Tuesday, November 30, 2010

Wald on WikiLeaks

(Honored to welcome back alumna Patricia M. Wald, former federal and international judge, and former member of Presidential commission on U.S. intelligence, who contributes her thoughts on the unauthorized WikiLeaks release of U.S. diplomatic cables and military documents, some of which have been published in The New York Times, the Guardian, Le Monde, El Pais, and other media)

I think that freelancers do have some duty not to do things that will inevitably result in making any rational course of foreign relations more difficult.
Though it may be difficult to draw a precise line, I do see a difference between publishing the Pentagon Papers (after the fact), which disclosed the perfidy of the Vietnam War, and just dumping all sorts of personal calumny about foreign leaders – though part of these “dumps” may well have been motivated, like the Pentagon Papers, to show the futility of our sojourn in Afghanistan. (It seems almost impossible that the dumps aren’t violative of all sorts of laws.)
The episode also illustrates how our courtship with technology can be ruinous, by making it so easy to gain access to and disseminate so much classified material through young and immature intelligence operators.

Guest Blogger: Yaël Ronen

It's IntLawGrrls' great pleasure to welcome Dr. Yaël Ronen (left) as today's guest blogger.
Yaël is an Assistant Professor of Public International law at Sha’arei Mishpat College in Hod HaSharon, Israel. She completed her PhD at the University of Cambridge in 2006, and the revised and updated version of her dissertation, Transition from Illegal Regimes under International Law, will be published by Cambridge University Press in May 2011.
In a 2-part guest series that begins today, Yaël recaps the history of international negotiations over Iran's nuclear program (here), then evaluates proposals for reform of the treaty regime under which they've been conducted (here). Her analysis derives from her just-published book, The Iran Nuclear Issue.
Yaël 's areas of expertise also include statehood and territorial status, humanitarian law, international human rights law and international criminal law. Topics of particular interest, as evident from Yaël's publication list, include the intersection between these areas of law, arising in issues such as whether the International Criminal Court has jurisdiction over acts committed in the Gaza Strip.
Yaël was recently invited as an expert contributor to the Sanela Diana Jenkins Human Rights Project at UCLA School of Law, Human Rights and International Criminal Law Online Forum.
Prior to embarking on an academic career, Yaël served in the Israeli foreign service, both as a lawyer, representing Israel in the United Nations' Sixth Committee and before various human rights treaty bodies, and as a political officer, including a 2-year post in New Delhi, India.
She's also the academic editor of the Israel Law Review, which focuses on scholarship in the fields of human rights, public law and international law and examines the application of legal norms under conditions of conflict and political uncertainty. She welcomes submissions!
She dedicates her contribution to Elizabeth Garrett Anderson (1812–1893). Of Garrett Anderson (below right), sister of Millicent Garrett Fawcett (prior IntLawGrrls post), Yaël writes:

She was the first woman to successfully complete the medical qualifying exams in Great Britain, the first woman physician in Great Britain, an advocate of women's suffrage and women's opportunities in higher education, and first woman mayor in England.
Garrett Anderson’s life is an inspiration not only because she repeatedly broke through gendered glass ceilings; but because she seemed to have managed to be not only ‘anything’, but ‘everything’: she was a professional, an activist, and a dedicated family-person. How did she do it all?

Garrett Anderson joins other IntLawGrrls transnational foremothers in the list just below the "visiting from..." map in our righthand column.
Heartfelt welcome!

Negotiating Iran’s nuclear activities

(My thanks to IntLawGrrls for the opportunity to contribute a 2-part series of guest posts. Part 1 is below)

