Sunday, January 31, 2010

Look on! The ICTY on film

(Look On! takes occasional note of noteworthy films.) Finally, a dramatic film made especially for Intlawgrrls. If you care about international justice issues, and especially about gender justice, go see Storm.
This German/Dutch film tells the story of a woman prosecutor at the International Criminal Tribunal for the Former Yugoslavia, and her attempts to bring down a war criminal. In the course of doing so, she encounters a victim of one of the rape camps set up during the conflict. Not to give the film’s plot away, suffice to say it touches on a lot of the dilemmas and issues raised by international criminal prosecutions: the difficulty of the tribunals to adequately balance the needs of victims and the demands of successful prosecution (at one point, an exasperated prosecutor exclaims “a prosecution is not therapy!”), the compromises involved in plea bargaining, the continuing power dynamics in the region, the warring desires within victims to bear witness and to start anew. And especially, the tendency of international courts to downplay rape charges, to not recognize the importance of gender-based crimes, especially when it's not expedient to do so.
The film is highly critical of the ICTY, but also sympathetic to the good intentions of the prosecutors. It could perhaps have spent a bit more time establishing the importance of prosecuting the former warlords before digging into the critique of the Tribunal’s actions. But given the usual simplistic narratives of courtroom dramas, the film does an excellent job raising the difficulties and complexities of making justice happen.

