Saturday, December 31, 2011

'Nuff said

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

'What would an apology do for me? You don’t know what my kids were going to be. You don’t know what kids God was going to give me. Twenty thousand dollars ain’t gonna do it, honey.'

-- Nial Ramirez, 65, in a New York Times story about proposals for redress for her and an estimated 7,600 other persons whom the state of North Carolina sterilized in the 1960s, when its eugenics board was active. For Ramirez, reporter Kim Severson wrote, "no amount of money will make it right."

On December 31

On this day in ...
... 1687 (325 years ago), a ship named The Voorschoten set sail from the Netherlands' Delfshaven bound for the Cape of Good Hope, South Africa, a destination it would reach on April 13 of the following year. It carried a group of Huguenots, Protestants who were fleeing persecution in their native, Roman Catholic France. The voyage was the 1st of many that would take place in the next 2 years. Many settled in Franschhoek (Afrikaans for "French corner"), a Western Cape region filled with fields of lavender and vineyards that produce superb wines. (photo credit)

(Prior December 31 posts are here, here, here, and here.)

Friday, December 30, 2011

On December 30

On this day in ...
... 1982, the President of the New Hampshire Senate, Vesta M. Roy became the 1st Republican woman governor of a U.S. state. She was sworn in on this day when the outgoing incumbent died shortly before the man elected in November to replace him was to be inaugurated. Governor Roy (right) served 7 days, until that inauguration. She continued as a state Senator till 1986, and also served as a state-level campaign advisor to 3 U.S. Presidents. (photo credit) Roy died in New York in 2002, at age 76.

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

Thursday, December 29, 2011

Guest blogger: Nino Guruli

We're very pleased to welcome Nino Guruli (left), who contributes today's guest post on new developments at the European Court of Human Rights.
Nino is a Legal Fellow with the American Society of International Law, currently working on the Society’s program aimed at integrating international law and human rights in high school curriculums across the United States.
Nino graduated from Mount Holyoke College with a B.A. in Philosophy and Political Science. During her time there, Nino conducted field research, in the Republic of Georgia, on acute violent conflict and resource scarcity. She studied law at the University of Notre Dame, where she served as the research assistant to Mary Ellen O’Connell, an IntLawGrrls contributor, on the 6th edition of a Foundation Press casebook, The International Legal System: Cases and Materials.
Heartfelt welcome!

ECHR: Overflowing dockets, effective remedies & the principle of subsidiarity

(Thanks to IntLawGrrls for inviting me to contribute this guest post on recent development in the European human rights system)

The European Court of Human Rights (right) is drowning in applications.
With 140,000 applications pending at the close of 2010, the Court has had to face an avalanche of documents. (Four party states – Russia, Turkey, Romania, and Ukraine – account for approximately one-half of the Court’s docket.) (photo credit)
The overwhelming number of applications before the Court led to adoption, in early 2010, of the Interlaken Declaration.
As IntLawGrrl Fiona de Londras then posted, the Declaration stressed the principle of subsidiarity, which has long served as the mechanism for managing the intersection of international pluralism and the protection of fundamental rights by making nations the primary enforcers of Convention rights. While the Court is ready to step in when states fail to carry out their responsibility, the onus remains with the national authorities to guarantee the ends of the Convention within the relevant national context.
However,the recent decisions from the Court – M.S.S.v. Belgium and Greece, issued at the very beginning of this year, and Mandić and Jović v. Slovenia (judgment available here) handed down in October – have the effect of sidestepping the exhaustion requirement. This effect is the result of the Court's combination of rights guaranteed in two provisions of the European Convention on Human Rights:
Article 3, which bans torture or inhuman and degrading treatment; and
Article 13, which ensures the right to an effective remedy. (Bulgaria, Greece, Russia, Turkey, and Ukraine are most likely to influence the Court’s evolving jurisprudence on Article 13.)
The Court's move intertwines the fundamental nature of the substantive Article 3 rights with the structural mechanism for its enforcement. Given the emphasis on subsidiarity and the logic behind the longterm reduction in the Court’s docket, this novel application of the Article 13 effective remedy guarantee, in conjunction with Article 3's ban on torture or inhuman and degrading treatment, suggests an ineffective “one-step-forward-two-steps-back”approach. If applicants continue to bring cases straight to the European Court without first going through the national authorities, the forecast for the Court’s docket remains bleak.
Article 13 states in full:
Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.
In Mandić and Jović v. Slovenia, the Court had to interpret the scope of this provision with respect to prison conditions in Slovenia – in light of yet another Convention provision, Article 26, which states that the Court "may only deal with the matter after all domestic remedies have been exhausted."
This is an argument repeatedly used by respondent states when they claim inadmissibility on the basis that the applicant failed to exhaust domestic remedies.
The applicants in Mandić and Jović v. Slovenia had been held on remand in Slovenia for several months from 2009 to 2010. The applicants did not go through the relevant state authorities to challenge the conditions of their detention – including overcrowding – under Article 3 of the Convention. Instead, their inhuman or degrading treatment claims were taken directly to the European Court, and analyzed in conjunction with the effective remedy guarantee of Article 13.
The Court concluded that given the lack of domestic remedies, as well as the serious nature of