The recent announcement that Iran is willing to resume negotiations over its nuclear activities presents an opportunity to recap the development of the conflict over this issue, which erupted over eight years ago.
This conflict and its legal implications are considered in my book The Iran Nuclear Issue (Hart Publishing, 2010), on which this series of guest posts draws. In addition to a legal analysis, the book contains a detailed chronology and the texts of documents which underlie the evolution of the conflict.
In August 2002, an Iranian opposition group revealed the existence of two previously undisclosed nuclear facilities under construction in Iran.
In December 2002, the United States published satellite pictures of the two facilities, as proof of its long-held suspicions that Iran was pursuing both weapons of mass destruction and long-range missile capabilities.
Iran reacted by stating repeatedly that it was committed to the prevailing international legal regimes on weapons of mass destruction, including the 1968 Treaty on the Non-Proliferation of Nuclear Weapons. Iran contended that its commitment derived not merely from its contractual obligations but, more importantly, from its religious convictions and historical experience. Iran maintained that its programme, which was aimed at mastering the complete fuel cycle, was intended solely to support a civilian nuclear energy programme. It explained that it had operated clandestinely because of obstructions, by the United States and other countries, to its overt activities.
Suspicion nonetheless arose and increased among various states, and the matter was taken up by the International Atomic Energy Agency, which began an intensive inspection and verification operation in Iran. The Agency found that Iran had made substantial efforts over the previous two decades to master an independent nuclear fuel cycle, and was carrying out research and development activities related to the treatment, storage and disposal of radioactive waste.
In June 2003, and several times subsequently, the Atomic Energy Agency declared that Iran had failed to comply with obligations under its bilateral Non-Proliferation Treaty Safeguards Agreement.
Calls ensued, on the one hand, to take decisive measures against Iran, including referral to the U.N. Security Council, and on the other hand, to give Iran a chance to rectify its conduct.
Amid this debate, the United Kingdom, France, and Germany -- the EU3 -- undertook to negotiate directly with Iran. In October 2003, the two sides issued the Tehran Statement, in which Iran agreed to cooperate fully with the Atomic Energy Agency in order to settle all outstanding issues and to correct any failures to comply with its Safeguards Agreement. The EU3, meanwhile, informed Iran that if it complied with its commitments, the EU3 would not seek referral of Iran’s dossier to the Security Council.
In mid-2004, Iran resumed work on uranium conversion.
To defuse the crisis that followed, the EU3 engaged again in negotiations with Iran; overall, however, those negotiations did not result in any change of policy. Both sides expressed disappointment with what each deemed the other’s broken promises, procrastination, and bad faith.
The EU3 consequently aligned with the United States, which had already been pressing the International Atomic Energy Agency Board of Governors to refer the Iranian issue to the Security Council. This Board urged Iran to re-establish full, Agency-verified suspension of all enrichment-related and reprocessing activities, including research and development.
In January 2006, Iran began to enrich uranium in centrifuges at its Natanz plant. In reaction, the Agency's Board of Governors referred the Iran dossier to the Security Council, which has since adopted six resolutions under Chapter VII of the Charter of the United Nations. These resolutions imposed enforcement measures on Iran until it complied with the previous demands of the Security Council and the requests of the Board of Governors. The resolutions further added the suspension of work on all heavy-water-related projects, including the construction of the heavy-water research reactor in Arak (left). (photo credit) Enforcement measures include:
► A trade embargo on items and technologies which could contribute to the activities Iran was ordered to suspend; and
► A travel notification requirement and asset freeze with respect to designated individuals and entities involved in the activities Iran was ordered to suspend.
In August 2007, the Agency Secretariat and Iran negotiated a work plan to address a limited number of issues regarding Iran’s past nuclear programme. Outstanding issues have largely been addressed. But the Agency is still requesting that Iran:
► Account for and explain a series of documents found in its possession which point to nuclear weapons-related research; and
► Respond fully to queries on weapons studies that Iran had allegedly conducted. Iran denies the existence of any such studies.
These outstanding issues -- in addition to Iran’s continued refusal to suspend uranium enrichment and construction of the heavy-water reactor and adhere to the Additional Protocol -- form the basis upon which the Security Council maintains the Iran dossier and pursues sanctions against Iran.
Iran, however, argues that the work plan issues have been resolved satisfactorily. It further argues that even under the Security Council’s own terms, there is no basis for continuing the sanctions regime or for maintaining the Iran case before the Security Council. Iran claims that nothing short of its total capitulation will satisfy the Western powers, and regards this as extortion.
Others accuse Iran of being the one engaging in blackmail, in its demand for economic assistance permitted under Articles III and IV of the Non-Proliferation Treaty and for the release of sanctions as conditions for returning to the path of non-proliferation. Western states argue that, given Iran’s past record of concealment and its overall policy, Iran cannot benefit from the doubt as to its ultimate goal. It seems that any stance adopted by Iran which falls short of complete acquiescence is regarded not only as an act of defiance but also as an indication that Iran has something to hide.

(Tomorrow, Part 2: Implications of this negotiating history)

On November 30

On this day in ...
... 1898, Dr. Marjorie M. Whiteman was born in Liberty Township in southern Ohio. After graduating from Ohio Wesleyan University, she earned her LL.B. and J.S.D. degrees from Yale. Her lifelong "distinguished career at the Department of State" included advising Eleanor Roosevelt from 1945 to 1951, when the former 1st Lady was the U.S. Representative to the U.N. General Assembly and chair of the U.N. Commission on Human Rights. (credit for photo of Whiteman, 2d from right, along with 3 Commission members; from left, Charles Malik of Lebanon, René Cassin of France, and Roosevelt) Whiteman also served as advisor to 10 different Secretaries of State. According to this website,
Whiteman's greatest contribution to international law was the completion of a Digest of International Law in 1969. This fifteen-volume work continues to serve as a leading resource on international law for government officials and scholars.
In 1985, she became the 2d woman to receive the Manley O. Hudson Medal, awarded by the American Society of International Law for scholarship and achievement in international law. Whiteman died at her Liberty Township home a year later.

(Prior November 30 posts are here, here, and here.)

Monday, November 29, 2010

Incoming Foreign Relations chair

The arrival in January of the 112th Congress is slated to bring the 1st woman chair of the Foreign Relations Committee of either house of Congress.*
Moving from ranking minority member to chair will be U.S. Rep. Ileana Ros-Lehtinen (left).
In the United States since age 7, when her family fled her birthplace, Cuba, Ros-Lehtinen has served in Congress since 1989. As described by the Associated Press, her South Florida district "includes parts of Miami's Little Havana and the tourist-dependent and gay friendly Miami Beach and Florida Keys." That combination makes for the occasional unexpected position -- unlike many Republicans, she voted to repeal "Don't Ask Don't Tell."
On many other issues, however, Ros-Lehtinen is likely to be a thorn in the side of policies favored by the administration of President Barack Obama. Examples of expected points of contention:
► She'll "resist any White House attempts to pressure Israeli Prime Minister Benjamin Netanyahu."
► She "may try to chip away at the president's executive order" -- about which we've posted -- "allowing foreign aid for international groups that provide information about abortion services."
► She'd "like U.S. contributions to the U.N. to be voluntary until the U.S. creates an office to audit U.N. activities for transparency and eliminate waste." She's particularly critical of the U.N. Human Rights Council, whose members include countries like China, Saudia Arabia -- and the country with which she's expected to oppose any U.S. dialogue, Cuba. _____________________________

* A far cry from the "leadership" posts women tended to hold not so long ago -- more than 1 Congresswoman was chair of the House Beauty Shop Committee.

