Wednesday, March 31, 2010

Breaking News: The ICC Approves Kenya Investigation

Pre-Trial Chamber II of the ICC has authorized the first investigation by the Prosecution proprio motu (on his own motion) into the post-election violence of 2007-2008 in Kenya portrayed in this video. The decision, made pursuant to article 15(4) of the Rome Statute, responds to the Prosecutor’s "Request for Authorisation of an Investigation Pursuant to Article 15" submitted on November 26, 2009.

Followers of the Court do not need to be reminded that Article 15 was one of the most controversial provisions of the ICC, with some states fearing that the Prosecutor would abuse his proprio motu powers by initiating politically motivated or frivolous investigations. To respond to these concerns, the drafters of the ICC Statute added a procedural hurdle relevant to Article 15 investigations only—the Prosecutor must with supporting material and victims’ representations convince a Pre-Trial Chamber that there is “a reasonable basis to proceed” at a very early stage in the investigation. This is the lowest evidentiary standard provided for in the Statute given the preliminary nature of the proceedings. Para. 27. In exercising this supervisory function, the PTC concluded that it should also consider the admissibility of the case as set forth in Article 53(1)(b) of the Statute.

With respect to the first requirement—that there is a reasonable justification for a belief that a crime falling within the subject matter, temporal, personal, and territorial jurisdiction of the Court has been or is being committed—the PTC found that there was a reasonable basis to believe that crimes against humanity were committed in Kenya. Most interesting in this regard is the PTC’s discussion of the requirement that the attack against a civilian population be pursuant to a State or organizational policy. The PTC noted that the attacks in questions tended to be ethnically-based and politically-motivated. Many attacks were between the key political parties in Kenya, such as the Orange Democratic Movement (which supported Raila Odinga in the 2007 presidential elections) and the Party of National Unity (which supported Mwai Kibaki), or were initiated by the police (left). The PTC noted that while some of the post-election violence was spontaneous or opportunistic,


a number of the attacks were planned, directed or organized by various groups including local leaders, businessmen and politicians associated with the two leading political parties, as well as by members of the police force. Para. 117.
The PTC determined that the crimes against humanity in question constituted murder, rape and other sexual violence, deportation or forcible transfer of the population, and other inhumane acts. In particular, the PTC noted that
  • At least 1,000 people were killed, over 3,000 injured, 900 raped, and 350,000 displaced between December and February 2007-8. Paras. 131, 190.

  • The Nairobi Women’s Hospital alone treated 443 survivors of sexual and gender-based violence during the relevant period.

  • Many of these cases involved gang rapes and aggravated brutality and were conducted in front of members of the victim’s family. Para. 154.

  • Inhumane acts included traumatic circumcisions and genital amputations, amputations, and other non-lethal injuries. Paras. 167-171.

With respect to the second requirement—Articles 17/18 admissibility, which invokes both complementarity and gravity—the PTC concluded that it would focus on potential cases that could be brought against potential defendants implicated in particular crimes within the Court’s jurisdiction and whether the relevant state is conducting national proceedings in relation to those crimes. Paras. 51-52. In finding the situation to be admissible, the PTC considered the following:

The PTC further attempted to pin down the concept of gravity by noting that

it is not the number of victims that matter but rather the existence of some aggravating or qualitative factors attached to the commission of crimes … [such as]
  • the scale of the alleged crimes (including assessment of geographical and temporal intensity);

  • the nature of the unlawful behaviour or of the crimes allegedly committed;

  • the employed means for the execution of the crimes (i.e., the manner of their commission); and

  • the impact of the crimes and the harm caused to victims and their families.

Throughout this assessment, the PTC cited from the representations of the victims to gauge the gravity of the crimes alleged. Para. 196. The PTC noted the particular brutality of many of the attacks alleged. Paras. 193, 199. In addition, many rape victims contracted HIV and were abandoned by their families and many people lost their homes and possessions. Para. 195. The PTC concluded that the crimes alleged satisfy the elements of scale and noted with approval that the Prosecutor intended to focus on those in high-ranking positions who planned, incited, financed, or otherwise contributed to the organization of violence.

Although the Prosecutor’s request had focused on the immediate post-election period, the decision authorized him to investigate events since June 1, 2005 to the extent they relate to the crimes against humanity committed. Para. 205.

Judge Hans-Peter Kaul (Germany, at right)) dissented from the authorization to commence an investigation on the ground that the acts alleged did not constitute crimes against humanity in that they were not committed as part of an “attack against any civilian population” “pursuant to or in furtherance of a State or organizational policy to commit such attack.” Para. 4. He emphasized that in his estimation the ICC is not the right forum to investigate the crimes alleged and expressed concern that the majority opinion blurred the demarcation line between domestic crimes, prosecutable in domestic courts, and international crimes, of concern to the entire international community. Paras. 6, 9. Broadening the Court’s jurisdiction in this regard infringes upon state sovereignty, will generate perceptions of arbitrariness when the Court does not tackle all such situations, and risks turning the Court into

a hopelessly overstretched, inefficient international court, with related risks for its standing and credibility. Para. 10.

This ruling comes on the heels of the resignation of Betty Murungi (right) from her position as Co-Chair of the Truth Justice & Reconciliation Commission (she did not relinquish her spot on the Commission), about which we’ve blogged before. Murungi’s protest comes after she and our friend and colleague Ron Slye (the only non-African on the Commission) publicly asked the Chair of the Commission, Bethuel Kiplagat (also right), to step down from the Commission, because he has been named as a potential witness to the murder of former Foreign Affairs Minister Robert Ouko during the Moi regime and because certain questionable property transactions involving him fall within the Commission’s mandate. The ICC did not mention the current stalemate with the TJRC as a ground for its admissibility ruling, but the unwillingness of Kiplagat to step aside so that the Commission can continue its work is consistent with the impression that there are elements within Kenya who would rather see impunity than accountability.

