Thursday, September 30, 2010

Rejecting Refugees

The New York Times today reports on my most recent co-authored empirical study of the U.S. asylum system, Rejecting Refugees: Homeland Security's Administration of the One-Year Bar to Asylum, forthcoming in the William and Mary Law Review. As the title suggests, this article focuses on asylum law's one-year filing deadline, which was created by the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). Scholars and practitioners have long expressed concern that refugees have been denied asylum due solely for failure to apply within a year of entry, and fear that the bar has had a significant impact on the U.S. asylum system. Our article is the first systematic empirical study of the effects of the deadline on asylum seekers and the asylum system.
We focus on decision-making by the Department of Homeland Security, which adjudicates most applications for asylum in the first instance. The findings are troubling. Most notably, it is likely that since the one-year bar came into effect, in April 1998, through June 2009, DHS rejected on the deadline more than 15,000 asylum applications (affecting more than 21,000 refugees) that would otherwise have been granted.
"Rejected" means that these asylum seekers could, if they had sufficient resources, have pursued their case further in immigration court. Because the data systems used by DHS and the immigration courts (which are part of the Department of Justice) do not regularly coordinate and track cases, we cannot tell how many of these applicants were successful in immigration court. If immigration judges decided these cases the same way as the asylum officers, many refugees were ordered deported not because they failed to establish eligibility for asylum but because they did not file their applications within a year of entry. Even those asylum seekers lucky enough to win their one-year deadline arguments in immigration court faced the expense and trauma of an appeal, not to mention the delay, during which their family members remaining in their home country might suffer serious harm. (Spouses and children are eligible to join successful asylum seekers in the United States.)
The data give rise to concerns that certain populations were more adversely affected by the deadline than others. Women were significantly more likely to file very late (three or more years after the deadline had passed) than men, perhaps because they are more likely to suffer sexual violence and therefore more reluctant to reveal what happened to them. Moreover, women claiming asylum on gendered grounds, such as domestic violence and female genital mutilation, might not become aware that they are eligible under the law until they have lived in the U.S. for several years. Asylum seekers from certain countries, such as the Gambia and Sierra Leone, were much more disadvantaged by the deadline than applicants from other countries, such as Haiti and India. Though we can't know from the data the cause of this disadvantage, it is possible that the deadline particularly impacts refugees who do not have a strong community of immigrants from their home countries who can help to guide them through the asylum process.
Our recommendation? The deadline should be repealed, as several bills introduced in Congress propose. Short of repeal, the Obama administration should amend its regulations to broaden the scope of exceptions to the deadline and expand its training of asylum officers to encourage acceptance of a broader range of evidence and engagement in proactive questioning to establish applicants' compliance with the deadline.

(cross-posted on Concurring Opinions)
(credit for photo above left)

Go On! Proving International Sex Crimes

The Forum for International Criminal and Humanitarian Law in connection with Yale University and the University of Cape Town is hosting a seminar on "Proving International Sex Crimes" in New Haven on Oct. 15-16, 2010.
Professor Morten Bergsmo (University of Oslo, Visiting Professor at Georgetown Law Center) (right) is organizing the seminar and will also serve as a moderator for IntLawGrrls' workshop two weeks later on Gender and International Criminal Law at ASIL's Tillar House.
The purpose of the Yale seminar is to

advance the discourse on international gender crimes by addressing one of its weakest links, the effective enforcement of individual criminal responsibility for such violations, in particular for those with higher responsibility.

Key questions to be explored include:

  • What are the legal requirements for such crimes for the different forms of participation in their commission?
  • Which requirements are conduct-specific and which refer to the context in which the conduct occurred?
  • How have the different legal requirements been proved in cases?
  • Where do the main difficulties lie and what are the typical excuses?
  • What is the significance of 'systematic' sexual violence, sexual violence as a 'tool or instrument of warfare', and sexual violence as 'persecution'?
  • What can be learned from the prosecution of other international crimes for the prosecution of sex crimes?
The full program is available here.
Speakers include our colleagues:
IntLawGrrl Kelly Dawn Askin (Open Society Justice Initiative)
IntLawGrrl Beth Hillman (Hastings School of Law, Visiting Professor at Santa Clara University School of Law) (left)
Elisabeth Wood (Yale University) (right)
David Cohen (U.C. Berkeley)
Hope to see you there!

On September 30

On this day in ...

... 1991, military leaders took control of Haiti, ousting the elected President, Jean-Bertrand Aristide, and sending him into exile in France. Contending that "[a]fter seven months of democratic experience, the country once again finds itself a prey to the horrors of uncertainty," Brig. Gen. Raul Cedras said in a broadcast. "Today, the armed forces find themselves obligated to assume the heavy responsibility to keep the ship of state afloat." The coup took place just days after Aristide's return from his speech before the U.N. General Assembly and a celebration among Haiti's New York-based diaspora. The junta would rule for 3 years, until the arrival of a U.N. backed multinational force, and the eventual restoration of elected governments.


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

Wednesday, September 29, 2010

No Alien Tort Liability for Corporations?