All-woman bench

Watched an excerpt of opening day at the Bemba trial (prior post), available in French on the International Criminal Court's YouTube channel.
Couldn't miss the rare all-woman Trial Chamber.
Presiding is Judge Sylvia Steiner (far right), who was a national judge in Brazil before she joined the ICC in 2003.
Also on the panel are Judges Joyce Aluoch (above, middle), who was a Justice on the Court of Appeal of Kenya before her 2003 election to the ICC, and Kuniko Ozaki (right) of Japan, who had been a law professor, a government official, and a U.N. officer before joining the ICC in January of this year.

On November 29

On this day in ...
... 1781, a 3-day massacre began when crewmembers tossed 54 African persons held in slavery out of the ship Zong and into the Atlantic Ocean. More than 120 persons would perish in this manner -- undertaken by the ship's captain, who aimed to file an insurance claim for the at-sea loss. "Another ten, in a display of defiance at the inhumanity of the slavers, threw themselves overboard and, in the words of a contemporary account, 'leaping into the sea, felt a momentary triumph in the embrace of death.'" (credit for photo of commemorative plaque, unveiled in 2007 in Jamaica) The insurance claim would be denied, but no one would be prosecuted in the incident; however, it provoked antislavery abolitionists to greater action.

(Prior November 29 posts are here, here, and here.)

Sunday, November 28, 2010

Questions constitutionnelles

Imagine if ex-Presidents were automatic members of the U.S. Supreme Court.
If, that is:
John Adams had been on the Court that decided Marbury v. Madison, or
George W. Bush were sitting now, while the Court continues to resolve cases involving post-9/11 policies?
Even ad hoc recusal might seem insufficient to relieve the Court of an unwelcome appearance of potential partiality.
Yet that is the situation in France.
As of right, former Presidents -- today, Valéry Giscard D'Estaing and Jacques Chirac -- serve on the Conseil constitutionnel. Serving along with them are 2 women and 7 additional men, each of whom owes nomination, to a 9-year term, to France's President or to a president of a house of parliament.
Le Monde's just raised questions about that arrangement, suggesting that it may be "obsolete." The Paris-based newspaper also is questioning the absence of any requirement that Conseil members satisfy some standard of judicial competence.
A couple developments have prompted these new questions about the 52-year-old institution:
►1 ex officio member, ex-Président Chirac, remains dogged by a range of legal problems (and see here), some of which were present even during his executive tenure.
► The Conseil is a "constitutional court" now more than ever. As IntLawGrrl Naomi Norberg then posted, it just acquired a judicial review power approaching that which its U.S. counterpart claimed in Marbury: consideration of a citizen's after-the-fact claim of constitutional violation. Since the change took effect in March, the Conseil's constitutional docket has mushroomed. Among the 1st uses of its new power, as Naomi also posted, was a September decision invalidating reforms pushed by the current Président, Nicolas Sarkozy, and enacted, of course, by the parliament.
Time will tell if Le Monde's questions gain traction.

On November 28

On this day in ...
... 1994, in what the BBC called "a blow for Prime Minister Gro Harlem Brundtland" (left), voters for a 2d time rejected Norwegian membership in the European Union. Turnout was high -- 80% -- and the margin of victory was nearly 5 percentage points. After the 1st loss, she had resigned; this time she stayed on, waiting another 2 years before resigning as Norway's leader. Thereafter, from 1998 to 2003, Dr. Brundtland, a physician, was the Director-General of the World Health Organization. Norway remains outside the EU to this day.

(Prior November 28 posts are here, here, and here.)

Saturday, November 27, 2010

Black Women Teaching International Law (IV)

Back in the Spring I began posting ad hoc lists of Black women who teach international, comparative, foreign, immigration, refugee, and asylum law at United States law schools in response to a friend’s inquiry. Part of IntLawGrrls “Experts at Law” series, the earlier posts can be found here.
African-American, African, and African-descended women have made important strides in all aspects of internationalism since the days of the international foremothers depicted in IntLawGrrls' pages. Some early examples appear in A Retrospective: Blacks in U.S. Foreign Policy, edited by yours truly, IntLawGrrl Hope Lewis (TransAfrica Forum, 1987) (a historical photo essay available for download here and here).
The list is growing, and, one hopes, will continue to do so as a result of increasing attention to diversity in hiring, course assignment, and promotion practices as well as growing African-American interest in international law. See Professor Henry J. Richardson, III’s recent book analyzing the early history of such links, The Origins of African-American Interests in International Law (Carolina Academic Press, 2008).
Thanks to colleagues far and wide for their suggestions.
Jena Martin Amerson (left), Associate Professor of Law, West Virginia University College of Law (International Business Transactions)
Joyce A. Hughes (above right), Professor of Law, Northwestern University School of Law (Immigration Law, Refugees and Asylum Law). In 1971, Professor Hughes became the first African-American woman appointed to a tenure-track position at a majority law school, the University of Minnesota School of Law.
Judith A.M. Scully (right), Professor of Law, West Virginia University School of Law (International Human Rights Seminar: South Africa)

On November 27

On this day in ...
... 1981, Lotte Lenya (right) died from cancer in New York City, 83 years after she'd been born in Vienna, Austria, to working-class parents who'd named her Karoline Wilhelmine Charlotte Blamauer. After moving to Zurich as a teen-aged student, she took her 1st entertainment job and adopted the stage name that would stay with her for life. (photo credit) By 1921, Lenya was in Berlin, where eventually she created the role of Jenny Diver at the premiere performance of the play known in English as The Threepenny Opera, by Bertold Brecht and Lenya's husband, Kurt Weill. After World War II, which Lenya spent in Paris performing inter alia for the Voice of America, Lenya launched a Broadway and film career that included memorable turns as the Russian Colonel Rosa Klebb, a SPECTRE agent who battled James Bond.