The International Center for Transtional Justice (ICTJ) has a detailed analysis of transitional justice in Kenya here.

Human rights' new DOJ home

Brand-new in D.C.:
The Human Rights and Special Prosecutions Section, established within the U.S. Department of Justice yesterday.
HRSP, as it's to be known, is intended to combat human rights violations and to endeavor to bring war criminals to account. Its approval by Congress last week culminated plans 1st announced by U.S. Assistant Attorney General Lanny A. Breuer during testimony last October 6 before the Senate Judiciary Subcommittee on Human Rights and the Law.
This new section within the Criminal Division was formed through the merger of 2 existing DOJ units:
1st, the Domestic Security Section, which since 2002 has concentrated on international human rights violations, offenses brought under the under the Military Extraterritorial Jurisdiction Act and related statutes, and and complex immigration and border crimes. The section worked alongside federal prosecutors in the Southern District of Florida in a case about which we've posted: the 1st-ever conviction, secured in 2008 against Boston-born Chuckie Taylor (below) (image credit), son of Liberia's ex-President, under the United States' extraterritorial torture statute.
2d, the Office of Special Investigations, formed in 1979 to investigate and prosecute Nazi-era crimes. In 2004 OSI's mandate was expanded to citizenship revocation proceedings against perpetrators of genocide, official torture, and extrajudicial killing in other contexts. Among its notable cases is that of Ukraine-born John Demjanjuk (bottom) (photo credit), now on trial in Munich after having been stripped of U.S. citizenship and sent to Germany.
Leading HRSP is Teresa L. McHenry. Most recently chief of the Domestic Security Section, McHenry, also has served as head of DOJ's Alien Smuggling Task Force, as a trial attorney in the Organized Crime and Racketeering Section, as an Assistant U.S. Attorney in the District of Columbia, and as a prosecutor at the International Criminal Tribunal for the former Yugoslavia.
Meanwhile, Eli M. Rosenbaum becomes the Director of Human Rights Enforcement Strategy and Policy. Since 1995, he's led the Office of Special Investigations; before that, he was a corporate litigation associate with Simpson Thacher in Manhattan and general counsel of the World Jewish Congress.
Looking forward to good works from this new section.

On March 31

On this day in ...
... 1954, Violeta Neubauer (right) was born in Postojna in what is now the independent nation-state of Slovenia. She studied sociology at the University of Ljubljana. Neubauer's written nearly a dozen books on gender equality and human rights, and has worked on such issues at the national, regional, and international levels. She is a member of the United Nations' Committee on the Elimination of Discrimination against Women.

(Prior March 31 posts are here, here, and here)

Tuesday, March 30, 2010

Today's guest Bloggers: Christie Edwards & Susan Tiefenbrun

It's IntLawGrrls' great pleasure to welcome Christie Edwards (left) and Dr. Susan Tiefenbrun (right) as today's guest bloggers.

► A 2003 recipient of France's Légion d'Honneur, Susan is Professor of Law at San Diego's Thomas Jefferson School of Law, where she also serves as Director of the Center for Global Studies; Director of the Summer Program in Hangzhou, China, conducted jointly with Zhejiang University College of Law; and of the Summer Program in Nice, France, conducted jointly with Hofstra University and the University of North Carolina.

Susan earned her B.S. and M.S. degrees magna cum laude from the University of Wisconsin, her J.D. from New York University School of Law, and her Ph.D. magna cum laude from Columbia University, magna cum laude. After attending law school Susan -- who speaks 10 foreign languages -- practiced international commercial law in paris and New York. She's an expert in eastern European joint venture laws, as well as the laws of the European Union, China, and the former Soviet Union. Before joining the faculty at Thomas Jefferson, she taught at Columbia, Sarah Lawrence, Michigan, and Hofstra. Susan has written frequently on human trafficking; her other interests include international law, corporate law, securities law, international intellectual property, women and international human rights law, and law and literature. Susan is past President of the Law and Humanities Institute and currently the Vice President of its West Coast branch.



Christie earned her J.D. in 2007 from Thomas Jefferson, specializing in international human rights law. She also has a B.A. from The Master's College, where she spent most of her studies abroad in Israel, Switzerland, and interning in Washington, D.C., and is now pursuing her LL.M. degree at American University's Washington College of Law, with specializations in International Human Rights and Gender. Christie is currently working on several research and writing projects concerning human rights issues that affect women in North Africa, and has just been awarded the prestigious Arthur C. Helton Fellowship of the American Society of International Law in order that she may further her research.

Susan and Christie currently are collaborating on a new casebook on women and international human rights law. In their guest post below, they discuss their recent co-authored article, Gendercide and the Cultural Context of Sex Trafficking in China.



Heartfelt welcome!