Haiti: Human Rights and Human Security


"Earthquake! We see the earth shake! But the soul of the Haitian people, It will never break!"
--Wyclef Jean
The Fundamentals
First things first. Like all IntLawGrrls and people around the world, I express my deepest condolences to the hundreds of thousands who lost loved ones in the Haiti earthquake of 12 January 2010. Our true feelings are beyond written expression.
We—the transnational or global “community”—must continue to support the Haitian people in their struggle for survival against the natural and man-made challenges arrayed against them.
In the first moments and days of crisis and catastrophe, no one (should have) needed legal provisions or principles to understand certain aspects of "the right thing to do." And, from Port-au-Prince, we saw that the vast majority did not. Neighbors and family members used their bare hands, blowtorches, hammers, and whatever tools they could find to answer the cries of those trapped under rubble. Survivors shared what little food or water could be salvaged from destroyed kitchens. Instant caregivers stabilizing broken bones with wood and cardboard and string, then ran through the streets carrying survivors toward emergency help. Pick-up truck and cab drivers became ambulance and hearse drivers.
Husbands and mothers waited for their wives and children, hearing faint voices in reality or only in their hearts and would not give up for days past what seemed to be the limits of survivability. And miracles happened. A 5-year old boy, then a 15-year old girl, did not give up even though trapped under tons of debris.
Self-help, Social Media, and "Old" Media Too
Anxious relatives and friends in New York, Miami, Boston, and other Haitian-American enclaves tried downed phone lines, then flooded Twitter and Facebook with information and requests for information about loved ones. Radio Haiti stayed on the air, relaying information throughout the country and to radio stations in the U.S. People shared information through Skype, and when cellphone networks went back up, even transferred text messages from underneath the rubble to rescue crews.
A Transnational Community
Rescue teams, physicians, nurses, and health workers from Jamaica, Cuba, France, Israel, the United States, Venezuela, Poland, and elsewhere threw their gear into bags and hopped on planes.
Adoption agencies worked with governments to speed through adoptions for children and already vetted prospective parents. Once a few banks and cash transfer agencies opened, remittances from the Haitian diaspora flowed like water into the country—even though the thousands waiting in long lines to receive them often could not gain access. Pre-earthquake estimates put remittances to Haiti from emigrants at 1.5 billion U.S. dollars annually.
Lawyers and law students held training sessions to assist Haitians in the United States obtain “temporary protected status” (TPS). Members of the Congressional Black Caucus and other legislators worked to pass bills aimed at increasing aid or supporting the cancellation of Haiti's foreign debt.
And the U.S. President and First Lady, keenly aware of the ongoing failures surrounding Hurricane Katrina (see posts here), sent strong statements of support, aid appropriations, (controversial) military support, and set up a bipartisan fund for private donations.
Even the news media sometimes dropped their cameras, or used them to direct rescue workers or aid agencies to areas where they were needed. Of course, they were needed everywhere….
Hollywood and New York entertainers used their talent to hold telethons like "Hope for Haiti Now" that kept attention focused, spirits uplifted, and the material support flowing.
In amazing acts of faith, resilience, and defiance, the people, who had nothing but their spirit, sang and marched through ruined streets…
The Impact of History
Nevertheless, human history is also full of the worst expressions of cruelty, self-interest, and ignorance as well. The legacy of such horrors and abuse have left their mark on Haiti as well. Haiti, a former French colony, was initially a place for French planters and colonial elites to grow rich on the backs of African slave laborers. Those kidnapped to the island were often, and quite deliberately, worked to death. The trade in sugar, rum (see IntLawGrrl Marjorie Florestal’s series on “the story of rum” here), and African peoples made the country a focus of international policy and conflict from the beginning.
Astonishingly, only days after the earthquake, a few misguided and uninformed U.S. opinion pieces speculated that the country’s contemporary poverty and lack of disaster response infrastructure should be laid squarely at the feet of “culture” or even religious tradition.
Thankfully, historians, legal and human rights advocates, and Haitian-Americans of all walks of life continue to correct the record. Among other things, the Haitian revolution of 1791-1803, led by Toussaint L’Ouverture (left, image credit here; prior post) resulted in the first successful African-led rebellion against slavery and colonialism in the West. The reverberations of Haiti's independence in 1804 were, and are, enormous: the Louisiana Purchase that opened westward expansion of the United States; a demand that Haiti pay bankrupting war "reparations" to France for lost "property" that included the former slaves themselves; support for African-American and Latin American liberation struggles; U.S. occupation of the country in pursuit of commercial and strategic interests; the encouragement of racial and class divides based on color and language; foreign covert support for ruthless dictators like “Papa Doc” and “Baby Doc” Duvalier and their tontons macoutes; discriminatory migration policies toward Haitian “boat people”; and international aid and economic policies that further undermined economic and human development.
Selected Resources
There are many historical, political, cultural, and legal accounts of Haiti's complex legacy. A few recent opinion-pieces and books follow:
►Sir Hilary Beckles, “The Hate and the Quake—Rebuilding Haiti” The Nation (Barbados)
►Guy-Uriel Charles, “Stop Calling Quake Victims 'Looters'”
►Mark Danner, "To Heal Haiti, Look to History, Not Nature"
►Edwidge Danticat, The Dew-Breaker
►Edwidge Danticat, Brother, I'm Dying
►Paul Farmer, Pathologies of Power: Health, Human Rights, and the New War on the Poor
►Tracy Kidder, Mountains Beyond Mountains: Healing the World: the Quest of Dr. Paul Farmer
►Randall Robinson, An Unbroken Agony: Haiti, from Revolution to the Kidnapping of a President
Guiding Principles
Positive initial reactions to disaster are often motivated by the best of what humanity has to offer. We’ve seen authentic miracles and authentic heroes and heroines go into and come out of the devastation. Their acts of courage and survival are beyond the confines of the law and legality. They rest firmly in morality and the resilience of the human spirit.
But even good intentions can be counter-productive or even harmful if states, humanitarian agencies, and ordinary people abandon the lessons of law and policy entirely. Transnational law helps to provide a much-needed framework for risk-reduction, preparedness, and responses that respect, protect, and fulfill human rights.
Here are a few key points from the “soft law” instruments (that draw on “hard” international treaties and customary norms) such as the “Hyogo Declaration on Disaster Reduction” (prior IntLawGrrls post) and the Guiding Principles on Internal Displacement.
State Responsibility. Although massive mobilization among charitable individuals and humanitarian organizations is essential and to be encouraged at a moment of crisis, the primary responsibility for reducing risk, preparing for disasters, and responding to them, rests with states. Where, as in the case of Haiti, there was significant logistical breakdown of the central government because of the disaster itself, the international community, in the form of the United Nations, must support legitimate governmental capacity in a coordinated way.
Why? NGOs, preferably those that are local or that have built long-term relationships with people on the ground often can move more quickly and determine key areas of need. They also have obligations to respect and protect human rights under the Guiding Principles. But it is governments that have the large-scale and sustainable capacity to provide earthmoving equipment, helicopters, planes, ships, and trucks, and to set up fully-equipped medical triage and treatment areas.
Obviously, individual small states, especially ones with already limited infrastructure, cannot do this alone where the needs of millions are involved. That is why, prior to disaster, all governments should be pressured to comply with their obligations under international human rights and humanitarian law and to assist others in doing so. When called upon by a government in need or by an international body such as the UN, governments around the world should be ready to respond quickly, efficiently, and without inappropriate strings attached.
Preparedness and Risk-reduction
Some lessons have been learned from the South Asian Tsunami, Hurricane Katrina, and other environmental disasters. Although certain disasters cannot be prevented, many can be prepared for. Building codes can be established and enforced, levees can be built to appropriate strength, tsunami warning systems can be established. Trade and agricultural policies that force rural to urban migration and urban overcrowding can be changed. Emergency supplies can be decentralized (a lesson of the tsunami) so that they can be better and more widely distributed even when roads are impassable. Evacuation plans should be in place. Governments and the international community need not wait for the heart-rending photos and videos to appear before taking action.
Coordination
Media and eyewitness reports in Haiti indicate that coordination has been haphazard and slow. Among other things, the UN peacekeeping mission to Haiti lost many of its most experienced people on the ground when a key office building collapsed. The initial outpouring of compassion is crucial, but so is coordination and planning. First responders, aid agencies, community leaders, the news media, local police, and the military must set up triage stations throughout the affected areas, assess the most urgent needs, and drop cross-organization barriers to the exchange of information.
“Vulnerable” Groups
I sometimes resist using the term of art “vulnerable groups” in humanitarian contexts because it seems to reinforce the popular perception that all survivors of disaster or displacement are helpless. The heroism of many Haitian survivors should demonstrate that that is not the case.
Yet, indeed, certain groups tend to be the most targeted or neglected in the days and weeks following a disaster.
Children: Thousands of children lost parents in the disaster. Speaking of culture and community, many are, or will be, cared for by surviving relatives or neighbors. But the Haiti disaster was so extensive that thousands of children may be left without adult care or supervision because so many adults have been killed or severely injured. Providing clean water, emergency medical care, food, and shelter to children must be at the top of the agenda.
As difficult as it is even to write, there are reports of actual or attempted child trafficking of unaccompanied or orphaned children. Needless to say, trafficking in persons is an international crime. It may also be so unthinkable to some that they forget or underestimate the risk. Both legal and practical strategies must be in place to prevent and stop human trafficking, reuniting children with their own relatives or placing them with responsible and loving adoptive parents after careful vetting. These, too, are "guiding principles."
The Elderly. Haitians who have lived to their 80s or 90s are, by definition, tough and resilient. They are also the bearers of culture, history, survival strategies, and family love. These mothers and fathers of the nation will need continuing medical care and emotional support. They will also be among those with the long memories and wisdom necessary to advise on transformative rebuilding.
Women. We've all seen the pictures in Haiti and elsewhere. After a disaster, as food aid and water trucks come in, the strongest young men push forward, leaving many women and children without. We've also seen that some are trying to provide for the women and children in their own families, but humanitarian workers know that distribution of aid to women is a partticular problem. There are reports that women-only aid distributions may finally be starting in Haiti, following the well-known truism that women tend to share the aid they receive within extended families and communities.
People with Disabilities. Unfortunately, the earthquake’s aftermath will increase significantly the number of people living with disabilities in Port-au-Prince and elsewhere in Haiti. Like others, they will need immediate medical care and other basic needs. But in a country where certain basic adaptive needs and jobs of all kinds are in short supply, they may experience social isolation, stigma, employment discrimination, and official neglect. Instead of warehousing the disabled in institutions, emphasis should be placed on rehabilitation, popular education about the capabilities of those with physical or intellectual disabilities, and even the creation of small businesses aimed at local adaptive needs.
Don’t Forget
By now, all readers are aware of the many organizations working toward a better life and human rights for the Haitian people. See posts by IntLawGrrls Diane Marie Amann; Jaya Ramji-Nogales, Naomi Norberg, Marjorie Florestal, and by me here.
Even if we are not in the region, we can pressure our own governments to enact or support just policies toward the country and its people. There will be other catastrophes, unfortunately, but don’t forget the joys and pain of Haiti.
In addition to Partners in Health, Oxfam America, TransAfrica Forum, and other groups previously mentioned in earlier posts, here are a few additional humanitarian and advocacy resources:
CharityNavigator (to obtain information about charitable organizations)
Hope for Haiti Now (telethon-based effort)
Latin American and Caribbean Community Center (Atlanta, Georgia, U.S.-based advocacy organization)
ReliefWeb (“serving the information needs of the humanitarian community”)
UNICEF (UN body focused on children and child development)
World Food Programme

Refugees: the Good, the Bad and the Environmental?

In the first few days after the quake, France joined other nations in searching for ways to help Haitian survivors. Not only was aid sent to Haiti, but some Haitians were/are being welcomed in France. As the United States granted Temporary Protected Status (TPS) to Haitians already in the US, thus allowing them to work and send remittances home to Haiti, France began bringing over Haitian children who were in the process of being legally adopted in France. Welcomed by First Lady Carla Bruni Sarkozy (at right with Michelle Obama, credit), the headlines were in stark contrast to those that followed soon after and announced the arrival on Corsican beaches of 124 Kurdish refugees from Syria, including 38 children, who were immediately placed in detention. There was a lot of bad press along the lines of: legally adopted children make good refugees; children washed up on the beach fleeing poverty, war, what-have-you, do not. In pretty short order, 94 of the 124 were released due to rights violations. Meanwhile, the issue of creating a status of "environmental refugee" resurfaced, but two Haitians who had just arrived, apparently without proper documentation, were ordered sent back to what is left of their country.
Would creating a new status for individuals fleeing environmental disaster do the trick? It seems such status would concern primarily refugees from global warming, and even the UN High Commissioner for Refugees doesn't think Haitian quake victims need any special asylum treatment because the Dominican Republic is taking them in. And France has something called subsidiairy protection: originally granted to Algerians fleeing fundamentalist terrorism in the 1990s, it was transformed into more general protection under the impetus of a proposed (now adopted) European Union provision to provide temporary protection to individuals needing protection but not qualifying for refugee status. Individuals receiving such protection are not granted full refugee rights (which makes it harder for them to become financially stable, contributing members of the society in which they live) and are under constant threat of being sent back to their country of origin once the authorities deem it safe. It is thus highly regrettable that subsidiary protection has become the status of choice granted by France and other EU Member States to women and girls fleeing gender persecution, for instance. Subsidiairy protection would also be inappropriate for individuals whose place of origin is rendered inhabitable by climate change--once risen, the sea is not likely to recede; once melted, the polar ice caps will not reform any time soon. Such protection might, however, be very appropriate for Haitians fleeing quake devastation, as they should be able to return in the foreseeable future.