A serious, perhaps, mortal blow has been dealt to the Alien Tort Statute by the U.S. Court of Appeals for the Second Circuit. The ATS creates federal jurisdiction over

any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.
In its opinion in Kiobel v. Royal Dutch Petroleum Co., however, the Second Circuit dramatically narrowed the scope of the ATS by ruling that it did not apply to "juridical persons," meaning corporations.
Since the groundbreaking judgment in Filártiga v. Peña-Irala (2d Cir. 1980), which was brought by my dearly-missed colleague Rhonda Copelon and the Center for Constitutional Rights, the ATS has offered victims of human rights abuses the prospect of access to U.S. courts.
In Kiobel, the oil company defendants stood accused of aiding and abetting the Nigerian government's campaign of human rights abuses in the Niger Delta, Nigeria's oil-producing region. The litany of human rights violations at issue in the case included allegations of torture, arbitrary detention, and crimes against humanity. Unfortunately, these allegations can no longer be heard in U.S.courts. The Second Circuit ruled on September 17th that corporations cannot be sued under the Alien Tort Statute because they are “juridical” entities rather than natural persons. Should this ruling be adopted throughout the U.S. court system, it would gut the scope of the ATS, making it very likely that corporations participating in human rights abuses will escape any accountability for their conduct.
The Niger Delta is home to 31 million people. (map credit) Since oil exploration began some 50 years ago, the region has suffered an Exxon Valdez-sized oil spill every year. As you can imagine, these spills have devastated the local population. In 2009 Amnesty International reported that the oil industry in the Niger Delta of Nigeria
has brought impoverishment, conflict, human rights abuses and despair to the majority of the people in the oil-producing areas.
Local populations have failed to benefit from the wealth generated by oil production, even as they suffer its environmental consequences. Before being despoiled by oil pollution, the Niger Delta was one of the most important wetlands in the world. BP's oil spill in the Gulf of Mexico (see previous Intlawgrrl posts here, here and here) focused public attention, albeit briefly, on the ongoing environmental devastation in the Niger Delta. (You can hear an interview I did with WBEZ Chicago Public Radio’s Worldview Program on this topic here.)
Just last year, Shell Oil settled an ATS case alleging the company’s complicity in the hanging deaths of nine Ogoni activists, including the world-renown poet Ken Siro Wiwa. Cases alleging similar human rights abuses in oil production have been brought against Talisman Energy for its activities in the Sudan, Unocal for its activities in Burma, and Chevron for its activities in Ecuador. (News on that last suit here.)
Second Circuit Judge José A. Cabranes interpreted international law precedents extremely narrowly in order to concluded that, throughout history,
the principle of individual liability for violations of international law has been limited to natural persons—not ‘juridical' persons such as corporations.
This despite the fact that the Universal Declaration of Human Rights explicitly applies to "every individual and every organ of society." Over the objections of Judge Pierre N. Leval, Judge Cabranes, joined by Judge Dennis Jacobs concluded that that U.S. courts lacked jurisdiction over ATS claims brought against corporate entities.
Given that oil production often takes place in countries without robust judicial systems, this cramped ruling virtually assures that victims will have no avenue of redress.
The United States consumes a quarter of the world’s oil—10% of which comes from Nigeria. That makes the United States the largest purchaser of oil produced in the Niger Delta. Our participation as end-consumers makes us unwitting collaborators to abuse in Nigeria and around the world. We surely have an interest in giving victims of these human rights abuses a forum in which to seek justice.

On September 29

On this day in ...
... 1954, the European Organization for Nuclear Research began operations. Dissolved was the provisional council on nuclear research in the region, which had been established a couple years earlier; nonetheless, the French acronym by which that first effort had been known, CERN, remains the shorthand term for this organization to this day. The organization now has 20 member states. Its laboratory, which "sits astride the Franco–Swiss border near Geneva," is a center for physics research; a number of its scientists have earned Nobel Prizes in the field.

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

Tuesday, September 28, 2010

Kudos to Colette Rausch

Happy to report that our colleague, Colette Rausch (left), has just been named Director of the Rule of Law Center of Innovation at the U.S. Institute of Peace in Washington, D.C.
I had the pleasure of working with Colette early in her 8-year career at the Institute -- I was among the hundreds of experts on the Model Codes for Post-Conflict Criminal Justice project for which she was a principal coordinator. Undertaken by the Institute of Peace undertook in tandem with the Irish Centre for Human Rights, National University of Ireland Galway, the project involved meetings across the globe. The aim, as posted, was to draft a Model Criminal Code, Model Code of Criminal Procedure, Model Detention Act, and a Model Police Powers Act. They're intended to be made available for use in postconflict and peacekeeping settings. Consequently Colette, along with Vivienne O'Connor, has coedited Model Codes vol. I, published in 2007, and Model Codes vol. II, published in 2008. Additional volumes are contemplated.
These are just 2 of the many and varied publications that Colette's produced; another is her book Combating Serious Crimes in Post-Conflict Societies (2006).
Focusing on criminal justice and police reform, Colette also has worked at the Institute on projects to foster discussion between civil society and security forces in countries like Nepal, Iraq, Haiti, and Afghanistan.
Before joining the Institute she was, inter alia: Director of the Department of Human Rights and Rule of Law at the Kosovo mission of the Organization for Security and Cooperation in Europe; resident legal adviser for the U.S. Department of Justice in Hungary and Bosnia; and an attorney in offices of the state attorney general, federal prosecutor, and federal public defender in Nevada.
Colette earned her B.A. degree from the University of Nevada, Reno, and her J.D. degree from Santa Clara University School of Law in California.

Heartfelt congratulations!

On September 28

On this day in ...
... 1995 (15 years ago today), a 400-page agreement to give control over a significant portion of the West Bank to Palestinians was signed by the leaders of Israeli and the Palestine Liberation Organization at a ceremony in the White House, as U.S. President Bill Clinton, Egyptian President Hosni Mubarak, and King Hussein of Jordan looked on. The signing leaders, Yitzhak Rabin and Yasser Arafat, then shook hands. Rabin would be assassinated in just 6 weeks; Arafat would die from natural causes 9 years later. As discussed in the press briefing at right by President Barack Obama, Secretary of State Clinton, and envoy George Mitchell, a new round of talks between current leaders of Israel and the Palestinian Authority was launched earlier this month.