Gendercide, sex trafficking in China

(Our thanks to IntLawGrrls for this opportunity to guest post on the article that we recently published in the Fordham University International Law Journal)

There is a demographic crisis in China that arguably rises to the level of "gendercide."
Women in China are bought and sold, murdered and made to disappear, in order to comply with a governmental policy that coincides with the cultural phenomenon of male-child preference. Demographers estimate that there are between 50 and 100 million missing women in China. In answer to the resulting scarcity of women, gangs, "specialist households," and "specialist villages" have been working in an organized chain to kidnap and sell women in China.
Several factors work interdependently to cause a serious shortage of women in China. Women are disappearing because of:
► social pressures of male-child preference;
► zealous enforcement of China’s "One-Child Policy" by local government authorities; and
► murderous responses to this policy undertaken by millions of ordinary people in China, who are desperate to have a son.
(credit for Reuters photo of above-right mural extolling One-Child Policy)
The 2000 Chinese census reported that 117 boys were born for every 100 girls, compared to the global average of 105 or 106 boys to every 100 girls. This disparity may be linked to the practice of aborting female fetuses and killing female babies.
This gender imbalance has caused an increase in prostitution and human trafficking in China.
Sex trafficking in China takes many forms:
► purchase of women for brides;
► purchase of a male son; or
► sale of unwanted female children.
Many men, primarily in rural China, desperately seek brides in a country where women are in short supply. These men will resort to purchasing a trafficked woman for marriage. Couples seeking a male child will sell or even murder their girl child in order to make room for the purchase of a trafficked baby boy. Young women and infants are bought and sold like cargo.
Human trafficking in China is a lucrative international business that is expanding due to several factors:
► the aggressive implementation of the One-Child Policy;
► a faulty legal system, and
► the blind adherence to longstanding cultural traditions that devalue women.
In China, Communist Party directives overshadow the legislative and judicial process. The primacy of government policy results in the ineffectiveness of laws that theoretically protect women and female children in China.
In order to reverse the deleterious effects of the One-Child Policy and its commodification of women, the Chinese government must make a commitment to implement laws and policies that can reverse longstanding cultural trends and combat discriminatory traditions against women.
Since 1979, China has instituted economic reform policies that miraculously work in harmony with a Communist political system. Now China needs to perform another miracle: the adoption of cultural reforms that produce gender parity and that stop the marginalization of women in Chinese society. Only then will the lucrative business of trafficking in women be reduced, if not eliminated entirely.

On March 30

On this day in ...
...1856, in France's capital city, the Treaty of Paris was signed, ending the Crimean War, a 3-years-long conflict about which we've posted. Concluding this pact were "Russia on one side and France, Great Britain, Sardinia-Piedmont, and Turkey on the other." The agreement "guaranteed the independence and territorial integrity of Turkey," provided for reorganization of territory that eventually became Romania, and closed the Black Sea "to all warships," and opened the Danube river "to the shipping of all nations." (map credit)


(Prior March 30 posts are here, here, and here)

Monday, March 29, 2010

'Nuff said

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

We as a nation should be humbled that the Haitian people, a people who rose above slavery, a people of great resilience and survival, wish to become part of our community. They want only the basics: education, food and shelter. In return they offer their cultural riches – their resilience, their art, their music, their beloved food and their beautiful laughter. The United States government should grant humanitarian parole to the Haitians in need ....

-- My colleague Holly Cooper (above left), Lecturer in the Immigration Law Clinic at the University of California, Davis, School of Law (Martin Luther King, Jr. Hall), in an op-ed in London's Guardian, entitled "How the US can help Haiti: Thousands of Haitians lost everything in the earthquake. The US should open its borders and start granting humanitarian parole." Holly's essay deftly invokes the Greek myth of Persephone in recounting her experiences earlier this month in Haiti, where she was part of "a human rights delegation intent on finding individuals for whom we could request humanitarian parole into the US."

Go On! Human Rights Council review

(Go On! is an occasional item on symposia and other events of interest) From our colleague John P. Cerone, Professor of Law and Director of the Center for International Law and Policy at New England Law School in Boston (also the home institution of IntLawGrrls' own Dina Francesca Haynes), comes news of a conference entitled Reviewing the UN Human Rights Council: Looking backward and moving forward, to be held on Friday, April 9, at the W Boston, 110 Stuart Street.
Here's the invite:
Join experts from around the globe in a discussion of the history, efficacy, and future of the UN’s Human Rights Council. Participants will critically examine the work of the council with a view toward generating recommendations for the upcoming General Assembly review of the council. The diverse range of experts includes prominent representatives from the United Nations and other intergovernmental organizations, the U.S. Department of State, diplomatic representatives from other council member states, civil society, and the academy.
The day will begin with an address by Kyung-Wha Kang (left), U.N. Deputy High Commissioner for Human Rights; featured at a special luncheon will be these ambassadors: Juan José Gómez Camacho, Mexico's Permanent Representative to the United Nations in Geneva; Eileen Donahoe (right), U.S. Representative to the Human Rights Council; Mohammed Loulichki, Morocco's Permanent Representative to the United Nations; and Ali Treki, President of the 64th Session of the U.N. General Assembly.
Joining John -- who's Special Advisor to the U.S. Delegation to the Human Rights Council -- as panelists will be:
Christina Cerna, Principal Human Rights Specialist, Inter-American Commission on Human Rights
Juliette De Rivero, Human Rights Watch
Kate Gorove, Office of the Legal Adviser, U.S. Department of State
► Professor Hurst Hannum, Fletcher School of Law and Diplomacy, Tufts University
Andrew Hudson, Human Rights First
Melanie Khanna, Legal Adviser, U.S. Mission to the U.N. and Other International Organizations
Andrew Loewenstein, a Partner at Foley Hoag and Chair of the Committee on Public International Law and Human Rights of the Boston Bar Association
Craig Mokhiber, Office of the U.N. High Commissioner for Human Rights
Suzanne Nossel, Deputy Assistant Secretary of State for International Organization Affairs
Ted Piccone, Brookings Institution
Bertram Ramcharan, former U.N. High Commissioner for Human Rights ad interim
Yvonne Terlingen, Amnesty International
Details and registration here.