On January 31

On this day in ...
... 1953, Professor Doktor Gertrude Lübbe-Wolff (right) was born in Weitensfeld, Austria. She studied law at the Universities of Bielefeld and Freiburg and at Harvard Law School, earning her Dr. jur. from Freiburg and her LL.M. from Harvard, then beginning a law teaching career at Bielefeld. She's published widely, on issues including public law and environmental law. First elected a deputy judge in 1996, she's served since 2002 as a Judge of Germany's Federal Constitutional Court (Second Senate).

(Prior January 31 posts are here and here.)

Saturday, January 30, 2010

Khadr in the Canadian Supreme Court

Readers who are following the progress of Guantánamo-related cases through domestic courts around the country will be no doubt familiar with the case of Omar Khadr (left). Arrested and detained in Guantánamo Bay while he was a minor, Khadr is a Canadian citizen who had secured a lower court ruling directing the Canadian government to make representations for his release. The Government challenged that decision in the Supreme Court, largely on the basis that the exercise of diplomatic functions is an Executive function from which the courts ought to exclude themselves or, at least, in which they ought to minimise their role quite significantly.
In the Canadian Supreme Court's decision in Prime Minister of Canada v Omar Khadr [2010] CSS 3 there is a clear recognition of the participatory role of the Canadian government in the unlawful detention with statements provided by Canadian officials being one of the bases for his continued detention. However, while Khadr was entitled to a remedy the Supreme Court did not grant the remedy sought, i.e. an order that Canada request his repatriation. The Court did not accept that the government was immune from constitutional scrutiny when it comes to deciding on perogative powers. Rather, the court asserted its jurisdiction to decide (1) whether a claimed perogative power exists, (2) if so whether the Charter of Rights or constitutional norms have been breached in the exercise of that power, and (3) to make specific orders. However, the Court could not make an order directing the government to request repatriation as to do so is to infringe too greatly on the executive power relating to foreign affairs. The Court held that the appropriate remedy in such a case is to declare a breach of rights and then leave it to the government to decide how to react to that breach.
The judgment seems to be a mixture of judicial muscularity (the claim that the conduct of foreign affairs is not an area within which the government can act without scrutiny) and deference (the claim that the government can not be directed to act in a certain way without the foreign affairs arena). While this might, at first, seem to indicate a contradictory viewpoint on the part of the Supreme Court, in my view it is in fact a good example of the kind of 'nudging' judgment we have seen in both the US and the UK superior courts in the 'War on Terrorism' (I have written about this here in the MLR and, forthcoming, also in the OJLS with an early, unproofed version here). What will happen if the Government does nothing or is not forced into doing something by parliament and 'the people'? That is perhaps the lingering question from Khadr. The hope is that it will not fall to the Court to decide it and, instead, the government will take steps to try to have Khadr repatriated.


(Cross posted at Human Rights in Ireland


'Nuff said

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

'How can they ask us to forget and turn the page, when the consequences for entire families and generations have been so terrible?'

-- Ana González (left), 84, speaking about her decades-long "tireless advocacy for answers about the estimated 3,000 people who were killed or disappeared under the Pinochet dictatorship from 1973 to 1990." Profiled in a superb New York Times piece entitled "A Serene Advocate for Chile’s Disappeared," González lost her husband, 2 sons, and daughter-in-law when they disappeared in 1976. To this day she does not know what happened to them. (photo credit)

On January 30

On this day in ...
... 1018, 15 years of war between Henry II, the Holy Roman Emperor, and a Polish Great Duke known as Bolesław I the Brave ended by signature of the treaty, the Peace of Bautzen, at Schloß Ortenburg (left) atop the Saxony city for which the treaty is named. As with many accords of the day, peace depended on a division of disputed lands and the claiming as wife of the daughter of another noble family -- in this case Oda von Meißen, who'd become Queen of Poland.

(Prior January 30 posts are here and here.)

Friday, January 29, 2010

Therapetic Abortion in Nicaragua

As we’ve blogged before in connection with the sad case of La Rosita, abortion is prohibited in most Latin American states, with the exception of Cuba. Several Latin American states, however, have taken the ban to extreme limits, penalizing even the provision of therapeutic abortion. For example, Nicaraguan law completely prohibits abortion, regardless of the circumstances and even if the health of the woman is at risk from the continuation of the pregnancy. Prior to 2008, Nicaraguan law permitted “therapeutic abortions” only for those women and girls whose life or health was threatened by the continuation of their pregnancy and, in some cases, for victims of rape.
The revised penal code repealed this provision. See Law No. 164, Penal Code of the Republic of Nicaragua. Nicaraguan law now completely prohibits abortion, regardless of the circumstances and even if the health of the woman is at stake, and if the woman has been raped or is the victim of incest. Abortion is also prohibited (and penalized) if the baby is unviable as in cases of ectopic pregnancy (when the fetus implants somewhere outside the womb such as the fallopian tubes (left)) or anencephaly—a neural tube defect in which the fetus fails to develop a brain or skull vault and is born with dramatic physical defects (below right). The latter condition is uniformly fatal; the baby is literally born dying and usually survives only a few days, although there are cases of children living beyond one year with aggressive and expensive medical interventions.
The Nicaraguan law now imposes prison terms for both doctors and women or girls who carry out, or seek, an abortion (Article 143) and for doctors who cause unintentional harm to a fetus while administering medically necessary treatment to a pregnant women or girl (Articles 145, 148, and 149). Article 143, for example, provides:

Whosoever causes an abortion with the consent of the woman shall be sanctioned with a penalty of one to three years in prison. If the person is a medical professional or health worker, the penalty will simultaneously include being prohibited from working in medicine or as a health worker for two to five years.

The woman who intentionally causes her own abortion or agrees with someone else
to provide an abortion will face a penalty of one to two years in prison.

