Monday, February 28, 2011

ATS Case Involving Abuse By Church Officials Survives Motion to Dismiss

An Alien Tort Statute (ATS) case pending in the Central District of California survived this week a motion to dismiss for lack of subject matter jurisdiction. The case was filed on behalf of a Mexican national, proceeding anonymously, against Cardinal Roger Mahony, the Roman Catholic Archdiocese of Los Angeles, Mexican national Cardinal Norberto Rivera, Mexican national Father Nicholas Aguilar Rivera (left, the alleged direct perpetrator), and the Diocese of Tehuacan in Mexico. Plaintiff's lawyers specialize in cases redressing the abuse of minors. The plaintiff's allegations stem from abuse suffered when he was twelve-years old at the hands of Father Aguilar and the subsequent conspiracy among the defendants to conceal and cover-up the abuse in order to protect Father Aguilar and the Church. The complaint contains ten causes of action, including:
  • rape & other sexual abuse,
  • crimes against humanity,
  • torture,
  • cruel, inhuman, & degrading treatment,
  • civil conspiracy,
  • intentional infliction of emotional distress,
  • negligence and
  • failure to warn.
In addition to the abuse of the plaintiff, it alleges other instances of abuse in the relevant dioceses, including some that led to the criminal prosecution of Father Aguilar (see this timeline of events). Evidence invoked in the opinion suggest that Church officials were aware of Father Aguilar's history of abuse and yet did nothing to prevent his access to children in either diocese.

In the opinion denying defendants' motion to dismiss for lack of subject matter jurisdiction (under FRCP 12(b)(1)), the Court determined that plaintiff had adequately pled a federal cause of action and thus had the right to proceed in federal court. In so ruling, the Court determined that the plaintiff's claims were not insubstantial, implausible, frivolous, or devoid of merit, which would allow it to dismiss the case at this preliminary stage in the absence of a motion to dismiss for failure to state a claim upon which relief could be granted (under FRCP 12(b)(6)). The Court also ruled that the complaint was not barred by the 10-year statute of limitation, because the ATS is subject to equitable tolling. The infamous Erie case reared its head here as the Court cited California laws tolling cases involving a child plaintiff until the child turns 18 and laws tolling cases filed by victims of sexual abuse until the child turns 26. The Court determined that the case was timely under either theory. In addition, the Court ruled that plaintiff was not required to exhaust local remedies prior to filing suit here.

Most importantly for students of international law, the Court also ruled that plaintiff's international law claims were actionable under the Alien Tort Statute as violations of customary international law. In particular, it noted that rape, sexual abuse, and private torture can violate international law when they rise to the level of crimes against humanity. In so ruling, the Court cited prior ATS jurisprudence, human rights treaties including the Convention on the Rights of the Child, and Article 7 of the ICC Statute (defining crimes against humanity). The Court confirmed that supplemental jurisdiction exists over the California state law claims of negligence and intentional infliction of emotional distress.

Based on the arguments made in the instant motion, we can expect future motions to dismiss arguing that
  • As a corporation, the Archdiocese cannot be sued under the ATS,

  • The plaintiff has failed to allege facts that if true would entitle him to relief for the causes of action alleged.
The crimes against humanity claim is no doubt the most worrisome claim for the Church and the most vulnerable claim for the plaintiff. It will require the plaintiff to demonstrate the existence of a widespread and systematic attack against a civilian population. Given the increasing number of cases involving abuse and cover-up within the Church worldwide, the plaintiff may be able to meet this threshold. In addition, maintaining the crimes against humanity claim will entitle the plaintiff to broad pattern-and-practice discovery. The relevant federal rules of civil procedure allow discovery on any matter that is relevant to the party's claims; for good cause shown, the court may order discovery of any matter relevant to the subject matter involved in the action. This broad scope is limited, however, by evidentiary privileges, such as that between priest and penitent as set forth in California law.

This website contains information and a searchable database on priests accused of abuse (list of names above). Stay Tuned!