On December 29

On this day in ...Link... 1975, not coincidentally International Women's Year, what the BBC then called "[r]adical new legislation" entered into force in Britain. The revolutionary acts? Anti-sex-discrimination and pro-equal-pay statutes that "introduc[ed] a woman's right to equal pay and status in the workplace," by aiming to "prevent women being paid less than their male counterparts." (photo credit) Though "a culture shock to many" mat the time, a quarter-century later, "a survey showed the Acts had helped close the pay difference in the gender gap from 40% less than male counterparts, to 20%."

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

Wednesday, December 28, 2011

In passing: Jane Larson

Saddened to learn that Jane Larson has passed away.
Larson, who was born in 1958, died earlier this month of natural causes at her home in Madison, Wisconsin. (photo credit)
As many readers will know, she was a scholar and teacher of Property, Women's Legal History, Conflicts of Laws, and Feminist Legal Theory. A a longtime member of the Wisconsin Law faculty, she'd begun her academic career at Northwestern University School of Law, where she twice won the Robert Childress Memorial Award for Teaching Excellence. Larson also served as a Visiting Fellow at the European University Institute Faculty of Law in Fiesole, Italy.
Among the works for which she was noted: a 1998 Columbia Law Review article, "'Women Understand So Little, They Call My Good Nature "Deceit''': A Feminist Rethinking of Seduction,'" and a 1999 Oxford University Press book, Hard Bargains: The Politics of Sex, co-authored with Linda R. Hirshman, a Brandeis women's studies professor emerita. Larson also co-authored the historians' amicus brief in the U.S. Supreme Court's pivotal reproductive privacy decision, Planned Parenthood of Southeastern Washington v. Casey (1992).
Had the opportunity to hear Larson speak once -- in 2003, she gave the 21st Brigitte Bodenheimer Lecture on the Family (later published here) at the University of California, Davis, School of Law. The depth of her scholarship and strength of her presentation inspired.

Go, 'Grrl! Dayan in Top 25

Kudos to IntLawGrrls contributor Colin Dayan (right), whose most recent book has been named among the Top 25 Academic Titles for 2011 by Choice, the online reviews site of the American Library Association.
Honored is The Law Is a White Dog: How Legal Rituals Make and Unmake Persons (2011), an interdisciplinary analysis of American incarceration practices, at home and abroad in places like Guantánamo, through lenses that include Caribbean literature and slave histories.
All IntLawGrrls posts by or about Colin, the Robert Penn Warren Professor in the Humanities at Vanderbilt University in Nashville, Tennessee, may be found here.

Heartfelt congratulations!

Go On! AALS annual meeting

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

Hope to see some of you at the annual meeting of the Association of American Law Schools, set for next week, January 4-8, 2012, in Washington, D.C.
As previously posted, there will be a number of international law related sessions.
A number of IntLawGrrls contributors will take part in various panels. According to the current AALS program, they include Penelope Andrews (CUNY Law), Caitlyn Antrim (Rule of Law Committee for the Oceans), Bernadette Atuahene (Chicago-Kent Law), Betsy Baker (Vermont Law), Elizabeth Burleson (Pace Law), Kathleen Clark (Washington University Law), Stephanie Farrior (Vermont Law), Michele Bratcher Goodwin (Minnesota Law), Dawn Johnsen (Indiana-Bloomington Law), Chimène Keitner (California-Hastings), Jennifer Kreder (Northern Kentucky Law), Fionnuala Ní Aoláin (Minnesota Law and University of Ulster), Lisa R. Pruitt (California-Davis), Ruthann Robson (CUNY Law), Laurel Terry (Pennsylvania State Law), and Tracy A. Thomas (Akron Law).
Yours truly, Diane Marie Amann (Georgia Law), also is scheduled to speak, at a Section of Africa panel entitled The International Criminal Court and Its Focus on Africa: Helping or Hindering Peace on the Continent?, 4-5:45 p.m. Friday, January 6, in Wilson Room A at the Marriott Wardman Park.
Details on the AALS annual meeting available here.

On December 28

On this day in ...
... 1961 (50 years ago today) , 105 years to the day after her late husband had been born, Edith Wilson, 89, died at her home in Washington, D.C. In 1915, she'd married President Woodrow Wilson; the 1st spouses of both had died before they met. (credit for 1917 photo of the couple at his 2d inauguration) Over time the President came to rely on her advice, she attended political and governmental meetings and saw classified information; he "share[d] a secret wartime code with her." In public, she raised funds and urged self-rationing to aid the United States' efforts in World War I, and campaigned against the spread of venereal disease among servicemembers. She accompanied the President to Europe after the war and watched him signed the Versailles Treaty; thus:

Her presence among the queens and other women royalty of Europe put the position of First Lady on an equivalent standing, thus helping to define the uniquely American role in an international context.