With strong backing from the Catholic Church and evangelical leaders, the law was put in place during the contested presidential election in 2006, when none of the candidates wanted to alienate church leaders. (Pro-choice protest at left). Legislators supporting the ban invoked fast-track procedures normally reserved for national emergencies.
Legislation like this is felt most acutely by
  • women and girl survivors of rape and incest,
  • women and girls who need essential medical treatment for life-threatening illnesses (such as cancer) while pregnant or pregnancy-related medical conditions (such as eclampsia, spontaneous abortion/miscarriage, obstructed labor, premature labor, ectopic pregnancy, pelvic disproportion),
  • women and girls carrying non-viable pregnancies or pregnancies where the baby will not survive long after birth (as in the case of anencephaly), and
  • women and girls in need of post-abortion care, whether for a miscarriage or induced abortion. (Indeed, it is often difficult to distinguish between spontaneous and induced abortions).
The law also prevents doctors from having a meaningful discussion with their patients about treatment options.
A number of United Nations treaty expert committees and special rapporteurs have determined that such bans breach states’ obligations to protect women and girl’s human rights. The Committee on the Elimination of All Forms of Discrimination against Women, for example, determined that laws that criminalize medical procedures only needed by women—such as Nicaragua’s law—constitute barriers to women’s access to appropriate health care. See U.N. Committee on the Elimination of All Forms of Discrimination against Women, General recommendation No. 24: Article 12 of the Convention (women and health). See also similar Concluding Observations from the Committee on Economic, Social and Cultural Rights (CESCR, concluding observations on Chile, U.N. Doc. E/C.12/1/Add.105 (2004), para. 52; Kuwait, U.N. Doc. E/C.12/1/Add.98 (2004), para. 43; and Nepal, U.N. Doc. E/C.12/1/Add.66 (2001)) and the Committee on the Rights of the Child (Committee on the Rights of the Child, concluding observations on Chad, U.N. Doc CRC/C/15/Add.107 (1999)). Likewise, the Special Rapporteur on Violence Against Women, Radhika Coomaraswamy (right), has stated that,

Acts deliberately restraining women from … having an abortion constitute violence against women by subjecting women to excessive pregnancies and childbearing against their will, resulting in increased and preventable risks of maternal mortality and morbidity.

Report of the Special Rapporteur on violence against women, its causes and consequences, Ms. Radhika Coomaraswamy, in accordance with Commission on Human Rights resolution 1997/44, Addendum: Policies and practices that impact women’s reproductive rights and contribute to, cause or constitute violence against women, UN Doc E/CN.4/1999/68/Add.4, paragraph 57, 21 January 1999.
In response to a petition filed against Nicaragua, the Committee Against Torture ruled:
The Committee expresses its profound concern at the general prohibition of abortion in Articles 143 and 145 of the Criminal Code, including in cases of rape, incest or where continuation of the pregnancy poses a threat to the life of the mother, which in many cases directly result from crimes related to gender based violence. This situation particularly implies that those groups of women (aforementioned) are exposed to a constant risk of violations committed against them, which one supposes must cause extreme traumatic stress with the risk of suffering long-term psychological problems, such as anxiety and depression. The Committee also notes with concern that women who require an abortion in the circumstances mentioned, now run the risk of criminal sanctions. Also, it is of concern to this committee that the law which authorized therapeutic abortion in such circumstances was repealed in 2006 and since the adoption of this prohibition there have been various cases documented of women dying in pregnancy as a result of lack of medical treatment which could have saved her life, in clear violation of numerous codes of professional medical ethics. In this way, the Committee observes with concern that medical professionals can be investigated and criminally sanctioned by the state for practicing therapeutic abortion.

Consideration Of Reports Submitted By States Parties Under Article 19 Of The Convention, Concluding observations of the Committee against Torture, CAT/C/NIC/CO/1 (10 June 2009). Amnesty International’s brief in this case is available here. See Amnesty International, Nicaragua: The Impact of the Complete Ban of Abortion in Nicaragua: Briefing to the United Nations Committee Against Torture, Index No. AMR 43/005/2009 (April 29, 2009). Amnesty’s campaign on the Nicaragua law is available here. Human Rights Watch’s report is here.
In the heart-wrenching case of K.N.L.H. v. Peru, the Human Rights Committee, which supervises state compliance under the International Covenant on Civil and Political Rights, ruled that Peru’s failure to offer an abortion to petitioner, whose fetus was anencephalic (right), violated petitioner’s rights to privacy, to special protection as a minor, and to be free from torture and other cruel, inhuman and degrading treatment. The latter ruling stemmed from the fact that petitioner was forced to give birth to an anencephalic baby and to care for the baby until she died several days later, which plunged the mother into a depression.
The Nicaraguan court has yet to issue a ruling, which was expected in May 2009, on the constitutionality of the anti-abortion law. One media report suggests that a draft decision has been written but still needs to be reviewed and approved by the entire bench. According to this report, the decision declares the law unconstitutional. Let’s hope this prognosticator is accurate… Stay tuned.


On January 29

On this day in ...
... 1595 (415 years ago today), it is said, a 5-act tragedy in blank verse 1st was performed in London, England. The tale of violent feuding between noble families in Verona, Italy, ended with the double suicide of 2 whose love sought to bridge the internecine divide. They were, of course, Romeo and Juliet. For centuries since their story's continued to play out on stages around the world that aspire to bring to life the works of William Shakespeare. (credit for late 1880s brochure)

(Prior January 29 posts are here and here.)

Thursday, January 28, 2010

News from Guantánamo

January is a significant month for Guantánamo observers: January 11th marked the eighth year of its existence and January 22d was the deadline for the prison’s closure, which President Obama had called for in an Executive Order just two days after taking office in January last year. (The Executive Order is described in an earlier post). In July 2009, I posted the announcement by the Administration that it would not meet the January 2010 deadline, issuing a preliminary report instead.
The January 22d deadline passed with very little said by the Administration; indeed, it failed to even set a new date for the closure of the detention center. Asked when the Executive Order would actually be accomplished, White House press secretary Robert Gibbs said, “I don't know when the process will be done. I know they've made great progress on…establishing, first and foremost, case files and recognitions of who indeed was still there and why….There's been progress on issues of sitting a new detention facility.” Speaking of a “new detention facility,” it’s becoming clear that closing Guantánamo really means importing ‘Guantánamo’ to a prison facility in Thompson, Illinois, which the Administration plans to retrofit into a supermax prison to hold ‘suspected terrorists.’
Though the Administration has not announced an official plan for what it will do with the men still at Guantánamo, anonymous government sources revealed recently that out of the 192 men, roughly 110 will be repatriated or resettled eventually, 35 will be tried in federal civilian court and military commissions, and 47 men will continue to be detained in preventive or prolonged detention without charge or trial because they are not ‘prosecutable’ but are too ‘dangerous to release.’ This begs for a detailed post exploring whether there is any legal basis in domestic and international law to support this option. (Check out a recent post by guest blogger, Laura M. Olson, where she explains the D.C. Circuit’s recent rejection of the premise that international humanitarian law constrains the government’s authority under the AUMF to detain, a position even the government has not taken).
In other brief GTMO news: (1) a panel of U.S. military judges heard the first direct appeals of detainees, Ali al-Bahlul and Salim Ahmed Hamdan, who were convicted in military commissions under the Military Commissions Act of 2006, and (2) four more detainees were sent to Europe--3 to Slovakia and 1 to Switzerland.

On January 28

On this day in ...

