Thursday, April 30, 2009

Witnesses to tragedy

'We are all mentally ill and physically damaged.'

So says 84-year-old Kim Kun-ja in a Los Angeles Times article about the home on the outskirts of Seoul where Kim lives with 7 other so-called "comfort women" who endured sexual slavery by the Japanese military during World War II.
Kim says she doesn't want to talk about it any more. But others are willing to replace the voice of this woman, "[f]or years ... among the loudest activists" for redress. One is 82-year-old Kang Il-chul (below left). (photo credit) She says,

'We have to resolve this problem before we die. We have to go away if God calls us, but until this is solved, I can't close my eyes happily.'

In addition to living at the House of Sharing, part of the Historical Museum of Japanese Military Sexual Slavery, which receives tens of thousands a visitors a year, the women have given witness in other ways. The Times recounts:
The testimony of the women of the House of Sharing is the riposte to those who say there is no evidence that Korean women were forced to sexually service Japanese troops. They gather every Wednesday outside the Japanese Embassy in Seoul or at various South Korean government offices. They unfurl their banners and mostly stand in silence, unflinching as guards snap their pictures. Over 17 years, they have picketed 861 times. Some have traveled to Washington to testify before Congress.

Theirs is a story well worth reading.

On April 30

On this day in ...
... 1927, at a 500-acre site in Alderson, West Virginia, about 270 miles southwest of Washington, D.C., the Federal Industrial Institution for Women, the 1st women's prison run by the U.S. government, opened. Intended for every woman sentenced to a year or more, the prison run by Dr. Mary Belle Harris (far left) held, for the most part, persons convicted of Prohibition-era alcohol- or drug-related crimes. Among those urging its establishment had been Eleanor Roosevelt (center, with Elinor Morgenthau near right). According to this website:
One judge described the prison as a 'fashionable boarding school.' In some respects the judge was correct; the overriding purpose of the prison was to reform the inmates, not punish them. The prisoners farmed the land and performed office work in order to learn how to type and file. They also cooked and canned vegetables and fruits.

Today, Alderson remains a minimum-security prison holding about a thousand convicted women. (credit for 1934 photo taken at Alderson)
... 1919 (90 years ago today), at the Paris Peace Conference, the "Big Three" powers of the United States, France, and Great Britain, agreed, over China's objection, with Japan's claim to the Shantung province that once had belonged to now-vanquished Germany. President Woodrow Wilson conditioned his approval on a requirement that Japan return the province -- now known as Shandong, in red on map (credit) -- "once China's civil strife ended."

(Prior April 30 posts are here and here.)

Wednesday, April 29, 2009

Thoughts on Koh’s Confirmation Hearing: The Value of Thoughtful Discourse

I had the tremendous pleasure of attending Dean Harold Hongju Koh’s confirmation hearing yesterday. Beth Van Schaack’s post did an excellent job of highlighting the major issues discussed. I want to build on her exposition by focusing on the tone of the discussion as a model for discussing international and transnational issues.
The room was full with a diverse mix of people throughout the hearing, at times nearly overflowing. I felt a focused energy from the crowd, which mirrored that of the committee members and Dean Koh.
What impressed me most about the hearing was the quality of the discourse. Although several Senators referenced the baseless attacks on Dean Koh in the blogosphere and some media outlets (debunked in prior IntLawGrrls posts), both Democrats and Republicans made it clear from the start of the hearing that they planned to focus on substance and that they respected his distinguished record of public and academic service. With the exception of Senator Bob Corker (R-Tenn.) pressing Dean Koh on why he read one of his answers (to which Dean Koh ably responded that he wanted to give the best answer possible), the hearing focused on the role of the State Department Legal Adviser and major issues in foreign relations law.
Dean’s Koh’s answers were thoughtful and lucid. He articulated clearly his understanding of the differing roles of public officials and academics, as well as those of the Legal Adviser and judges, while at the same time elucidating the arguments that he has made in his voluminous scholarship and public addresses over the years. The discussion ranged from the relationship among branches of government, to the role of foreign and international law in policy and judicial decisonmaking, to the Second Amendment right to bear arms. There were clear political differences in the room — often acknowledged — but those variations in viewpoint were expressed through respectful disagreement.
I hope that the tone of broader public discourse can become more like what I witnessed yesterday. Reasonable people often disagree about crucial legal and policy questions. As the members of the committee and Dean Koh amply demonstrated, this country is best served by vetting our potential public officials based in the substance of their record and views.

'Nuff said

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

I hope that the United States has turned the page on those times and is returning to the values that sustained our country for so many years. But we cannot expect to regain our position of leadership in the world unless we hold ourselves to the same standards that we expect of others. That means punishing the most senior government officials responsible for these crimes. We have demanded this from other countries that have returned from walking on the dark side; we should expect no less from ourselves.

CIL in U.S. courts


Mary L. Dudziak, IntLawGrrls guest/alumna and founder of Legal History Blog, alerts us to a debate on how courts within the United States historically have treated the law of nations -- that is, customary international law. The dueling articles are here and here.

On April 29

On this day in ...
... 2002, a year after it lost a seat for the 1st time in history, the United States regained a seat on the U.N. Human Rights Commission by winning 1 of 4 seats set aside for western countries. Established in 1947, the 53-member Commission would expire in 2006 and be replaced by the Human Rights Council, a 47-member body to which, as we've posted, the United States this year plans to seek election for the 1st time.
... 1946, in Tokyo, the International Military Tribunal for the Far East formally charged Hideki Tojo, who'd served as Japan's Prime Minister during World War II, as well as 27 other Japanese military leaders. Defendants were charged with 55 counts of international crimes in the indictment. (credit for photo at right of Tojo)

(Prior April 29 posts are here and here.)