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

Monday, September 27, 2010

Guest Blogger: Rebecca Richman Cohen

It's IntLawGrrls' great pleasure to welcome Rebecca Richman Cohen (left) as today's guest blogger.
After receiving her B.A. in Portuguese and Brazilian Studies from Brown University, Rebecca enrolled at Harvard Law School. (photo credit) While a law student, she served as a legal intern on a defense team in the Special Court for Sierra Leone case involving the rebel Armed Forces Revolutionary Council.
As Rebecca recounts in her guest post below, her experiences in Freetown led her to make War Don Don, a documentary about the Special Court trial of Revolutionary United Front member Issa Sesay. The 86-minute film has won a number of awards, including one at the 2010 SXSW Film Festival. Screened recently at the 4th International Humanitarian Law Dialogs in Chautauqua, New York, War Don Don will be broadcast this Wednesday, September 29, at 8 p.m. Eastern and Pacific times on HBO2, with a repeat airing at 2:30 p.m. Thursday, September 30.
Rebecca's also been as an adjunct member of the faculty at the Rhode Island School of Design in Provindence, where she taught Human Rights, Mass Atrocity, and Documentary Film, and at the Human Rights Institute at American University, where she taught Criminal Justice Stories in Film.
Heartfelt welcome!

Look On! War Don Don

(My thanks to IntLawGrrls for the opportunity to contribute this Look On! guest post about my film, War Don Don)

In the summer of 2006 I sat behind bulletproof glass in Freetown, in the observer gallery of the Special Court for Sierra Leone, an international war crimes "hybrid tribunal," created jointly by the United Nations and the government of Sierra Leone. At the time I was working not as a filmmaker, but as a law student and legal intern for a defense team. I was assigned to work on the case of Alex Tamba Brima, among three members of the rebel Armed Forces Revolutionary Council charged with crimes against humanity and war crimes stemming from the 1990s civil war in that West African country.
Yet I found myself drawn to observe the trial of the leader of a different warring faction.
From my seat in the gallery of the trial involving members of the Revolutionary United Front, I first observed Issa Sesay, a former rebel leader accused of crimes against humanity and a key player in the peace negotiations – and I was fascinated by the range of roles that one man could assume amidst the intensity of such a brutal conflict. I also came to know lawyers on both the prosecution (including prosecuted by Stephen J. Rapp, who since has become the U.S. Ambassador-at-Large for War Crimes Issues) and the defense. They were some of the brightest and most passionate advocates I have ever met.
I became convinced that the story of Sesay's trial needed to reach a larger audience. Combining my legal experience in criminal defense with my background as a filmmaker, I realized that a documentary film could communicate the complexities of Sesay's rise and fall from power – and its implications for a country still reeling from the horrors of civil war.
The result is War Don Don, an 86-minute film that has won awards at festivals and that, as detailed in the post above, will air this this week on HBO2. War Don Don tells the story of Sesay (depicted in the poster above right), whom prosecutors said is a war criminal, guilty of heinous crimes against humanity, and whom defenders said was a reluctant fighter who protected civilians and played a crucial role in bringing peace to Sierra Leone. (poster credit) The film puts international justice on trial, and finds that in some cases the past is not just painful, it is also opaque.
During the process of editing, we frequently made reference to Akira Kurosawa's Rashomon (1950); that is, to the ideas that
► Film (and trials) can put multiple narratives in tension;
► Truth can be unsettled;
► Perception influences memory; and
► Historical fact may be hard to prove, particularly in a trial.
On that note, we were also inspired by Andrew Jarecki's film Capturing the Friedmans (2003), which reminded that the idea that truth can be elusive, that people can play many different roles in the same story, and that no human being can be entirely defined by the horrible things that he or she may have done.
I knew we were done editing when different people took away different things from the film, when the film acted like a Rorschach test of sorts. Different audiences will come to their own conclusions – one of the greatest joys of documentary filmmaking is the debate that arises from having to sort through the tensions within and between conflicting stories.
I hope audiences enjoy having some of their assumptions tested and coming to examine their own reactions to controversial issues.

On September 27

On this day in ...
... 2002, East Timor (flag at left), as English speakers call the Democratic Republic of Timor-Leste, became the 191st member state of the United Nations. It was admitted by unanimous vote of the U.N. General Assembly, whose President noted that it "had been the first independent State to emerge in the twenty-first century." (In 2006, Montenegro became the 192d, and most recent, U.N. member state.) Composed of about 1.1 million people, East Timor is among the world's poorest countries.

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

Sunday, September 26, 2010

Brooking no apology

Show me a land known by multiple names, and I'll show you a dispute over territory.
And so it is with the East China Sea islands called Diaoyutai in Chinese and Senkaku in Japanese. (map credit)

'The Senkaku islands are Japan's own territory,'

reports yesterday quoted Japan's Naoto Kan (right), Prime Minister of the country since June.
At about the same time, this statement from Jiang Yu (below left) (credit), spokesperson for China's Foreign Ministry:

She reiterated that the Diaoyu Islands have been integral part of China's territory since ancient times.

The current dispute over this ancient standoff stems from a collision earlier this month in the waters near the islands. After a Japanese Coast Guard vessel and a Chinese trawler collided, the former seized the latter and detained the 14 fishing folk aboard. Sanctions that China was considering were reported to range from export and tourist curtailment to military exercises. Yesterday Japan released the trawler's captain, a decision that a prosecutor told the Tokyo newspaper Asahi Shimbun was related to "'the effects on the people of Japan and the future of Japan-China relations.'"
China still wants an apology.
Japan still says no.
What's at stake here?
Internal politics seem at play; for example, factions in Japan complain that it's backing down too much to China.
Power politics between the once-dominant Japan and the now-resurgent China surely matter.
No surprise that energy resources also figure in the mix. It's reported that the islands are located "near natural gas fields, and that "China and Japan have yet to implement an agreement signed in 2008 to jointly develop the fields."