... 1916, in what The New York Times called "a complete surprise to the country," Boston-based attorney Louis D. Brandeis was nominated to become an Associate Justice of the United States' highest court. Just days before, The Times reported, Brandeis had spoken at a meeting called "to demand equal rights for the Jewish people"; upon his confirmation 5 months later, "after a tumultuous hearing process," Brandeis became the 1st Jewish man to serve on the Supreme Court. (credit for portrait of Brandeis by Andy Warhol) Other Supreme Court 1sts include (test your knowledge of Court trivia before clicking on the answer):
► 1st non-U.S.-born Justice, a man;
► 1st Roman Catholic, a man;
► 1st Asia-born Justice, a man;
► 1st African American, a man;
► 1st woman of any background;
► 1st Italian American, a man;
► 1st Jewish woman; and
► most recently, as we've posted, the 1st Latina.


(Prior January 28 posts are
here and here.)

Wednesday, January 27, 2010

Post-Copenhagen

To the disappointment of many, but the surprise of few, the Fifteenth Conference of the Parties (COP-15) of the United Nations Framework Convention on Climate Change, held in December 2009 in Copenhagen, failed to produce an agreement with binding carbon emissions reductions targets.
The original plan had been to complete negotiations for a new international legal agreement on climate change that would cover the post-Kyoto period. (The Kyoto Protocol’s commitment period comes to an end in 2012.) As the meeting approached, it became clear that this was unlikely to occur. But nobody expected what did happen . . . .
From all reports, the Copenhagen negotiations were completely deadlocked until December 18th, when U.S. President Barak Obama arrived for the last scheduled day of the conference. Through his meetings with Chinese Premier Wen Jiabao, Indian Prime Minister Manmohan Singh, Brazilian President Luiz Inacio Lula da Silva, and South African President Jacob Zuma, a political agreement for the Copenhagen Accord emerged. After world leaders drew on their inner college student and pulled a raucous all-nighter of negotiations, COP-15 agreed to "take note" of this Accord.
This Copenhagen Accord is clearly a political rather than legal agreement. It many flaws (they are well catalogued here and here.) But the agreement did set a January 31 deadline for developed states to declare their own emissions reductions targets and developing countries to declare "nationally appropriate" voluntary mitigation measures. That deadline is fast approaching.
The Copenhagen Accord got something of a boost yesterday when China, Brazil and India announced that they would submit their voluntary mitigation measures by the deadline. No amount of voluntary measures, or self-declared emissions reductions can ensure that we actually reduce our global carbon footprint to a sustainable level, but at least this movement may bode well for the Mexico City meeting this December.
At the same time, countries most threatened by climate change are not waiting around for an international agreement. For example, the Federated State of Micronesia requested that the Czech Environment Ministry to conduct a transboundary Environmental Impact Assessment (EIA)before authorizing modifications to the Czech Republic's biggest industrial carbon emitter. Micronesia asserted that it:
has reasonable grounds to believe that its territory will be affected by the significant environmental impacts [from the facility.]
As low-lying nations become increasingly desperate, we can probably expect more of them to take this tack.

On January 27

On this day in ...

... 1950 (50 years ago today), by Executive Order 10099, U.S. President Harry S. Truman declared that the mutual defense plan of the North Atlantic Treaty Organization was in effect. (credit for photo of Truman signing NATO treaty in July 1949) The move that prompted diplomats from Belgium, Britain, Denmark, France, Italy, Luxembourg, and Netherlands, and Norway to meet at the international conference room of the State Department in Washington, D.C., in order to sign bilateral agreements with the United States that enabled them to receive U.S. military matériel. The total cost of this military aid was set at $1 billion.


(Prior January 27 posts are here and here.)

Tuesday, January 26, 2010

CEDAW, rural women, and domestic violence

The work being done by Wynona Ward (left) is just the sort of initiative that states should actively support to meet their obligations toward rural women under article 14 of the Convention on the Elimination of All Forms of Discrimination against Women. Ms Magazine's Uppity Women story about Ms Ward and her work notes some of what women in domestic violence situations face in rural areas:
For women who live on the back roads, with unreliable cars, no telephones, and no money to hire attorneys, there's often no where to turn. Wynona Ward is determined to change that.
In 1998, after graduating from Vermont Law School, Ward won a grant to start "Have Justice-Will Travel," a law office on wheels. Today, in her four-wheel-drive Dodge Ram Charger, Ward visits battered women who are too isolated to get legal help and finds assistance for their abused children. The vehicle is outfitted with a CB radio, scanner, and cellular phone, as well as a computer and printer -- all equipped with batteries, in the event a woman she is visiting has no electricity.

A short video about her personal story and remarkable advocacy, along with links to additional information, are available here.
As the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) explicitly recognizes in article 14, rural women face particular problems that States Parties should take into account in developing measures to ensure protection against discrimination. Some of these problems are discussed by IntLawGrrl guest/alumna Lisa Pruitt in her articles "Domestic Violence and Rural Difference" (available here) and "Migration, Development and the Promise of CEDAW for Rural Women" (here). CEDAW General Recommendation 19 on violence against women notes the importance of ensuring that rural women have access to needed services:

States Parties should ensure that services for victims of violence are accessible to rural women and that where necessary special services are provided to isolated communities.

Wynona Ward knows first-hand many of the services needed. A survivor of childhood domestic abuse, Wynona Ward had worked for 15 years as a long-haul truck driver when she enrolled at Vermont Law School and worked on domestic violence cases in its legal clinic. In her third year of law school, with funding from a NAPIL Fellowship (now Equal Justice Works) and a grant from the Vermont Women's Fund, she founded Have Justice Will Travel in order to provide legal and social services for victims of domestic violence in rural areas, along with transportation to court hearings and to social services appointments.
Another core component she developed is a Women in Transition program, which "provides life skills knowledge such as balancing a checkbook, preparing a resume, furthering their education, obtaining study skills, gaining further parenting skills, learning to network, finding out how to access services, and assuring that they register to vote."
Wynona Ward hopes that her organization's approach may serve as a useful model for providing domestic violence services in other rural areas. A chart showing her working model is available here.

On January 26

On this day in ...
... 1788, a sea captain claimed what's now known as Sydney, New South Wales, thus establishing British imperialism in Australia. (image credit) Since at least 1808, the date has been commemorated as Australia Day. But according to this website,
while it is a day that weaves together the past and present of a great land and its people, its celebration is a sore point for some of Australia's Aboriginal community who consider they were invaded by the British on that day in 1788.


(Prior January 26 posts are
here and here.)

