Friday, April 30, 2010

Coming to America

Given the harsh immigration law enacted in Arizona last week, it seems an appropriate time to reflect on the toll that our border enforcement policy levies on migrants journeying from Central America to the United States. On Wednesday, Amnesty International released a report, Invisible Victims: Migrants on the Move in Mexico, that documents the serious human rights violations suffered by migrants traveling through the states of Chiapas, Oaxaca, Tabasco, and Veracruz en route to the United States. At the margins of society, these Central American migrants are kidnapped, threatened, and assaulted by criminal gangs, other migrants, and corrupt officials, yet these crimes are rarely acknowledged, let alone prosecuted.
It is a challenge to gather reliable data on these abuses, but human rights organizations, academics, and shelters have conducted surveys that suggest that these migrant populations suffer high levels of violence and other wrongdoing, including arbitrary detention, extortion, beatings, robbery, sexual assault, and even murder. Some highlights:
  • A report published last year by Mexico's National Human Rights Commission estimated that between September 2008 and February 2009 nearly 10,000 migrants were kidnapped by criminal gangs, often in collusion with the police. The study suggested that the vast majority of these migrants were threatened with guns and knives and received death threats against them and their relatives.
  • Women and girl migrants are particular risk of sexual violence. Local and international NGOs and health professionals working with migrant women suggest that as many as six in ten migrant women and girls are raped -- many at the hands of state officials.
  • Many migrants are killed or disappear in Mexico. Very few of these deaths are investigated by state law enforcement and attorney generals, and federal and state authorities do not systematically gather data collection on these abuses. As a result, the families of these migrants often do not know the fate of their loved ones who've journeyed northwards.
As the Mexican government plays an increasing role in protecting its nationals in the United States, it's sadly ironic that it fails to uphold its international commitments to protect migrants within its borders. But while the Mexican authorities must make greater efforts to prevent human rights abuses against migrants, the U.S. government also bears responsibility for immigration laws and policies that push migrants to embark on these risky journeys in the first place. A more humane immigration system would enable migrants to travel lawfully and safely to the United States, respecting their dignity as human beings. In the words of a Mexican man who provides shelter and food to migrants in need,
The train carries hundreds of lives, human beings who have suffered. They leave their homes because of the extreme poverty of where they come from, the journey north is a nightmare for them but they do it for the families they have left behind.

'Nuff said

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

'We literally could not run the Navy without women today.'

-- U.S. Secretary of the Navy Ray Mabus, announcing that his department has put an end to the long-standing ban on women serving on submarines. (photo credit) Today 52,446 out of the Navy's 330,700 active-duty personnel, or 15%, are women. Prior IntLawGrrls posts about women servicemembers are available here.

On April 30

On this day in ...
... 1950 (60 years ago today), Dr. Christine Hohmann-Dennhardt (left) was born in Leipzig. She received her doctorate in law from Johann-Wolfgang-Goethe University in Frankfurtin 1979, having completed a thesis on employer-employee law, then began a career as a judge and civil servant. Hohmann-Dennhardt served as Minister of Justice and then as Minister of Science and the Arts of the German Land of Hesse before becoming a Judge on Germany's Federal Constitutional Court in 1999.

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

Thursday, April 29, 2010

Suppressing Maritime Piracy: What Are The Options?

Further to Diane's post below, this post is to call attention to a report produced by the ASIL, the Academic Council on the UN System (ACUNS) and the One Earth Future Foundation on international piracy. The report grew out of a conference on the topic, details of which are here and here. (I was a participant along with American Society of International Law Executive Director Betsy Andersen). The conference and report focused on the following topics:
  • Can the crime of piracy be added to the jurisdiction of the ICC? If so, what is the process for doing so?
  • Given the politics around the 2010 ICC review conference (the possibility that the crime of aggression will be added to the ICC’s jurisdiction; the desire on the part of some to add terrorism), how likely is it that the ICC might try pirates in the near future?
  • What are the same possibilities for the Law of the Sea Tribunal?
  • What are the advantages and disadvantages of using (third party) national governments to try apprehended pirates? How might universal jurisdiction work in practice with regard to the crime of piracy in the current era?
  • What alternative governance options exist to prosecute pirates?
  • What are the prospects for a special tribunal on piracy? How might this be established? By whom or under whose auspices? Through what processes?
My presentation focused on the international/hybrid tribunal option and discussed the different modalities by which international or hybrid tribunals have been established in the past:
  • by coercion through the Security Council (ICTY & ICTR)),
  • by consent with a host government (SCSL, ECCC, STL), or
  • as part of a transitional administration (Special Panels in East Timor & Kosovo).
I also discussed potential regional and bilateral arrangements as well as other cooperative arrangements among affected states (along the lines of the mixed antislavery commissions of the 19th century, which IntLawGrrl Jenny Martinez (right) has written about, or the Lockerbie Tribunal). My presentation argued that given the vagaries of incorporation of the piracy prohibition into domestic law and the demonstrated inability and unwillingness of states to aggressively prosecute offenders, the international community needs a more comprehensive regime to effectively prosecute acts of piracy to supplement the cooperative military and preventative responses to date.
The Security Council's action is indeed welcome. Interestingly, so far, the Council has been careful not to identify piracy per se as a threat to the peace. In the Somalia resolutions, the Council designates the situation in Somalia as the threat that is exacerbated by piracy. Several states (including South Africa) are on record opposing the idea that piracy per se constitutes a threat to the peace. China has taken the opposite position. In its Resolution 1918, the Council asks the Secretary General to report on options
to further the aim of prosecuting and imprisoning persons responsible for acts of piracy and armed robbery at sea.
No doubt the ASIL/ACUNS/OEF report will feature prominently in this research. Check it out!