(Prior November 27 posts are here, here, and here.)

Friday, November 26, 2010

Building Barricades to Protection

This week, Israel began building a $372 million, 155-mile barrier, including electric fencing and surveillance technology, along its border with Egypt.
As other routes for African migrants (such as the sea route between Libya and Italy) have been blocked, the numbers of migrants crossing the border from Egypt has increased dramatically. In 2009, Israel reported just over 4,000 undocumented migrants; that number is up to over 10,000 so far this calendar year. While the Israeli government claims that the wall will prevent Islamic militants and human traffickers from reaching Israel, it will also significantly impair the ability of asylum seekers to reach Israel.
One might expect a nation of refugees for whom the UN Refugee Convention was created to have a generous policy towards those seeking protection within its borders. This new barrier, however, presents just one more instance of Israel's failures to live up to its responsibilities under the UN Refugee Convention.
Israel hosted just over 4,000 asylum seekers in 2009, most from Eritrea and Sudan, yet Israeli NGOs report that the country has granted asylum to fewer than 200 applicants since it ratified the UN Refugee Convention in 1954. As described further in this report by the Israeli NGO Refugees' Rights Forum, the asylum process in Israel is dysfunctional, often requiring a wait of over a year for an interview. Rather than legally recognizing refugees from Eritrea and Sudan -- nations to which the UNHCR forbids deportation because of the dangers facing those who return -- Israel instead grants most of them temporary protection, a much less stable status that does not permit them to work and allows the Israeli government to return them when the situation the refugees' home country improves.
Those who are less lucky are detained (currently, over 2000 asylum seekers) or worse. Under Israel's "Hot Return" policy, authorities expel undocumented migrants directly to Egypt without providing access to asylum procedures and without obtaining guarantees against refoulement from the Egyptian government. The U.S. State Department reports that Egyptian authorities detain some of these asylum seekers, holding them in conditions that violate international human rights standards, and refoules thousands of others back to Eritrea and Sudan.
Though Israel must take seriously threats to its national security, this nation of refugees does itself a disservice by building further barricades to protection for those fleeing persecution.

Piracy duel

Our own Beth Van Schaack is debating laws of war and law on piracy at Opinio Juris. Her post responded to a post byDr. Douglas Guilfoyle, Lecturer in Law, Faculty of Laws, University College London. He subsequently filed a reply post.
Check 'em out.

On November 26

On this day in ...
... 1940 (70 years ago today), workers in Nazi-occupied Poland began to wall off a part of Warsaw as a ghetto "in which the Germans intend to herd the local Jewish population under dreadful living conditions. The Germans describe the move as a 'health measure.'" For the story of this World War II tragedy, click here.

(Prior November 26 posts are here, here, and here.)

Thursday, November 25, 2010


A few photos of American Thanksgivings past, from the collection of the U.S. Farm Security Administration/Office of War Information at the Library of Congress' American Memory digital archive. Enjoy!

(credit for 1942 photo, top, of maid serving Thanksgiving dinner to family of Howard University President Mordica Johnson, made by Gordon Parks in Washington, D.C.; credit for 1940 photo, middle, by Jack Delano of "Pumpkin pies and Thanksgiving dinner at the home of Mr. Timothy Levy Crouch, a Rogerine Quaker living in Ledyard, Connecticut"; credit for photo of store window sign, circa 1940, made by Marion Post Wolcott in South Boston, Virginia)

On November 25

On this day in ...
... 1975 (35 years ago today), Suriname won independence, with Dutch consent, nearly 21 years after it had become "an autonomous part of the Kingdom of the Netherlands," and more than 300 years after it had become a colony of that European country. Today the country (map at right), about the same size as the U.S. state of Georgia and located at the northeastern coast of South America, is a republic with nearly half a million inhabitants. Its largest population bloc, at 27% is Hindustani (East Indian).

(Prior November 25 posts are here, here, and here.)

Wednesday, November 24, 2010

Africa-based international law projects

(Delighted to welcome back alumna Bonita Meyersfeld, who contributes a 2-part series of guest posts on international law in Africa. Part 2 is below; Part 1, published yesterday, is here.)