Tuesday, April 28, 2009

In his own words…


After suffering in virtual silence a scurrilous smear campaign, which characterized him as a sharia-loving, sovereignty-sacrificing sell-out of U.S. interests, Harold Koh has been heard. [Yale Law School has compiled the blog posts, articles, and letters in support of Dean Koh here.] His confirmation hearing, which was chaired by Senator John Kerry (right) with Senator Richard Lugar (left) as the ranking Republican, just concluded before the Senate Foreign Relations committee (Kerry's and Lugar's statements are here). The hearing was no cakewalk, but Dean Koh's confirmation seems assured.
Throughout, Dean Koh presented a compelling defense of his “transnational” approach to international relations and his vision of the United States’ place in the world in the next administration. (His answers to Senator Lugar’s written questions were entered into the formal record; an annotation is available here. Ron Slye's discussion of Koh's theory transnationalism is available at Foreign Policy.) In his oral testimony, several key themes emerged that will no doubt guide Dean Koh’s approach to the Legal Advisor in the promising event that he is confirmed:

¶ The U.S. is indelibly and unavoidably connected to the rest of the international community by a web of security, trade, diplomatic, commercial, historic, artistic, and familial relationships.
¶ The nations of the world, including our own, should respect and adhere to the international obligations they have taken on. In his words,


“this is not only the right thing to do, it is the smart thing to do.”

¶ We limit our ability to lead internationally and to demand compliance by other states—including rogue states such as North Korea—when we are perceived as disobeying or disrespecting international law. Our hard power is augmented by the soft power we wield. Our soft power is only as strong as our moral legitimacy.
¶ It is best to work through—rather than in opposition to—international organizations and institutions. We are not powerless to act unilaterally, but there are limits to how effective we can be if we do so.
¶ U.S. sovereign interests and national security are enhanced—rather than inevitably threatened—by our active engagement in international affairs and our participation in international law regimes addressed to transnational problems. Our sovereign power and influence are magnified when we work with allies and international institutions. Such partnerships


“protect our sovereignty and make us safer.”

¶ The U.S. should partner with allies to address common security, environmental, criminal, public health, and economic threats, such as Somali piracy, climate change, swine flu, and the global economic meltdown. We should work to convince nations with which we have more complicated relationships to join these coalitions.
¶ Our foreign affairs power is also enhanced, and the U.S. will make better international and domestic policy decisions, when the executive and legislative branches work in partnership and when members of the minority political party have a voice in designing this policy as envisioned by our constitutional system. The Constitution’s


“checks and balances do not stop at the water’s edge.”


¶ International law—as expressed in our treaty obligations and customary international law—has historically and traditionally been an integral part of the U.S. legal system, subject to principles of constitutional supremacy.
Foreign law and foreign court decisions, while in no way binding on the U.S. or U.S. courts, may have something of value to say about how to resolve legal and procedural problems that are common to the community of nations. We limit ourselves when we categorically ignore or reject them.
International law is a tool that can be used to advance U.S. interests in

  • achieving world peace and security,

  • establishing the rule of law worldwide,

  • greasing the global economy, and

  • improving the quality of life for the world’s populace,
thus
  • opening up foreign markets to our goods,

  • enhancing and disseminating the human and civil rights that are at the foundation of our constitutional framework, and

  • ensuring that all the world’s people have a stake in a just, productive, and secure planet.
One quote summed up his testimony:


“International Law Is Not The Problem, It Is The Solution.”
‘Nuff said.

Pigging out on the flu

Global media have been on a fear-feeding frenzy these past few days over reports of swine flu cases scattered throughout the world.
It is good that relevant agencies, such as the World Health Organization, the Centers for Disease Control, and the Department of Homeland Security, are taking these reports seriously. (Check out this new ASIL Insight on the international law of disease control, by our colleague David P. Fidler.) Good too that government in the site most affected so far, Mexico, is taking extra measures.
As for the media and other global actors, however, it's hard to shake a sense that the subtext of many of their warnings is about something other than saving lives.
Consider:
► A WHO flyer makes clear that eating properly prepared pork poses no swine flu risks. As long as the meat's cooked to 160 degrees Fahrenheit, as it must be for other food-safety reasons, no problem.
So why the "pork bans"?
► As of yesterday, CDC had confirmed 40 U.S. cases of swine flu, contained within 5 of the country's 50 states. That number's less than a third of the students I teach in class on any given day. No deaths had been reported. Indeed, although this strain of influenza is highly contagious, although its symptoms are as acute as those one sees in other severe flus, according to the WHO, "mortality is low (1-4%)."
So why a European Union advisory to avoid travel to the United States?
"This is a rapidly evolving situation," CDC advises, and of course everyone should take care that conditions don't change for the worse. At-risk persons, like the elderly or already ill, should be on special guard. But for the rest of us, for now at least, a bit of sanity coupled with ordinary sanitary measures -- washing hands frequently, staying home if sick, and calling a physician if very sick -- would seem likely to do the flu-fighting trick.

Koh hearing today

A hearing on confirmation of Harold Hongju Koh to be Legal Adviser to the Department of State is set for today.
The hearing before the Committee on Foreign Relations of the U.S. Senate will begin at 2:15 p.m. Eastern time at 419 Dirksen Senate Building, Washington, D.C. Try http://foreign.senate.gov/ for webcast. (Although C-SPAN appeared ready to broadcast the hearings as recently as 12:02 today, it's apparently decided instead to devote coverage to swine flu -- about which see above.)
Many of us have posted on President Barack Obama's nomination of Koh (right), our intlaw colleague, Dean of Yale Law School, and former Assistant Secretary of State for Human Rights. No doubt more posts to come as his confirmation proceeds.