But her interpretation of her role had its detractors, especially after the President suffered a stroke in 1919. She hid the extent of his disability, acting as "the sole conduit" between him and his government. Some say he was so sick that she was, in effect, the United States' 1st woman President.

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

Tuesday, December 27, 2011

Guest Blogger: Alli Jernow

It's IntLawGrrls' great pleasure to welcome Alli Jernow (left) as today's guest blogger.
Alli is a senior legal advisor at the International Commission of Jurists, based in Geneva, Switzerland, where she runs the Sexual Orientation & Gender Identity Project.
She is the editor of the Sexual Orientation, Gender Identity and Justice: A Comparative Law Casebook (2011). Published by the International Commission of Jurists, the book presents more than a hundred judicial decisions from all over the world, that address legal issues relating to sexual orientation and gender identity. In her guest post below, Alli outlines the analysis in an article she published this year in the Amsterdam Law Forum, "Morality Tales in Comparative Jurisprudence: What the Law Says About Sex." (Her guest post, which turns on the U.S. Supreme Court decision in Lawrence v. Texas (2003), appears within days of notice that the plaintiff in that landmark suit, John G. Lawrence, died in November at age 68.)
Before joining the International Commission of Jurists, Alli was a federal prosecutor in the Criminal Section of the Civil Rights Division of the U.S. Department of Justice. She has also worked for the U.S. Department of State and for the Committee to Protect Journalists. She has served as a legal consultant on hate crimes, victims’ rights, and human trafficking for the International Labour Organization, the Organization for Security and Co-operation in Europe, and other international groups.
Alli received a bachelor of arts degree from Harvard College, a juris doctor degree from New York University School of Law, where she was a Root-Tilden-Snow Scholar, and a master's degree in international affairs from the Columbia University School of International and Public Affairs. She clerked for the U.S. Court of Appeals for the D.C. Circuit.

Heartfelt welcome!

The Death & Second Life of Morality

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

In 1957, Britain's Wolfenden Committee released its report (left) recommending the decriminalization of “homosexual behaviour between consenting adults in private.” (image credit; prior IntLawGrrls post)
Drawing on the harm principle posited by John Stuart Mill, the Wolfenden Report stated:

'Unless a deliberate attempt be made by society through the agency of the law to equate the sphere of crime with that of sin, there must remain a realm of private morality and immorality which is, in brief and crude terms, not the law’s business.'

The Wolfenden Report sparked a now-famous debate between legal philosopher H.L.A. Hart and Lord Patrick Devlin, a judge of the English High Court on just what was the law’s business.
► Could the law properly criminalise private sexual behaviour that caused no harm to others?
In the United Kingdom and other Council of Europe member states, following the 1981 decision of the European Court of Human Rights in Dudgeon v. United Kingdom, concerning the laws of Northern Ireland, the answer was no.
In the rest of the world, it remains an open question.
Public disapproval of private same-sex sexual behaviour – the morality justification – was considered a legitimate state objective in U.S. federal courts until 2003, when the Supreme Court held in Lawrence v. Texas that public morality could not save Texas’ sodomy law.
In so doing, the Court overruled a 1986 precedent with roots in the Hart-Devlin debate. I examine these origins in an article published this year in the Amsterdam Law Forum, entitled "Morality Tales in Comparative Jurisprudence: What the Law Says About Sex." Scholars who've also contributed to this discussion include Western New England Law Professor Anne B. Goldstein, in her 1988 Yale Law Journal article entitled "History, Homosexuality and Political Values, Searching for the Hidden Determinants of Bowers v. Hardwick."

Morals justifications accepted
As is by now well known, therefore, the decision in Lawrence signaled that national courts in the United States no longer would accept public morality as a justification private same-sex sexual behaviour.
What is perhaps less well known is that morals justifications are still accepted in other national courts.
► The Hart-Devlin argument was alive and well when the Supreme Court of Zimbabwe heard a constitutional challenge to a law criminalizing private consensual sodomy. In Banana v. State (2000), the majority observed that “in many but not all parts of the western world” sodomy had drifted “from crime to sin to acceptable conduct.” The trend stopped in Zimbabwe. The court would be guided by the “social norms and values” of Zimbabweans about what to call a crime. Dissenting, Chief Justice Anthony Gubbay wrote that even if the majority of people found “acts of sodomy morally unacceptable, it did not mean that moral values alone can justify making an activity criminal.” In fact, quoting Ronald Dworkin, Taking Rights Seriously (1978), the chief justice argued that majoritarian moral views did not justify making conduct criminal.
Chief Justice Gubbay's dissent influenced the reasoning of the Hong Kong Court of Appeal when, in Secretary for Justice v. Yau Yuk Lung Zigo and Another (2006), it struck down a law criminalising “homosexual buggery” other than in private.
► The morals justification prevailed, however, in the case of Kanane v. State, decided by the Court of Appeal of Botswana in 2003. The court upheld the sodomy statute against constitutional attack, reasoning that public opinion did not require decriminalisation. It was a question for the legislature and “parliament must inevitably take a moral position in tune with what it perceives to be the public mood.”