On September 26

On this day in ...
... 1946, Andrea Dworkin (left) was born in Camden, New Jersey. Some time after earning a bachelor's degree in literature in 1968 from Bennington College, she moved to Europe and "married a Dutch political radical." (photo credit) The couple divorced within 3 years; Dworkin later told The New York Times:

'I was a battered wife, and pornography entered into it. Both of us read it, and it helped give me the wrong idea of what a woman was supposed to be for a man.'

Dworkin became a "feminist writer and antipornography campaigner," cowriting with Catharine A. MacKinnon an antipornography ordinance that would be invalidated on 1st Amendment grounds. Among Dworkin's books were Woman Hating (1974), Pornography: Men Possessing Women (1981), Intercourse (1987), and Heartbreak: The Political Memoir of a Feminist Militant (2002). Dworkin died in her sleep, at age 58, in 2005.


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

Saturday, September 25, 2010

On Art! Long-toothed Giraffe

(On Art! is an occasional item on artifacts of transnational culture)

Our colleague Edward Gordon has alerted us to Digital Giraffe, at age 16 among the oldest monthly webzines in continuous existence.
Creator of the site is digital painter artist Corinne Whitaker (right), Ed's sister. As evinced by subheads like "Paintings" and "Blobs" (featuring pics of her work, like Insectual (© 2010), below left), not to mention "Long Live the Crankies!," Giraffe features an eclectic mix of art and other news.
A couple of Giraffe's links will interest even the less arty among IntLawGrrls' readers:
► "Y Not," a running digest of news about women(whose XX chromosomes = not Y); and
► "Global Visitors," with links to a global newspaper site and a world clock.


'Nuff said

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

Teresa Lewis Is Dead. Outcome Is Right, More Or Less.

-- headline of a biting Faculty Lounge commentary, by Drexel Law Associate Dean Dan Filler, on Thursday's execution of a woman with a 72 IQ on the ground that she was the "mastermind" of a double murder. Yesterday, Washington Post writer Maria Glod published an eyewitness account of Lewis' death by lethal injection at a prison in Virginia. (photo credit)

On September 25

On this day in ...
... 1943, Jacqueline de Guillenschmidt (left) was born into a French diplomatic family in China, in the capital city her family would have called Pékin. Following education at the Institut d'études politiques de Paris, in the mid-1960s she began a career in law and government service. She practiced before the Paris bar from 1972 to 1982, then served for a time as a juge d'instruction and an administrative magistrate. Following further stints in various government ministries, she was sworn in on March 10, 2004, as a member of the Conseil constitutionnel, France's highest constitutional body. Guillenschmidt is 1 of 2 women among the Conseil's 11 members; Claire Bazy-Malaurie was sworn in just 18 days ago.

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

Friday, September 24, 2010

Battling Maternal Mortality

In anticipation of this week's UN Summit on the Millennium Development Goals (MDGs), several UN entities -- the World Health Organization, UN Children's Fund (UNICEF), UN Population Fund (UNFPA), and the World Bank -- released a study of international trends in maternal mortality between 1990 and 2008. This assessment report, which covers 99.8% of births worldwide, is aimed at achieving the fifth MDG: to reduce the maternal mortality ratio (MMR) by three quarters between 1990 and 2015. While reliable data are hard to collect, particularly in the developing world, the news is modestly positive: The estimated 358,000 maternal deaths in 2008 represent a 34% decline from 1990 levels. While this is not quite the rate of change needed to achieve a 75% drop by 2015, it's certainly a step in the right direction.
The good news? A total of 147 countries experienced a decline in their maternal mortality levels, with enormous drops (from 50 to 75%) in several sub-Saharan African nations. These declines are likely due to improved access to health systems and increased female education. The proportion of deliveries attended by skilled health personnel rose in the developing world, as did the percentage of women receiving prenatal care and the proportion of women using contraception. Notably, East Asia, which experienced the greatest decline in maternal mortality levels, has a contraceptive prevalence rate of 86%, while in sub-Saharan Africa, which faced one of the lowest declines, that rate was only 22%.
The bad news? The developing world suffered an estimated 99% (355,000) of these deaths, with sub-Saharan Africa and South Asia accounting for an estimated 87% (313,000) of global maternal deaths. Just eleven countries from these two regions comprised an estimated 65% of all maternal deaths in 2008, with India accounting for the largest number of deaths (63,000). Of greater concern, 23 countries faced an increase in their MMR over the time period studied. The five countries that fared the worst in terms of increasing maternal mortality rates (Botswana, Lesotho, South Africa, Swaziland, and Zimbabwe) are of course part of the region with the highest HIV rates in the world. In sub-Saharan Africa, 9% of all maternal deaths were due to HIV/AIDS.
The global disparities in maternal mortality are shocking; the MMR in the developing world (290 deaths per 100,000 live births) was over twenty times that of the developed world (14). In four countries -- Afghanistan, Chad, Guinea-Bissau, and Somalia, the MMR was over 1000. In other words, a 15-year old female in sub-Saharan Africa faces a 1 in 31 chance of maternal death over her lifetime, while a girl of the same age in the developed world faces a 1 in 4300 risk. That girl in Afghanistan? A 1 in 11 risk.
Given that many of the causes of maternal deaths in the developing world are relatively easily addressed through basic prenatal and childbirth care (e.g. hemorrhage and hypertension are responsible for more than half of these deaths), it seems that the goal of 75% decline, though ambitious, should be within reach. In recognition of the need for basic improvements in health care for pregnant women, UN Secretary General Ban Ki-moon unveiled on Wednesday his $40 billion Global Strategy for Women's and Children's Health. Here's hoping it can make a difference for that young girl in Afghanistan.
(credit for photo above left)