On April 28

On this day in ....
... 1789 (220 years ago today), in the South Pacific, members of the crew of the HMS Bounty mutiny by seizing a sleeping Captain William Bligh and setting him and his allies adrift. As stated here: "For the next 48 days, Bligh and his men will battle hostile natives, ferocious storms, and dwindling provisions before arriving in Coupang, Dutch East Indies." As many a moviegoer knows, the mutineers eventually would sail the Bounty (above right) to, and settle on, Pitcairn Island. (image credit)
... 1987, the former U.N. Secretary-General and current President of Austria, Kurt Waldheim, was barred from entry into the United States by order of the U.S. Department of Justice. As The New York Times reported, DOJ "cited evidence that Mr. Waldheim [left] had '''participated in activities amounting to persecution' of Jews and others in Greece and Yugoslavia during World War II." "And throughout his later years," The Times reported in his 2007 obituary, "Mr. Waldheim portrayed himself as an ordinary citizen who had been caught up in a maelstrom."

(Prior April 28 posts are here and here.)

Monday, April 27, 2009

Who Should Engage in Post-Conflict Reconstruction -- Civilians or Military?

Last week, President Barack Obama announced that although he hoped to send 300 civilians to Afghanistan, he was unable to find the economists, lawyers, and political scientists he had hoped to send. Therefore, he announced, he would instead engage soldiers and the military to do the post-conflict reconstruction programmatic work.
Post-conflict reconstruction is a relatively new field, if it can even be said to be a field, in which internationals and locals work to normalize and build sustainable institutions and infrastructure following war. Aspects of post-conflict reconstruction can include legal drafting, democratization, human rights institution building, gender mainstreaming (often sorely missing, as I have written in my article Lessons from Arizona Market: the Impact of Neoliberlism and the Free Market Mindset on Women in the Post Conflict Reconstruction Process).
The entire enterprise is highly susceptible to critique for a mulitude of reasons, many of which I have written in my article Deconstructing the Reconstruction: Human Rights and the Rule of Law in Post War Bosnia and Herzegovina. The enterprise smacks of colonialism, in particular when internationals are put in positions akin to governors of a colonial outpost, as was arguably the case in Kosovo and, for some of the postwar period, in Bosnia and Herzegovina. This engenders fears of western imperialism, particularly when programs which work in the United States or Europe are imposed or superimposed onto other legal, cultural, political, and economic systems. It is particularly sensitive to the often whimsical and fleeting interests of donors (at the nation-state, organizational, and private level) that would often prefer to see their money used on "sexier" issues than those that have been carefully assessed to be real priorities.
The possibility, then, that military personnel would become the de facto internationals to engage in these operations still in a nascent phase of normative development, and already fraught with legitimate critiques from virtually every scholarly disclipline, is frightening. This is not to say that military personnel are not inherently capable -- or also are, in fact, economists, lawyers, and political scientists, although most are not. But military are on the ground to maintain and foster security, which is a different objective than having the skill and priority of creating sustainable rights regimes.
When I heard that President Obama was planning to send military personnel to do post-conflict reconstruction work because he could not find 300 U.S. civilians to do the job, I wanted to tell him that, in fact, although not well publicized, there are many divisions within federal agencies and private organizations that have produced thousands of U.S. civilian professionals and scholars who have already engaged in post conflict reconstruction work. For instance:
► A division within the Department of State sent hundreds of American lawyers to Bosnia and Herzegovina to assist with the first and second round of elections, and then seconded several hundred to the Organization for Security and Co-operation in Europe as experts in human rights, elections, governance, democratization, media, education and gender.
► A different division of the Department of State has sent hundreds of American lawyers as Junior Professional Officers to the United Nations.
► The American Bar Association's CEELI program regularly sends lawyers and judges abroad to work in developing legal systems.
► A multitude of agencies of the United Nations employs Americans on a contract basis at any give time.
It is high time that the United States developed databases of expert Americans with international experiences and kept these people at the ready as potential surge teams. We exist in the thousands at any given time. Rather than turn these crucial tasks over to the military, already stretched to and beyond its capacity, the United States must begin to recognize its existing -- albeit informal -- core of civilians trained in aspects of post-conflict reconstruction. And it must find a way to make it feasible to call up and send these civilians, rather than to engage the military to become responsible for post-conflict reconstruction work.

Creating a Rule of International Law by Internationalising Domestic Legal Cultures

As previously mentioned here on IntLawGrrls, the meeting of the International Law Section of the AALS in San Diego in January of this year focused on the concept of international law as a ‘law of rules’. I was very happy to be invited to participate in that meeting and have been working on the paper I delivered there since. In the paper entitled 'Dualism, Domestic Courts and the Rule of International Law,' which will appear in an issue of Ius Gentium edited by our colleague Mortimer Sellers, I try to grapple with the (frequently made) assumption that dualism can explain the extent to which domestic courts look to unincorporated international law in their decisions.
I should start by saying that I am not at all convinced that dualism is in fact an explanation for non-internationalism —first of all, dualism is rarely cited by courts as the reason for not referring to international law, and secondly, dualism is predicated on a conception of different spheres of operation that no longer exists to the extent that it did, especially in relation to international human rights law which is designed to have a domestic/internal impact.
Instead of focusing on dualism, I argue that we need to focus on legal culture. If one takes a look at a small sample of dualist states, as I do in the paper, it becomes apparent that the degree of internationalism in superior courts is not uniform; rather there is a ‘spectrum of internationalism’. I argue that this spectrum is relatable to legal culture and that those of us who support greater internationalism ought to focus on internationalising legal culture. As a starting point I pick out five areas of concentration:

► Perceptions of International Law
In my view it is imperative that we see international law not as an interloper but rather as a partner and interpretive aid to domestic law, particularly given the shared values and underlying principles of domestic and international rights protection (dignity, state limitation, accountability, rule of law). In this respect, it seems important to promote and cultivate the synergetic relationships between international and domestic law.