Morals justifications rejected
All is not bleak.
Popular morality was rejected by the Constitutional Court of South Africa in National Coalition for Gay and Lesbian Equality v. Minister of Justice (1998) and the High Court of Delhi in Naz Foundation v. Union of India (2009).
Before and after its decision in Lawrence, the U.S. Supreme Court displayed discomfort with morals justifications and the judicial inquiry into illegitimate bias, as Suzanne B. Goldberg, Clinical Professor of Law and Director of the Center for Gender and Sexuality Law at Columbia, explained in her 2004 Minnesota Law Review article.
In South Africa and India, courts similarly viewed popular morality as masking animus. Both countries have transformative constitutional traditions, and both the National Coalition and the Naz Foundation decisions referred to national histories of subjugation and exclusion.
► In National Coalition, South African Constitutional Court Justice Laurie Ackermann compared the sodomy offense to apartheid legislation. Justice Albie Sachs, concurring, wrote:

'It is no exaggeration to say that the success of the whole constitutional endeavour in South Africa will depend in large measures on how successfully sameness and difference are reconciled.'

The South African court determined that the morals justification for criminalizing same-sex sexual conduct rested “to a large extent on nothing more than prejudice.”
► In Naz Foundation, the Delhi High Court also dismissed the public morality argument in the course of ruling that Section 377 of the Indian Penal Code, a criminal prohibition on sexual activity "against the order of nature." The Delhi High Court stated that

'public animus and disgust toward a particular social group or vulnerable minority is not a valid ground for classification … Section 377 IPC targets the homosexual community as a class and is motivated by an animus towards this vulnerable class of people.'

According to the court, Section 377 was reminiscent of colonial-era legislation that had criminalized entire tribes.

Morals justifications re-formed
But it is not the end of all morals justifications.
The South African and Indian courts discarded moral disapproval, but affirmed instead a broader vision of the common good, defined as constitutional morality. Thus the Delhi High Court stated in Naz Foundation:

'In our scheme of things, constitutional morality must outweigh the argument of public morality, even if it be the majoritarian view.'

The South African court in National Coalition likewise recalled the “deep political morality” of the Bill of Rights. Central to the court's vision of constitutional morality were the norms of equality and non-discrimination.
There are echoes here of both U.S. Supreme Court Justice Anthony Kennedy’s opinion for the Court in Romer v. Evans (1996) and Justice Sandra Day O’Connor’s concurrence in Lawrence.

The situation today
Seventy-six countries have laws that criminalize same-sex sexual conduct.
This past June, at the U.N. Human Rights Council, South Africa introduced a resolution, A/HRC/RES/17/19, expressing

'grave concern at acts of violence and discrimination … committed against individuals because of their sexual orientation and gender identity.'

The resolution passed by a vote of 23-19.
The “morality” of laws criminalizing people on the basis of their sexual conduct is still very much up for debate. The question now is:
► Which kind of morality will prevail?

On December 27

On this day in ...
... 1949, at the Royal Palace in Amsterdam, the former Dutch colony of Indonesia finally was granted independence when Queen Juliana of the Netherlands and Vice-President of Indonesia signed the declaration of Indonesian independence (right), thus marking the official transfer of sovereignty. (photo credit) Indonesia had made the declaration 4 years earlier; a national revolution had occurred between then and the signing that took place on this day. Events in that interim period were in the news earlier this month, when the Netherlands formally apologized to Indonesia for a massacre on December 9, 1947, when "up to 430 boys and young men" in an Indonesian village were killed "by Dutch troops."

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

Monday, December 26, 2011

An IntLawChild is born

Heartfelt congratulations go out to IntLawGrrl Jaya Ramji-Nogales and her husband, Luis Ramji-Nogales, on the birth of their son, Javier Samir Ramji-Nogales.
Wee Javier was born at 12:49 pm on Friday, December 16. He weighed in at 8 lbs. 8 oz., and measured 20 3/4 inches long -- more than a pound more than his big sister, Kala Elena Ramji-Nogales, when she was born in March 2008.
Writes Jaya (whose faculty, we're also happy to report, just voted her tenure):

Mommy and baby are healthy and happy, and send best holiday wishes to all!!

And the greetings of the season to you and your family, Jaya!

On December 26

On this day in ...
... 1933, conclusion of the 7th International Conference of American States, held in Montevideo, Uruguay, was marked by the signing of an inter-American Convention on the Nationality of Women. The 5-articles treaty contained a single, one-sentence substantive provision; specifically, states pledged:

There shall be no distinction based on sex as regards nationality, in their legislation or in their practice.