Ahoy, there! New tribunal?

Keep reading that ad hoc criminal tribunals are destined for Davey Jones' locker.
Apparently no one's given the United Nations that memo.
Not only did that intergovernmental organization establish the Special Tribunal for Lebanon a while back (prior posts), but also yesterday the U.N. Security Council unanimously resolved to consider an international piracy tribunal.
The latest in a 2-years-on series of resolutions on "The situation in Somalia," Resolution 1918 (2010) 1st recited a litany of concerns about attacks by pirates off the coast of that horn-of-Africa nation. (See Beth Van Schaack's post today, above, as well as IntLawGrrls' prior posts). Then it alluded to problems in bringing offenders to account, even as it noted that there've been some prosecutions in some national courts. (Justice systems specifically mentioned were Kenya (right) (photo credit) and the Seychelles. A few pirates also have found themselves haled before national courts in the United States and elsewhere.)
After urging more concerted efforts by all countries, the Security Council, in ¶ 4 of Resolution 1918, requested U.N. Secretary-General Ban Ki-moon
to present to the Security Council within 3 months a report on possible options to further the aim of prosecuting and imprisoning persons responsible for acts of piracy and armed robbery at sea off the coast of Somalia ...
Options explicitly contemplated:
► "creating special domestic chambers possibly with international components"
► "a regional tribunal or an international tribunal and corresponding imprisonment arrangements"
In preparing its report, Ban's staff is to consider the work of the Contact Group on Piracy off the Coast of Somalia, as well as "the existing practice in establishing international and mixed tribunals ..."
Time will tell if yet another tribunal weighs anchor.

On April 29

On this day in ...
... 1941, in Québec, Canada, the Bar Act was amended so that the province permitted women to practice law. Previously, they were banned from the legal profession even if they had a law degree. The change came "[a]fter decades of attempts and rebuffs." It would be another 15 years before women were allowed to become practicing notaries.

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

Wednesday, April 28, 2010

Adjudicating Aggression in Domestic Courts

As we’ve blogged before, adding the crime of aggression to the ICC Statute threatens to undermine the Court’s system of complementarity, which depends on domestic courts being the primary fora for adjudicating international crimes. Very few states have penalized the crime of aggression, but they may begin to do so in the event that the crime of aggression is added to the ICC Statute. Delegates involved in these negotiations should start focusing on what amendments to the complementarity provisions or other provisions might be appropriate to signal that aggression prosecutions need not go forward in domestic courts in the event that the Court eventually exercises jurisdiction over the crime.
This issue was central to the British House of Lords case of R. v. Jones, [2006] UKHL 16—one of the few domestic cases to consider the crime of aggression. (Article 14 of the Statute of the Iraqi High Tribunal includes the domestic crime of an analogous crime—“The abuse of position and the pursuit of policies that were about to lead to the threat of war or the use of the armed forces of Iraq against an Arab country, in accordance with Article 1 of Law Number 7 of 1958.” Saddam Hussein was executed before these charges could be adjudicated).
The issue arose in Jones in a somewhat backward fashion. In 2003, several British subjects (including Margaret Jones, right) were arrested in connection with efforts undertaken at British military bases to impede British involvement in the Iraq War. The individuals were variously charged with, and some convicted of, aggravated trespass and criminal damage. The appellants all argued that under British law, they were entitled to use reasonable force to prevent the commission of a crime: the crime of aggression. Section 3 of the Criminal Law Act 1967 provides:
(1) A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.
Appellants asserted that the United Kingdom’s actions in Iraq were unlawful and that they were thus justified in attempting to prevent them by the use of reasonable force. By their account, the crime of aggression was established in customary international law and its core elements understood with sufficient clarity to permit the prosecution of the crime. They argued that the defense should not be
restricted to crimes triable in the domestic courts and should be understood as extending to crimes recognised under customary international law.
Acknowledging the ongoing negotiations within the Special Working Group on the Crime of Aggression, the appellants stated that the absence of agreed provisions was primarily the result of disagreements over procedural matters, and did not negate the existence of a sufficiently defined prohibition of aggression in customary international law. Even though “the exercise of the prerogative in respect of foreign policy and deployment of the armed forces cannot be challenged in the courts,” the appellants argued that they should be entitled to rely on the illegality of the exercise of the Crown’s prerogative powers as a defense to criminal charges and to put to the jury the question of whether their actions were reasonable and proportionate in the face of an imminent crime.
In response, the Crown argued that there is no automatic incorporation of crimes of customary international law into the domestic law. Rather, such crimes require “statutory interposition.” In situations in which the state’s prerogative with regard to national security and foreign policy is at issue and is determinative, such matters remain outside the courts’ purview.
The Court of Appeals ruled, inter alia, that the crime of aggression was insufficiently defined under international law to trigger the application of the justification defense under the statute.
The House of Lords affirmed, but on different grounds. Lord Bingham of Cornhill determined that customary international law recognized the crime of aggression as evidenced by treaty practice since the 1920s, the Nuremberg and Tokyo proceedings, and the ICC negotiations. Lord Hoffman (left, of Pinochet fame) reasoned that it was for Parliament to decide which international offenses should be made prosecutable in domestic courts and that the courts no longer possessed any residual power to create new offenses in the event of statutory gaps, no matter how pressing the public interest. Furthermore, he noted that the liability of individuals for the crime of aggression is secondary to the acts of a state. The courts should not inquire into the “discretionary powers” of the state to use force. Lord Mance in his speech noted that not all public international law crimes must, or should, be incorporated into the domestic penal code.
The Appeals were dismissed. Several of the appellants were allowed at trial to argue that they were seeking to prevent specific and codified war crimes from being committed, principally the release of cluster bombs and munitions tipped with depleted uranium. Last I was able to determine, the trials ended with hung juries and the defendants were slated to be retried.
In their speeches, the Lords recognized that since the early days of the International Law Commission’s Draft Code of Crimes Against the Peace and Security of Mankind, individual responsibility for the crime of aggression has been intrinsically and inextricably linked to the commission of aggression by a state. Thus, prosecuting the crime of aggression in domestic courts would necessarily involve those courts in non-justiciable inquiries into foreign policy/national security decisions to use force by the home or foreign states. Indeed, as a predicate to finding an individual liable for the crime of aggression, courts would have to declare an act of state to be unlawful. Creating a unique or inverse complementarity regime for the crime of aggression would avoid this. To date, delegates have not focused on this implication of expanding the Court’s subject matter jurisdiction to the crime of aggression, but they would do well to do so.


