victimhood if it is denied, carry a ‘duty’ to make the ‘more British’ choice. Since the article was written, an idealised forced marriage victim has begun to emerge in media coverage of the issue. This is reflected in the newspapers’ presentation of the case of Dr. Humayra Abedin, a British National Health Service physician. Hers is one of the first of 23 successful applications so far under the new Forced Marriage (Civil Protection) Act 2007. (credit for photo of Abedin, center, with her solicitor, Anne-Marie Hutchinson, left)
What does the forced marriage project tell us about the citizenship of British Muslim women who do not sufficiently fit the model of victimhood: young, English-speaking, educated, thoroughly ‘Westernised’? Is there another subject position which they can legitimately occupy?

On September 28

On this day in ...

... 2009 (today), is marked, at least among some in the United States, Ask a Stupid Question Day. It's said that this holiday dates to the 1980s:
[T]here was a movement by teachers to try to get kids to ask more questions in the classroom. Kids sometimes hold back, fearing their question is stupid, and asking it will result in ridicule.

This day, then, is dedicated to remind students, and all of us, early in the school year, that there are no stupid questions. Or perhaps better said:

[N]o question is too stupid to ask.

It is the search for answers that results in learning.

(Prior September 28 posts are here and here.)

Sunday, September 27, 2009

Look On! "Mrs. Goundo's Daughter"

(Look On! takes occasional note of noteworthy films.) "Mrs. Goundo’s Daughter,” a new documentary by Barbara Attie and Janet Goldwater, is a sensitive and galvanizing account of gender discrimination at the intersection of culture and bureaucracy. (View a clip here.)
The filmmakers follow a mother’s struggle to keep her family from being deported to Mali. The documentary focuses on the serious harm caused by female genital mutilation/cutting practices.
I’ve discussed the complexities in a 1995 article, Between Irua and Female Genital Mutilation: Feminist Human Rights Discourse and the Cultural Divide and in a more recent article on “Female Genital Mutilation and Female Genital Cutting” in the Encyclopedia of Human Rights.
Awaken!, an excellent newsletter published by the women’s human rights NGO Equality Now!, tracks developments on the issue in English, French, and Arabic. IntLawGrrls Fiona de Londras and Jaya Ramji-Nogales posted here and here on human rights and gender asylum decisions involving FGM-FGC. This World Health Organisation Bulletin discusses some grassroots eradication efforts in Mali.
FGM-FGC practices violate international human rights norms and are prohibited under instruments such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the Convention on the Elimination of All Forms of Discrimination Against Women, the Convention on the Rights of the Child, the African Charter on Human and Peoples Rights, and the Maputo Protocol.
The practices cause serious physical injury and death to infants, girls, and women in practicing regions. Yet because FGM-FGC is deeply rooted in community and family traditions (but not required by any formal religion), the practices remain widespread among some ethnic groups. Many countries now outlaw the practices. But the private circumstances under which they occur mean that indigenous community-based education and organizing are important keys to ending FGM-FGC. (On legal and political approaches, see Anika Rahman & Nahid Toubia, Female Genital Mutilation: A Practical Guide to Worldwide Laws and Policies.)
In the film, Mrs. Goundo, who experienced FGM-FGC as a girl, works with an immigrant community leader in Philadelphia, an asylum lawyer, and her husband to prevent her own daughter from returning to Mali. Goundo understands that even if she and her husband object, grandparents, relatives, or other community members might well force the practice on the child.
But there’s another problem. Mrs. Goundo must request legal status for herself under the byzantine U.S. immigration and asylum laws, or else be separated from her U.S.-born daughter and other family members.
Attie and Goldwater provide a nuanced treatment of her predicament. They place Mrs. Goundo and her family in the context of a supportive immigrant community and explore the challenges of navigating the U.S. legal system successfully. They also travel to Mali, where they interview local women’s rights and health advocates who condemn and educate against the practices. They also surface the stereotypes and misinformation that lead some religious and cultural leaders to support them despite the awful consequences.
"Mrs. Goundo's Daughter" is never graphic, but makes the danger and emotional trauma to girls abundantly clear. Students should be prepared in advance with readings on the subject matter and instructors should plan time for discussion after showing the film.
Consultants on the film included leading refugee and gender-asylum expert Deborah Anker and yours truly. The documentary is an effective way to begin discussions about the complex legal, gender, and cultural issues involved. Heartfelt thanks to research assistant Alexis Smith for her help with this post.