On March 29

On this day in ...
... 1919, the Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties, chaired by U.S. Secretary of State Robert Lansing (below left) and including 14 other men from 10 countries, presented its Report to the Preliminary Peace Conference convened at the end of World War I, as we've posted here, here, and here. (photo credit) Nearly 80 years later, in Prosecutor v. Delalić (1998), ¶¶ 336-37, the International Criminal Tribunal for the former Yugoslavia discussed a key aspect of this report:
[I]t is often suggested that the roots of the modern doctrine of command responsibility may be found in the Hague Conventions of 1907. It was not until the end of the First World War, however, that the notion of individual criminal responsibility for failure to take the necessary measures to prevent or to repress breaches of the laws of armed conflict was given explicit expression in an international context. In its report presented to the Preliminary Peace Conference in 1919, the International Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties recommended that a tribunal be established for the prosecution of, inter alia, all those who, "ordered, or with knowledge thereof and with power to intervene, abstained from preventing or taking measures to prevent, putting an end to or repressing violations of the laws or customs of war."
Such a tribunal was never realised, however, and it was only in the aftermath of the Second World War that the doctrine of command responsibility for failure to act received its first judicial recognition in an international context.


(Prior March 29 posts are here, here, and here)

Sunday, March 28, 2010

Once & future U.S. Attorneys

The surprise in President Barack Obama's nomination for U.S. Attorney for the Northern District of California was not that he'd chosen Melinda Haag (left), a litigation partner at San Francisco's Orrick Herrington and former federal prosecutor. Based not only on her sterling profile, but also on my experience working with her as joint defense counsel in a transnational criminal case before the U.S. Court of Appeals for the Ninth Circuit, I'm confident that Melinda will prove an excellent leader for an office long in need of excellent leadership.
Nor was it a surprise to read these words in The Chronicle's story on the nomination:
She would become the first woman to hold the job in San Francisco ....
The surprise was how that sentence ended:
... since Annette Adams, who served from 1918 to 1920.
The 1st woman was appointed in 1918? Two years before passage of the 19th Amendment?
This news prompted further inquiry.
According to a contemporaneous New York Times article, "Mrs. Annette Abbott Adams of San Francisco" was appointed an Assistant U.S. Attorney on September 29, 1914. Noting that Adams (below right) thus became "the first woman in the United States to occupy such a position," The Times recounted that U.S. Rep. John E. Raker of California considered the appointment "a recognition of woman suffrage." (Raker, Adams' mentor and the suffragist husband of a suffragist, was referring to the passage of women's suffrage in California in 1911.)
The Times appears not to have reported on Adams' appointment 4 years later as San Francisco's lead federal prosecutor. Happily, though, the website for California's courts and a paper from Stanford's women's legal history project provide biographical details. Here's the story those sources tell:
Born the daughter of a Gold Rush 49er on March 12, 1877, in the Sierra Nevada town of Prattville, Annette Abbott earned a bachelor in law degree from the University of California, Berkeley, in 1904, but could not find a job in law. So she entered marriage and a teaching career. Both turned out to be brief, though she did serve as 1 of the 1st women school principals in California.
Adams then went back to Berkeley, where in 1912 she was among the 1st women to receive her J.D. and to be admitted to the state bar.
She served as San Francisco's lead U.S. Attorney for 2 years, then moved to Washington, D.C., to serve a stint as Assistant U.S. Attorney General that included work on 5 U.S. Supreme Court cases. Again, she was the 1st woman to hold the position.
She then returned home and practiced law. In 1942, California's governor appointed her the 1st woman Presiding Justice of the Court of Appeal, for the San Francisco-based Third Appellate District. In 1950, by special assignment, she presided over 1 case on the state's highest court, and so became the 1st woman to sit on the Supreme Court of California. She died in 1956, at age 79.
Adams shared her thoughts on the challenges facing women in a 1922 foreword to Who's Who Among Women in California:

Conviction, courage and co-operation should be our watchwords: conviction in the justice of our cause, courage born of that conviction and a growing consciousness of our power, and, above all, co-operation in order that our combined forces may constitute an influence worthy to be reckoned with.


Adams surely is a fitting foremother for Melinda Haag, to whom we offer heartfelt best wishes for a speedy confirmation as San Francisco's U.S. Attorney.

On March 28

On this day in ...
... 1799, Etta Palm d'Aelders died, 56 years after she'd been born in Groningen, a city in the Netherlands. Having lost an infant daughter, and her husband having left her, by the time she was just 25 years old, she moved to France, became a courtesan, spied both for the French and the Dutch, and established her own Paris salon for intellectuals, revolutionaries, and feminists. (book cover credit) She's perhaps best known for Discourse on the Injustice of the Laws in Favor of Men, at the Expense of Women, a speech she gave a year and a half after the storming of the Bastille, on December 30, 1790, at a meeting of the 1st political club to admit women. It included a plea rather modest in that era of French Revolution:

Oh! Gentlemen, if you wish us to be enthusiastic about the happy constitution that gives back men their rights, then begin by being just toward us.

Not long afterward, Palm moved to The Hague. But after French forces invaded the Netherlands, she was arrested and jailed for years. A year after her release, she died from illnesses contracted while in detention.