Go On! Women, Iraq, Afghanistan

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

Women as a Barometer of Success and Stability? Sharing “Lessons Learned” from Iraq to Afghanistan is the topic of a discussion to be held from 11 a.m.-12:30 p.m. Eastern time this Monday, September 27. If you're interested, you can register here to attend in person the event, to be held at the U.S. Institute of Peace, 1200 17th Street, N.W., Washington, D.C. -- or you can tune in here to watch the live webcast at the appointed time and date.
Panelists will be:
► Dr. Isobel Coleman (right) (prior post), senior fellow for U.S. foreign policy at the Council on Foreign Relations in New York and author of Paradise Beneath Her Feet: How Women Are Transforming the Middle East (2010); and
Manal M. Omar (left), director of Iraq Programs at the U.S. Institute of Peace and author of the recent Barefoot in Baghdad: A Story of Identity -- My Own and What It Means to Be a Woman in Chaos (2010), which details her experiences in Iraq as an American aid worker of Arab descent.
Moderator will be Gayle Tzemach Lemmon (below right), journalist, deputy director of CFR's Women and Foreign Policy Program, and is author The Dressmaker of Khair Khana (forthcoming 2011), about an Afghan entrepreneur in the Taliban years.
Details here.

On September 24

On this day in ...
... 1996, at the New York City headquarters of the United Nations, U.S. President Bill Clinton signed the Comprehensive Test Ban Treaty, intended to prohibit all nuclear weapons testing. (credit for 1996 pro-treaty demonstration in front of White House) He used the same pen with which President John F. Kennedy had signed the Limited Test Ban Treaty in 1963. Clinton then urged further limits on weapons of mass destruction in a speech before the 51st session of the U.N. General Assembly. For the 2d year in a row, The New York Times reported, Clinton

asked diplomats and world leaders to take a strong stand against what he calls the 'new threats' of the post-cold-war era: Drug traffickers, terrorists and unsafeguarded weapons materials. 'Frankly, we have not done that yet.'

Three years later, the Senate refused to give its advice and consent to the Comprehensive Test Ban Treaty. In 2009, President Barack Obama pledged he would "immediately and aggressively pursue" ratification. To date, however, he has not presented it to the Senate.

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

Thursday, September 23, 2010

Guest Blogger: Bonita Meyersfeld

It is IntLawGrrls great pleasure to welcome Bonita Meyersfeld (left) as today's guest blogger. Bonita is an associate professor of law at the University of Witwatersrand School of Law in Johannesburg, South Africa. She is also the head of gender at the Centre for Applied Legal Studies and an editor on the South African Journal on Human Rights. Bonita teaches international law, business and human rights and, prior to working in South Africa, was a legal advisor in the House of Lords in the United Kingdom. Bonita obtained her LLB from Wits Law School and her LLM and JSD from Yale Law School and was a visiting fellow at the London School of Economics.
Bonita has written, lectured and presented in Africa, the United States, Canada and Europe in the areas of international human rights law, transitional justice, women’s rights, business and human rights and development.
Bonita has worked as a litigator and legal advisor, advising South African governmental departments on developmental projects, particularly regarding water and gas distribution. She has also worked as gender consultant to the International Center for Transitional Justice in New York and as a legal consultant at Interights in London.
In her guest post below, Bonita blogs today on her excellent new book, Domestic Violence and International Law, which is part of a larger body of her work focusing on intimate systemic violence and international law.
Bonita has selected Helen Suzman (below right, with Nelson Mandela) (credit) as her IntLawGrrls foremother:
I would like to dedicate this blog to Helen Suzman, anti-apartheid activist and politician. Ms Suzman, who died in January 2009, was a rare personality whose commitment to justice and intellectual integrity found her alone in parliament fighting the battle of racial equality against the apartheid government in South Africa. Ms Suzman’s work is notable for being robust at a time when equality and human rights were not popular concepts. She pursued her line of work in the face of personal danger, political opposition and social approbation. The demise of apartheid is due in no small part to her work.

The Application of International Law to Systemic Intimate Violence

I am very grateful to IntLawGrrls for the opportunity and space to contribute this guest post discussing my work on systemic intimate violence and international law. The following discussion is based on my book, Domestic Violence and International Law, and the international law dialogue held yesterday at Chatham House on this subject.