Write On! 4 Societies Workshop

(Write On! is an occasional item about notable calls for papers.) We posted last year about the 2d meeting, in Edmonton, Canada, of the 4 Societies Workshop, a scholarly roundtable cosponsored by the Japanese Society of International Law, the American Society of International Law, the Australian and New Zealand Society of International Law, and the Canadian Council on International Law. The 1st meeting had been in Wellington, New Zealand. Meeting 3 having been set for August 27-28, 2010, on Awajishima Island, Hyogo, near Kobe, Japan, organizers now are seeking paper proposals. (credit for photo of Akashi Bridge, which connects the island to Kobe)
Each sponsoring society will select 4 unpublished papers; submitters are encouraging to send to the society with which they are likely to have a longterm affiliation. Preference will be given to authors in the early stages of their careers and to "innovative and cutting edge proposals" related to the workshop's theme, "International Law in the New Era of Globalization."
Submission deadline very soon for applicants to the Canadian Council -- this Thursday, October 1 -- and later for all other applicants -- December 20, 2009.
Selected participants will be notified by next February and expected to submit a full paper by the end of next July. The working language of the conference will be English. All proposals should include a project description not exceeding 500 words and the applicant’s curriculum vitae; papers may be published in a conference volume. Details on the theme and on how to submit are here.

On September 27

On this day in ...
... 1962, the publishing house of Houghtom Mifflin issued Silent Spring, a book that a Time cover story credited with "Breaking the Silence on DDT." Preceding publication of the work by biologist Rachel Carson had been excerpts in the New Yorker; her allegations that DDT and other pesticides were being overused to the point that they had become "Elixirs of Death" had so disturbed chemical manufacturers that they threatened to sue to block publication of the book. In Time's words:

When the book appeared, industry critics assailed 'the hysterical woman,' but it became an instant best seller with lasting impact. It spurred the banning of DDT
in the U.S., the passage of major environmental laws and eventually a global treaty to phase out 12 pesticides known as 'the dirty dozen.'
Carson died from breast cancer 2 years after publication and well before adoption of the treaty mentioned above, the 2001 Stockholm Convention on Persistent Organic Pollutants. A 2007 National Public Radio broadcast, marking the centenary of her birth, detailed how, decades after Silent Spring appeared, Carson's "work continues to stir up controversy on Capitol Hill." (credit for Book-of-the-Month Club edition, including approving "report" on the book by U.S. Supreme Court Justice William O. Douglas)

(Prior September 27 posts are here and here.)

Saturday, September 26, 2009

Behind every successful man

IntLawGrrls' favorite image from this week's doings at U.N. headquarters in New York: U.S. President Barack Obama chairing Thursday's session of the Security Council, flanked by 2 top foreign policy advisors, Hillary Clinton, Secretary of State, and Dr. Susan E. Rice, Ambassador to the United Nations.
As seen in the U.N. video of the session, unanimously adopted was Res. 1887 (2009), on nuclear nonproliferation. (Hat tip to Peggy McGuinness, IntLawGrrls guest/alumna and charter member of Opinio Juris, whose OJ posts on U.N. happenings have been super.)
Clinton and Rice were by no means the only women foreign policy advisors hard at work this week: U.N. dispatch reported that White House aide Samantha Power (left) spoke at a press briefing Wednesday, following the "first-of-a-kind meeting" between Obama and leaders of countries that comprise the top contributors to U.N. peacekeeping operations. Power (prior posts) is Senior Director for Multilateral Affairs at the National Security Council.

On September 26

On this day in ...
... 1980, Cuba ordered vessels in Mariel Harbor to leave without refugees, thus putting an official end to a "boatlift" by which 125,000 persons had come to the United States. President Jimmy Carter learned of Cuba's unilateral decision to stop the 8-month boatlift (left) "only after the Coast Guard received word from boat captains returning from Cuba" to the United States. (photo credit) Carter initially had welcomed the refugees, according to The New York Times, but later backed away from what a State Department official called an "'illegal, disorderly and dangerous flood of Cuban refugees.'" A crewmember on a turned-back boat told a UPI reporter:

'Everybody in the harbor was crying.'