Having described the overall work of the Southern and Eastern African Regional Centre for Women’s Law at the University of Zimbabwe, I continue in this post with descriptions of research in progress:
Makanatsa Makonese (left), a Doctor of Philosophy Candidate, is examining Zimbabwe’s Post-Independence Land Reform Laws and Policies and Their Impact on Women’s Right to Agricultural Land: A Critical Analysis of the Fast Track Land Reform Programme from 2000 and Beyond.
This research seeks to assess the availability or otherwise of a legal, policy, and institutional framework governing the Fast Track Land Reform Programme in Zimbabwe. The focus is on women and their right to access, own, and control agricultural land. The effect over the years of the country’s property laws in general, and land laws in particular, will be critically examined. The goal is to establish whether there have been any efforts during the implementation of the fast track land reform programme to break away -- away from a system that subjugates women in property ownership and toward one that recognises women as equal partners in national economic, social, and political development and transformation.
A primary focus of the research is the recognition that the fast track land reform programme was and is not just about parcelling out land but also about: creating social classes; developing jurisprudence around land ownership and reform in Zimbabwe; and setting up centres and sources of power that are critical in shaping the country in various ways. The position of women in the matrix and the country’s level of compliance with international human rights standards and best practices therefore have to be examined.
The nuance of the work is its engagement in a rights analysis in a context of rights violations; namely, the land grabs and concomitant displacement of landowners.
► Research by Renifa Madenga (left), also a Doctor of Philosophy Candidate, is entitled Using Women’s Voices/Experiences To Interrogate The Efficacy Of The International Criminal Justice System on Rape: The case of Rwanda 1994 Genocide. (credit for photo (c) Robert H. Jackson Center)
Her study explores the lived reality and experience of rape survivors of the 1994 Rwandan genocide. It is sited in the web of fears, needs, relationships, and anxieties that affect survivors of rapes committed during the Rwandan genocide, as well as their interactions with the international criminal justice system at the International Criminal Tribunal for Rwanda.
Using the voices and experiences of survivors and witnesses, the study interrogates the efficacy of the justice system. Its major questions: Does the system acknowledge and condemn the egregious abuses suffered by victim survivor witnesses? Does it recognize and addresse the needs, fears, and aspirations of those survivor witnesses?
The researcher, Madenga, works as an Appeals Counsel in the ICTR Office of the Prosecutor, and chairs that office's 3-year-old Sexual Violence Committee.
Annette Mudola Mbogoh, another Doctor of Philosophy Candidate, is researching The 2007 Post-Election Violence As A Spring Board For Peace, Reconciliation And Reparation: A Case For The Participation And Involvement Of Women In Mombasa, Kenya.
The study investigates the participation of women in Mombasa in peace, reconciliation, and reparation processes through Kenya's Truth, Justice and Reconciliation Commission. Women suffered gross human rights violations in recurrent electoral violence in Mombasa -- in 1992, in 1997, and in the unprecedented 2007 general elections. (Prior IntLawGrrls posts available here.) Women have been internally displaced, lost their loved ones, their property, and their businesses. They are survivors of physical violence and rape. However, their voices, needs, and concerns have been sidelined in the current transitional justice process in Kenya (flag at right). The Truth, Justice and Reconciliation Commission presents an opportunity for women’s voices, injustices, and stories to be heard, investigated, documented, and redressed in the ensuing reparation programmes.
Against this backdrop, this research investigates the level of participation of women in the unfolding truth commission process, as well as the factors hindering women’s active involvement. It seeks both to document injustices committed against women by virtue of their sex and to identify priority concerns and preferred reparations on the part of survivors. It interrogates the question of truth-telling versus justice. The study highlights the importance of reparations to achieve true reconciliation and the extent to which women’s multiple identities influences their choice between collective and individual reparations. The study explores the politics of representation amongst women in a very polarized and ethnicized community. It furthers the debate on the right to truth, which has been expounded by the institutions of the inter-American human rights system. These arguments are hinged on the new Constitution of Kenya, which enshrines women’s right to equality and representation in legislative bodies through reservation of special seats. Finally, the study recommends implementation of a gender perspective in peace and reconciliation efforts, as is espoused in international instruments such as U.N. Security Council Resolutions 1325 and 1820.
► Under examination by Catherine Makoni is The Impact of the Political Crisis in Zimbabwe on Women’s Right to Protection of the Law: An Investigation into the Handling of Cases of Politically Motivated Rape from 2000-2009.
Makoni's research investigates how cases of politically motivated rape have been dealt with, if at all, within the justice system of Zimbabwe (flag at right). The objective is to interrogate the duty of the state to protect women, and therefore its role to provide sufficient and meaningful redress. The research undertakes an empirical assessment of what assistance victim survivors of rape have received from both state and nonstate actors -- including officials of their own political party, who have undertaken to protect party members from acts of violence and intimidation by the ruling party. The study further seeks to influence responses by all these actors.
Rape was used as a tool for political coercion during the election periods in 2000, 2002, 2005 and 2008. The political crisis had an impact on how cases of politically motivated rape were dealt with at multiple levels. In brief, the State failed in its duty to protect women. The perceived inviolability of the perpetrators, as a result of their perceived political affiliation, determines whether allegations of rape are reported, investigated, prosecuted, and adjudicated. The law as presently formulated is not sufficient to cover the total scope of rape as it occurs when used as a tool for political coercion.
Rosalie Kumbirai Katsande, a Lecturer at the Centre, is Exploring the Potential of Laws and Procedures Governing Business Entities in Facilitating Women’s Entrepreneurial Development in the Horticultural Sector of Zimbabwe.
Inspiring this research is a passage in Peasants, Traders and Wives: Shona Women in the History of Zimbawe 1870 – 1939 (1996), in which Dr. Elizabeth Schmidt, Professor of History at Loyola University Maryland, writes:

When the Jesuit father A Hartmann visited the Shona Chief Chipanga in about 1891, he asked the chief how numerous the people where including women and children, the chief reportedly answered, 'women are not counted'. He then took a handful of dust from the ground and said, 'that is the woman. Hartman concluded that women were regarded as almost nonexistent.
In her own research project, Katsande explores women entrepreneurs in the horticulture sector of Mashonaland East Province of Zimbabwe. Her work interrogates the appropriateness for the development of business regimes by government authorities for women in rural areas. In an effort to determine the appropriateness of current such regimes, the study traces the economic history of Zimbabwe and shows how women’s economic initiatives have been marginalized by historical processes. Laws designed during colonial governance continue to inform and limit women’s entrepreneurial potential and development.
Historically, state officials discouraged Zimbabwean women from settling in the towns and at the mines. The officials opposed the growth of a permanent and potentially explosive African population in the urban areas, and encouraged women and children to subsidize male wages through agricultural production at rural homesteads. State officials expected rural-based women to bear the social costs of production -- caring for the sick, disabled, and retired workers -- while raising the next generation of labourers. Innovation by women was deeply affected by legislative and policy restrictions.
Against this backdrop, the study considers the current government’s people-centred development approach from an African feminist perspective, which, inter alia, focuses on empowering African women to improve their own lives.
The study reveals challenges to community income-generating projects initiated by the Zimbabwean Ministry of Women Affairs, Gender and Community Development. These are reported to have failed to address women’s economic needs; indeed, they present more of a burden, as they add work on already overworked women.
Women in the areas of study are running potentially viable horticultural ventures. The profitability of these ventures is dependent on agricultural support and training; however, this is not being received. Instead, women in these communities are presented with artificially constructed income-generating projects.

These are some of the impressive projects under way at the Centre. Perhaps of primary importance is the investigation of the realities of individual lives and how to link them into the international human rights agendas through national legal and policy frameworks.

On November 24

On this day in ...
... 1950 (60 years ago today), Guys and Dolls, a musical based on Damon Runyon's short story of an improbable romance between Sky Masterson, a New York gambler, and Sarah Brown, head of a Salvation Army mission, made its Broadway début at the 46th Street Theater. "[M]iraculously able to mock the desperate denizens of Dream Street and celebrate them at the same time," the show, which featured a rendezvous in Havana and songs like "Luck Be a Lady," ran for 1,200 performances and within 5 years was made into a film starring Marlon Brando, Frank Sinatra, and Jean Simmons.

(Prior November 24 posts are here, here, and here.)

Tuesday, November 23, 2010

Treaties no treat?

What to make of Jamie Rubin's blithe Farewell to the Age of the Treaty?
In an op-ed yesterday Rubin, a State Department spokesperson back when Madeleine Albright was Secretary of State, posited that treaties aren't "even worth the trouble anymore."
The "trouble," it appears, is not with international agreements themselves. Troublesome, rather, is securing 2/3 consent of the Senate, a constitutional sine qua non for U.S. ratification of a treaty. The requirement's now bedeviling President Barack Obama's bid for ratification, detailed here, of the U.S.-Russia New Start disarmament treaty. (prior posts) (credit for White House photo of April 2010 signing)
"'Fortunately, there is an alternative,'" Rubin breezed. He argued that statutes, which pass upon simple majorities of both houses of Congress, usually "will work just fine."
Even putting aside the glib assertion that "the international system has most of the rules it needs," Rubin's argument falters on a number of points:
History: The op-ed's ahistorical in its implication that this is a new problem. Presidential struggles to clear the 2/3 Senate hurdle are "nothing new," as our Opinio Juris colleague Duncan Hollis pointed out. Failure to secure approval dates at least to President Woodrow Wilson, and the Senate's rejections of the Versailles Treaty (right) and the League of Nations Covenant, in 1919 and again in 1920 -- years surely within the putative "Age of Treaties." Rubin himself no doubt recalls President Bill Clinton's CTBT debacle back in 1999.
Politics: Also implicit is an assumption that congressional majorities easily may be obtained. Rubin points to legislative efforts on climate change as an example of his position "already being used." He pretermits, however, that these efforts have yet to bear statutory fruit. Given that the New Year will inaugurate a House of Representatives with a heavy GOP lean, getting Congress to okay internationally aimed reforms would seem far from simple.
International Relations: Rubin's solution seems unlikely to give U.S. status abroad the hefty boost he suggests. Statutes and treaties are quite different legal animals. A statute may be altered, even repealed, at any time. Preferring the legislative path thus adds instability to the United States' foreign relations. What's more, a statute is the unilateral enactment of a single sovereign. In contrast, a treaty embodies that sovereign's consent not just to act, but to do so out of an international obligation. Treaties represent a deeper level of commitment, a promise to pursue global cooperation even if domestic political winds shift. Opting always for the U.S. statutory fix, at a time when other countries are urged to join treaty regimes, seems unlikely to ease what Rubin rightly calls "international frustration with American leadership."
Hard to see the op-ed's effort -- in essence, to put a brave face on an inferior option -- as much more than advance spin should New Start founder in the Senate.

Centre for women's law in Africa

(Delighted to welcome back alumna Bonita Meyersfeld, who contributes a 2-part series of guest posts on international law in Africa. Part 1 is below; Part 2 is here.)