(Disclosure: I've been advising the Department of State on the aggression negotiations. Any views expressed here are my own).

On April 28

On this day in ...
... 1838, the namesake of a Dutch research consortium familiar to international lawyers all over -- Tobias Michael Carel Asser (left) -- was born in Amsterdam into a family of jurists. He himself became a lawyer, then began teaching law, and eventually devoted himself to international law as a professor at what became the University of Amsterdam. His belief that interstate dialogue would serve global peace led him to spearhead a number of landmark private and public international law conferences at The Hague. Asser also served as a governmental legal adviser and diplomat, inter alia as the Dutch delegate to the Hague Peace Conferences of 1899 and 1907 (prior posts here and here), and he was an inaugural member of the Permanent Court of Arbitration. On account of these contributions, Asser shared the 1911 Nobel Peace Prize; he died in 1913 at The Hague. In 1965, the law faculties of universities in Amsterdam, Groningen, Leiden, Nijmegen, Rotterdam, Tilburg, and Utrecht founded the Hague-based T.M.C. Asser Instituut in his name.


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

Tuesday, April 27, 2010

More on International Justice Dialogue

(We welcome IntLawGrrls guest/alumna Valerie Oosterveld back for this guest post. Valerie, in turn, extends her thanks for the invitation to contribute to the blog.)

In her post a few days ago, IntLawGrrl Susana SáCouto highlighted the International Gender Justice Dialogue held last week in Puerto Vallarta, Mexico. She featured the panel on “Prosecutions and Jurisprudence – What have we achieved and what remains to do done?”
Other panels at the Dialogue, which I attended, focused on “Peace Talks and Outcomes – Strategies and Challenges”, “Women’s Rights and Peace Advocates in Conflict Situations and Fragile States” and “Mandates and Opportunities for Justice and Peace”.
While some originally-scheduled speakers were not able to attend due to travel disruptions caused by the Icelandic volcano, speakers did include: Jody Williams (Nobel Peace Prize Laureate and Chair of the Nobel Women’s Initiative), Fatou Bensouda (International Criminal Court, by video), Joanna Sandler (UNIFEM), Monica McWilliams (Chief Human Rights Commissioner, Northern Ireland, by video), Esther María Gallego Zapata (Ruta Pacifica de las Mujeres, Colombia), Sarai Aharoni (Hebrew University, Israel), Yanar Mohammed (Organisation of Women’s Freedom in Iraq), Thin Thin Aung (Women’s League of Burma, India), Gilda Maria Rivera Sierra (Centro de Derechos de Mujeres, Honduras), Chavi Nana (International Criminal Court), Susannah Sirkin (Physicians for Human Rights, USA), and
Kristin Kalla (International Criminal Court Trust Fund for Victims).
The Dialogue’s website contains video presentations of these speakers, including the powerful and inspiring closing presentation by Dr. Joan Chittister, co-chair of The Global Peace Initiative of Women, which you can watch here.
As the event was indeed a dialogue, the second day of the gathering focused on brainstorming around the themes of “Justice and Jurisprudence”, “Peace Talks and Implementation”, and “Communicating Gender Justice”. I served as a rapporteur for the group on Justice and Jurisprudence, which tackled key questions such as:
► “What are the judicial obstacles to the advancement of gender justice?”
► “What are some upcoming opportunities within the International Criminal Court and elsewhere for advancing gender justice?”
► “Where does the field of international criminal justice need to be in relation to gender issues in the next 3-5 years?”
The Women’s Initiatives for Gender Justice also took the opportunity of the Dialogue to launch its newest publication, “In Pursuit of Peace”, which can be accessed here.
Writing from Kenya, as air travel cancellations kept her from attending, Ava A. Maina Ayiera summarized the feelings of the attendees at the Dialogue well:
'I do not know what journeys and stories of women’s rights, women’s empowerment emerge from Iceland, yet their stories, my stories will connect and mirror each other; stories of women determined to realize equality, to redress discrimination, to resist the degradation that comes with patriarchy and to seek justice.'