(Prior September 26 posts are here and here.)

Friday, September 25, 2009

Experts at Law: International Human Rights

(One in a series on Experts at Law)

This third installment in the Experts at Law series focuses on international human rights law, including the domestic implementation of international law, international environmental law, international migration, and women's rights. We've posted previously on experts in war and conflict, including international criminal law, international humanitarian law, national security law, terrorism, and transitional justice, and will post again next week on additional topics including private international law.
Organized by field of expertise, this series of posts aims to provide easily accessible information to conference organizers, media, and others who seek expert opinions on a variety of subjects while ensuring gender balance. The list below provides institutional affiliations for as well as links to the bios and publications of and blog posts by or about our Experts at Law, who are comprised of IntLawGrrls bloggers, guests, and alumnae and presented in alphabetical order. Some offer specific areas of expertise within the broader topic presented.
If you'd like to find this series again in the future, it's easy -- just scroll down the page until you find the "IntLawGrrls series" menu on the right, and click on "Experts at Law."

Domestic implementation of international law
Diane Marie Amann, Univ. of California at Davis, (publications, blogs)
Connie de la Vega, Univ. of San Francisco, (publications, blogs): international human rights law in U.S. courts
Chimene Keitner, Univ. of California, Hastings, (publications, blogs): Alien Tort Claims Act litigation
Stephanie Farrior, Vermont Law School, (publications, blogs): the use of international human rights standards in advocacy for racial and economic justice in the United States
Beth Van Schaack, Santa Clara Univ., (publications, blogs): international law in US courts

International environmental law
Rebecca Bratspies, City Univ. of New York, (publications, blogs): issues of sustainability and international cooperation on environmental decisionmaking, particularly those that revolve around regulating GMOs, food security and fisheries management.
Hari Osofsky, Washington and Lee Univ., Virginia, (publications, blogs): climate change law
Naomi Roht-Arriaza, Univ. of California, Hastings, (publications, blogs): climate change and private environmental standards
Annecoos Wiersema, Ohio State Univ., (publications, blogs): international wildlife law

International human rights law
Diane Marie Amann, Univ. of California at Davis, (publications, blogs)
Karima Bennoune, Rutgers-Newark, (publications, blogs)
Doris Buss, Carleton Univ., Ottawa (publications, blogs)
Connie de la Vega, Univ. of San Francisco, (publications, blogs): the UN's human rights bodies and international standards related to corporate accountability, juvenile justice including life without parole sentences, right to food, right to water and sanitation, toxic dumping
Fiona de Londras, Univ. College Dublin, (publications, blogs)
Stephanie Farrior, Vermont Law School, (publications, blogs): sexual orientation and gender identity; state accountability for human rights abuses by non-state actors; torture and other forms of ill treatment
Molly Beutz Land, New York Law School, (publications, blogs): economic, social, and cultural rights
Hope Lewis, Northeastern Univ., (publications, blogs): critical perspectives with special emphasis on gender and culture, race/ethnicity and culture, economic, social, and cultural rights, and rights of persons with disabilities
Carmen Marquez-Carrasco, Univ. of Seville, (publications, blogs): eradication of poverty; the Human Rights Council; human rights diplomacy, including gender; mechanisms of human rights protection
Jaya Ramji-Nogales, Temple Univ., Philadelphia, (publications, blogs): procedural rights
Susan Harris Rimmer, Australian National Univ., (publications, blogs): rights-based approaches to development
Naomi Roht-Arriaza, Univ. of California, Hastings (publications, blogs): accountability, both state and corporate, for human rights violations
Amy Senier, Foley, Hoag LLP, Boston, (publications, blogs)
Beth Van Schaack, Santa Clara Univ., (publications, blogs)

International migration
Janie Chuang, American Univ., Washington DC, (publications, blogs): gender and labor migration; trafficking
Connie de la Vega, Univ. of San Francisco, (publications, blogs): international standards related to migrants' rights
Jaya Ramji-Nogales, Temple Univ., Philadelphia, (publications, blogs): forced migration, including refugee law; UN human rights bodies and migrants' rights
Susan Harris Rimmer, Australian National Univ., (publications, blogs): refugee law
Hope Lewis, Northeastern Univ., (publications, blogs): transnational migration