International Court of Justice Roundup

In connection with meetings at the Peace Palace (left) last week and the recent visit of Dame Rosalyn Higgins to Santa Clara, I had occasion to take a peek at the current docket of the International Court of Justice. The ICJ has entertained 150 cases since its inception in 1947. At the moment, 16 cases are pending on its docket—more than at any other point in history. I asked Judge Higgins about the more frequent resort to the Court and she credited several factors, including an increased faith in the ability of international law to resolve disputes, a recognition of the Court's ability to render just and efficient outcomes, and greater litigiousness generally.
Among the cases pending before the ICJ (another of whose judges, as we've posted here and here, will be in the Bay Area this week), we see:
► Frontier disputes:

► Cases invoking environmental law:

► Near and dear to my heart, are several cases involving international criminal law:

► Cases involving claims of violations of territorial integrity and the prohibition on uses of force:

► Human rights

► Civil jurisdiction

A final dispute that is hard to categorize (though I must admit that the word "petty" came instantly to mind) concerns the continuing fight over the use of the word “Macedonia” by the former Yugoslav Republic of Macedonia. Application of the Interim Accord of 13 September 1995 (Greece v. former Yugoslav Republic of Macedonia). Greece has jealously guarded the term, arguing that the former Yugoslav Republic of Macedonia, which declared its independence in 1991, harbors irredentist territorial ambitions toward Greece’s northern province of Macedonia.
In addition to these contentious cases, there is one matter invoking the Court's advisory jurisdiction. Judgment No.2867 of the Administrative Tribunal of the International Labour Organization upon a Complaint Filed against the International Fund for Agricultural Development relates to a complaint filed against IFAD on a terminated employment contract that went before the ILO.
Busy times at the ICJ indeed.

On February 28

On this day in ...
... 1879, Hortense Allart de Méritens (right) died in Montlhéry, France, 77 years after she'd been born in Milan, Italy. (image credit) Also known by her nom de plume, Prudence de Saman L'Esbatx, Allart was a French feminist writer who spoke out in favor of free love and women's rights and contributed to La Gazette des femmes, or Women's Daily, a periodical whose contributors also included a colleague of Allart, the Frenchwoman who wrote novels under the pseudonym George Sand. Philosophical inquiries by Allart -- the study of this 1998 biography by Helynne Hollstein Hansen -- included publication in 1857 of Novum organum ou sainteté philosophique, which contended that new scientific discoveries proved the existence of a higher power. Among Allart's many lovers was diplomat François-René de Chateaubriand, who inspired not only French Romantic literature, but also the beefy dish popular to this day.

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

Sunday, February 27, 2011

ICC referral: sweet, or bittersweet?

Some sweet irony in the referral of the Gadhafi regime to the International Criminal Court.
As watchers of the Hague-based court at left well know, longtime Libyan leader Moammar Gadhafi long has been a thorn in the ICC's side.
It's not just that Libya's not a party to the Rome Statute of the ICC. As the map below shows, the same holds true of many of its Arab neighbors -- and of certain very large states to the west and east of Libya.
Rather, Libya's particularly prickly relation to the ICC stems from Gadhafi's efforts to exerts his brand of leadership on the African continent.
To cite an example: It's no accident that, as Pittsburgh Law Professor Charles Jalloh, among others, has noted, the 1st African Union resolution condemning the ICC's pursuit of Sudanese President Omar al-Bashir occurred at a meeting in Libya.
Libya also is a member of the Human Rights Council, formed in 2006 as a means better to promote human rights within U.N. member states and throughout the world.
The Human Rights Council broke with Libya on Friday, as we posted here and here. Reports that the Gadhafi regime had ordered aerial attacks and street-thuggery against its own, unarmed civilians compelled the Council unanimously to urge the General Assembly to suspend Libya's U.N. membership.
Last night the Security Council went giant steps further, not only imposing sanctions and an arms embargo, but also referring the Libya matter to the ICC. The vote was unanimous among the T-10 and P-5 alike: ICC nonparty China put aside earlier-reported misgivings, and the United States, another ICC nonparty, openly supported an ICC referral for the 1st time ever.
Here're the pivotal paragraphs of Security Council Resolution 1970 (February 26, 2011):