On the Job! Human Rights in China

(On the Job! pays occasional notice to interesting intlaw job notices)

HRIC is a nongovernmental organization founded by Chinese students and scholars in March 1989, months before the Tiananmen demonstrations (about which IntLawGrrls have posted here). From offices in New York, Hong Kong, and Belgium, HRIC's "board and staff include Chinese, North American, and European individuals devoted to fostering greater space for democratic reforms and social justice," and to advancing the "mission to promote international human rights and advance the institutional protection of these rights in the People’s Republic of China."
The NGO is recruiting for the following positions, most of which require language skills in both Mandarin and English:
► Program Directors in New York and Hong Kong, and, in New York,
► Marketing and Operations Associate,
► Communications Officer, and
► Information Communications Technology/Web Developer.
Details here.


On April 27

On this day in ...
... 1848, the Conseil of the provisional government of France issued Décret relatif à l'abolition de l'esclavage dans les colonies et les possessions françaises, which outlawed slavery in all French territories. The decree stated in part:
A l'avenir, même en pays étranger, il est interdit à tout Français de posséder, d'acheter ou de vendre des esclaves, et de participer, soit directement, soit indirectement à tout trafic ou exploitation de ce genre. Toute infraction à ces dispositions entraînera la perte de la qualité de citoyen français.

That is,

In the future, even in foreign countries, every French person is forbidden to possess, to purchase, or to sell slaves, and to participate directly or indirectly in the trafficking or exploitation of slaves. Every infraction of this provision will be subject to loss of French citizenship.

This was not France's 1st go-round on the issue: Slavery had been abolished in 1794, during the French Revolution, but then was reinstated in 1802 by Napoleon. (credit for photo of 1998 commemorative stamp)



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

Monday, April 26, 2010

The Vietnam War: Take II

The United States pulled out of an intractable, expensive and highly destructive war in Vietnam in 1975. For decades thereafter, relations between the two countries was nonexistent. But then ever so slowly came the thawing. Trade was a big part of The Great Thaw. Since time immemorial, whether the war involved companies or countries, real peace came only after the warring parties had established strong and deep trade ties between them. Trade has a way of creating new relationships and new memories.

Such has been the experience of Vietnam and the United States. Despite the bitter memories of mass bombings and torture cells deep in the jungle, the two countries forged a path to peace. In 2007, Vietnam joined the World Trade Organization with the aid and support of the United States. Vietnam's accession signaled the renewal of its ties with the international community. But just as important, it signaled a new relationship with the United States. The bonds of that new relationship are now being tested. Just a few weeks ago, Vietnam filed its first ever dispute in the WTO. Against whom? The United States.

In United States — Anti-dumping Measures on Certain Shrimp from Viet Nam (DS404), the two countries once again face off on some heated issues. The U.S. believes Vietnam is "dumping" large quantities of shrimp into the U.S. market. In trade law, dumping occurs when the exporting country sells its products into the domestic market either for less than the cost of production or less than the price sold at home. It is an unfair trade practice, and most countries have laws against such a practice. Vietnam, however, takes issue with the way the United States has calculated the so-called "dumping margin" -- an additional charge the U.S. imposes on Vietnamese shrimp to raise the price to more accurately reflect its normal value (i.e., it's "fair price"). The U.S. dumping methodology has long been under attack, indeed the WTO previously ruled the complicated "zeroing" method in dispute violated U.S. WTO obligations.

In this war, as in the last, Vietnam is likely to win an unexpected victory. What will this mean for relations between the two countries? Thankfully, in a sign of how far we have come since 1975, it is likely to have no effect. Trade = Peace

'Nuff said

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

If the administration is hoping to showcase the strength of its military and the president's tough stance on terrorism, this probably wasn't the best way to do it.

-- Daphne Eviatar (below left), Senior Associate at the Law and Security Program of Human Rights First, concluding a commentary provoked by news that the military commission trial of Omar Khadr, alleged child soldier pictured above right at time of capture years ago, may begin -- "or not" -- this week at Guantánamo.

On the Job! Haiti country consultant

(On the Job! pays occasional notice to interesting intlaw job notices)

The American Jewish World Service, an international development organization, seeks a person experienced in community development and/or human rights, with particular focus on the needs of women, youths, and/or persons with disabilities, to be its full-time country consultant for Haiti.
This country consultant will work directly with the organization's grants team on developing, implementing, and monitoring a plan to strategic plan for aid in post-earthquake Haiti.
Experience and knowledge respecting Haitian society, politics, and economy, as well as skill in English and Kreyol, are required. Applications should be submitted no later than April 30. For details, contact aestrella@ajws.org.

On April 26

On this day in ...
... 1922, Jeanne Mathilde Sauvé (left) was born in Prud'homme, Saskatchewan, Canada. After attending university in Ottawa and Paris, she became a journalist, then, on the urging of her husband, entered politics and was elected to Canada's Parliament. (credit for portrait circa 1989-90) In 1972 she became the 1st woman living in Québéc to serve in the federal Cabinet, 1st as Minister for Science and Technology, then Minister of the Environment, and finally Minister of Communications. "[S]he was the first woman elected as Speaker of the House of Commons, she opened the first daycare on Parliament Hill, and she was the first woman to serve as Governor General" of Canada. (That last post is currently held, as we've posted, by another woman, Haiti-born Canadian Michaëlle Jean.) A "staunch advocate of issues surrounding youth and world peace," and a promoter of those issues in Canada and in the United Nations, Sauvé, who died in 1993, incorporated the dove of peace into her official coat-of-arms.