Monday, January 25, 2010

Guest Blogger: Noemi Gal-Or

It's IntLawGrrls great pleasure to introduce Dr. Noemi Gal-Or (left) as today's guest blogger. Below, she contributes a thought-provoking post about how the UN Trusteeship system could be put to work to improve governance in Haiti. Noemi is Director of the Institute for Transborder Studies (ITS) and Professor of Political Science and Law at Kwantlen Polytechnic University in British Columbia, Canada. She has published extensively in matters security and strategic studies (specifically terrorism), international law (dispute resolution in trade and investment, international humanitarian law, and human rights law), international political economy and regional integration (NAFTA, FTAA, EU), and migration. She has consulted the Solicitor General of Canada and the Government of Israel in some of these areas.
Noemi received her B.A. from Tel Aviv University, her Ph.D. from the Geneva Graduate Institute of International Studies (International Cooperation in the Suppression of Terrorism, 1982, maîtres de thèse Profs. Jean Siotis† and Lucius Caflisch), and her LL.B. from the University of British Columbia. She is member of several academic organizations including Women in International Security Studies Canada (WIIS); serves on the editorial board of the Journal of Conflict Studies and as reviewer of several academic journals including the Canadian Political Science Review; is vice-President of the Board of Directors of the International Law Association (ILA) Canadian Branch, which she represents on the ILA’s Non-State Actor, and Feminism and International Law, Committees. She represents Kwantlen Polytechnic University on the Vancouver Board of Trade where she serves as member of the Canada-United States Relations Committee.
A licensed lawyer sole practitioner in British Columbia, Noemi is an active member of the Executive of the Canadian Bar Association (CBA) National International Law Section serving as co-Chair of its Trade & Investment Committee. She is also member of ArbitralWomen. Noemi is a frequent contributor to legal professional publications including the Lawyers Weekly and CBA’s International Lawyer.

Haiti's Lesson to the World: Opportunity in Disaster

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

Today, Canada will host an emergency meeting in Montreal to draw a longer-term rebuilding plan for Haiti. On the table will certainly be a governance formula to assist Haitians on their road out of the current catastrophe and towards a viable stable and prosperous democracy. Haitian governance history has been fraught with disappointments since its independence in 1804, and more recently since the early 1990s. (credit for photo at left of Haiti's national palace post-earthquake).
A sustainable government is requisite as a care taker of not only ordinary and daily affairs for its citizens, but in Haiti’s case – an island geographically prone to nature’s onslaughts – also as a manager capable to face similar frequent challenges. At this backdrop, one wonders whether the current disaster and crisis, and the Monday international meeting, offer an opportunity to dust off the idea of international trusteeship and reconsider at least its partial revival in a fashion adapted to 21st century’s reality.
A long forgotten tool, the Trusteeship Council figures as one of the UN six main permanent organs. True, the historical circumstances prevailing at the time of the Charter’s adoption, namely post World War II decolonization, mostly no longer apply. Nevertheless, elements of the chief rationale underlying the two UN international trusteeship chapters XII and XII are as valid today as they were then. Equally true is that the trusteeship concept leaves a bad taste associated with past colonial misfortunes and coupled with fear of lurking neo-colonialism. To counter these concerns however, one should refer to the rich "acquis international", the extant body of international law accumulating since decolonization and designed to reassure newly independent states and peoples of their sovereignty, human rights, equality among the family of nations, to mention a few among the legal safeguards adopted since 1945. In this context, an international trusteeship concept, reconfigured and revamped, is worth giving a try.
Let’s face it. It is not a secret that Canadian assistance to Haiti was conceptualized to support the “establishment of a functioning state architecture” of a state loosely characterized as “fragile and failed”. As it currently stands, Haiti is not only fragile; it effectively lacks a functioning government, and some time will pass until such is re-instituted. Although legally sovereign, what is left after the earthquake is a government unable to discharge its duty of carrying out the attached jurisdiction. In a way, factually, Haiti’s sovereignty has been suspended. Some form of legal authority and institution must step in to fill the vacuum.
UN trusteeship is currently unavailable to Haiti because this system does not apply to members of the UN. Nevertheless, the spirit and the provisions laid down in both the UN Charter trusteeship chapters offer guidelines worthwhile embracing. These provisions are expressly instructed by Article 76.b. which lists among its objectives
to promote the political, economic, social, and educational advancement of the inhabitants of the trust territories, and their progressive development towards self government or independence as may be appropriate to the particular circumstances of each territory and its peoples and the freely expressed wishes of the peoples concerned and may be provided by the terms of each trusteeship agreement.

Some form of an “international partnership based trusteeship”, managed by a council made up of the Friends of Haiti and the participants in Monday’s meeting, and chaired by Haiti’s Prime Minister therefore offers a reasonable and workable governance solution.
Transitional internationally administered territories (TIAT) have featured as an important tool used by the UN in handling “governance gap” type of challenges in the Balkans, Africa, East and South East Asia, and Afghanistan. In many respects, they have mirrored the trusteeship concept quite closely. However, due to their ad hoc nature, knowledge gained from this valuable tool has been dispersed across UN bodies and documents, contributing members’ archives, academic publication, and the like. The benefit of an already extant UN permanent organ lies in its availability to operate as an institutional hub for such information and administrator for the purpose of drawing lessons for use in future similar cases. Therefore, while it will not be a surprise if TIAT becomes the next title of a post-earthquake formula for Haiti, it would be advisable to re-use the good offices of an already available UN trusteeship organ. The Trusteeship Council designated as custodian of a central library and home to assess, research, and educate about international trusteeship-like experiences is a first step towards rejuvenating and re-inventing this old institution.


On January 25

On this day in ...
... 1890 (120 years ago today), Elizabeth Jane Cochran, who as a journalist used the name Nellie Bly, "returned to New York in triumph," 72 days after beginning a global journey inspired by Jules Verne's book Around the World in Eighty Days (1873). She'd begun her trek in New Jersey, then went to Europe, the Middle East, and the Far East, all the while cabling her adventures to New York World readers back in the United States. (image credit) Bly's news writing career went beyond this famous feat, however; among other things, she was an "outspoken critic of the death penalty."

(Prior January 25 posts are here and here.)

Sunday, January 24, 2010

Work On! NatSec Law @ UT Law

(Work On! is an occasional item about workshops, roundtables, and other fora for scholarship-presentation-without-publication) Proposals for papers on national security law are being sought for the 3rd annual National Security Law Junior Faculty Workshop, to be held April 1 and 2, 2010, at the Robert S. Strauss Center for International Security and Law, University of Texas School of Law, Austin, cosponsor along with the International Committee of the Red Cross. Also participating in the workshop are our colleagues, Texas Law Professor Robert M. Chesney and South Texas Law Professor Geoffrey S. Corn, as well as the Judge Advocate General’s Legal Center and School and the U.S. Army.
Featured in addition to presentation and discussion of works-in-progress will be training in international humanitarian law.
Abstracts or manuscripts of unpublished papers should be sent to Chesney at rchesney@law.utexas.edu. Deadline is February 1; details here.



On January 24

On this day in ...
... 1877, Louise Van den Plas was born in Brussels. After hearing a number of lectures on the subject at the very end of the 19th Century, she founded the 1st Catholic feminist movement in Belgium in 1902. Among its premier issues were women's suffrage and the social and economic betterment of women. An author and journalist, Van den Plas died in Belgium in 1968.

(Prior January 24 posts are here and here.)