(Prior March 28 posts are here, here, and here)

Saturday, March 27, 2010

Institutionalizing Human Rights

On Tuesday, Temple's International Law Colloquium had the pleasure of hosting Galit Sarfaty (pictured left), Assistant Professor of Legal Studies and Business Ethics at the Wharton School of the University of Pennsylvania. Galit presented her paper, Why Culture Matters in International Institutions: The Marginality of Human Rights at the World Bank, which was published in the October 2009 issue of the American Journal of International Law. (If you are an academic, that means that the article is already sitting on your desk somewhere, and it's well worth the effort to dig it out from under that pile of papers and read it!)
Trained as an anthropologist, Galit analyzes the rich and fascinating results of her doctoral research conducting an ethnography of the World Bank. Largely descriptive, the study seeks to answer the question of why the World Bank has failed to adopt a human rights policy or agenda. From interviews with James Wolfensohn to detailed analysis of the Bank's articles of agreement, the article is a riveting read that raises important questions about human rights standards and international organizations. Galit describes the thorny politics of the Bank's Board of Executive Directors, reflecting North/South struggles over the content and application of international human rights law. She suggests that the Bank's failure to adopt a human rights policy despite several attempts is due to the institution's organizational culture and the interpretive frames used by professional groups within the bank to assess new norms. Galit posits that
to bring about internalization, actors must adapt norms to local meanings and existing cultural values and practices -- that is, they must 'vernacularize' norms.
As explained in her presentation, the central take-away from her article is that human rights norms must be adapted to fit within the Bank's organizational culture, which prizes an economic approach above all else. Galit then poses the crucial question -- if we adapt human rights to this cultural context, will the norms become so diffuse that they will no longer have a significant impact? This is but one of many important thoughts provoked by her excellent article, which is well worth a read.

On March 27

On this day in ...
... 1973, Sacheen Littlefeather (right) became an internationally known name, for a time at least, when she appeared at the Academy Awards ceremony in lieu of Marlon Brando, named Best Actor for his performance in The Godfather, and announced "that he very regretfully cannot accept this very generous award," on account of "the treatment of American Indians today by the film industry" -- at which point some in the audience booed, others clapped -- "and on television in movie re-runs, and also with recent happenings at Wounded Knee," about which 2 very different accounts may be found here and here. A video clip of Littlefeather's speech is here.

(Prior March 27 posts are here, here, and here)

Friday, March 26, 2010

Stevens on targeted killing

As detailed via quotes in the post below, the Legal Adviser to the U.S. Department of State, Harold Hongju Koh (below left), yesterday outlined a multi-pronged defense of the Obama Administration's use of drones for targeted killings of presumed al Qaeda operatives. (photo credit) Among the statements made during Koh's keynote speech to the American Society of International Law was this:

[S]ome have argued that the use of lethal force against specific individuals fails to provide adequate process and thus constitutes unlawful extrajudicial killing. But a state that is engaged in armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force.
Upon hearing these words, my mind jumped at once to my 2005 interview of U.S. Supreme Court Justice John Paul Stevens (above right), for whom I had the privilege of clerking and about whom I am writing a jurisprudential biography. (photo credit) Stevens served as a Navy codebreaker at Pearl Harbor from 1942-1945, and earned a Bronze Star for that service. The relevant passage from my 2006 article entitled John Paul Stevens, Human Rights Judge described Stevens' thoughts about perhaps the most famous targeted killing of World War II:

One event days before Stevens’s twenty-third birthday would stay with him for the rest of his life. The architect of the Pearl Harbor attack was Admiral Isoroku Yamamoto, who had learned English from a missionary and become a Babe Ruth fan while studying at Harvard in the 1920s. On April 14, 1943, Americans discovered that Yamamoto [right] was about to travel to the front. Unbeknownst to the Japanese, Stevens explained in an interview more than sixty years later, “We had broken the code.” On Roosevelt’s orders, U.S. pilots downed Yamamoto’s plane over a Solomon Islands jungle on April 18, Easter Sunday. “I was on duty on the day they brought the plane down,” Stevens said, “The message was, ‘We bagged one eagle and two sparrows,’ indicating success in the mission.” The kill buoyed the spirits of many, who knew that getting Yamamoto would, as Stevens put it, “have a tremendous strategic advantage.”
Stevens' own thoughts were more complex:
But the incident troubled the young officer. “I remember thinking that the planners must have engaged in a lot of deliberation before deciding to go along with the plan,” Stevens said. “I have read a number of books on it since and discovered that was not the case. They were concerned that targeting him would reveal that they had broken the code.” Accounts of the killing indicate that U.S. Admiral Chester A. Nimitz and others—in communications laced with foxhunting terms—debated only the tactical benefits and costs. “But they had no humanitarian concerns at all of the kind that troubled me,” Stevens said. That fact “kind of surprised me,” he continued, particularly given that Yamamoto “had spent time in the United States and had friendships among high-ranking American officers.”
Stevens reaffirmed this sensibility in a just-published New Yorker interview. There author Jeffrey Toobin tracked the Yamamoto account in my 2006 article (without, alas, citation to same). Implicitly linking the Yamamoto incident to his later discussion of Stevens' post-9/11 jurisprudence, Toobin contributed this insight:
The morality of military action became a lifelong preoccupation.
It's also worth noting that Stevens' concerns respecting that targeted killing had a profound effect on his capital punishment jurisprudence. The passage in my 2006 article thus continued:
Appearing before the Chicago Bar Association decades later, Stevens alluded to the event without naming the target. The Justice told his audience that the experience had sown doubts in his mind about another instance in which the state takes the life of a named individual; that is, capital punishment. Recalling that talk, Stevens affirmed that the Yamamoto incident led him to conclude that “[t]he targeting of a particular individual with the intent to kill him was a lot different than killing a soldier in battle and dealing with a statistic. . . . In my mind, there is a difference between statistics and sitting on a jury and deciding whether to kill a single person.”
As pointed out in note 178 of my article, Stevens revealed in a 1996 speech that, notwithstanding these doubts, at the time of his 1975 confirmation hearings, he did not himself know how he would vote on capital punishment. The Justice since has told me that in 1975 no Senator asked him his views, neither publicly nor privately. In 1976, he voted in Gregg and related cases to reinstate the death penalty. But as posted, in 2008, Stevens made public his conclusion that the death penalty, in all its applications, violates the 8th Amendment to the U.S. Constitution.
Stevens' linkage of targeted killing amid armed conflict with the targeting for execution of a convicted murderer provokes further thoughts:
► As my 2006 article observed,
That superior officers expressed no qualms in 1943 about targeting Yamamoto suggests earlier sources for Stevens’s “humanitarian” unease.
My 2010 article John Paul Stevens and Equally Impartial Government (now available in pdf here, and soon to be in print in the UC Davis Law Review) sets forth a story of Stevens's family that might have encouraged careful thought about the power of the state.
► It bears particular mention that although Stevens harbored what he called “humanitarian concerns” years before he would decide to enter law school, his were, fundamentally, the concerns of a lawyer. They signaled a visceral sense that the process of law, no less than law's substance, places valuable constraints on state power.
The quote at the very top of this post stands in conflict with that sense of justice.