The application of international law to domestic violence raises both intuitive and intellectual questions. Is there a right to be free from domestic violence in international law? If there is such a right, what is its substance? And wherever there is a right, of course, we search for the corresponding legal obligation. How do we categorise that obligation in international law and to whom does this obligation apply? Finally, the most intuitive and human of all questions, how can the broad – and by definition – global network of international law possibly assist people in the most intimate and private contexts of their lives?
I address these problems in the book Domestic Violence and International Law. The book emanates from the tragic uniformity of domestic violence stories by women around the world. Equally disquieting is the uniformity of the state’s non-response. In the face of severe acts of domestic violence, including battering, breaking, burning, raping, hacking forced sexual encounters with third parties, threats of harm, verbal denigration and murder, the state is silent. The remedies that exist in the public world simply fail to permeate into the private sphere to attenuate intimate harm.
In this discussion, I will consider firstly whether there is an authoritative right in international law to be free from domestic violence and, if so, what the substance of that right should be. I then consider the corresponding state obligation. And finally I address the most intuitive question, namely, how can international law benefit victims and survivors of systemic intimate violence?
Assessing the existence of a right in international law is difficult. There is no central law-making authority. According to the statute of the International Court of Justice (art 38), there are four sources of international law, namely, treaties, customary international law, the law of (so-called) civilised nations and finally, the jurisprudence of courts and tribunals and the writings of respected scholars. In the book I analyse these sources of law and conclude that, on a strict, black letter legal analysis, it is not clear that there is an authoritative principle in international law that states have an obligation to prevent domestic violence; however, I argue that we are in the amorphous process of norm crystallisation. We are on an irreversible trajectory towards an obligation in international law on states to protect victims and survivors of domestic violence.
This is evident from the following developments in international law. The first is the work of the special rapporteur on torture, who categorises domestic violence as a form of torture, prohibited under the Torture Convention. The second is the landmark ruling by the Inter-American Court of Human Rights in the ‘Cotton Field’ case, in which the Court held that Mexico was in breach of the Inter-American Convention on Human Rights and the Convention of Belem do Para for failing to investigate the disappearance and murder of women over a period of 15 years. Many of these deaths and mutilations were linked to domestic violence. There are also intense developments in Europe. In 2005 the Council of Europe Task Force to Combat Violence against Women, including Domestic Violence (EG-TFV) was established. This has led to developments regarding the adoption of a Europe-wide treaty regarding violence against women and domestic violence (the second draft of a CoE convention against violence against women has been distributed). The final important development is the decision of the European Court of Human Rights in the case of Opuz v Turkey (which has previously been discussed on this blog here), where the Court held that Turkey’s failure to respond to twelve years of domestic violence amounted to a violation of the right to life (art 2 of the European Convention); a violation of the right to be free from torture and ill-treatment (art 3 of the European Convention); and a violation of the right to non-discrimination on the basis of sex (art 14).
If we are to take steps to formalise an authoritative international law obligation on states to prevent and respond to domestic violence, it is important to specify the details of the right and the corresponding duty. As regards the right, I propose that not all forms of domestic violence should trigger the provisions of international law. Rather, it is a specific type of violence, what I refer to as systemic intimate violence, which warrants the application of international law. Systemic intimate violence consists of five co-existing elements. The first element is severity – the harm must be severe and can consist of both physical and non-physical violence. There are two important points to make here. I am not suggesting that severity of harm is a test for all forms of domestic violence. Rather it is severity of harm that is an element for systemic intimate violence under international law. This is uncomfortable but necessary. International law regularly distinguishes between degrees of harm (torture v ill-treatment; genocide v murder; mass rape v rape) and it is a form of prolonged, severe harm that triggers in global network of law. If domestic violence is attended to by the state, then in essence the right to protection has been fulfilled. What we examine in international law is where prolonged, severe harm is unaddressed. The test for severity in international law is an objective one (A v United Kingdom) and we ask whether the humiliation to the victim is so intense that a reasonable person would be outraged (Prosecutor v Aleksovski). The following stories of torture, compared to stories of domestic violence, are informative:
I was lying on the floor, two guards held my legs while another kicked me in the testicles. I would lose consciousness and come to, I lost consciousness four times. They hit me around the head, there was blood. They would beat me unconscious and wait until I came round: ‘He’s woken up, and they would come in and beat me [again].
-- Chechnyan survivor of torture by the Russian Army
From the moment Rodi Adalí Alvarado Peña married a Guatemalan army officer at the age of 16, she was subjected to intensive abuse, and all her efforts to get help were unsuccessful. Her husband raped her repeatedly, attempted to abort their second child by kicking her in the spine, dislocated her jaw, tried to cut off her hands with a machete, kicked her in the vagina and used her head to break windows.
-- Guatemalan Woman
[F]irst they would beat you and then you would have to lie down on the floor and crawl to them. You would have to say, “Request permission to crawl.” Me personally, they beat me on the knees, with clubs, and on the kidneys.
-- Chechnyan survivor of torture by the Russian Army
He was sittin’ on the bed. Had his .357 Magnum. He said, ‘June, you get down on this floor right now. You crawl to me.’ And when I got to his feet he took that pistol and hit me right alongside of the head. I thought I was gonna die. I still got the knot from it. He said, ‘if you even act like you’re gonna run I’ll blow your brains all over this wall.’
-- American Woman