Women's rights
Karima Bennoune, Rutgers-Newark, (publications, blogs)
Johanna Bond, Washington and Lee Univ., Virginia, (publications, blogs): CEDAW, violence against women
Doris Buss, Carleton Univ., Ottawa (publications, blogs): violence against women
Naomi Cahn, George Washington Univ., (publications, blogs)
Stephanie Farrior, Vermont Law School, (publications, blogs)
Hope Lewis, Northeastern Univ., (publications, blogs)
Lisa Pruitt, Univ. of California at Davis, (publications, blogs): CEDAW and women’s human rights
Beth Van Schaack, Santa Clara Univ., (publications, blogs)

On September 25

On this day in ...
... 1789 (220 years ago today), the United States' 1st Congress proposed amendments to the Constitution, presenting them for ratification by the state legislatures. The 1st 2 would not be ratified, but the latter 10 would succeed, thus becoming Amendments I-X of the Constitution, known as the Bill of Rights (right). As stated by the Library of Congress, the bill "contained guarantees of essential rights and liberties omitted in the crafting of the original document."

(Prior September 25 posts are here and here.)

Thursday, September 24, 2009

Deconstructing Resolution 3314

(Fifth in a series on the crime of aggression in the ICC Statute)

As discussed in a prior post, the current definition of the crime of aggression hinges upon the Definition of Aggression annexed to U.N. General Assembly Resolution 3314 (1974). By formulating the actus reus of the crime with reference to this Definition of Aggression, states rejected several alternative proposals including one that mirrored the Nuremberg Charter definition of crimes against the peace, a more generic definition without a list of particular acts, and a more restrictive definition focused on situations of occupation or annexation.

Given its centrality in modern discussions of aggression, this Resolution is worthy of closer study. (These sites provide good basic histories of the Resolution, but the works of Ben Ferencz (right) — who has been involved in this project since its inception and who offers the most compelling arguments in favor of the recognition of a modern crime of aggression — contain the best historical and political study of the Resolution. (See, e.g., here and here)).

By way of background, contemporaneous to the International Law Commission's efforts on a Draft Code of Offences against the Peace and Security of Mankind and to build a permanent international criminal court in the immediate post-WWII period, the General Assembly spun off several special committees devoted to the task of defining aggression for inclusion in the draft Code. (This is a modern history; efforts to outlaw and define aggression preceded this project, of course). These committees failed to reach a consensus.
Accordingly, in 1967, the General Assembly further delegated the task of defining aggression to a U.N. Special Committee on the Question of Defining Aggression, which was composed of 35 members chosen for their geographic and legal diversity. It took seven sessions of the Special Committee for the Committee to come up with a consensus definition that it could recommend to the General Assembly for adoption. Given this Cold War provenance, it is all the more amazing that the Resolution was adopted by consensus when it seemed there was very little on which the world’s superpowers and their proxies could agree.

The Resolution contains a preamble reaffirming basis constitutional and normative principles of the United Nation. It then presents a generic definition of aggression that largely tracks Article 2(4) of the U.N. Charter:
Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this Definition.
Article 5(1) makes clear that:

No consideration of whatever nature, whether political, economic, military or
otherwise, may serve as a justification for aggression.

This language leaves very little room for any notion of humanitarian intervention, even one inspired by entirely pure motives.

The Resolution makes no other explicit mention of the intention or purpose of the aggressor state, but does leave open the possibility that notwithstanding a first use of force by a state, the Security Council might conclude that a determination that an act of aggression had occurred was not justified “in light of other relevant circumstances.” Earlier drafts of this Article had included reference to “the purposes of the States involved” here, but this was excised. The U.S. and the U.K. in particular wanted to make clear that it may be difficult to determine who was the "first mover" in an armed conflict, especially in the nuclear age when states might perceive the need to act pre-emptively. A de minimis clause recognized that there may be cases of insufficient gravity where the Council would decide not to act.

Article 3 contains a non-exhaustive list of acts that qualify as acts of aggression, irrespective of the existence of a declaration of war. It is this list that now appears in draft amendments to the ICC Statute. Coming up with this list was, not surprisingly, contentious, and debates about which acts to include were ultimately debates on which acts would trigger states’ inherent right of self-defense. More indirect or non-violent forms of interference—such as fomenting subversion/civil strife/terrorism or economic embargoes or boycotts—were excluded. Paragraph (g), identifying the sending of irregular bands or mercenaries to another state as an act of aggression, was significantly curtailed to exclude reference to organizing or supporting such groups. A clause also condemning the "substantial involvement" by a state in acts by armed bands allows for some consideration of other ways a state may more indirectly contribute to an act of aggression.