► Perceptions of International Law within the Rule of Law
In the paper I draw heavily on Lord Bingham's 2006 Cambridge Law Journal article on the Rule of Law where he stresses the important role of individual rights-protection and enforcement of international obligations within the rule of law. I argue that seeing international law as existing within the domestic rule of law not only strengthens domestic legal systems and processes but also promotes the rule of international law.

► Perceptions of the Role of Domestic Courts in Enforcing International Obligation
In many cases domestic courts seem reluctant to 'get involved' in international law matters. In the paper I argue that this may be reflective not only a conceptualisation of the rule of law that does not include within it a strong notion of the rule of international law, but also of a judicial discomfort with international law generally and consequently with applying it. Cultivating and participating in what I term "internationalised and internationalising networks" would, I argue, go a long way towards increasing comfort with international law and thereby internationalising judicial legal culture.

► The Existence of an Internationalised Legal Culture
I am also conscious that not only judges but also practitioners must internationalise their conceptions of law in order for the domestic legal system to become internationalised in general. Much the same techniques of knowledge- and network-building can be employed to this end, together with the development of an integrated curriculum in law schools where international and domestic law, instead of being taught as entirely distinct fields, are conceptualised as synergetic where appropriate and applicable.

► Attitudes towards Long-Standing Domestic Practice in Sensitive Areas
At times, judicial resistance to international legal standards (particularly in á la carte internationalist jurisdictions) appears to peak in cases relating to matters of long-standing areas of sensitivity within that jurisdiction itself. In the paper I draw on some Irish examples in particular to make this point, and argue that domestic internationalisation may rely also on the liberalisation of international regimes that have traditionally given domestic legal systems wide margins of appreciation in areas of particular moral or security sensitivity where repressive state action is likely to occur.
I try to sum up my views on internationalisation of domestic courts and my argument that degrees of internationalism are not strogly related to whether a system is dualist or not in the conclusion thus:
The mere fact that a state is dualist does not mean that its courts will fail to be internationalist; that they will fail to refer to international law. Even though an international treaty lacks domestic legal force absent incorporation, it can still have a legalistic function within the state itself by influencing how domestic legal standards are interpreted or, where no applicable domestic legal standards exist, supplementing the domestic legal system. To equate dualism with anti-internationalism is simultaneously to ignore the regulatory capacity of international law and the enforcement capacity of dualist courts in relation to the rule of international law.
The article is currently part of the UCD Working Paper Series in Law, Criminology and Socio-Legal Studies on SSRN, and I am very much interested in readers' views on whether these are sensible areas in which to focus a process of internationalisation. [I am going to assume that most readers of IntLawGrrls are broadly in favour of internationalisation; the paper does not go into whether internationalisation is to be favoured--this, I think, is a question that needs its own consideration!].


On April 27

On this day in ...
... 1984 (25 years ago today), Britain's siege of of the Libyan Embassy in London ended when the 30 diplomats within "simply walked out." The incident had begun 11 days earlier, during a demonstration against Libyan leader Moammar Gadhafi; 25-year-old British police officer Yvonne Fletcher had been shot dead during that demonstration. "In 1999, Libya admitted 'general responsibility'" for the killing of Fletcher (right), according to the BBC, "and agreed to pay compensation to her family." No individual ever was charged with her death, which her family commemorated in a 25th anniversary ceremony earlier this month.
... 1992, the end of World War II came nearer as Soviet and American troops met at the Elbe River south of Berlin, thus cutting Nazi Germany's army in 2.
... 1956, U.S. Rep. Betsy Markey (D-Colo.) was born in Cresskill, N.J. She won the office by defeating Republican incumbent Marilyn Musgrave in the November 2008 election.

(Prior April 27 posts are here and here.)

Sunday, April 26, 2009

Afghan women brave violence to protest law

The Afghan Constitution guarantees equal rights for all, yet President Hamid Karzai recently signed a law passed by Parliament that severely restricts Shi'ite women's rights. In particular, The New York Times reported:
One provision makes it illegal for a woman to resist her husband’s sexual advances. A second provision requires a husband’s permission for a woman to work outside the home or go to school. And a third makes it illegal for a woman to refuse to “make herself up” or “dress up” if that is what her husband wants.
Despite the April 12th murder by the Taliban of Sitara Achakzai (below right) (credit), an Afghan women's rights advocate and politician, on April 15 200-300 Afghan woman braved a crowd of 1000 counter-demonstrators shouting epithets such as 'whores" and "infidels," spitting on them and pelting them with rocks to march 2 miles to the Parliament, where a few supportive parliamentarians met them to discuss striking the law's most offensive provisions. (Prior post.)
U.S. Secretary of State Hillary Clinton, among others, has expressed her concerns about the law "directly" to President Karzai, who may be able to "unsign" the law since it hasn't yet been published.

On April 26

On this day in ...
... 1828, Russia declared war on Turkey, asserting that the latter had breached the 2-year-old Treaty of Akerman. Eventually Turkey's sultan would yield to Russia's tsar. The ensuing 1829 Treaty of Adrianople resulted in entrenching Russia's hold on Caucasus and Danube territories.
... 1248, the Gothic structure in Paris known as La Sainte-Chappelle was consecretated. It was built as the royal chapel for the "ultra-devout" King Louis IX, and its stories-tall stained-glass windows (above) are, even today, a sight to behold.

(Prior April 26 posts are here and here.)