The theme of severity of harm that is so intense that it would outrage the reasonable person, is evident.
The second element is that the violence usually operates on a continuum. The exigency of harm may not be in individual incident but in prolonged frequency of events. This is particularly important in domestic violence where violence is cyclical and individual acts seem benign but actually occur along a continuum of control and impotence. The notion of a continuum of harmful incidences was confirmed by the ICTY, noting that it was “sufficient to show that an act took place in the context of an accumulation of acts of violence which, individually, may vary greatly in nature and gravity”(Prosecutor v Kunarac). This element also featured in the Opuz decision: “Although there were intervals between the impugned events… the overall violence to which the applicant and her mother were subjected over a long period of time cannot be seen as individual and separate episodes and must therefore be considered together as a chain of connected events.”
The third element of systemic intimate violence is that intimacy. This is an important element for several reasons. The intimacy of helps to ‘disappear’ the violence, preventing the abused from reporting it and the authorities from recognising it. The reality, however, is that the highest rate of violence against women occurs in private relationships. Privacy presents an additional problem: the constitutional right to privacy traditionally is understood as a negative obligation to refrain from interfering with one’s private affairs. However, the ECtHR (Bevacqua and S v Bulgaria and Opuz v Turkey) and the CEDAW Committee (Yildirim v Austria; Goekce v Austria) have recognised that the right to privacy is also a positive obligation to secure the private realm so that individuals may flourish. Privacy cannot be understood merely as a right to be left alone; it is linked affirmatively to the right to liberty, the right to autonomy and self-determination.
The fourth element is group vulnerability. This is not to say that women have some essentialized element of vulnerability and weakness but rather that the legal system, to which women look for assistance, often is inert. Women as a group are affected by domestic violence more than any other group (such as children, the elderly, the disabled, men and non-human animals) and the greatest cause of death and disability among women aged 15-44 worldwide – more than HIV, TB and malaria – is domestic violence.
The final element is that of state failure. In the face of extreme or continued violence, in the private realm, occurring repeatedly against a particular social group, the state is unable or unwilling to respond. This is evidenced by the sad cases of Kontrova v Slovakia and Opuz v Turkey, where the claimants in both cases suffered years of severe physical and non-physical violence, resulting in the death of their children and mother, respectively.
These are the elements of systemic intimate violence.
The next step is to identify the principles of state responsibility in international law and how they might apply in the context of systemic intimate violence. The principles of state responsibility are codified in the International Law Commission’s Draft Articles on the Responsibility of States for Internationally Wrongful Acts. In order to determine whether a state has committed an international wrongful act, there must be (i) conduct and (ii) wrongfulness. A state can be responsible for both positive acts and for omissions or a failure to act. In the Corfu Channel case, the ICJ held that Albania had known that there were mines in its territorial waters and had failed to notify third parties about this danger. As a result, Albania had committed an internationally wrong act, not because it had laid the mines but because it has failed to warn third parties about their presence.
If the state fails to act where it has an international legal obligation to do so, the wrongfulness test asks us to consider what steps a state ought to have taken to fulfill this legal duty. The approach adopted in international law is the so-called due diligence standard. The principle, originally enunciated in the case of Velasquez Rodriguez v Honduras and fortified by the UN special rapporteur on violence against women, holds that an illegal act, committed by a private person, can lead to international responsibility of a state, not because of the act itself, but because of the lack of due diligence to prevent the violation or respond to the harm.
How does this apply to cases of systemic intimate violence? The test can be summarised as follows: (i) did the authorities know, or ought they to have known, at the time of the existence of a real and immediate risk to the life or well-being of an identified individual from the criminal acts of a third party; and, if so (ii) did the state fail to take measures within the scope of its powers, which, judged reasonably, might have been expected to avoid that risk. This test can be answered in the affirmative in the Kontrova case, where the state knew about the history of violence against the complainant when the complainant reported that her estranged husband had taken their children. The state refused to act until the passage of 48 hours. During this time the complainant’s estranged husband shot and killed their two children and then himself.
The final question is how there can be any benefit in international law for people who experience systemic intimate violence. I propose a theory of non-coercive compliance, which, based on the work of Professors Koh and Reisman, focuses on the impact of international law through norm infiltration. International law is a standard-setting spectrum, to which states can aspire and on which individuals can rely. Fuelled by international actors, NGOs, international bodies and trans-national organisations, international law can effect global change in intimate settings. Specifically, international law human rights law has two functions. The first is an expressive value: international law gives a name to harm that previously fell outside established legal principles and draws a conceptual boundary around such conduct, prohibiting it. Secondly, international law has an implementing capacity, compelling state to modify their laws in accordance with the international standards.
These values of international law are best evidenced in respect of enforced disappearances. Traditionally, the legal remedies of habeas corpus and extra-judicial killings were not available to the families of the kidnapped political dissidents because the state denied involvement. It was only with the development of the concept of enforced disappearances and the lobbying at the international level, that the nuanced nature of this harm was properly understood and an appropriate legal response fashioned. Today the UN working group on enforced disappearances has clarified roughly 1,763 cases.
These benefits are also evident in respect of systemic intimate violence. An analysis of the CEDAW Committee’s reports from 1984 to present day reveals an interesting pattern. Prior to 1992 domestic violence is rarely mentioned in states’ reports to CEDAW or in the CEDAW committee’s responses. After 1992, however, domestic violence becomes the key feature of states’ reports and of the committee’s response. What happened in 1992? This period saw the greatest global call at the time regarding violence against women and the responsibility of states to prevent domestic violence. It culminated in the General Assembly Declaration on the Elimination of Violence against Women.
I analysed three states’ reports to CEDAW before and after 1992, namely, Nicaragua, Sweden and Mexico. In respect of each state the same pattern applies. Prior to 1992 there is no mention of domestic violence. After 1992 the states begin the process of describing law reform, policy creation and the allocation of funding to the problem of domestic violence. So international law not only facilitated a dialogue regarding domestic violence against women at international law but it led to significant legal changes at the national and municipal level.
This is not to overstate international law. Rather it demonstrates that international law works best when viewed as a forum for the creation of norms and standards that, through a process of norm creation and infiltration, can alleviate harm in the most intimate part of one’s life.

Write On! Asia-Pacific challenges

(Write On! is an occasional item about notable calls for papers.)

The Chinese (Taiwan) Society of International Law is seeking papers for presentation at Contemporary International Law Issues in the Asia Pacific: Opportunities and Challenges, the International Law Association Asia-Pacific Regional Conference to be held May 29-June 1, 2011, in Taipei, Taiwan.
Proposals from scholars and professionals alike are encouraged, on any topic relating to international law with a focus on the Asia Pacific. Examples listed in the call for papers include:
► Use of Force
► Asia-Pacific Security
► Territorial Disputes
► Teaching and Research of International Law
► Law of the Sea and Fisheries Conservation
► International Criminal Law
► International Protection of Human Rights
► World Trade Organization, Asia-Pacific Economic Cooperation, and the Association of Southeast Asian Nations
► Free Trade Agreements and the Cross-Strait Economic Cooperation Framework Agreement
► United Nations and Regional Organizations
► Enforcement of Arbitral Awards and Court Judgments
Proposals of no more than 300 words, including the author's name and full contact information, should be e-mailed no later than December 20, 2010, to ila@nccu.edu.tw. Questions may be directed to Professor Pasha L. Hsieh of Singapore Management University, a co-organizer of the conference, at pashahsieh@smu.edu.sg.