Article 6 acknowledges that certain uses of force are lawful under the Charter. Article 7 is a saving provision, ensuring that nothing in the Resolution impinges upon the inherent right of self-determination:

Nothing in this Definition, and in particular article 3, could in any way prejudice the right to self-determination, freedom and independence, as derived from the Charter, of peoples forcibly deprived of that right … particularly peoples under colonial and racist regimes or other forms of alien domination; nor the right of these peoples to struggle to that end and to seek and receive support, in accordance with the principles of the Charter and in conformity with the above-mentioned Declaration.

This Article was adopted as a compromise between states that wanted to carve out an explicit exception to the prohibition on acts of aggression for situations of self-determination and states arguing that only the Security Council could authorize uses of force. Like contemporary definitions of the crime of aggression, Resolution 3314 is primarily statist, the only nod to non-state actors being a footnote indicating that the term “state” is used “without prejudice to questions of recognition” or U.N. membership. States wanting a more explicit dispensation for the use of violence by “peoples” seeking self-determination were thus disappointed as were states wanting the definition to more clearly govern non-state actors as well as states.
Article 5 somewhat cryptically discusses the consequences of engaging in acts of aggression and wars of aggression:
2. A war of aggression is a crime against international peace. Aggression gives rise to international responsibility.

3. No territorial acquisition or special advantage resulting from aggression is or shall be recognized as lawful.
Although the Article uses the term “crime” (with respect to “wars of aggression”) and discusses “international responsibility” for aggression simpliciter, there is no express mention of individual criminal responsibility flowing from a breach of the Resolution. (It was the British who insisted that only a war of aggression constituted an international crime). At the time, states were most concerned with considering the issue of state responsibility rather than individual responsibility. Article 5(2) could, however, be read as recognizing at least a partial co-extensiveness of state and individual responsibility given that the state machinery is controlled by individuals as recognized by the Nuremberg Judgment in these oft-quoted words:
Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.
The Definition of Aggression was ostensibly drafted in order to serve as a political guide to the Security Council in determining the existence of an act of aggression in the exercise of its Chapter VII powers (Article 39). The Resolution accompanying the Definition states that the Council

should, as appropriate, take account of that Definition as guidance in determining, in accordance with the Charter, the existence of an act of aggression.
The Definition never really served its intended purpose, however, and it has made little appreciable impact on Council deliberations. It is, however, generally accepted as an accurate interpretation of the Charter. The International Court of Justice, for example, has ruled that Article 3(g) reflects customary international law in the Nicaragua and DRC cases. (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Reports 1986, p. 14, para. 3; see also Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment of 19 December 2005, para. 146).

The Resolution has thus taken on new life by providing the actus reus for the ICC definition of the crime of aggression.

'Nuff said

(Taking context-optional note of thought-provoking quotes)

But above all, I accepted because I believe deeply in the rule of law and the laws of war, and the principle that in armed conflict civilians should to the greatest extent possible be protected from harm.
-- Richard Goldstone (right), former Chief Prosecutor at the International Criminal Tribunals for the former Yugoslavia and Rwanda and former Justice of South Africa's Constitutional Court, in Justice in Gaza, an op-ed discussing his recent service as head of the U.N. Fact-Finding Mission on the Gaza Conflict. Commissioners -- Goldstone, LSE Professor Christine Chinkin, Pakistan Supreme Court Advocate Hina Jilani, and Irish Colonel Desmond Travers -- issued a report to the Human Rights Council (newest member: USA), finding war crimes on both sides, in mid-September. The report's available in full here.