Koh on targeted killing

There was much worth pondering in the keynote speech that Harold Hongju Koh (center left), since last June the Legal Adviser to the U.S. Department of State, delivered yesterday at the annual meeting of the American Society of International Law.
'Grrls will be posting on various aspects of that talk and others in short order. But we can't let a day go by without posting his remarks on unmanned aerial vehicles, better known as UAVs or drones (pictured below).
A few hours before Koh's speech, IntLawGrrls guest/alumna Mary Ellen O'Connell, newly elected an ASIL Vice President, had chaired a well-attended panel on the issue. Mary Ellen, who'd written a Balkinization post in support of Koh's nomination about this time last year, last December contributed an IntLawGrrls post outlining her legal concerns about the United States' use of drones in the AfPak conflict to target for killing persons believed to be al Qaeda operatives.
Thanks to ASIL's Sheila R. Ward, we set forth verbatim relevant quotes from Koh's speech, which you can watch in the video clip here.
Koh, formerly the Yale Law Dean and an ASIL Counsellor, maintained that such use is legal, essentially embracing the "war" paradigm that many others have challenged. He stated:

[I]t is the considered view of this administration … that targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles (UAVs), comply with all applicable law, including the laws of war…
As recent events have shown, Al Qaeda has not abandoned its intent to attack the United States, and indeed continues to attack us. Thus, in this ongoing armed conflict, the United States has the authority under international law, and the responsibility to its citizens, to use force, including lethal force, to defend itself, including by targeting persons such as high-level al Qaeda leaders who are planning attacks….
He then detailed how "this administration has carefully reviewed the rules governing targeting operations to ensure that these operations are conducted consistently with law of war principles"; specifically:

► First, the principle of distinction, which requires that attacks be limited to military objectives and that civilians or civilian objects shall not be the object of the attack; and
► Second, the principle of proportionality, which prohibits attacks that may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, that would be excessive in relation to the concrete and direct military advantage anticipated.
Koh endeavored to assure his audience that in

U.S. operations against al Qaeda and its associated forces – including lethal operations conducted with the use of unmanned aerial vehicles – great care is taken to adhere to these principles in both planning and execution, to ensure that only legitimate objectives are targeted and that collateral damage is kept to a minimum.
Addressing critics of the policy, he continued:

[S]ome have suggested that the very use of targeting a particular leader of an enemy force in an armed conflict must violate the laws of war. But individuals who are part of such an armed group are belligerent and, therefore, lawful targets under international law....
[S]ome have challenged the very use of advanced weapons systems, such as unmanned aerial vehicles, for lethal operations. But the rules that govern targeting do not turn on the type of weapon system involved, and there is no prohibition under the laws of war on the use of technologically advanced weapons systems in armed conflict – such as pilotless aircraft or so-called smart bombs – so long as they are employed in conformity with applicable laws of war….
[S]ome have argued that the use of lethal force against specific individuals fails to provide adequate process and thus constitutes unlawful extrajudicial killing. But a state that is engaged in armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force.

[On this boldfaced statement, consider the rather different view in my post above, which reprints a passage, from my 2006 article, that recounts Justice John Paul Stevens' concerns regarding a targeted killing in which he and other Navy codebreakers played a role -- the killing in 1943 of Admiral Isoroku Yamamoto, architect of Japan's attack on Pearl Harbor.]
Koh maintained that due precautions are taken even without the interposition of due process:

Our procedures and practices for identifying lawful targets are extremely robust, and advanced technologies have helped to make our targeting even more precise. In my experience, the principles of distinction and proportionality that the United States applies are not just recited at meeting. They are implemented rigorously throughout the planning and execution of lethal operations to ensure that such operations are conducted in accordance with all applicable law….