On September 23

On this day in ...
... 1980 (30 years ago today), Dr. Alona Evans (far left) died suddenly, 63 years after her birth in Providence, Rhode Island. At the time of her death she was several months into her term as the 1st woman President of the American Society of International Law. (photo credit) Earlier, she had become the 1st woman elected to the Board of Editors of the American Journal of International Law. Evans, who'd earned her bachelor's and doctoral degrees from Duke University, served at the U.S. State Department during World War II, and then became Professor, and eventually Chair, of the Political Science Department at Wellesley College in Massachusetts. She "was an expert on international criminal law, extradition, aircraft hijacking, and refugee issues," having co-chaired a State Department-funded study on terrorism. In the 1970s, she'd led "an ad hoc ASIL committee on the professional interest and status of women in international law." In the 1950s Evans was a visiting law professor at Harvard, "prior to that institution's granting a law degree to women." Outstanding teams in the Jessup international moot court competition receive an award bearing her name.

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

Wednesday, September 22, 2010

'Nuff said

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

[T]he act of state doctrine, 'whatever it might be – has no application where it is alleged that Commonwealth officials have acted beyond the bounds of their authority under Commonwealth law.' His Honour noted that, consistent with the principle enunciated in Marbury v. Madison, the limits of executive action raised a justiciable question which courts exercising federal jurisdiction were obliged to scrutinize as a basic element of the rule of law.

-- Dr. Stephen Tully, in an ASIL Insight entitled "Australian Court Permits Damages Claim for Torture by former Guantánamo Bay Detainee to Proceed." Tully was quoting the opinion of Judge Nye Perram in a recent ruling by the Federal Court of Australia. The court permitted to go forward a torture lawsuit brought by former a Guantánamo detainee against Australian law enforcement and intelligence agents. Judge Perram had invoked Marbury (1803), the landmark judgment by John Marshall, Chief Justice of the United States, in concluding that doctrines such as act of state did not preclude further judicial review of the claims brought by ex-detainee Mamdouh Habib. In his Insight, Tully underscored the contrast between this judgment and U.S. rulings that have preclude further review in analogous post-9/11 lawsuits. Tully allowed, however, that chances for ultimate success in Habib's suit remain "slim."

On September 22

On this day in ...
... 1910 (100 years ago today), Mexico's President, Porfirio Díaz, presided over the ceremony that marked the opening of the Universidad Nacional de México at Simón Bolívar Ampitheater, Mexico City (right). The event was part of the festivities that commemorated the 100th anniversary of the Mexico's independence. This public institution is among the Americas' largest universities, with more than 300,000 students last academic year. Among its many prominent alums are 2 women authors, Elena Poniatowska and Audre Lord. (photo credit)

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

Tuesday, September 21, 2010

Inquiring minds want ... Burma

Heard murmurs a while back about the possibility of an international inquiry commission into abuses in Burma, the country also known as Myanmar about which IntLawGrrls frequently have posted.
A statement that Ambassador Eileen Chamberlain Donahoe (below right), the U.S. Representative to the Human Rights Council, made in Geneva Friday (hat tip) confirms that such a possibility is on the table.
Speaking during a "general debate on situations requiring the Council's attention," Donahoe 1st put the issue in context:
In Burma, the human rights situation remains grim. Under the repressive election laws that stifle meaningful competition and with the continued detention of more than 2,100 political prisoners, including Nobel laureate Aung San Suu Kyi, the November 7 elections cannot be inclusive or credible.

(credit for above left photo 1991 Peace Prizewinner Suu Kyi (prior posts)) Donahoe then articulated the aims of the United States regarding the Asian country that's been ruled by a military junta since the late 1980s:
Our overriding objective is to promote a peaceful democratic transition, encourage national reconciliation, and achieve respect for human rights. We urge an end to systematic violations of religious freedom, notably the large-scale repression against the Muslim Rohingya, including refusal to grant citizenship, severe government restrictions on travel, and discrimination in employment and educational opportunities.
Donahoe's comment concluded by referring to a March 2010 report that had recommended "a commission of inquiry with a specific fact finding mandate to address the question of international crimes." Issuing that report was Tomás Ojea Quintana, Special Rapporteur on the situation of human rights in Myanmar. The Council discussed the report at the time it was issued, but took no action. Friday, Donahoe said on behalf of the United States:
Finally, six months ago Special Rapporteur Ojea Quintana invited consideration of a commission of inquiry. The United States believes a properly structured international commission of inquiry that would examine allegations of serious violations of international law would be warranted and appropriate. My government is examining how best to proceed on this initiative.
Worth noting that Ojea Quintana's report made specific reference to the International Criminal Court. Past such commissions have been deployed in places like the former Yugoslavia and Darfur. The resulting Yugoslavia report, issued by a commission chaired by M. Cherif Bassiouni, and the Darfur report, issued by a commission chaired by Antonio Cassese, both led to international criminal cases. No less an authority than Philip G. Alston, the NYU Law Professor who recently concluded a term as Special Rapporteur on extrajudicial, summary or arbitrary executions, has recommended such commissions as "an appropriate filtering mechanism" in order to "evaluate whether or not a situation warrants referral to the ICC."
Worth watching what happens with this proposal.