Saturday, January 23, 2010

Go On! Seeking panels for ILW 2010

(Go On! is an occasional item on symposia and other events of interest)

Wanted to share with all the Call for Panel Proposals for the next International Law Weekend:
On October 21-23, 2010, the American Branch of the International Law Association and the International Law Students Association will present the annual International Law Weekend in New York, in conjunction with the 89th annual meeting of the American Branch.
ILW 2010 will bring together hundreds of practitioners, professors, members of the governmental and non-governmental sectors and students. It will feature numerous panels, distinguished speakers, receptions, and the Branch’s annual meeting. ILW 2010 will take place at the Association of the Bar of the City of New York on October 21, 2010, and at Fordham University School of Law on October 22 and 23.
The overall theme of ILW 2010 is “International Law and Institutions: Advancing Justice, Security and Prosperity.”
The global strategic and financial turmoil of the last several years has created unprecedented challenges and opportunities for international law and institutions. ILW 2010 will address the role of international law and institutions in reducing conflict, promoting security, fostering human rights, protecting the environment, facilitating trade and investment, and resolving public and private international disputes. Panels will examine subjects such as the extent to which treaties currently under negotiation or consideration would further these objectives, and the operation and effect of international organizations, international courts, and arbitral institutions on the global legal order.
The Co-Chairs of ILW 20010 are Professor Elizabeth Burleson of the University of South Dakota Law School, Elizabeth.Burleson@usd.edu; Hanna Dreifeldt Lainé of the United Nations Office of Legal Affairs, dreifeldt@un.org; Vincent J. Vitkowsky, Partner, Edwards Angell Palmer & Dodge LLP, vvitkowsky@eapdlaw.com, and Jill
Schmieder Hereau
, Program Coordinator at the International Law Students Association, jshereau@ilsa.org.
The Co-Chairs invite proposals for panels for ILW 2010. Please submit proposals by email to each of the Co-Chairs no later than Friday, April 9, 2010. The proposals should be structured for 90-minute panels, and should include a formal title, a brief description of the subjects to be covered (no more than 75 words), and the names, titles, and affiliations of the panel chair and three or four likely speakers. The proposals should also describe the format envisaged (point-counterpoint, roundtable, or other). One of the objectives of ILW 2010 is to promote a dialogue among scholars and practitioners from across the legal spectrum, so whenever possible, panels should include presentations of divergent views.

On January 23

On this day in ...
... 1984, Nicole Lumen became the 1st woman to preside at a cour d'assizes -- a lower criminal court -- in Belgium.

(Prior January 23 posts are here and here.)

Friday, January 22, 2010

On Art! Picturing Gaza

(On Art! is an occasional item on artifacts of transnational culture)
On Monday, the Israeli not-for-profit Gisha: Legal Center for Freedom of Movement (about which we've blogged here), along with Physicians for Human Rights-Israel and the Gaza Community Mental Health Program hosted an opening for an exhibit entitled "Childhood Under Fire", presenting drawings created by children in Gaza over the past year. In the words of the conference organizers:
On December 27, 2008, following an escalation of violence from both sides, Israel began a 23-day offensive on the Gaza Strip that incurred massive damage and claimed the lives of many. Four hundred and sixty-eight girls and boys were killed, thousands more were injured or lost their parents, and tens of thousands were made homeless. Childhood is the symbol of dreams, future and hope. This exhibition sends a strong message to all to protect childhood on both sides of the fence: to protect hope.
If the trip to Tel Aviv might be prohibitive but the exhibit is of interest, not to worry; you can view the catalogue of drawings here. (My personal favorite is the enormous flower on page 8, which demonstrates an incredible capacity for hope, but it would be significantly less meaningful without the pictures that come before and after.) Moreover, photos of the opening event are available here, though these just make one more sorry to miss what was surely an excellent program, including theatrical performances and a psychological analysis of the drawings.

On January 22

On this day in ...
... 1521, an international conference that bears among the best names in history, the Diet of Worms, was convened by Charles V, Holy Roman Emperor in Worms, a city in what is now southern Germany. The purpose of the meeting was to hear the renunciation or reaffirmation by the monk Martin Luther of dissident views. Luther did not recant, so that in May the emperor issued an edict that banned Luther's writings and declared him a heretic and enemy of the state. Thus was reinforced a schism between the Catholic and Protestant denominations, which would have profound effect on international relations within Europe for centuries to follow. (credit for German postage stamp commemorating Luther's appearance before the Diet)


(Prior January 22 posts are here and here.)

Thursday, January 21, 2010

Closing Arguments Part II: Duch Addresses The Court

Part 2 of 2 in a series on the Closing Arguments in the Duch case, pending before the Extraordinary Chambers in the Courts of Cambodia.

After the Civil Parties and Co-Prosecutors presented their Closing Arguments (see prior post), Duch next took the stand (right). His presentation was a didactic, rambling, and at times seemingly random exposition correcting or underscoring references in the trial record that are likely of interest to only a few beyond the Khmer Rouge historians in the audience. He peppered his testimony with Khmer aphorisms, such as
before harvesting the bamboo, you must remove the thorns
that in context seemed chilling, especially when he later described purged Khmer Rouge cadre as “thorns in the eyes” of the Standing Committee. He testified that “politics governed technique” and described torture as “inevitable.” He claimed that the purges terrified him and that he was afraid of being removed himself. At various points, his statement addressed issues (such as Khmer Rouge leadership structures throughout the different zones) that were so tedious and arcane that members of the audience began to fall asleep, although they were regularly awoken by Court staff under orders from the Chamber to prevent such naps. Addressing his role within this history, he described himself as having been “plunged” into a criminal act with little right to challenge decisions on who should be “smashed.”

Finally, Duch’s statement became more introspective. He stated clearly,

I still am solely and individually responsible for the deaths of 12,000 people and will be forever liable.

Still reading from his prepared remarks and not looking at the Civil Parties in the courtroom, he testified that he owed an accounting to the people of Cambodia and that he was deeply remorseful for having devoted his strength and skills to a criminal organization rather than to serving his people. He implied that early on, he had been given the choice of two paths and, in a split second decision, took a path that led him to a life of endless suffering. Once he became a cog in the machine, he could not withdraw. He humbly apologized to the dead and to the survivors. He asked the victims to leave a door open for him to make an apology and to recognize him as a member of humankind.

Duch’s apparently monotonous delivery of this statement, with nary a glance toward the Civil Parties, made it difficult to glean how sincere and heartfelt these expressions of contrition came across in his native language. Indeed, any emotional impact Duch might have made was no doubt mitigated when, at the close of his remarks, he proceeded to read 34 footnotes aloud, without no indication of their textual referent.