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

Sunday, April 25, 2010

Human Rights in My Backyard: Feeling Blue About Being Purple

My home state of Virginia is supposed to be a purple state, but it hasn’t felt very purple lately.
On Wednesday, the Virginia General Assembly voted to restrict state funding for abortions when the health of the mother is at risk. According to the Washington Post:
On a 20 to 19 vote, the Democratic-led Senate agreed to an amendment proposed by McDonnell (R) that would limit state funding for abortions to those performed in cases of rape or incest or when the life of the mother is at risk. Nothing in state law previously prohibited Medicaid-funded abortions in instances when the health of the mother was in jeopardy.
The proposal to restrict state funding came from Virginia Governor Bob McDonnell, a staunch conservative who took office on January 16, 2010. Abortion rights supporters fear that the measure will affect all Medicaid abortions at public hospitals in the state except those that fit into the narrow exceptions for rape, incest, and life of the mother. This latest insult to women’s rights comes on the heels of McDonnell’s comments about a week ago, in which he declared April to be Confederate History Month and intentionally omitted anti-slavery language in his Proclamation. He infuriated civil rights leaders in the state and attempted to defend his actions by minimizing the role of slavery in the war. McDonnell’s efforts to mobilize the conservative base in this purple state may do real harm in the lives of women and people of color in the state – and may, regrettably move us from purple to red.

On April 25

On this day in ...
... 2005 (5 years ago today), the Treaty of Accession of Bulgaria and Romania was signed in Luxembourg, thus setting the stage for the joinder of those 2 countries to the European Union on January 1, 2007. With the addition of Bulgaria and Romania, the European Union comprised 27 member states, as it does to this day.

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

Saturday, April 24, 2010

Go On! The Global Regulation of Nanotechnologies

(Go On! is an occasional item on symposia and other events of interest) What could recent developments in drug delivery, food production, energy, building construction, and cosmetics have in common? Nanotechnology, or “the science of the very small.”
Our colleague Sonia E. Rolland, Assistant Professor of Law at Northeastern University School of Law (below, right), is co-organizing a two-day conference on the transnational legal implications of nanotechnology with Dr. Makane Mbengue. Lecturer at the University of Geneva, Switzerland (below, left.)
The meeting takes place on 7-8 May 2010 at the law school’s Boston, Massachusetts campus.
An interdisciplinary gathering, the conference will bring together scientists, lawyers, ethicists, government officials, industry leaders and NGO advocates to discuss the range of global challenges and possibilities presented by "nanotech."
Speakers from Brazil, South Korea, Switzerland, Australia, Canada, Senegal, France, and the United States will discuss intellectual property rights, commercial aspects of nanotech development, and ethical concerns. The conference is open to all and includes a heavily discounted rate for students. For the full program and registration information, click here.

U.S. Policy in Kampala: A New Report

The Council on Foreign Relations has recently released a report written by Vijay Padmanabhan of Yeshiva University’s Benjamin N. Cardozo School of Law (left) entitled "From Rome to Kampala: The U.S. Approach to the 2010 International Criminal Court Review Conference." Yours truly served on the Council's Advisory Committee along with a number of other academics, practitioners, former government officials, human rights activists, and Council members.
The Report acknowledges the keen U.S. interests in an effective International Criminal Court but raises questions about the direction the aggression negotiations have taken to date. It also provides concrete suggestions to U.S. policymakers about how to contribute constructively to the negotiations and achieve their strategic aims at Kampala without appearing obstructionist or re-alienating other delegations.
As a first order of business, the Report recommends that the U.S. focus on dissuading state parties in Kampala from activating the aggression provisions. The concern is that these provisions will undermine the Court's core work in prosecuting atrocity crimes and threaten vital U.S. security interests in a way that will make U.S. cooperation with the Court, no less membership, more difficult. The Report cites a number of objections to the Court's assertion of jurisdiction over aggression. Namely:

Prosecuting aggression risks miring the court in political disputes regarding the causes of international controversies, thereby diminishing its effectiveness and perceived legitimacy in dispensing justice for atrocity crimes.
The aggression provisions also pose

unique risks to the United States as a global superpower. It places U.S. and allied leaders at risk of prosecution for what they view as necessary and legitimate security actions.

Finally,

Adding aggression to the ICC’s mandate would also erode the primacy of the UN Security Council in managing threats to international peace.