On September 24

On this day in ...
... 1969 (40 years ago today), in a federal courtroom in Chicago, jury selection began in the trial of 8 men indicted on charges of conspiracy and crossing state lines to incite riots at the Democratic National Convention held in the same city 13 months earlier. Judge Julius Hoffman rejected the requests of defense attorneys for what came to be known as the Trial of the Chicago 8. (It would be reduced to 7 (above right (credit)): the case of defendant Bobby Seale, a Black Panther leader, was severed after he had spent several court days bound and gagged (below left (credit)) by order of the judge). To tease out jurors' "cultural bias" the defense proposed questions like these:

'Do you know who Janis Joplin and Jimi Hendrix are?'
'Would you let your son or daughter marry a Yippie?'
'If your children are female, do they wear brassieres all the time?'
The only question allowed:

'Are you, or do you have any close friends or relatives who are employed by any law enforcement agencies?'
That was the 1st of many contested judicial decisions in the course of a bizarre 5-month trial before a jury that comprised "two white men and ten women, two black and eight white." The judge's behavior would prompt the U.S. Court of Appeals for the 7th Circuit, in United States v. Dellinger (1972), to reverse the convictions of the 5 men whom jurors had found guilty; they were Abbie Hoffman, Jerry Rubin, David Dellinger, Tom Hayden, and Rennie Davis.

(Prior September 24 posts are here and here.)

Wednesday, September 23, 2009

U.N. set to create new women's entity

The General Assembly of the United Nations voted Monday in favor of a draft resolution consolidating all U.N. agencies and divisions addressing women's issues into a single entity.
Called for is the amalgamation of the following:
► the Office of the Special Adviser on Gender Issues (OSAGI);
► the Division for the Advancement of Women (DAW);
► the U.N. Development Fund for Women (UNIFEM); and
► the International Research and Training Institute for the Advancement of Women (INSTRAW).
The move was partly driven by the lack of a centralized voice for gender issues in the U.N. labyrinth. As Secretary-General Ban Ki-moon stated:

'U.N. gender architecture lacks a recognized driver. It is fragmented. It is inadequately funded, and insufficiently focused on country-driven demands.'
To remedy such fragmentation and underfunding, the entity is expected to have a budget of approximately $ 1 billion and its own Under Secretary-General, who will report directly to the Secretary-General.
Tasks for the entity are much less clear. The draft resolution only states that the consolidation will "take into account the existing mandates" of the agencies to be merged.
Last-minute opposition to the resolution by member states such as Cuba, Egypt, Iran and Sudan allegedly resulted in the absence of a specific mandate for the composite entity -- an absence that led Oxfam to label such opposition "deplorable." Secretary-General Ban needs quickly to draft a mission statement, organizational chart, funding plan, and executive board proposal for General Assembly approval.
The consolidation initiative first had been proposed amid discussions about U.N. reform, which began during the tenure of former Secretary-General Kofi Annan. Advocacy around this week's resolution was led by a group called Gender Equity Architecture Reform. GEAR now is pressing for the timely appointment of an under secretary-general for the entity as well as full funding.

'Nuff Said

(Taking context-optional note of thought-provoking quotes)

'A failure to act is sort of really a benign genocide in a sense.'
-- Thomas Tillman, Prime Minister of Grenada, speaking in New York at a meeting of the Alliance of Small Island States, on the eve of yesterday's opening of the new session of the U.N. General Assembly. (credit for photo of Grenadine island of Carriacou, with others of the country's island in the background) The Alliance, known as AOSIS, comprises 37 U.N. member states plus 6 others. As detailed in a Le Monde article, Tillman and leaders of other AOSIS countries hope to raise consciousness of the ways that they are already harmed by climate change and to persuade others of their view that "the wealthiest countries must acknowledge 'the history of their own responsibility' in the creation of the problem."

On September 23

On this day in ...
... 1899 (110 years ago today), a daughter was born in Kiev, then part of Russia (now Ukraine), to a mother "who was a freethinker" and a father who "advocated equal rights for women." Within years the father, who worked in the lumber and building industry, left his family for the United States. His daughter "felt deserted by her father's departure and was so traumatized that she stopped talking for six months." The family joined him 1904 and lived comfortably in Maine. Marrying a New Yorker soon after high school, the daughter, known by her married name of Louise Nevelson (above left), studied art and gave birth to a son. After she and her husband separated in the 1930s, Nevelson, who was Jewish, moved to Munich, Germany. There she studied art until the Nazis closed the school. Returning to the United States, she taught art at a program funded by the Works Progress Administration and began showing and selling some of her sculptures. She won acclaim for her abstract expressionist pieces (right), some of which evoked the Holocaust. "A pioneering grand dame of the art world," Nevelson died in New York in 1988, a few months shy of her 90th birthday.
(credit for photos)

(Prior September 23 posts are here and here.)