Signing were Argentina, Bolivia, Brazil, Chile, Colombia, Cuba, the Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, the United States, Uruguay, and Venezuela. Out of the several dozen of plenipotentiaries representing the signatory states, 3 were women -- immediately apparent because the list attached honorifics only to women's names. As so listed, they were: for the United States, "Miss" Sophonisba Breckinridge (above left), the then-68-year-old University of Chicago professor and holder of a Ph.D. in political science, as well as a J.D. (prior posts) (photo credit); for Uruguay, "Señora" Sofia A.V. De Demicheli; and for Paraguay, "Señorita" María F. González, presumably the same woman, age 50 by 1934, described in a 1921 almanac as a schoolteacher and vice president of the Associación Feminista Paraguaya. The treaty entered into force in 1934, the same year that the United States became a party to it.

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

Sunday, December 25, 2011

'Tis the season

(With a Merry Christmas to all, and special thanks to our friend, David Lloyd, for this photo he made in 2010 in Chicago)

On December 25

On this day in ...
... 1991 (20 years ago today), what The New York Times called "70 years of Communist tyranny" ended when Mikhail Gorbachev resigned with these words:
'I hereby discontinue my activities at the post of President of the Union of Soviet Socialist Republics.'

The televised 10-minute announcement came the demise of the Soviet Union, replaced by the Russia Federation (flag above right) and an 11-republic Commonwealth of Independent States "under the informal lead of President Boris N. Yeltsin of Russia." The former leader resurfaced in the news this month: Gorbachev "called on Russian authorities to annul the disputed results of parliamentary elections," held December 4, which critics called unfair.

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

Saturday, December 24, 2011

Look On! Redford's GTMO film

(Look On! takes occasional note of noteworthy productions.)

It's 1865, and Washington is at war.
Calamity causes the civilian leader of the military department to round up unusual suspects. Hooded, they're left to lie in cages, indefinitely – that is, until a commission of handpicked brass convicts them at what passes for a trial.
One of them may be innocent.
Getting a sense of préjà vu?
No surprise there: though ostensibly about the War between the States, The Conspirator, the 2010 film this 'Grrl just saw on DVD, bears more than passing resemblance to our own era of what Washington used to call the war on terror.
Secretary of War Edwin Stanton was the man in command after the April 1865 assassination of the Commander in Chief, President Abraham Lincoln. Stanton's push to dispose of accused rebels looks much like the post-9/11 push for rapid punishment of accused terrorists. Speed, and short-circuiting of the judiciary, led to convictions and executions. Yet they also fed lingering questions about the rightness of the results.
In this telling by director Robert Redford, at least one accused conspirator did not deserve the hangman's noose. Forty-two-year-old Mary Surratt (left) may have kept too blind an eye on what was happening in her own boardinghouse. She may have given what today would be called "material support" – to her own son, who could not imagine that the Union would execute a woman, and so remained in hiding rather than exchange his fate for hers.
His error was fatal. His mother was hanged with 3 others. Hers was the 1st federal execution of a woman. (photo credit)
Not long after, trial of civilians like Surratt was deemed unconstitutional, an epilogic sentence reports, in apparent reference to the U.S. Supreme Court ruling in Ex parte Milligan (1866).
The Conspirator is a good film, though Redford does not always surmount the challenge of creating scenes of drama that no doubt were lacking in the actual military commission, a predetermined proceeding that unfolded in a time of far fewer procedural guarantees.
(One awaits the women's studies analysis of the film's metaphorical equation of gender with innocence.)
Surely the film prompts viewers to think about today's military commissions, although its muted box-office reception suggests not many want now to think about such things.
The film offers additional and unexpected food for thought: Stanton insists that an exemplary prosecution not only will punish the actual wrongdoers, but also will prevent further resistance on the part of the still-rebellious. His justification has echoes in rationales advanced for some of the more inclusive international criminal law theories of culpability. The folly of his prediction counsels care in such advancements.

On December 24

On this day in ...
... 1951 (60 years ago today), a former Italian colony in North Africa, Libya, declared independence. Thus it became "the first country to achieve independence through the United Nations and one of the first former European possessions in Africa to gain independence." King Idris ruled the country as a monarchy until September 1, 1969, when a then-28-year-old military officer, Muammar el-Qaddafi, seized power in a bloodless coup. What happened after that? See here. (credit for February 2011 of member of Benghazi opposition holding photo of the late King Idris)

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

Friday, December 23, 2011

'Nuff said

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

'I can see if your car is hot that you were just driving it, if you are smoking a cigarette.'