Saturday, April 25, 2009

"Nationalize" International Human Rights in the United States

Ever since the start of the global financial and economic crisis, debates and charges have raged about whether the U.S. should nationalize certain industries such as banking and financial services or auto production.
But IntLawGrrls often point out that other debates should also draw our attention to “nationalization,” or, more accurately, U.S. adherence to international human rights law (Photo: Mrs. Eleanor Roosevelt, first Chair of the UN Commission on Human Rights, holding a copy of the Universal Declaration of Human Rights. (Credit: UN Photo, 1949)) :
►the public release of more “torture memos”;
►the prosecution of those who committed, ordered, or provided official justification for torture;
►the rights of immigrant workers, refugees, and their families who are subjected to raids and detention;
same-sex marriage and the civil rights and civil liberties of gay, lesbian, and transgendered people;
rights to housing and food even (especially) during a time of economic crisis;
►access to universal physical and mental health care and related rights;
►ending race, gender, age, disability, and other forms of discrimination;
protecting workers' rights to living wages, fair and safe working conditions, and collective bargaining while pursuing environmental, social, and economic sustainability;
►deciding whether or not to participate in the recently concluded UN Durban Review Conference on Racism;
►ensuring transparency and participation by those most affected by a disaster (whether economic or “natural”) to recovery strategies and plans (see posts on Hurricane Katrina and human rights impact of disaster); and
►ratifying core international human rights instruments such as the International Covenant on Economic, Social, and Cultural Rights, the Convention on the Rights of the Child (neither the U.S. nor Somalia (where juveniles are used in piracy networks) has ratified the CRC), the Convention on the Elimination of All Forms of Discrimination Against Women, the Convention on the Protection of the Rights of All Migrant Workers and Their Families, and the Convention on the Rights of Persons with Disabilities (see our series on disability rights), among others.
These issues and controversies each bear important relationships to building “human rights culture” in the United States.
Rather than assume that human rights protections are intended only for those outside our borders, those in the United States must see human rights instead as a common heritage and as vibrant criteria that could help guide such “internal” discussions.
Discussions about the meaning and implementation of human rights must not be confined to international law classrooms or ornate palace assemblies in which only accredited diplomats may enter.
Human rights must become part of every schoolchild’s curriculum (see link to Human Rights Education Association here) and domestic legal and policy agendas. Ideally, international human rights standards provide an important framework for interpretation, monitoring, and implementation of law in the service of social justice.
Of course, merely teaching and learning the existing standards, or adopting new ones in treaties or constitutions, will not “solve” such debates without a commitment to making them real on the ground.
As previously posted here, some groups are calling for the U.S. Civil Rights Commission to be made-over into a newly-energized Civil Rights and Human Rights Commission. Such national commissions and ombudspersons do not replace courts or legislators, but they can remind us of our international obligations and act as a crucial independent monitor and voice for “nationalizing international human rights” (Title inspired by a recent magazine article. See Jeri Zeder, "Nationalize International Human Rights" Northeastern Law Magazine (Spring 2009)).


In passing: Fumiko Saiga

(In passing marks the memory of a person featured in IntLawGrrls)

She'd been elected to the Court in 2007, as IntLawGrrls noted last fall. Her prior career had been in Japan's foreign ministry, where she served as ambassador to Norway and Ireland, and as ambassador in charge of human rights issues such as violence against women. The last appointment recognized her efforts on behalf of women's rights: among other achievements in this regard, Saiga had spearheaded Japan's 1985 ratification of the Convention on the Elimination of Discrimination Against Women, and had served on the CEDAW Committee for much of this past decade.
Earlier this year Saiga was re-elected to the ICC. She'd been serving in Pre-Trial Chamber II and Trial Chamber II. In a release ICC President Sang-Hyun Song said of his colleague:
'Judge Saiga’s death is an enormous loss to the Court. Her sharp legal acumen and dedication to impartial justice, coupled with her balance and grace, made her an eminently capable jurist.'


On April 25

On this day in ...
... 1940, 22 years after Canadian women were granted the right to vote in federal elections, the women of Quebec were permitted to vote and run for office in provincial elections. The change in Quebec culminated efforts that had begun in 1927, when Idola Saint-Jean (above right) founded l'Alliance canadienne pour le vote des femmes du Québec, and 1928, when Thérèse Casgrain (below left) founded La Ligue des droits de la femme. The groups lobbied the province's premier; eventually he persuaded the clergy to drop their opposition.
... 1980, a top-secret mission aimed at freeing 52 persons whom Iranian militants had been holding hostage for months at the U.S. Embassy in Tehran failed. Eight soldiers were killed in the attempt. The hostages would not be released for another 9 months (prior post).

(Prior April 25 posts are here and here.)