Although the Report criticizes the existing definition of the crime of aggression (which has achieved a fragile consensus in draft Article 8bis) as too vague to serve as the basis for assigning individual criminal responsibility, it recommends against trying to offer even well-meaning "fixes" to the text on the ground that many states consider the issue to be "closed" after several rounds of negotiations.
The other main agenda item for Kampala is a stocktaking exercise to reflect on past experiences and offer guidance toward improving the functioning of the Court going forward. This stock-taking will focus on four main areas:

  • Victim Outreach
  • State Cooperation
  • National Prosecutorial Capacity
  • Peace & Justice
The Report recommends that the U.S. contribute actively to these discussions with an emphasis on the United States' past experience in these areas as well as potential future contributions, especially in the event that the United States achieves its aims at Kampala. In particular, Report emphasizes that the United States should commit to providing technical and financial support to national systems to improve the operation of the system of complementarity. In addition, the United States should make clear its intention to cooperate with the Court in terms of financial and technical support, political and military support in capturing suspects, and evidence gathering.
Finally, the report recommends that the United States send a cabinet-level representative to Kampala in addition to Stephen Rapp, the U.S. Ambassador at Large for War Crimes Issues (left), to signal our re-engagement with the Court and the importance of the negotiations, and to issue a formal statement of support to further undo the Bush Administration's more combative approach.
The Report is definitely worth a read. All the proposed amendments to the ICC Statute that will be under consideration can be viewed here.

On April 24

On this day in ...
... 1985 (25 years ago today), the Canada Supreme Court held that the governmental ban on Sunday shopping unconstitutionally infringed on the freedom of religion and conscience, guaranteed in Article 2(a) of Canada's Charter of Rights and Freedoms. (photo credit) In Regina v. Big M Drug Mart Ltd., Justice Robert George Brian Dickson wrote of the statute under review:
'To the extent that it binds all to a sectarian Christian ideal, the Lord's Day Act works a form of coercion inimical to the spirit of the Charter and the dignity of all non-Christians. It takes religious values rooted in Christian morality and, using the force of the state, translates them into a positive law binding on believers and non-believers alike.'


(Prior April 24 posts are here, here, and here)

Friday, April 23, 2010

Takin' It to the Council

There's been a flurry of activity over the past week as immigrants' rights organizations have finalized their submissions to the United Nations Human Rights Council's Universal Periodic Review of the United States of America, scheduled for November 22 - December 3 of this year. While the reports make for grim reading, it's inspiring to see groups ranging from the Chaldean Federation of America to the Coalition of Immokalee Workers embracing a human rights approach to the protection of migrants in the United States. In the words of the Advocates for Human Rights report, endorsed by dozens of national and state organizations from Human Rights First to the UFCW Local 789, "International law recognizes that while the United States has the right to control immigration that right is tempered by its obligations to respect the fundamental human rights of all persons." Given the limitations of constitutional protections for non-citizens and the inherently transnational nature of immigration law, the turn to international human rights law makes ample sense.
The four reports that I've seen so far focus on different aspects of the U.S. immigration system. The Advocates for Human Rights report, focusing on the cluster of migrants, refugees, and asylum seekers, presents three proposals for reform: protecting due process and family unity in the immigration system, ending blanket and arbitrary detention of immigrants, and ensuring compliance with the 1951 Convention Relating to the Status of Refugees. A few shocking facts -- the Department of Homeland Security will spend nearly $17 billion on immigration enforcement in FY 2011; over 1 million family members are estimated to have been separated by deportation between 1997 and 2007; 1-2 migrants die per day crossing the border from Mexico to the U.S.; and nearly 100 migrants in DHS custody died between 2003 and 2009. A total of 26 reports were published between 2007 and 2009 highlighting the failures of the U.S. immigration detention system.
A second report, submitted by the Centro de los Derechos del Migrante, the Coalition of Immokalee Workers, the Global Workers Justice Alliance, and the Transnational Legal Clinic at the University of Pennsylvania Law School, focuses on the cluster group of migrant laborers. Noting that "the migrant worker experience is marred by systemic failures of the United States to protect their human rights," the report highlights human rights violations from recruitment through the conclusion of the employment relationship: rising border deaths, exploitation of migrant workers, and legal and practical barriers to accessing justice for migrant workers. The report discusses the exclusion of migrant workers from the protections of federal labor laws, such as the National Labor Relations Act and the Fair Labor Standards Act, that fail to cover domestic workers and agricultural workers. It estimates that anywhere from 300,000 to 800,000 children work in the agriculture industry, often earning less than $2 an hour, risking pesticide poisoning, heat illness, and life-long disabilities, not to mention a 50% drop-out rate from school.
A third report submitted by a long list of stakeholders including the Heartland Alliance National Immigrant Justice Center, the American Friends Service Committee, and the Florida Immigrant Advocacy Center, exposes human rights violations in the immigration detention system. The report recommends that, in order to comply with the UDHR and the ICCPR, the United States must provide individual custody determinations for immigration detention, provide judicial review over custody decisions, and ensure that conditions in immigration detention facilities reflect the civil nature of the government's detention authority. The report highlights the specific problems faced by women and girls in immigration detention, including separation from family members and rape and other forms of sexual assault. It also discusses the challenges faced by LGBT detainees, who are often the target of harassment and abuse because of their sexual orientation, and as a result may be segregated into solitary confinement.
Last but not least, the Seton Hall University School of Law Center for Social Justice and New York Lawyers for the Public Interest submitted a report focused on the extrajudicial involuntary deportation of immigrant patients by U.S. hospitals. The report argues that U.S. laws and policies that severely restrict immigrant eligibility for publicly supported health care have led to this practice of extrajudicial medical repatriation of seriously ill or injured indigent immigrant patients to countries lacking medical care, in violation of U.S. obligation under the UDHR, the ICCPR, CERD, and the UN Convention on the Rights of Persons with Disabilities. While data on medical deportations are not reliable, over 100 such removals have been documented, including one case in which Atlanta's Grady Hospital repatriated 10 to 13 dialysis patients to Mexico, four of whom died after their transfer. The report recommends ending this practice of involuntary extrajudicial deportation, enforcing federal hospital discharge laws, imposing more stringent reporting requirements on adverse consequences to patients following discharge, and the provision of universal health care regardless of immigration status.
Though the latter may be the most quixotic of all of the recommendations, there's still hope that we may see some of the other changes made under the Obama Administration. In any case, it's a strong showing from the immigrants' rights community, and one that will surely be considered seriously by the Human Rights Council this fall.