The Security Council,
Acting under Chapter VII of the Charter of the United Nations, and taking measures under its Article 41,
ICC referral
4. Decides to refer the situation in the Libyan Arab Jamahiriya since 15 February 2011 to the Prosecutor of the International Criminal Court;
5. Decides that the Libyan authorities shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor pursuant to this resolution and, while recognizing that States not party to the Rome Statute have no obligation under the Statute, urges all States and concerned regional and other international organizations to cooperate fully with the Court and the Prosecutor;
6. Decides that nationals, current or former officials or personnel from a State outside the Libyan Arab Jamahiriya which is not a party to the Rome Statute of the International Criminal Court shall be subject to the exclusive jurisdiction of that State for all alleged acts or omissions arising out of or related to operations in the Libyan Arab Jamahiriya established or authorized by the Council, unless such exclusive jurisdiction has been expressly waived by the State;
7. Invites the Prosecutor to address the Security Council within two months of the adoption of this resolution and every six months thereafter on actions taken pursuant to this resolution;
8. Recognizes that none of the expenses incurred in connection with the referral, including expenses related to investigations or prosecutions in connection with that referral, shall be borne by the United Nations and that such costs shall be borne by the parties to the Rome Statute and those States that wish to contribute voluntarily; ...

The resolution zeroes in on Gadhafi -- and what little seems left of his regime in the wake of many ministerial defections to the antigovernment side.
Worth noting: The caveat concerning a national of a nonparty state present at the scene by authorization of the Council -- presumably, a person deployed as a U.N. peacekeeer. Evidence that such a person took part in criminal behavior must be referred to the state of nationality; by the terms of ¶6, absent a waiver the ICC would have no jurisdiction over such a malefactor. (Thanks to our colleague Kevin Jon Heller (his OJ post here) for pointing out my initial, erroneous interpretation.)
Some cause for concern: The foisting of the costs of ICC investigation onto the ICC and states that choose to contribute. That provision in ¶8 hints at certain lingering reluctances, and serves to remind of the deaf ear that the Security Council has turned to the ICC Prosecutor's pleas for aid in effecting the arrest of international fugitive and still-incumbent President Bashir.
It's to be hoped the Security Council's newfound spine will translate into helping the ICC as it endeavors to respond responsibly to yet another weighty referral. It's also to be hoped that the ICC will rise to the "test," to quote our colleague William Schabas; that is, it "must inspire confidence in its ability to provide a meaningful, significant and above all prompt response to the crisis."
If not, today's irony may prove more bitter than sweet.

(Credit for 2010 map indicating: in grey, states, like Libya and China, that have neither signed nor ratified the ICC Statute; in orange, states, like the United States, Sudan, and Russia, that at one time signed but never ratified; and in green, full states parties to the ICC Statute. Though slightly out of date -- it shows 111 rather than the current 114 states parties -- the map is accurate with regard to the states discussed in this post, a version of which is cross-posted at The Huffington Post.)

In Defense of Human Rights Defenders

On this day in 1998, paramilitaries stormed into the office of Jesús María Valle Jaramillo (left), a Colombian lawyer and human rights defender who had been active in denouncing crimes committed by paramilitaries in conjunction with members of the Colombian army. Valle Jaramillo was executed. With him on this day 13 years ago were his sister Nelly Valle Jaramillo and a friend, Carlos Fernando Jaramillo Correa. These two individuals were tied, dragged across the office, and threatened with death.
The victims brought a case against Colombia before the Inter-American human rights system (the Commission and the Court). Remarkably, before the Commission, the state partially admitted its responsibility by omission, apologized, and offered reparations. The victims, however, argued that the terms of the admission denied the State's responsibility for its agents as co-authors, accomplices, or instigators in the alleged violations and thus did not fully contribute to the victims' desires for truth and justice. Accordingly, they pressed the Commission to forward the case to the Court.
Before the Court, Colombia was found responsible by omission for violations of the victims' rights to
  • personal liberty (Article 7 of the American Convention on Human Rights),
  • humane treatment (Article 5),
  • life (Article 4),
  • freedom of movement and residence (Article 22) and
  • judicial protection (Article 25).
Drawing on the conclusions of its prior cases involving Colombia, the Court noted that the state originally encouraged the creation of “self defense” paramilitary groups, but that these groups began to "function beyond the law" and commit human rights abuses. The Court also noted that prior cases demonstrated numerous links between paramilitary groups and members of the armed forces such that the Colombian state bore direct international responsibility for the failure to comply with “its obligation to ensure human rights, [and, thus,] its duty of prevention and protection.” In addition, the Court found that

even though the State has adopted certain legislative measures to prohibit, prevent and sanction the activities of the “self defense” or paramilitary groups, these measures did not translate into the effective deactivation of the danger that the State helped create. [T]his accentuates the State’s special obligations of prevention and protection...
In addition, the Court made note of the special guarantees owed to human rights advocates in light of their work defending and promoting human rights. The Court acknowledged that Colombia had already implemented a series of measures to assist and protect human rights defenders including

  • the legal recognition of human rights organizations;
  • the formulation and implementation of the National Action Plan on Human Rights and International Humanitarian Law; and
  • the provision of police protection to human rights organizations.