Friday, April 24, 2009

Bringing Law to Refugee Camps

Though I focus much of my scholarly energy on due process failures in the U.S. immigration system, the "Wild West" policies and procedures of American immigration courts pale in comparison to the legal vacuum found in refugee camps throughout the world. More than 7 million of today's refugees have lived in camps for at least ten years (sometimes for generations), yet there exists no formal legal infrastructure to protect even the most basic human security needs in these camps. Given the dire economic and physical conditions of the camps and the societal violence from which these refugees are fleeing, it's no surprise to learn that violent crimes, particularly against women and children, are common. In a camp for Burundian refugees in Tanzania, for example, over 25% of women had suffered violence, often sexual in nature; in nine Thai camps for Burmese refugees, 350 serious crimes were reported between 2003 and 2006, with rape and domestic violence the most common and children often the victims.
In 2006, in three of these Thai camps, the UN High Commissioner for Refugees and the International Rescue Committee opened legal assistance centers -- the first ever of their kind in any refugee camp anywhere the world. While 63% of camp residents at that time had concerns about their security, they were also skeptical of the Thai justice system, preferring the informal governing structures created within the camp communities. Since then, over 700 camp residents have consulted the centers with claims including murder, rape, and even contract disputes. Solutions offered by the legal assistance centers range from referrals to the Thai justice system (for the most serious cases) to working with the camp's sexual and gender-based violence committee on awareness training programs in schools and community-based organizations.
While it's hard to dispute that increased legal accountability is a positive step in situations of such violence and insecurity, it's a fine line that these organizations must walk between respecting local traditions of justice and imposing "universal" standards of justice from the top down. Particularly in cases of domestic violence and sexual assault, victims may be reluctant to come forward if reporting such crimes risks ostracization and other forms of social sanction by their community. It's important that the legal assistance centers are working alongside refugee women's groups to promote gender equality, reforming justice norms from within the community. Referrals of criminal cases to the Thai authorities offer an important stick, but one that must be exercised cautiously -- the laws might discriminate against foreigners on their face or in their implementation, and criminal laws in particular may lack adequate procedural safeguards for defendants. In this and many other situations, camps are located in societies geographically and culturally proximate to the refugees' home state, which may lead to some greater level of comfort with the host state's justice system and norms. If they are able to pull off the balancing act of protecting of local justice traditions alongside basic equality norms, these centers may offer a model for improving the physical security and fundamental rights of refugees in camps throughout the world.

On April 24

On this day in ...
... 1954 (55 years ago today), in Britain's East Africa colony of Kenya, more than 10,000 men were arrested and detained in "Operation Anvil," which the BBC called "the biggest anti-Mau Mau operation since a state of emergency was declared in Kenya 18 months ago." The detention camps would remain for years; at the height of the crackdown, 80,000 persons were held, and many were subjected to cruelty. In 2005, in Imperial Reckoning: The Untold Story of Britain's Gulag in Kenya, the period was recounted by Caroline Elkins (left), Hugh K. Foster Associate Professor of African Studies at Harvard, who won the Pulitzer Prize for the study. That same year Kenya demanded that Britain apologize.
... 2007, was announced the signing of a Norway-Iceland bilateral agreement by which the former country (flag above right) agreed to shoulder the defense of the latter (flag below right) during peacetime.

(Prior April 24 posts are here and here.)

Thursday, April 23, 2009

'Nuff said

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

'What is punishment for a person who is capable to do such horror, such horrible things to living people? I cannot imagine that that person has a soul or conscience or heart. ... He simply wouldn't feel it. ... What kind of punishment could you give to a person like that?'
-- Los Angeles-based, octogenarian artist Elisabeth Mann, a survivor of Auschwitz-Birkenau and other Nazi camps, on why, as CNN reported, "she's uncomfortable with the ongoing attempts to deport to Germany for trial John Demjanjuk, an 89-year-old Cleveland, Ohio, man allegedly linked to mass killings at Sobibor, a death camp in Poland." Her son and others quoted disagreed with her, in a story published this week of Holocaust Remembrance Day.

On April 23

On this day in ...
... 1999 (10 years ago today), NATO defended the overnight bombing of Serbia's state television station, asserting that the building was a legitimate target and a "'ministry of lies.'" (photo credit) The Belgrade bombardment, reported to have caused 10 deaths and 18 injuries, was said to have been appropriate for the reason that the station gave propaganda support to the militaristic endeavors of Serbian President Slobodan Milosevic. Banković and Others v. Belgium and 16 Other Contracting States (1999), an application for relief filed by victims' survivors, was ruled inadmissible by the European Court of Human Rights. I've written about that decision in my article entitled Guantánamo.
... 2003, Cypriots were permitted to cross the "Green Line" that had separated the northern and southern portions of the island of Cyprus for nearly 3 decades. "The Turkish Cypriots announced ... that they were easing the restrictions to build confidence between the divided communities," the BBC reported. (map credit)

(Prior April 23 posts are here and here.)

Wednesday, April 22, 2009

Guest Blogger: Pamela Merchant

It's IntLawGrrls' great pleasure today to welcome a most timely guest post from our colleague Pamela Merchant (left).
Pamela is Executive Director of the Center for Justice and Accountability, an 11-year-old, San Francisco-based nongovernmental organization that promotes human rights through means including litigation against persons accused of committing torture.
An honors graduate of Georgetown University and Boston College School of Law, Pamela has 20 years' experience in the practice of complex state and federal litigation. She served for 8 years as a federal prosecutor with the U. S. Department of Justice, Criminal Division, where she specialized in white collar prosecutions. More recently, she was Special Counsel to the California Attorney General where she coordinated the affirmative litigation that the state filed in connection with the California energy crisis. She has also been a civil prosecutor for the Commonwealth of Massachusetts, and has represented clients in private practice. Immediately before joining CJA, she represented the San Francisco in energy and telecommunications matters.
A member of the Board of Directors of the International Gay and Lesbian Human Rights Commission, the Northern California Community Loan Fund, and Continuum (which provides innovative services to low income individuals living with HIV/AIDS), Pamela recently completed a 3-year term on the board of Bay Area Lawyers for Individual Freedom. She was the founding President of a Massachusetts non-profit which provides financial services to lo- income elderly individuals, and was a member of the Expert Review Panel for the City of San Francisco’s Department on the Status of Women, Violence Against Women Grant Program. For many years she was a member of the Board of Directors of Gay and Lesbian Advocates and Defenders (GLAD), of which she also served as President.
In her guest post below, Pamela discusses the recently released "torture memos" in relation to CJA's ex-detainee clients, and argues that the United States should move now toward accountability at home.
Heartfelt welcome!