Tuesday, September 22, 2009

Call for Nominations: Ginetta Sagan Award in Children's Rights

Amnesty International has put out a call for nominations for the Ginetta Sagan Award for Women and Children's Rights. Sagan, a survivor herself with an incredible life story, was a human rights activist who worked tirelessly on behalf of political prisoners and others whose rights were in jeopardy. The annual presentation of the Ginetta Sagan Award

honors the 'ordinary' women who have the courage to change their world.
Here are the details of how to nominate someone:

The purpose of the Ginetta Sagan Fund of Amnesty International USA is to recognize and assist women who are working to protect the liberty and lives of women and children in areas where human rights violations are widespread. The 2010 award will be given to a woman who works on behalf of the human rights of children.

The Ginetta Sagan Fund recognizes individual accomplishment, but also serves as a beacon of hope to women everywhere who are fighting for human rights.

The Award:

  • Recognizes outstanding achievement, often at great personal risk.
  • Enhances the recipient's ability to live and work freely, and protects the recipient's capacity to continue her work, by bringing a new level of international attention to her accomplishments and the obstacles she faces.
  • Brings increased international scrutiny to the crisis, region or issue for which the recipient works.

Awardee Qualities:

  • Founder and/or Executive Director of an organization.
  • Under threat for her activism.
  • Proven effective at addressing human rights issues.
  • Has brought about significant change in her country, region, or issue through her work.
  • Not a political party leader or government official / employee.

The creation of the Ginetta Sagan Fund emphasizes that more human rights work must be done by and for women. The $10,000 award is announced and presented each year at the Annual
General Meeting (AGM) of Amnesty International USA. The 2010 AGM will be held in
New Orleans, Louisiana.

The $10,000 award can be used by the awardee at her complete discretion.

For information about previous awardees, please visit here and click on “Previous Years’ Winners” on the left menu bar.


For more than three decades, the late Ginetta Sagan, (1925-2000), recipient of the 1996 Presidential Medal of Freedom, fought for the lives and rights of prisoners of conscience throughout the world. A tireless crusader and eternal optimist, Ginetta and her passionate dedication inspired generations of human rights advocates. In honor of her humanitarian achievements, Amnesty International USA created the Ginetta Sagan Fund in 1994, one of AIUSA's first permanently endowed funds and the only fund that specifically addresses the needs of women and children. The Ginetta Sagan Fund ensures the continuation in perpetuity of Ginetta's human rights legacy and brings worldwide attention to the abuses perpetrated on women and children.


This letter of nomination should inform the Selection Committee why the candidate should receive the Ginetta Sagan Award for Women’s and Children’s Rights. To the extent that it is relevant, please include any personal background related to human rights. Please include answers to the following questions:

  • What kinds of personal interactions have you had with the candidate? How would you characterize those interactions?
  • What compels you to nominate this candidate?
  • How has the candidate impacted and/or transformed her community through her work? Examples from past nominees include changes to legislation, raising the profile of the issue in her country and internationally, providing life-saving services, etc. Please be as inclusive as possible.
  • Any other relevant information you would like to include.

Please submit a signed electronic nomination letter (signature scanned, sent via email) or a hard copy of the letter that contains your signature.

These two letters can be from anyone familiar with the candidate’s human rights work. If possible, please have these two letters sent along with the nomination package. If sent by email, please put the nominee’s full name in the subject line.

Any material that can help the Selection Committee gain insight into the candidate would be very helpful. Electronic materials are especially welcome. This can include website links to press, interviews, one electronic or printed portrait photograph (if available), and any other relevant information. Please note that supporting materials will not be returned.

Nomination and letters of recommendation must be received by OCTOBER 1, 2009.



- OR -

The Ginetta Sagan Fund
c/o Amnesty International USA/GSF
350 Sansome Street, Suite 210
San Francisco, California 94104

Please send all inquiries to (preferred) or 415.288.1800 ext. 300.

• Letter of nomination (if submitted electronically, please send a scanned version that contains your signature)
• Two letters of recommendation
• Nomination Form
• Supporting materials
o Photograph
o News / articles
o Interviews
o Weblinks