Finally, Koh cited domestic law as an independent justification:

[S]ome have argued that our targeting practices violate domestic law, in particular, the long-standing domestic ban on assassinations. But under domestic law, the use of lawful weapons systems – consistent with the applicable laws of wear – for precision targeting of specific high-level belligerent leaders when acting in self-defense or during an armed conflict is not unlawful, and hence does not constitute ‘assassination.’

On March 26

On this day in ...
... 1975 (35 years ago today), the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction entered into force, 3 years after it had been opened for signature and the same day that the United States deposited its instruments of ratification, thus joining this Biological and Toxin Weapons Convention. Today it has 163 states parties.

(Prior March 26 posts are here, here, and here)

Thursday, March 25, 2010

Edith Brown Weiss honored with Hudson Medal for pre-eminent scholarship & achievement

This week at its annual meeting, the American Society of International Law (ASIL) is honoring the incomparable Edith Brown Weiss (pictured at left) with the prestigious Manley O. Hudson Medal, an award bestowed for "pre-eminent scholarship and achievement in international law." Through her prolific scholarship on trade, sustainable development, human rights and the environment, and compliance with multilateral environmental agreements, Professor Brown Weiss has shaped the development of international environmental law and profoundly influenced the next generation of scholars and policy-makers. As noted by the ASIL Honors Committee:
Her ideas, scholarship and practical contributions to the policy world have forever shifted the way people think about environmental law.

Her path-breaking work, In Fairness to Future Generations: International Law, Common Patrimony and Intergenerational Equity (1984) has been published in English, French, Spanish, Japanese and Chinese. The recipient of the Certificate of Merit Award from the ASIL, the book set out a conceptual framework for intergenerational equity that launched new thinking in environmental law.
Professor Brown Weiss has been a leader not only in her scholarship but also in public service. She established the International Environmental Law Office at the U.S. Environmental Protection Agency and headed it for two years; has served on several committees of the US National Academy of Sciences; was Special Legal Advisor to the North American Commission for Environmental Cooperation; and served a five-year term on the three-member Inspection Panel of the World Bank (2002-2007) including four years as the Chair of the Panel, an appointment at the Vice-Presidential level. She is a past President of the American Society of International Law and serves on the Board of Editors of the American Journal of International Law.
Professor Brown Weiss, the Francis Cabell Brown Professor of International Law at Georgetown University Law Center, will deliver her Hudson Medal Lecture, "On Being Accountable in a Kaleidescopic World," at the ASIL Annual Meeting tomorrow, 26 March, at 4:15 PM.
Anyone who knows her also knows of her deep dedication to students and colleagues. Her generous and caring spirit is legendary. Her open and inclusive approach years ago when I was a Visiting Scholar at Georgetown made a lasting impression on me.
Thank you, Edie, for your commitment to the planet and those inhabiting it -- and congratulations on an honor richly deserved!

Work On! "Teaching gender"

(IntLawGrrls is pleased to welcome back alumna Lisa R. Pruitt, who contributes this Work On! guest post)

The Section on Women in Legal Education of the Association of American Law Schools, for which I have the honor of serving as Chair this year, is seeking panelists to share methods of teaching gender in “core courses” -- legal writing, torts, contracts, corporations, federal income tax, civil procedure, contracts, or criminal law, among others not traditionally understood to include gender -- at the AALS 2011 Annual Meeting to be held January 4 to 8 in San Francisco. The panel will also include a paper presentation by the winner of "Teaching Gender as a Core Value" competition.
In keeping with the overall meeting theme of "Core Values," our Section will focus on teaching gender issues as a "core value." This program will include a variety of perspectives and will explore ways gender issues can be successfully incorporated into law school teaching.
To be considered as a panelist, please submit a note of interest no later than next Wednesday, March 31, 2010, to Professor Danne Johnson, Oklahoma City University School of Law, at djohnson@okcu.edu. In addition to your c.v., please include a 2-paragraph description what you would discuss on the panel; that is, of the course that you teach and the methods that you use to teach gender.
Further details here.

On March 25

On this day in ...
... 2010 (today), is celebrated Våffeldagen, also known as International Waffle Day. Våffeldagen originated in Sweden, where the yummy treats were served on this day to mark the Feast of the Annunciation, itself also known as Lady Day. How in English translation Våffeldagen became to be called "International" is unclear, and in any event it's a misnomer: American contrarians have declared August 24 -- the date in 1839 when a patent for the waffle iron issued -- to be Waffle Day in the United States.

(Prior March 25 posts are here, here, and here)

Wednesday, March 24, 2010

A healthy development

Something that President Barack Obama and I have in common:
Both our mothers died too young from disease. And to the end, both worried as much about their medical bills as they did about their medical treatments.
Obama wrote about his mother's plight in The Audacity of Hope. He spoke of it often on the campaign trail and in these last many months of debate. And yesterday, when health care reform became law, he spoke of his mother's plight again:

Today, I'm signing this reform bill into law on behalf of my mother, who argued with insurance companies even as she battled cancer in her final days.

Any child who's shared this experience knows the depth of emotion embedded in those few words, understands the source of the tenacity that has made health care reform a reality.
'This is the Civil Rights Act of the 21st century,'
Rep. James E. Clyburn (D-S.C.) said. He's one of many placing this legislation on par with some of America's best moments.
It's not perfect, not the truly universal safety net for which some hoped. It proclaims no right to health as many Democrats had done during the campaign.
Yet in freeing some families from the awful web of pre-existing condition clauses and COBRA cutoffs, in giving everyone access to health insurance, it is a formidable guarantee, in a country long chary of socioeconomic rights, of human security.
It does our mothers proud.