Time for US to move toward accountability

(My thanks to IntLawGrrls for the opportunity to guest-post on an issue of special importance to the NGO for which I am Executive Director, the Center for Justice and Accountability)

Last week, President Obama released four declassified memos written by the Office of Legal Counsel under the Bush administration. These memos provided a legal framework for the torture of detainees held by the CIA in connection with the "War on Terror." (Prior IntLawGrrls posts here, here, and here.)
The contents of the memos are spine-chilling. Government lawyers employed strained legal reasoning to eviscerate the definition of torture under international and domestic U.S. law. In effect, these memos gave the imprimatur of the U.S. Justice Department to abhorrent and illegal acts. The memos authorized interrogators:
► to slam a prisoner's head against a wall repeatedly;
► to deprive prisoners of sleep for eleven days at a time; and even
► to subject prisoners to "waterboarding," a technique of controlled suffocation that was used extensively by the Spanish Inquisition and by the Khmer Rouge during the genocide in Cambodia. As a result of these legal opinions, one prisoner was waterboarded 183 times.
In one of the memos, Steven G. Bradbury, then Principal Deputy Assistant Attorney General, opines on what constitutes "prolonged mental harm" as a result of torture. In doing so, he cites to Mehinovic v. Vuckovic, CJA's case against a Bosnian torturer Nikola Vuckovic. Bradbury juxtaposes waterboarding, which is used to "induce a sensation of drowning," with the game of "Russian roulette," which CJA clients Kemal Mehinovic, Muhamed Bicic, Safet Hadzialijagic and Hasan Subasic experienced while being held in a Bosnian detention camp. Strangely, Bradbury concludes that that waterboarding is an acceptable form of torture, but "Russian roulette" is not. Needless to say, CJA's clients who have been subjected to waterboarding would disagree.
In the statement accompanying the release of these memos, President Obama stated that he believes strongly in "transparency and accountability." Certainly, transparency is a virtue, and more light must be shed on the torture program outlined in these memos. But transparency alone will not serve to deter torture unless it is followed by accountability. The disclosure of these memos is only the first step in ensuring that the United States will never again violate the prohibition against torture.
It is time to make the next step.
In order to hold the authors of these memos accountable, CJA joins human rights groups around the world in calling on Congress and the Obama administration to investigate and, if warranted, prosecute U.S. officials responsible for torture. Those held responsible should include:
► the interrogators who committed torture,
► the lawyers and senior officials who authorized torture, and
► the medical personnel who oversaw torture.
Investigating torture is not only our moral duty: it is our legal obligation. When the U.S. Senate ratified the Convention Against Torture in 1994, we committed ourselves as a nation not only to refrain from torture but to prosecute perpetrators when there is evidence of a crime.
Recent events show that if the U.S. government fails to enforce its own laws, foreign courts may step into the breach.
One effort to hold U.S. officials accountable in a foreign court is already underway. Last Friday, Judge Baltasar Garzón (left) of the Spanish National Court decided that a criminal complaint against six Bush administration lawyers and advisers could proceed. The complaint alleges that Spanish citizens detained at Guantánamo were subjected to a program of torture devised and authorized by senior Bush administration officials. (Prior IntLawGrrls posts here and here.) Although CJA supports the principle of universal jurisdiction underlying the Spanish criminal complaint, we strongly believe that the endgame must be a formal investigation of the allegations of torture and prosecutions in the U.S. justice system.
The timely release of the OLC torture memos and the Spanish criminal complaint underscore the urgent need for the U.S. government to take this essential step towards accountability.
Our human rights reputation depends on it.

On April 22

On this day in ...
... 1959 (50 years ago today), Margot Fonteyn (left) arrived at an airport in New York after the diva ballerina had endured a 24-hour detention in Panama City, where authorities were looking for her husband, whom they suspected was planning a coup against the government. Fonteyn, who'd been born Margaret "Peggy" Hookham 40 years earlier in Surrey, England, told reporters she did not know the whereabouts of her husband, Dr. Roberto Arias, formerly Panama's ambassador to Britain. Within days his compatriots indeed would stage a failed coup. And in 1999 his aunt, Mireya Moscoso de Arias, would become Panama's 1st woman President.
... 1997, a 4-month siege by the Movimiento Revolucionario Túpac Amaru ended when troops stormed the Japanese ambassador's residence in Lima, Peru, and freed 71 hostages. A Supreme Court judge was the only hostage killed, in addition to all 14 hostage-takers and 2 soldiers. Subsequent inquiry revealed that a number of rebels had been executed after surrendering in building at right. That revelation led to criminal charges against the intelligence chief of the man then Peru's President -- Alberto Fujimori, himself, as we've posted, convicted of crimes just this month.

(Prior April 22 posts are here and here.)

Tuesday, April 21, 2009

The Face of Hunger

This video is a trenchant comment on the relationship between globalization and hunger.

It goes where it goes

It goes where it goes.
That's the phrase glimpsed in the tea leaves after Thursday's release of Office of Legal Counsel memoranda that professed to give legal justification for waterboarding and other coercive interrogation measures.
IntLawGrrl Naomi Norberg opined Sunday that President Barack Obama, by announcing that the United States would not prosecute CIA operatives who implemented policies the memos condoned, okayed prosecutions in countries outside the United States. Surely she wrote with tongue in cheek, given reports that Obama is "hoping that" the possibility that Spain might launch a criminal investigation of 6 Bush Administration lawyers "will go away." (Prior post.) (The decision now is in the court of Judge Baltasar Garzón.) Obama's emphasis from the outset -- with which this IntLawGrrl heartily agrees -- has been a forward look toward dismantling post-9/11 abuses.
At the same time, it must be noted that Obama has refrained from any public condemnation of proceedings in Spain, or elsewhere for that matter.
Also to be noted:
Obama gave a U.S. prosecutorial pass only to "those who carried out their duties relying in good faith upon legal advice from the Department of Justice," to "men and women of our intelligence community." Glaring is the omission of any reference to the lawyers who gave that advice. Presumably, they remain exposed. So too any official who acted in bad faith or without bothering to secure cover from what I have called (p. 2126) "legalist" -- as opposed to legal -- advice. Reinforcing that presumption is this snippet from Sunday's Face the Nation interview with Obama adviser David Axelrod:

Well, the president has said, if there were agents of the United States government acting on legal advice that what they were doing was legal and appropriate, that they should not be prosecuted.
If people acted outside the law, that's a different issue.