-- "Col. R" of the Israeli Defence Force, according to the Washington Post, the "commander of the drone squadron that flies over Gaza, who spoke on the condition that his full name not be used." (photo credit) Col. R's comment captures the precision of drone surveillance, and writer Scott Wilson's overall article, In Gaza, lives shaped by drones, conveys the ubiquity of the remote-controlled Israeli aircraft in Gaza, as well as their U.S. counterparts "over Pakistan's tribal areas and, increasingly, parts of East Africa and the Arabian Peninsula." (Followup letters to the WaPo editor here.)

Write On! Lieber Prize

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

The Lieber Society on the Law of Armed Conflict, an interest group of the American Society of International Law, welcomes nominations of books, book chapters, and articles for the Francis Lieber Prize -- one given annually to a book, and another to a chapter/article, judged outstanding in the field of law and armed conflict.
Any work in the English language, by an author 35 years old or younger, published during 2011 or whose publication is imminent at the time of submission may be nominated. Topics within the scope of the award include:
► Use of force in international law;
► Conduct of hostilities during international and non international armed conflicts;
► Protected persons and objects under the law of armed conflict;
► Law of weapons, operational law, rules of engagement, occupation law, peace operations, counterterrorist operations, and humanitarian assistance; as well as
► Other topics bearing on the application of international law during armed conflict or other military operations.
The prizes will be announced at ASIL's annual meeting on March 28-31, 2012, in Washington, D.C.
Deadline for submission is January 16, 2012; details here.

On December 23

On this day in ...
... 1986 (25 years ago today), the 1975 Nobel Peace laureate and "most prominent Soviet dissident, Andrei Sakharov ... arrived with his wife and co-activist Yelena Bonner to a crowd of journalists and the public gathered at Moscow's railway station." Their arrival put an end to nearly 7 years of forced internal exile in the "closed city" then known as Gorky; today, Nizhny Novgorod. Criticism of Soviet intervention in Afghanistan had prompted the banishment. (credit for 1986 photo of the couple) As we've posted, Sakharov, who died in 1989, and Bonner, who died this past June, both continued to campaign for human rights for the rest of their lives.

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

Thursday, December 22, 2011

2011 ICC Gender Report Card

(Delighted to welcome back alumnae Brigid Inder and Kate Orlovsky, who contribute this guest post)

On 13 December 2011, the Women's Initiatives for Gender Justice launched the Gender Report Card on the International Criminal Court 2011. The launch took place during the tenth session of the International Criminal Court Assembly of States Parties in New York, which IntLawGrrls covered in posts available here.
The Women’s Initiatives for Gender Justice, for which we work, is an international women's human rights organisation that advocates for gender justice through the ICC and through domestic mechanisms; for example, through peace negotiations and justice processes, and through working with women most affected by the conflict situations under investigation by the ICC.
We have programmes in Uganda, the Democratic Republic of the Congo, Sudan, the Central African Republic, Kenya, Libya and Kyrgyzstan. With offices in Cairo, Egypt, in Kampala and Kitgum, Uganda, and in The Hague, Netherlands, the Women’s Initiatives is leveraging progress at the international level to advance domestic accountability for gender-based crimes.
The Gender Report launch was attended by representatives of ICC states parties, by officials of the ICC and the United Nations, and by academics, the media, and other members of civil society. Speakers during the event included: ICC Prosecutor-Elect Fatou Bensouda, U.N. Special Representative for Children and Armed Conflict Radhika Coomaraswamy and one of us, the Women’s Initiatives’ Executive Director, Brigid Inder.
Here are some highlights (also see here):
► Bensouda's gave first public address since her 12 December election as next Chief Prosecutor of the ICC ( she published the statement she made on her election day as an IntLawGrrls guest post). In her launch address, which earned notice by the Washington Post, Bensouda pledged to prosecute sexual and gender crimes, saying:

'This office, under my tenure, will continue and will make sure that these crimes that they have suffered will be punished — their perpetrators being arrested and prevented from committing additional crimes … This is a commitment that I make to all of you today.'

Bensouda also stated that in the past the Office of the Prosecutor had not done as well as it could have in working with women’s organisations, and that as Prosecutor she will ensure that her office works more closely with these groups, including local women’s rights organisations in conflict countries, which are often the only ones assisting women victims.
► Coomaraswamy spoke from her experience both as the former Special Rapporteur on Violence against Women and as the current U.N. Special Representative for Children and Armed Conflict. (See posts on our Twitter feed here.) She recalled:

'What frustrated most of us in the 1990s is that the international legal framework had nothing to say about sexual and gender-based crimes. When we think of the ICC, we think of the broad definition of sexual violence, which was unthinkable before the Rome Statute. But, let’s not forget the struggle that went into creating this framework.'

► In her speech, Brigid spoke to the purpose of the Gender Report Card 2011, or GRC, available in pdf here. Brigid stressed:

'Monitoring and critiquing the ICC and production of the GRC is one of our strategies to advocate for gender-inclusive justice and to promote the capacity of the court to address gender issues within the global legal system. It is also one of our strategies for the inclusion and participation of women in shaping international criminal law as law-makers, practitioners, decision-makers, participants and beneficiaries of the justice process.'