On March 24

On this day in ...
... 1765 (245 years ago today), King George III gave royal assent to the Quartering Act (left), which authorized government officials to order that, "as shall be necessary," British troops be given room, board, and alcoholic beverages in private homes in the American colonies, "without paying any thing for the same." (image credit) The statute was part of a series that colonists called the Intolerable Acts; taken together, the measures became rallying cries for independence. Postcolonial antipathy to this measure is evident in the 3d Amendment to the U.S. Constitution, which states:

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
(Prior March 24 posts are here, here, and here)

Tuesday, March 23, 2010

Gender, equal protection & immigration

(IntLawGrrls is pleased to welcome back Ruthann Robson, who contributes this guest post, cross-posted from Constitutional Law Prof Blog, regarding the U.S. Supreme Court's announcement yesterday that it will review Flores-Villar v. United States. Ruthann further contributes the Go On! post below)

The question is a narrow one:
► Does decision in Nguyen v. INS (2001) permit gender discrimination that has no biological basis?
In Nguyen, the U.S. Supreme Court upheld 8 U.S.C. § 1409, which imposed different requirements for a child’s acquisition of citizenship depending upon whether the citizen parent is the mother or the father. Writing for the Court, Justice Anthony M. Kennedy found that the statutory gender-based distinction – applicable when the parents were unmarried, when only parent was a citizen, and when the child was born outside of the United States – survived a constitutional challenge based on the “equal protection guarantee embedded in the Due Process Clause of the Fifth Amendment.” The majority found that the statute served two important governmental interests:
► The importance of assuring that a biological parent-child relationship exists; and
► The importance of assuring that the child and the citizen parent have a demonstrated opportunity or potential to develop the “real, everyday ties that provide a connection between child and citizen parent and, in turn, the United States.”
The Court in Nguyen relied on biological reasoning -- women give birth and men may not even realize their paternity -- and concluded:

Given the 9-month interval between conception and birth, it is not always certain that a father will know that a child was conceived, nor is it always clear that even the mother will be sure of the father’s identity. This fact takes on particular significance in the case of a child born overseas and out of wedlock. One concern in this context has always been with young people, men for the most part, who are on duty with the Armed Forces in foreign countries.
The Court then provided statistics about the number of military men in foreign countries in 1969, the year Nguyen was born in Viet Nam -- although, as the dissenting opinion noted, after Nguyen's parents split up, he lived with the family of his father’s new girlfriend and in 1975, before his sixth birthday, Nguyen came to the United States, where he was raised by his father. A DNA test showed a 99.98% probability of paternity, and the father obtained an order of parentage from a state court.
The Court's grant of certiorari in Flores-Villar v. United States will involve a reconsideration of Nguyen. Flores-Villar was born in Tijuana, Mexico, in 1974 to a noncitizen mother and a United States citizen father who, importantly, was 16 at the time. His father and grandmother, also a citizen, brought Flores-Villar to the United States for medical treatment when he was two months old. He grew up in San Diego with his grandmother and father, who acknowledged paternity with the Civil Registry in Mexico on June 2, 1985. Apparently, Flores-Villar was not in touch with his mother, who remained in Mexico.
The gendered differential imposed by the statute at issue in Flores-Villar was the requirement that a citizen father must have resided in the United States for at least five years after his 14th birthday to confer citizenship on his child, while a citizen mother had to reside in the United States for a continuous period of only one year prior to the child’s birth to pass on citizenship. Moreover, in the case of Flores-Villar, the INS denied a petition for citizenship on the basis that because the citizen father was 16 years old at the time of the child’s birth, it was “physically impossible” for the father to have the required physical presence after the age of 14 in order to comply with the statute.
In the 2008 appellate decision in Flores-Villar to be reviewed, a panel of the U.S. Court of Appeals for the Ninth Circuit -- comprising Judges Pamela Rymer, Cynthia Holcomb Hall, and Andrew J. Kleinfeld -- upheld the statutory scheme. It held the asserted governmental interests -- avoiding statelessness, as well as assuring a link between an unwed citizen father, and this country, to a child born out of wedlock abroad who is to be a citizen -- to be important. The means chosen, it also held, substantially further the objectives. The Court stated:

Though the fit is not perfect, it is sufficiently persuasive in light of the virtually plenary power that Congress has to legislate in the area of immigration and citizenship.
This “fit” will certainly be at issue before the U.S. Supreme Court.
Then-Justice Sandra Day O’Connor’s dissenting opinion in Nguyen, which was joined by Justices David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer, stressed the heightened scrutiny required by the case involving single-sex education at VMI, the Virginia Military Institute. In that judgment in United States v. Virginia (1996), a closer fit was required between the “discriminatory” means chosen and gender stereotypes. The Nguyen dissenters thus reasoned that the statute at issue in Nguyen was

paradigmatic of a historic regime that left women with responsibility, and freed men from responsibility, for nonmarital children,
and added that it could easily have been rendered sex-neutral.
In Flores-Villar, because the gender differential is a residency requirement -- and not, as in Nguyen, a relationship-with-child requirement -- the “fit” may not be sufficiently tight. If the Court applies VMI, the question will be whether or not there is something unique about men that requires them to have a longer residency than women before men are truly “citizens.” However, the Court will also certainly rely on the plenary power of Congress in the area of citizenship.
Balancing gender equality and citizenship will be the task for the Court -- a task which the newest Justice, Sonia Sotomayor (right), will certainly undertake.