I recently attended a workshop at the Southern and Eastern African Regional Centre for Women’s Law (right). Primarily a postgraduate teaching and research institution, SEARCWL focuses on issues related to women’s multiple interconnections and intersections with the law in all its pluralities. It’s run by Professor Julie Stewart (below left) of the Faculty of Law at the University of Zimbabwe.
Among the Centre’s features is a Masters in Women’s Law programme which focuses on using a human rights compliance and implementation framework to assess, promote, implement, and conduct research on the rights of women’s and girls.
I was amazed at the quality of work being done and the far-reaching impact of each student’s work. Each research project was intellectually sound, academically consistent with international developments and grounded in principles of international law.
I came away with a sense that the work being done in this small location in the heart of Harare will probably have some of the most important impacts in bringing international human rights law theory to communities in Africa. Above all, because it is based on a ‘grounded theory of research’ which challenges assumptions in an honest and liberating way, the work being done at SEARCWL really does have the potential to change the application of laws to women’s lived experiences. Topics include:
► Political rape against supporters of a certain political party in Zimbabwe;
► Deficiencies in the prosecutions of gender crimes at the International Criminal Tribunal for Rwanda, a study being undertaken by an ICTR prosecutor;
► Women’s access to water in the “grabbed” land in Zimbabwe; and
► The experience of women in and after ethnic killings in 2007 in Kenya. (prior IntLawGrrls posts available here)
The Centre hosts some of Africa’s finest developing academics, and is a source of scholarly work which integrates the advancing academic theories in international law with the communities that international law academics often theorise about but never actually meet.
► In teaching, researching, reforming, and implementing human rights, law reform and laws as they affect women, the Centre seeks to undertake a holistic examination of all aspects of a problem. Each and every piece of research undertaken must examine the human rights implications of the problem; it must examine the constitutional and legal implications within the laws of the country being researched. A gender perspective (and not a women’s perspective) must be a fundamental part of the research plan, including an analysis of how men and women are affected by the conditions surrounding the identified problem.
► All and any research conducted under the Centre's auspices must be grounded in the realities of the lives of people. To this end, the Centre works on developing theory and methodology in tandem. The best illustration of this is the research and theorizing cycle, which helps students to see where they fit into the intellectual processes, but which also informs how they should move forward in any research process. This is illustrated by the diagram below.
► Most research adopts the international and regional human rights frameworks. Local constitutions and national laws are evaluated for compliance. This framework also allows for comparison between countries in the region and internationally.
The Centre sees nothing exceptional in what it does. It views itself, rather, as using the various capacities of human rights, from aspiration to litigation, to drive forward benefits for women and girls while recognizing the needs of men and boys. In so doing, it tries to build synergies that positively benefit both sexes and both genders.
In tomorrow's post, I will set forth projects through which the Centre endeavors to achieve these goals.

'Nuff said

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

'The whole trial has been a nightmare since the disputes between judges and the prosecutor began in 2008. ... There appears almost a breakdown between the two sides.'

-- Our colleague William A. Schabas (below right), Professor and Director of the Irish Centre for Human Rights, National University of Ireland-Galway, in yesterday's New York Times article by Marlise Simons, entitled "For International Criminal Court, Frustration and Missteps in Its First Trial." Blogreaders will recognize the subject of Simons' critique as the on-again/off-again ICC proceedings about which we've frequently posted -- the trial of Congolese militia leader Thomas Lubanga Dyilo for illegal recruitment of child soldiers. Problems cited include:
► The "'ugly and healthy'" relations, as Schabas termed them, between judges and the prosecution, stemming out of an evidentiary dispute that implicates the due process rights of the accused.
► Continuing doubts about the strength of the case -- about whether "'all this time and effort was worthwhile,'" in the quoted words of Lorraine Smith, who's monitoring for the International Bar Association.
► The decision of the prosecution not to press charges of sexual crimes, a complaint voice by IntLawGrrls guest/alumna Brigid Inder, the Women's Initiatives for Gender justice representative who posted on the issue a while back.
Scarcely a welcome account on the same day that trial #2 commenced, against Jean-Pierre Bemba.

On November 23

On this day in ...
... 1984, the U.N. General Assembly adopted Resolution 39/17, discussing the "Importance of the universal realization of the right of peoples to self-determination and of the speedy granting of independence to colonial countries and peoples for the effective guarantee and observance of human rights." Occasioning the restatement of the self-determination right were a laundry list of events: continuing apartheid in South Africa, occupation of Namibia and part of Angola by South Africa, and recent invasion of Lebanon by Israel.

(Prior November 23 posts are here, here, and here.)

Monday, November 22, 2010

Landmark trials museum opens

Almost 65 years to the day after an Allied effort began at Nuremberg, a permanent museum chronicling the Trial of Major War Criminals and subsequent proceedings is now open.
Inauguration of the Memorium Nürnberger Prozesse/Nuremberg Trials Memorial (above right) took place yesterday. (photo credit) Featured were comments by:
► Representatives of the 4 countries that comprised the International Military Tribunal: for Britain, Attorney General Dominic Grieve; for France, former Foreign Minister Roland Dumas; for Russia, Foreign Minister Sergey Lavrov; and for the United States, Ambassador-at-Large for War Crimes Stephen J. Rapp.
► A representative of Germany, 2 dozen of whose nationals were defendants at the year-long 1st trial: Foreign Minister Guido Westerwelle.
► A representative of the Nuremberg prosecutors, Benjamin B. Ferencz. Ferencz served as Executive Counsel at the dozen subsequent Nuremberg trials conducted by the United States, and lead prosecutor at one of them, the Einsatzgruppen Case.
This week, additional commemorative events will unfold (alas, nothing honoring women at Nuremberg).
And from now on, visitors can tour the museum, located in the Palace of Justice at Bärenschanzstraße 72, from 10 a.m. to 6 p.m. Wednesdays through Mondays. Among the artifacts in the exhibition is the dock that held the former leaders of the Third Reich; it'd been in storage for decades. Courtroom 600 (right), where the trial occurred and which this 'Grrl was honored to visit a few years back, is still a working chamber and so will be open only when court is not in session.
Details here.