This is the seventh annual report card produced by the Women’s Initiatives for Gender Justice. (Previous post; prior editions available here.) This Gender Report Card 2011, which soon will be available at our website, analyses the institutional developments of the ICC throughout 2011, as well the Court’s substantive work and jurisprudence. It also examines the Court’s internal policies, its recruitment and personnel statistics, its institutional development, and the work of its independent bodies, such as the Trust Fund for Victims and the Office of the Public Counsel for Victims. The Gender Report Card 2011 contains detailed recommendations both to the Court and to the ICC Assembly of States Parties. In short, it provides the most comprehensive gender analysis of the ICC currently available.

On December 22

On this day in ...
... 1986 (25 years ago today), a 5-member Chamber of the International Court of Justice ruled in the case known as Frontier Dispute (Burkina Faso/Republic of Mali). The ruling established the border between the 2 West African countries in accordance with the colonial borders, "'inherited from colonization'" (¶ 19), between what had been known as Upper Volta and French Sudan. (map credit) Reinforcing a proviso in the bilateral agreement that had led to the proceedings was the international law principle of uti posseditis juris, which, as the Chamber wrote, "accords pre-eminence to legal title over effective possession as a basis for sovereignty" (¶ 23). Recognizing potential conflict between that principle and the right of peoples to self-determination, the Chamber wrote that "the principle of uti posseditis has kept its place among the most important legal principles ... by deliberate choice that African states selected" (¶¶ 25-26). Two members of the Chamber wrote separate opinions; one, Judge Georges Abi-Saab, would have tempered the uti posseditis pronouncement with greater consideration of "equity infra legem" (¶¶ 13-15).

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

Wednesday, December 21, 2011

Nora Demleitner, W&L's new IntLawDean

Pleased to note that our colleague Nora V. Demleitner's been appointed dean at the Washington and Lee University School of Law in Lexington, Virginia. (credit for photo of Nora by Tony Lopez)
An expert in comparative, criminal, and immigration law, Nora, as we've posted, has been serving for several years as dean at New York's Hofstra University School of Law. Effective July 1 of next year, she'll be the 1st woman dean at Washington and Lee, a law school founded 145 years ago. Serving on the dean's search committee was IntLawGrrls' own Johanna E. Bond, a member of the W&L faculty and the author of a post published earlier today.
Born in Germany, Nora earned a bachelor's degree from Bates College in Lewistown, Maine, a law degree from Yale, and a master's in law from Georgetown University Law Center. She clerked for Samuel A. Alito Jr., then federal appellate judge and now, of course, a U.S. Supreme Court Justice.
Heartfelt congratulations, Nora!

Breaking News: USG Brief in Favor of Kiobel Plaintiffs

The United States has weighed in on the side of the plaintiffs in the Kiobel case, arguing that it is for the federal courts exercising their "residual" common law powers to determine when corporate liability is appropriate. (IntLawGrrls' many prior posts on this case available here.)
In other words, it is not necessary for international law to provide specifically for corporate liability. In any case, the brief notes, international law norms do not identify whether they apply to natural or to legal persons and corporations can be liable for those international law violations that apply to other non-state actors.
This Brief of the United States, available here, follows in the great tradition of Solicitor General briefs filed in defense of Alien Tort Statute litigation starting with Filartiga.
Importantly, the brief is submitted not only by Donald B. Verrilli, Jr., Solicitor General, and Harold Hongju Koh, Legal Adviser to the State Department, but also by Cameron F. Kerry, General Counsel To The Department Of Commerce. The executive summary of the brief speaks for itself:

The merits question before this Court is narrow: whether a corporation can be held liable in a federal common law action based on the ATS. Although there are a number of other issues in the background of this case (e.g., aiding-and-abetting liability,e extraterritoriality, etc.), those issues were not decided by the court of appeals here. This Court therefore should address only the corporate-liability issue. On that issue, the court of appeals’ holding is categorical and applies to all suits under the ATS,regardless of the theory of liability, the locus of the acts, the involvement of a foreign sovereign, or the character of the international-law norm at issue.