Nonetheless, full compliance with the obligation that states create the necessary conditions for the effective enjoyment and exercise of the rights established in the Convention,

is tied intrinsically to the protection and recognition of the importance of the role of human rights defenders, whose work is essential to strengthen democracy and the rule of law.

Thus, where a state is aware of a real and immediate danger to human rights defenders, a State

has the obligation to adopt all reasonable measures required to guarantee the rights to life, to personal liberty, and to personal integrity of those defenders who denounce human rights violations and who are in a situation of special vulnerability such as the internal armed conflict in Colombia.
With respect to reparations, the Court also undertook an interesting discussion of which family members should be recognized as "next of kin", reflecting the civil law's more expansive notions of dependents/beneficiaries.

For more on the risks undertaken by human rights defenders, see the programs at Amnesty International, the International Federation for Human Rights (FIDH), and Human Rights First.

On February 27

On this day in ...
... 1991 (20 years ago today), in a televised address, U.S. President George H.W. Bush declared Kuwait liberated, Iraq defeated, and U.S.-led allies on stand-down status. He called upon Iraqi President Saddam Hussein, whose forces The New York Times described as "isolated and battered," to begin negotiating a permanent ceasefire. (map credit) The declaration marked the end of the Persian Gulf War -- but not, as readers of our "...and counting..." feature well know, the end of all combat in Iraq.

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

Saturday, February 26, 2011

Libya: Global Condemnations of Human Rights Violations

As the World Watches...
As posted here by IntLawGrrls Diane Marie Amann and Jaya Ramji-Nogales, human rights abuses against Libyan civilians include indiscriminate use of force, killings, forced disappearances, and violations of the rights to freedom of thought, conscience, opinion, peaceful assembly, and access to information. (Pictured, flag displayed by protesters and diplomats that have denounced the current government.) The reported violations have outraged observers around the world. This, despite a virtual communications blackout that has made monitoring events in Tripoli and other parts of the country difficult.
The United Nations Security Council meets today to discuss the potential imposition of sanctions under UN Charter Chapter VII authority.
Condemnations of Colonel Moammar Gaddafi's actions have included those from diplomats previously associated with his government.
A selected list of international statements and developments appears below.
The world is watching, but the people of the world must do more than watch. They must also insist that their leaders take appropriate joint actions to end the killings and other abuses.
UN Condemnations
►“Libya: Gaddafi in Spotlight at UN Security Council,” BBC News, 26 February 2011
“UN Resolution on Libya ‘possible’ on Saturday, Security Council President,” Xinhua, February 26, 2011
“Ban Calls on UN Security Council to Consider Immediate Steps to Stop Killings in Libya,” 25 February 2011
"UN Human Rights Council Recommends Suspension of Libya," UN Office of the High Commissioner for Human Rights, 25 February 2011
“15th Special Session on the situation of human rights in the Libyan Arab Jamahiriya” Human Rights Council, 25 February 2011 (links to statements by High Commissioner Navi Pillay, a statement on behalf of all “special procedures” mandate-holders, statements by member countries, and civil society, and Human Rights Council resolution calling for the suspension of Libya from membership on the Council)
Regional Condemnations
“AU Peace and Security Council on the Situation in Libya,”, 24 February 2011
►Josh Rogin, “Over 200 Arab Groups Call for Libya No-fly Zone,” The Cable, Friday, February 25, 2011 (includes full texts of statements by prominent Arab intellectuals and by NGOs)
“Request for Provisional Measures to the African Commission on Human and Peoples’ Rights” INTERIGHTS, 24 February 2011
(joint request by Egyptian Initiative for Personal Rights, Human Rights Watch, and INTERIGHTS)
Condemnations by Libyan Diplomats
“UN Ambassador’s Tears for Libya,” BBC News, 26 February 2011 (UN Ambassador Mohamed Shalgham’s denunciation of the government’s use of force against civilians and request for Security Council action.)
“Libyan Arab League delegation renounces Gaddafi,” Reuters, 25 February 2011
Legal Standards
Libyan Arab Jamahiriya Homepage, UN Office of the High Commission for Human Rights
(listing Libya's international human rights obligations under treaty law and customary international law)
“Responsibility to Protect,” UN General Assembly Resolution A/RES/63/309, 4 September 2009 (International Coalition ofn the Responsibility to Protect webpage) (link to resolution and history of UN efforts to ennumerate the responsibilities of the international community when states fail to protect civilians within their borders or affirmatively harm them.)
News Updates
Live: Libya Revolt, BBC News (continuously updated page, visited 26 February 2011).