The Closing Statement offered by Kar Savuth, Duch’s Cambodian Co-Defense Counsel (right), was so inconsistent with the prior trial strategy that one could have been forgiven for thinking that he represented a different client. Rather than focus on Duch’s cooperation and entitlement to mitigation, Savuth attacked the very jurisdiction of the ECCC, arguing that Duch cannot be considered one “most responsible” for the Khmer Rouge’s crimes when there were 196 prisons around the country during the Khmer Rouge era and so many other prison heads are enjoying their golden years. He attacked the Co-Prosecutors’ cumulative charging, he presented evidence that argued against the existence of an international armed conflict, he claimed there were few if any Vietnamese prisoners of war at Tuol Sleng until 1978, and he argued that Duch should benefit from the application of the statute of limitations and the amnesty law.
In his review of the evidence, Savuth argued that after the Khmer Rouge consolidated their power around the country, only zone standing committees, members of the general staff, and comparable cadre had the authority to execute prisoners. Here, Savuth implicated Nuon Chea and Khieu Samphon in the crimes at S-21, two defendants who will be tried in Case 002 next year, and announced that Pol Pot, who has been dead for 10 years, should also be prosecuted. Savuth repeatedly echoed the scapegoat argument, emphasizing that the record showed that Duch never killed anyone directly and that none of Duch’s subordinates was now on trial. Drawing gasps from the public gallery, Savuth concluded by arguing that Duch should be exonerated because he was just following orders—someone who “fell victim as a loyal servant to the regime” and would have himself been killed by Angkor if he had resisted.
The next morning, Duch’s French counsel, François Roux (right), took the podium. Roux is a legend in international criminal law, having successfully defended Ignace Bagileshima before the Rwanda Tribunal and avoided the death penalty for the so-called 20th hijacker Zacarias Moussaoui following the September 11th attacks (among other high profile clinets). Roux began his presentation by announcing that this would be his last appearance in court as he was on the eve of assuming a position of head of the defense section for the Special Tribunal for Lebanon. He also admitted that he had been forced to amend his remarks in light of his co-counsel’s presentation the day before, and he suggested that he disagreed with several of the arguments advanced on his client’s behalf. Roux acknowledged the paradox he now faced of having a client who had apparently simultaneously pled guilty and also asked for acquittal, likening his client to Albert Speer (left), who admitted his responsibility without a formal guilty plea and was accorded a 20-year sentence. Roux tried to rehabilitate Duch’s closing remarks, noting that his apologies were sincere “moments of truth” and that no one should doubt the tears that accompanied Duch's testimony over the course of the trial.
The rest of Roux’s presentation was aimed at the Co-Prosecutors and their failure to give Duch sufficient credit for giving them the bulk of the evidence against him. In this regard, Roux played a moving video excerpt from the Closing Statement of Peter McCloskey of the Yugoslav Tribunal in the Obrenović case. In this case, involving a military commander charged with responsibility for the crimes committed at Srebrenica, the Prosecutor in open court gratefully acknowledged the guilty plea of the defendant, his sincere remorse, and his cooperation during the course of the trial, and then sought a mere 17-year sentence. At the close of the video, Roux announced, “this is what this trial should have been” and implied that more dialog between the defense and the prosecution would have avoided the debacle of the day before. Roux urged the tribunal to regard superior orders in mitigation, especially given Duch’s continued cooperation with Case 002 and the fact that he had already spent 30 years in captivity of sorts (as a fugitive and then in military custody). Roux urged the tribunal to bring Duch “back into the fold of humanity.”
The rebuttals began immediately. The Civil Parties (left) accused the defendant of trying to ride on two horses at once, implying that his inconsistent statements were, in effect, an abuse of process that should have been resolved between the defense counsel. Counsel for the Civil Parties called the defense’s volte face a “slap in the face” of the victims. The Civil Parties argued collectively that statute of limitations, personal jurisdiction, and other such defenses should have been raised as preliminary matters and, as such, were waived. Several of the lawyers questioned Duch’s conversion to Christianity, noting his opportune choice of a religion that embodies a notion of forgiveness. They all doubted Duch’s sincerity, and French counsel Martine Jacquin accused Duch of seeking the pity his victims never had. After praising Roux’s service to international justice, Canonne accused his compatriot of insulting Cannone’s clients when he sought to minimize the horrors of S-21 by comparing the number dead to the hundreds of thousands of Cambodians killed throughout the Khmer Rouge era. Civil Party lawyer Hong Kim Suon, himself a victim, lost his composure twice over the course of his rebuttal. He accused Savuth of contradicting his own client’s testimony at trial and, in so doing, paining the victims.

The Co-Prosecutors (left) next presented their rebuttal and things got even more combative. Smith told the judges they had been “misled” by virtue of Savuth’s sudden request for an acquittal. Indeed, both Co-Prosecutors argued that, Duch should not benefit from any mitigation for his cooperation if he now seeks acquittal. Smith also wondered aloud whether Savuth had been following instructions from his counsel or if he had acted on his own, “leaving behind” his client. Smith—a former ICTY prosecutor himself—distinguished the situation of Obrenović from the current case on the ground that the former had enjoyed a distinguished military career prior to the disintegration of Yugoslavia and was accused of command responsibility—i.e., failing to supervise his troops—with respect to a single, albeit horrific, massacre. Duch, on the other hand, has a long history of participating in abuses that pre-dates the Khmer Rouge era. Leang addressed Savuth’s legal arguments, rebutting each one with references to international law, domestic precedent, and prior rulings of the tribunal. She also suggested that if Duch had maintained a consistent position during the trial, the victims might have accepted his apology.
At the close of the defendant's rebuttal, which echoed the closing arguments and remained ambiguous, Smith (without any real authority to do so) rose again and called upon the defendant to pick a defense. After some deliberation, the President of the tribunal, Nil Nonn, invited the accused to make a final statement at the close of the defense’s rebuttal and clarify his position. Duch rose and stated:
I am most grateful for the opportunity offered to me to make my last words. First, I would like to tell the Court about the spirit of my co-operation with the Court. … I was determined to report to the Court sincerely, honestly based on my best memories and to prove it, at the Military Court, all the documents that I already co-operated in responding to the questions of the judges have already been provided to the Trial Chamber. And here, at this Court, I have responded to all the questions put to me by the Co-Investigating Judges and additional questions by the Co-Prosecutors. The records of the interviews at the ECCC are well used as the evidence and proof. … Questions have been fully been put by parties to me and by the Bench to me, and I have fully responded to such questions and the proof can be found in the transcript, hundreds of pages of transcript. …

So I am here to tell the Court that I have fully co-operated with all levels of the Court, including that of the Domestic Court, the Military Court and this hybrid Court. Second point, I would like to express concerning my apologies, and rather my guilt admission. … Having taken into account the more than one million souls who perished, I never forget them, including those of my relatives, and I have acknowledged how these people had suffered before they died. And I also used another word that all crimes committed by the CPK, I myself, as the member of the Party, acknowledge and apologize for them as the member of the Party, and Pol Pot relied heavily on the members of the Party and those members—and I was among them. So I would like to seek for apologies before my people and my nation. esterday the prosecutor, the national prosecutor indicated the new number of 12,300 [who died at S-21]. I never challenged such number anyway because I admit that even more than—there were more than the number that already indicated who died at S-21, and I am responsible for the crimes without any denial. … I still maintain my position that I am responsible for the crimes as the member of the criminal party.
Duch then said: “I will leave it to the Court to decide. I would ask the Chamber to release me. I’m very grateful.” Judge Sylvia Cartwright of New Zealand once again asked Duch for clarification of his position, and he indicated his preference that his national lawyer speak for him. Savuth then rose and confirmed that the request for release was in essence a request to be acquitted, not a plea for complete mitigation. With these final words, Duch and his counsel largely destroyed the painstakingly constructed strategy of accepting responsibility, expressing contrition, and hoping for mitigation.

Throughout the Closing Arguments, the lawyering was at times brilliant, contestable, and unsettling and the last minute schism between Duch’s lawyers (right) will no doubt go down in history as an example of a fatal flaw in this hybrid system. A verdict is expected this spring.