On November 22

On this day in ...
... 1913, Cecilia Muñoz-Palma (right) was born in Bauan, Batangas, the Philippines.
She was valedictorian at St. Scholastica's College and earned a bachelor of laws degree from the University of the Philippines in 1937 -- the same year that she placed 1st on her country's bar examination. She founded the Woman Lawyers’ Association of the Philippines (WLAP) Free Legal Aid Clinic. In 1954, she earned a master of laws degree at Yale. That same year she became a local judge in the Philippines. In 1968 she served as President of the Philippines' Constitutional Commission, which drafted the 1987 Constitution, and also was elevated to the country's Court of Appeals. She served as an Associate Justice of the Supreme Court of the Philippines -- the 1st woman on that high court -- from 1973 until her 65th birthday, on this day in 1978. Among her publications is a 2001 collection of speeches, entitled Mirror of My Soul. Justice Muñoz-Palma died in 2006.

(Prior November 22 posts are here, here, and here.)

Sunday, November 21, 2010

Guest Blogger: Olivia Swaak-Goldman

It's IntLawGrrls' great pleasure to welcome Olivia Swaak-Goldman (left) as today's guest blogger.
Olivia is the International Cooperation Advisor in the Office of the Prosecutor of the International Criminal Court. In that position, she's responsible for the Office's external relations. (photo credit)
Prior to joining the ICC, Olivia was Senior Legal Counsel at the International Law Department of the Netherlands Ministry of Foreign Affairs, where she was responsible for international criminal law and international humanitarian law. She has also served as a Legal Assistant at the Iran-U.S. Claims Tribunal and at the International Criminal Tribunal for the former Yugoslavia. She was a Research Fellow at Leiden University in the Netherlands. She earned a degree in political science from Trinity College, Hartford, Connecticut, her law degree from Washington College of Law, American University, Washington, D.C., and her LL.M degree from the University of Amsterdam in the Netherlands.
Along with former ICTY Judge Gabrielle Kirk McDonald, Olivia co-edited the 2-volume Substantive and Procedural Aspects of International Criminal Law (2000). She's published extensively, in journals and books, on areas of international criminal law.
A member of the Executive Council of the American Society of International Law, Olivia took part, during ASIL's recent midyear meeting, in a panel on international criminal accountability. (Prior IntLawGrrls posts)
In her guest post below, Olivia sets forth the Prosecutor's perspectives on the trial of Jean-Pierre Bemba Gombo, set to begin before Trial Chamber III (comprising Judges Sylvia Steiner (Brazil)), Joyce Aluoch (Kenya), and Kuniko Ozaki (Japan)) at 2:30 p.m. Hague time tomorrow. You can watch video streaming of proceedings here, and follow trial updates here.

Heartfelt welcome!

Opening of Trial in Bemba – Perspectives from the ICC Office of the Prosecutor

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

At 2:30 p.m. Hague time tomorrow, Trial Chamber III of the International Criminal Court is scheduled to begin trial in Prosecutor v. Jean-Pierre Bemba, a case about which IntLawGrrls frequently have posted.
In this guest post, I set forth the allegations against the accused, which the Office of the Prosecutor intends to prove through evidence adduced in the course of this trial.
Between October 2002 and March 2003, the troops of the MLC, or Mouvement de Libération du Congo, under the command of Jean-Pierre Bemba (below right), crossed the border from the Democratic Republic of Congo into the Central African Republic. The MLC troops' primary mission, we allege, was to terrorize anyone who was perceived as an enemy or a supporter of the enemy. The enemy in this case was the rebel group fighting against the then-President of the Central African Republic, Ange-Félix Patassé.
Persons suspected of support were innocent civilian men, women and children. The weapon of choice was rape.
It is our contention that in a systematic and organized manner, the MLC troops undertook a targeted and deliberate mass campaign of rape and sexual violence. Women and young girls, men in positions of authority, community leaders, and protectors, were brutally raped in front of their families or in public.
As planned, we allege, by the accused Bemba, the impact of the emotional and physical devastation of rape went beyond the individual scale. It extended to entire communities. These communities became powerless as their dignity, their social structures, and their way of life wer being destroyed. Community leaders lost their standing. Parents watched helplessly as their children were raped. And many victims were infected with HIV. For those who attempted to resist, death was the only option.
In the face of the impunity that for too long has characterized sexual and gender crimes, the opening of the ICC’s investigation into the situation in the Central African Republic is a turning point. Building on the important work of the International Criminal Tribunal for Rwanda regarding the criminal characterization of sexual crimes, the ICC’s investigation is the first time that the international criminal justice system chose to address a situation where allegations of sexual crimes far outnumber alleged killings.
The Bemba trial is also another milestone for its novel use of command responsibility doctrine. A military commander is being prosecuted by an international court for failing to properly control his troops, and for not preventing them from committing massive sexual crimes:
► The prosecution will demonstrate that as sole President and Commander-in-Chief of the MLC, Jean-Pierre Bemba failed in his duties as a military commander to prevent, repress and punish crimes of rape, murder and pillage committed by his MLC forces against civilians in the Central African Republic.
► We allege that Bemba knew that his MLC forces were committing or about to commit these crimes, but he chose not to act. In the limited instances when Bemba did choose to act, despite an attempt to create the impression of bona fide measures, his actions were in fact designed to cover-up the crimes; minimize the gravity of the crimes; and allow his subordinates to escape justice.
We in the Office of the Prosecutor believe that the trial against the accused Bemba will have a broad impact regardless of its outcome in the courtroom. It will send a strong signal to military commanders around the world: they can and will be held accountable for their failure to contain violence within the bounds of the law, including sexual violence committed by individuals under their command.