On April 23

On this day in ...
... 1945 (65 years ago today), 7,000 women inmates of Ravensbrück concentration camp were turned over to the Swedish Red Cross, which brought them to be cared for in Sweden, a neutral country during World War II. (credit for photo showing chalk marks on back of prisoners selected to go to Sweden) The transfer resulted from negotiations between Swedish Count Folke Bernadotte and the head of the Nazi SS. Within days the SS would evacuate 15,000 other inmates on a forced death march. At month's end Soviet troops would liberate the camp, finding still there as many as 3,000 sick and dying inmates. In its 6 years of existence, the eastern Germany camp had housed more than 120,000 prisoners, all but 20,000 of whom were women; tens of thousands died there. Many others were subjected to medical experimentation, for which some officials would, as we've posted, stand trial at Nuremberg and elsewhere.

(Prior April 23 posts are here, here, and here)

Thursday, April 22, 2010

International Gender Justice Dialogue

From 20-21 April, the Women's Initiatives for Gender Justice in collaboration with the Nobel Women's Initiative hosted the International Gender Justice Dialogue, in Puerto Vallarta, Mexico.
The goal was to bring together gender experts, feminist legal theorists, peace mediators, legal practitioners, jurists, women’s rights advocates, policy makers, members of the media, and activists to identify and develop a strategic, shared agenda for advancing gender justice around the globe.
Although most participants from Europe and Africa were unable to attend because of the volcanic eruption in Iceland (which grounded flights throughout Europe), participants from other regions gathered for a day of panels and a second day of working group discussions. Among the highlights was Women's Initiatives Executive Director and IntlawGrrl guest/alumna Brigid Inder's (pictured right) opening speech, which you can read here.
As Professor Tina Dolgopol (pictured left left), of Flinder Law School in Adelaide, South Australia, noted in her observations about the first day,
A recurrent theme is the necessity of building networks, ensuring that your work
is based on an agreed and transparent set of principles and that you communicate often with your supporters. We hear these ideas from those involved in peace processes, justice networks and from the promotion of women’s rights generally.
IntLawGrrls Kelly Askin and I spoke on a panel entitled "Prosecutions and Jurisprudence - What have we achieved and what remains to be done," along with Professor Catharine A. MacKinnon, who sent in her comments via video. The session was moderated by IntLawGrrl guest/alumna Valerie Oosterveld.
One of the areas I touched on was a project we are undertaking that will hopefully contribute to the process of how we better assess the jurisprudence coming out of the international criminal tribunals, and therefore, the impact these tribunals are having on gender justice.
In October 2008, my office (the War Crimes Research Office at American University's Washington College of Law) organized, in collaboration with the WCL's Women's International Law Program, a two-day conference on “Prosecuting Sexual and Gender-Based Crimes Before International/ized Criminal Courts.” Participants brainstormed about potential strategies and what was needed to improve the prosecution of sexual- and gender-based crimes before these tribunals. High on the list was the need for a modern, searchable, online database of cases (and related documents) coming out of these tribunals, focused on sexual- and gender-based crimes. In response to this need, last year we launched the Gender and ICL Jurisprudence Collections Project. The project has four phases:
1) collection of key decisions, orders and judgments relating to sexual and gender-based violence and making them available online so that you will be able to search them within and across courts;
2) key-wording those cases to facilitate searches relating to how these tribunals have handled cases involving sexual and gender-based violence;
3) digesting those cases with a view to highlighting the facts, allegations or factors affecting the prosecution of such crimes; and
4) providing commentaries on a select number of cases we identify as critical to understanding the development of the law in this area.
The basic aim of the project is to facilitate research in this area by practitioners, advocates and academics, but more importantly to “surface” the decisions that may go unnoticed between indictment and judgment, but which have important consequences for how sexual and gender-based violence is treated by these tribunals.
Follow outcomes from the Gender Justice Dialogue working groups here.