A corporation’s liability in a suit under the ATS does not depend on the existence of a generally accepted and well-defined international law norm of corporate liability for law-of-nations violations. The particular limitation this Court found dispositive in Sosa v.Alvarez-Machain, 542 U.S. 692 (2004) — that any claim under the ATS must at least “rest on a norm of international character accepted by the civilized world and defined with” sufficient “specificity,” id. at725—pertains to the international-law norm itself and not to whether (or how)that norm should be enforced in a suit under the ATS. The latter question is a matter to be determined by federal courts cautiously exercising their “residual common law discretion.” Id. at 738. International law informs, but does not control, the exercise of that discretion.
At the present time, the United States is not aware of any international-law norm of the sort identified in Sosathat distinguishes between natural and juridical persons. Corporations (or agents acting on their behalf) can violate those norms just as natural persons can.Whether corporations should be held accountable for those violations in private tort suits under the ATS is a question of federal common law.
Courts may recognize corporate liability in actions under the ATS as a matter of federal common law. The text and history of the ATS itself provide no basis for distinguishing between natural and juridical persons. Corporations have been subject to suit for centuries, and the concept of corporate liability is a well-settled part of our “legal culture.” Pet. App. A8. Sosa’s cautionary admonitions provide no reason to depart from the common law on this issue. International law does not counsel otherwise. Although no international tribunal has been created for the purpose of holding corporations civilly liable for violations of international law, the same is true for natural persons. And while international criminal tribunals have, thus far, been limited to the prosecution of natural persons, that appears to be because of matters unique to criminal punishment. Notably, several countries that have incorporated international criminal offenses into their domestic law apply those offenses to corporations.
Kudos to the SG for doing the right thing!

New Book is a "Game Changer"

Today, I'd like to "blag" (half-blog/half-brag) about an incredible new book by IntLawGrrls Fionnuala Ní Aoláin, Dina Francesca Haynes, and Naomi Cahn, entitled "On the Frontlines: Gender, War, and Post-Conflict Process." The book, recently published by Oxford University Press, is remarkably compelling and likely to have a significant impact on the way that scholars and activists working in post-conflict societies conceive of their fundamental mission. Several key themes provide a conceptual anchor throughout the book. These include: (1) the notion of gender centrality as a more effective and compelling alternative to gender mainstreaming; (2) the relevant international norms and the extent to which they have been successful in addressing the gendered aspects of post-conflict processes; (3) the importance of consulting with local populations, and with women in particular, before advancing any post-conflict agenda; and (4) the inadequacy of focusing disproportionately on civil and political rights, whether through accountability mechanisms, rule of law initiatives, or other avenues, to the exclusion of socio-economic rights and needs. The authors deftly weave these themes throughout the book in a way that guides the reader through a complex and persuasive analysis.
In developing these themes, the authors frequently question the conventional wisdom in the field. This provocative engagement with and thoughtful critique of current norms makes the book an invaluable contribution to the literature. Throughout the book, the authors discuss legal and other initiatives that were designed to facilitate the recovery of societies emerging from conflict. The authors acknowledge the contributions of such initiatives but consistently question their effectiveness. Time and again, they pose the critical questions: "Does it really work? And does it work for women?"
One particularly important theoretical insight (and there are many) stems from the authors' resistance to gender essentialism. Women's victim-status has dominated the post-conflict literature in ways that often reinforce gender essentialism. In some ways, this is understandable given the gendered nature of sexual harms suffered by women in areas of armed conflict. The analysis, however, must extend beyond victim-status to engage questions of women's participation in conflict and their involvement in the recovery effort. The authors' approach reinforces the complexity of women's experiences before, during, and after conflict.
I loved this book. It's a "game changer;" read it when you have a chance.

On December 21

On this day in ...
... 1921 (90 years ago today), Alicia Ernestina de la Caridad Martínez Hoya was born in Havana, Cuba; she appeared on stage as a dancer for the 1st time at age 8. Married at 16, 3 years later Alicia Alonso (left) suffered an eye affliction that rendered her partly blind. (photo credit) Nonetheless, she would excel in the world of ballet, as a "Prima Ballerina Assoluta," famous for her portrayals of the lead characters in Giselle (credit for video below) and Carmen, a choreographer, and the founder, in 1955, the Ballet Nacional de Cuba. A "UNESCO Celebrity Advocate," Alonso remains active with her ballet company to this day.

(Prior December 21 posts are here, here, here, and here.)

Tuesday, December 20, 2011

Guest blogger: Jessica Tillipman

It's IntLawGrrls' great pleasure to welcome Jessica Tillipman (left) as today's guest blogger.
Jessica's the Assistant Dean for Outside Placement and a Professorial Lecturer in Law at George Washington University Law School in Washington, D.C., from which she also earned her J.D. degree with honors, following receipt of a B.S. degree cum laude from Miami University in Oxford, Ohio.
At GW, Jessica manages the law school’s externship program, including the supervision of more than 500 students a year, and also teaches an Anti-Corruption seminar and a Scholarly Writing course for the Public Contract Law Journal.
Before entering academia, she was an associate at Jenner & Block, a member of the firm's Government Contracts and White Collar Criminal Defense and Counseling practice groups. Before that, she served as a law clerk to Judge Lawrence S. Margolis, U.S. Court of Federal Claims.
Her publications have focused on white collar and government contracting issues; her Reform of the UNCITRAL Model Law on Procurement: Procurement Regulation for the 21st Century, 2010-2011, appeared in 2010.
Jessica's guest post below analyzes the interrelation of U.S. government contracting in relation and the federal Foreign Corrupt Practices Act.
Heartfelt welcome!