As to those people, it goes where it goes.
It might go to an investigatory body, and not one as far away as Spain:
► A Senate intelligence panel is continuing its examination of CIA's post-9/11 behavior, and its chair, Dianne Feinstein, doesn't want to rule out prosecutions before that study is completed, 6-8 months from now.
The New York Times wants Congress to impeach Jay Bybee, the erstwhile OLC head who's now a judge on the U.S. Court of Appeals for the 9th Circuit.
► Some are working to establish a commission of inquiry along the lines of the 9/11 Commission.
► Others are calling for a special prosecutor.
Both of these 2 latter proposals make more sense now than they did before Obama's action on Thursday. Any investigator knows that the way to move toward the truth, the way to make a case against higher-ups, is to immunize lower-level hirelings.
In short, it seems we have not heard the last on calls for accountability. Not even within the United States.
Investigation, it goes where it goes.

Go On! Detention & Rendition at LSE

(Go on is an occasional item on symposia of interest) On May 6th this year the Department of International Relations at the London School of Economics will hold a day-long symposium entitled 'Detention and Rendition in the "War on Terror"'.
Full details of the symposium are available here, and the day will feature sessions on the range of human rights implicated in detention and rendition, international relations perspectives on detention and rendition, possibilities for reform of current policies and practices, and perspectives on creating effective links between academia and action/activism in this area.
The speakers are drawn from the academy (law and international relations), practice, and policy/NGO and I am very pleased to be included among them.
Attendance at the symposium is free and open to all. The only requirement is to pre-register with the organiser, Elizabeth Stubbins Bates, at e.t.stubbins-bates[at]lse.ac.uk before the 30th of April.

On April 21

On this day in ...
... 1939 (70 years ago today), Helen Prejean (left) was born in Baton Rouge, Louisiana. Having joined the Order of St. Joseph of Medaille in 1957, Sister Helen taught Catholic high school students for many years. In 1981, she dedicated herself to helping New Orleans' poor people, and began corresponding with a man sentenced to die in the electric chair of Louisiana's Angola State Prison. She wrote in Dead Man Walking: An Eyewitness Account of the Death Penalty in the United States (1994) of her work as his spiritual advisor through to his execution; the book later was adapted into a Hollywood film and a San Francisco opera. Sister Helen continues to advocate for the abolition of capital punishment.
... 1649 (360 years ago today), colonial legislators passed the Maryland Toleration Act, which guaranteed freedom of worship to all Christians.


(Prior April 21 posts are here and here.)

Monday, April 20, 2009

Today's Guest Bloggers: Anne Gallagher and Elaine Pearson

It's IntLawGrrls' great pleasure to welcome as today's guest bloggers Dr. Anne Gallagher (left), Head of Operations for Equity International, a Geneva-based foundation that promotes ethical and lawful policing through technical and tactical training and other practical support to national police forces, and Elaine Pearson (below right), Deputy Director of the Asia Division of Human Rights Watch.
Anne is an international lawyer specialising in human rights and criminal justice. She served as a career U.N. official from 1992 to 2003; for the last 5 of those years she was Special Adviser on Human Trafficking to the High Commissioner for Human Rights. She continues to advise the United Nations on these matters and has, most recently, completed a legal commentary to the U.N. Principles and Guidelines on Human Rights and Human Trafficking.
In 2003 Anne was appointed to head an intergovernmental initiative, under the Australian Aid program, that aimed to develop more effective criminal justice responses to human trafficking within and between countries of South East Asia. The project works directly with ASEAN and its member states to promote criminal justice approaches that work to end impunity for traffickers and to secure justice for persons who have been trafficked.
Anne has taught as institutions iincluding the NATO Staff College, the European Institute for Human Rights, and universities in Australia, Finland, Switzerland and Thailand. Her publications focus on policing, human rights, women’s rights and human trafficking. Cambridge University Press will publish her book International Law of Human Trafficking later this year.
Like Anne, Elaine also has special expertise in issues related to human rights, human trafficking, and migration. She has published in periodicals including The Nation. As Deputy Director of Human Rights Watch's Asia Division, she supervises work across Asia, especially South East Asia, Nepal and North Korea. Elaine has lived and worked in Asia for 6 years, in cities including Bangkok, Hong Kong, and Kathmandu. Prior to joining Human Rights Watch in 2007, she worked as a consultant to various institutions, among them the International Labour Organization, the U.N. Development Fund for Women, and Oxfam. She led the first Trafficking Program at Anti-Slavery International in London, was advocacy officer for the Global Alliance Against Traffic in Women. She graduated in law from Murdoch University in Australia.
In their guest post below, Anne and Elaine discuss Detention of Trafficked Persons in Shelters: A Legal and Policy Analysis, their study, prepared under the auspices of ARTIP, the Asia Regional Trafficking in Persons Project, of the practice by which some countries hold victims of human trafficking in shelter custody.
Heartfelt welcome!