Pulp facts & environmental courts

An International Court of Justice decision issued this week has prompted a call for establishment of an international environmental tribunal.
Argentina had filed an application with the ICJ, based in the Peace Palace at The Hague, Netherlands (left), in 2006. It sought to hold its eastern neighbor responsible for paper factories' pollution of the river that forms a border between the 2 countries. In Tuesday's judgment, captioned Case Concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay), Argentina, for the most part, lost out:
► An 11-3 majority of the ICJ declined to find that Uruguay had breached "substantive obligations" contained in the Statute of the River Uruguay, a 1975 treaty between the countries.
► A 13-1 majority did reproach Uruguay for failing to discuss with Argentina plans for construction of the mills, located in the circled area at right. (map credit) This failure was deemed a breach of "procedural obligations" contained in that Statute. But as for remedy, "the declaration by the Court of this breach constitutes appropriate satisfaction," the majority wrote at ¶ 282.
(Dissenting from the 1st ruling, against Argentina, were Judges Awn Shawkat Al-Khasawneh of Jordan and Bruno Simma of Germany, as well as Judge ad hoc Raúl Emilio Vinuesa of Argentina. The lone dissenter from the 2d ruling, against Uruguay, was Judge ad hoc Santiago Torres Bernárdez of Uruguay.)
A Le Monde article by Stéphanie Maupas observed that this judgment in Pulp Mills marked the latest in a string of ICJ decisions implicating environmental law. Others have included:
Nuclear Tests (New Zealand v. France) and Nuclear Tests (Australia v. France), both issued in 1974;
Gabčíkovo-Nagymaros Project (Hungary/Slovakia) (1997), involving a hydroelectric plant on the Danube River; and
Aerial Herbicide Spraying (Ecuador v. Colombia), a pending case arising from anti-drugs campaigns against coca plantations.
Why the assertion of a need for a new adjudicative body, given the possibility of suits not only in the ICJ, but also in the International Tribunal for the Law of the Sea, headquartered in Hamburg, Germany?
Perhaps it has something to do with the report that although Argentina and Uruguay professed satisfaction with the ICJ's judgment, Argentine environmental activists "are refusing to give up their fight" and "raising the possibility of a violent confrontation if Argentine police have to intervene" to end the activists' blockade of the river's main bridge.
Maupas' article noted that in fora like the ICJ and ITLOS,

[O]nly nation-states may be parties. There exists no international tribunal concerned specifically with the environment. Accordingly, neither the December 1984 catastrophe in Bhopal, India, nor the April 1986 disaster in Chernobyl, Ukraine, were the subjects of proceedings at the international level, and the victims, supported by nongovernmental organizations, still clamor for their right to justice.

Michel Prieur, of the Commission on Environmental Law of IUCN, the International Union for Conservation of Nature (prior IntLawGrrls post), contended that a forum in which individuals may litigate is needed in order to advance development of an international jurisprudence by which the environment is protected as a common good. In words evocative of Trail smelter (left) (photo credit), an arbitral chestnut, the Le Monde article quoted Prieur:
'States must conduct their activities in a way that does not contaminate their neighbors.'

Go On! Comparative law congress

(Go On! is an occasional item on symposia and other events of interest) Along with 3 D.C.-based law schools, the American Society of Comparative Law will play host this summer to a weeklong international conference.
The XVIIIth International Congress of Comparative Law will take place at American University Washington College of Law, George Washington University Law School, and Georgetown Law from July 25 to August 1, 2010.
This marks the 1st time this quadrennial conference of the Paris-based International Academy of Comparative Law will be held in the United States. The agenda includes many sessions on all aspects of comparative law, as well as a banquet at the Organization of American States headquarters (left).
Confirmed speakers include:
► U.S. Supreme Court Justice Ruth Bader Ginsburg
► Italian Constitutional Court Justice Sabino Cassese
► American Bar Association President Carolyn Lamm
Details and registration here; note that fees increase after April 30, 2010.

On April 22

On this day in ...
... 2005 (5 years ago today), Zacarias Moussaoui pleaded guilty to participation in an al Qaeda conspiracy connected with the terrorist attacks of September 11, 2001. This January, the U.S. Court of Appeals for the 4th Circuit affirmed the conviction-by-plea and consequent sentence to life imprisonment, which Moussaoui (left) is serving at the U.S. "Supermax" prison near Florence, Colorado. Meanwhile. as yet untried, Khalid Sheikh Mohammed (prior posts) and other alleged participants in the 9/11 attacks, all detained at Guantánamo.

(Prior April 22 posts are here, here, and here)

Wednesday, April 21, 2010

Prominent Woman in International Law Award

At the American Society of International Law Annual Meeting last month, WILIG, the Women in International Law Interest Group, conferred the Prominent Woman in International Law Award on Dinah Shelton, the Manatt/Ahn Professor of International Law at George Washington University Law School, the first woman nominated by the United States to become a member of the Inter-American Human Rights Commission (prior post) -- and one of WILIG's founders. Her full speech, "Where I sit and where I stand," is available on the WILIG listserv at ASIL, but here is an interesting observation about the history of women in international law that she included:

I particularly miss my dear friend Virginia Leary, with whom I initially chaired WILIG. We were part of a small group, along with Kit Bigelow, Edith Brown Weiss, Cynthia Lichtenstein, and Amy Young, who started this wonderful association [WILIG] some 30 years ago. At that point women were being admitted to law school in growing numbers and this brought more into the Society [ASIL], which was not so quick to recognize this new reality. The 75th anniversary meeting was the catalyst: not a single (or married for that matter) woman international lawyer from the U.S. appeared on the program. We decided that was the last time such a result would occur.

And here's a tantalizing paragraph that explains the title of her talk:
Now, to turn to sitting and standing…. One of the members of the current US administration has repeatedly said when asked about his new position and policy on certain international matters that “where you stand depends upon where you sit.” I’ve given that a lot of thought, because I am now sitting in a new position as member and vice-president of the Inter-American Human Rights Commission. We are just finishing our first two week session since my election. What have I learned about where I stand from where I sit, and what does that phrase actually mean?

Read more here.