Go On! ICJ's Greenwood @ California-Davis

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

The California International Law Center at King Hall, for which I serve as founding Director, is honored to host a public address by Sir Christopher Greenwood (below right) on the topic of "The Role of the International Court of Justice in the Global Community." Posing post-lecture questions to Judge Greenwood will be California-Davis Law Professors Andrea K. Bjorklund (IntLawGrrls' very 1st guest/alumna), Anupam Chander, and yours truly.
The event will take place at 4 p.m. this Tuesday, March 1, at the Kalmanovitz Appellate Courtroom 1001, University of California, Davis, School of Law, 400 Mrak Hall Drive.
Appointed to the ICJ in 2009, Greenwood already has sat on a number of important cases, among them the 2010 Kosovo Advisory Opinion (prior posts available here). Greenwood also has been a Professor of International Law at the London School of Economics, an arbitrator on matters involving the law of the sea and the international sale of goods, and a barrister on matters not only before British national courts, but also before international fora such as the European Court of Human Rights, the Court of Justice of the European Communities, the International Criminal Tribunal for the Former Yugoslavia, and the U.N. Compensation Commission.
Cohosting will be 2 California-Davis student groups, the International Law Society and the Journal of International Law & Policy. Also supporting this talk, as well as a session at Stanford Law and a private judges' luncheon, is the American Society of International Law.
Details on Tuesday's event are here.

'Nuff said

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

Looking for a way out of Afghanistan? Maybe it's time to try something totally different, like putting into action, for the first time in history, the most enlightened edict ever passed by the United Nations Security Council: Resolution 1325.

-- The provocative lead paragraph of a Los Angeles Times op-ed by Ann Jones, entitled "In Afghanistan, a woman's place is at the peace table." Jones, author of books on Afghanistan and women and armed conflict, stresses the promise of full implementation of Resolution 1325 on Women and Peace and Security, which (as detailed in IntLawGrrls posts available here) the Security Council adopted on October 31, 2000. The commentary derives from Jones' longer post at TomDispatch blog. (credit for photo by Jones of Afghan women) In similar vein, see this recent IntLawGrrls post by guests/alumnae Christine Bella and Catherine O'Rourke.

On February 26

On this day in ...
... 2004, in an executive order, U.S. President George W. Bush lifted some restrictions on contacts with Libya. The move followed Libya's December 2003 pledge to dismantle its nuclear technology program, which was aimed at producing nuclear weapons but which was far from that goal at the time of the pledge. The New York Times reported:

The partial lifting of sanctions enables Libya, which produces about 1.4 million barrels of oil every day, to draw back American oil companies. A number of American companies, including Marathon Oil, Occidental Petroleum and ConocoPhillips, have already indicated interest in exploring new relationships with Libya.

Any such relationships are again in doubt given bloody attacks by leader Moammar Gadhafi (prior posts) on Libyan civilians who are demonstrating against his regime. Indeed, current events are provoking not only new U.S. sanctions, but also questions about the wisdom of the thawing of U.S.-Libya relations that began on this day in 2004.

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

Friday, February 25, 2011

Human Rights Council call: Suspend Libya

The Human Rights Council of the United Nations resolved unanimously to ask the General Assembly to suspend Libya (flag at left).
Today's special session in Geneva marked the 1st time that the behavior of a Human Rights Council member had provoked a special session of the Council. The behavior at issue: the attacks upon demonstrators by what remains of the government of Moammar Gadhafi. The violence in Libya occurs amid a months-long backdrop of political changes in North Africa and the Middle East.
Also pursuant to the resolutionm an emergency inquiry commission will be sent to the country.
Here's the Advance unedited resolution, as adopted:

S-15/2 Situation of human rights in the Libyan Arab Jamahiriya

The Human Rights Council,
Reaffirming the Charter of the United Nations, the Universal Declaration of Human Rights, and relevant international human rights instruments, and relevant international law,
Recalling General Assembly resolution 60/251 of 15 March 2006,
Recalling further Council resolution 5/1 and 5/2 of 18 June 2007,
Expressing deep concern at the deaths of hundreds of civilians and rejecting unequivocally the incitement to hostility and violence against the civilian population made from the highest level of the Libyan government;
Reaffirming that all States have an obligation to protect the rights to life, liberty and security of the person,
Reaffirming also the responsibilities of all States, in conformity with the United Nations Charter, to respect human rights and fundamental freedoms for all,
Reaffirming further that all Member States of the United Nations Human Rights Council should uphold the highest standards in the promotion and protection of human rights and that the United Nations General Assembly may suspend the rights of membership in the Council of a member that commits gross and systematic violations of human rights;
Supporting the statements made by the Secretary-General of the United Nations and by the United Nations High Commissioner for Human Rights, in particular the latter’s statement of 22 February 2011 calling for international investigation into Libyan violence and justice for victims;
Supporting also the Press Statement of the United Nations Security Council on Libya of 22 February 2011,
Also supporting the statement issued by the Council of the League of Arab States of 22 February 2011, the statement of the Secretary General of the Organisation of Islamic Conference of 20 February 2011, the communiqué of the 261th Meeting of the Peace and Security Council of the African Union, and the relevant conclusions of the European Union Foreign Affairs Council of 21 February 2011;
1. Expresses deep concern with the situation in Libya, strongly condemns the recent gross and systematic human rights violations committed in Libya, including indiscriminate armed attacks against civilians, extrajudicial killings, arbitrary arrests, detention and torture of peaceful demonstrators, some of which may also amount to crimes against humanity; 2. Strongly calls upon the Government of Libya to meet its responsibility to protect its population, to immediately put an end to all human rights violations, to stop any attacks against civilians, and to fully respect all human rights and fundamental freedoms, including freedom of expression and freedom of assembly;
3. Strongly calls upon the Government of Libya for the immediate release of all arbitrarily detained persons, including those who were detained before the recent events, as well as for the immediate cessation of intimidation, persecution and arbitrary arrests of individuals including lawyers, human rights defenders and journalists;
4. Urges Libyan authorities to ensure the safety of all civilians, including citizens of third countries, to refrain from any reprisals against people who have taken part in the demonstrations, to facilitate the departure of those foreign nationals wishing to leave the country, and to allow the provision of urgent humanitarian assistance to those in need;
5. Also urges Libyan authorities to immediately cease the blocking of public access to the internet and telecommunication networks
6. Further urges Libyan authorities to respect the popular will, aspirations and demands of its people and to do their utmost efforts to prevent further deterioration of the crisis and to promote a peaceful solution ensuring safety for all civilians and stability for the country;
7. Recalls the importance of accountability and the need to fight against impunity and in this regard stresses the need to hold to account those responsible for attacks in Libya, including by forces under government control, on civilians;
8. Urgently calls for an open, inclusive, meaningful and national dialogue aimed at systemic changes responding to the will of the Libyan people and at the promotion and protection of their human rights;
9. Reminds the Government of Libya to respect its commitment as a Member of the Human Rights Council to uphold the highest standards in the promotion and protection of human rights and to cooperate fully with the Council and its Special Procedures;
10. Calls on the Libyan authorities to guarantee access to human rights and humanitarian organisations including human rights monitors;
11. Decides to urgently dispatch an independent, international commission of inquiry, to be appointed by the President of the Council, to investigate all alleged violations of international human rights law in Libya, to establish the facts and circumstances of such violations and of the crimes perpetrated, and , where possible identify those responsible to make recommendations, in particular, on accountability measures, all with a view to ensuring that those individuals responsible are held accountable, and to report to the Council at its seventeenth session, and calls upon the Libyan authorities to fully cooperate with the Commission;
12. Requests the Secretary-General and the High Commissioner to provide all administrative, technical and logistical assistance required to enable the above-mentioned commission of inquiry to fulfil its mandate;
13. Requests the High Commissioner to provide an oral update to the Council at its sixteenth session on the human rights situation in Libya, and to submit a follow-up report to the seventeenth session, as well as to organize an interactive dialogue on the human rights situation in Libya during the seventeenth session of the Council;
14. Recommends to the United Nations General Assembly, in view of the gross and systematic violations of human rights by the Libyan authorities, the consideration of the application of the measures foreseen in OP8 of General Assembly resolution 60/251;
15. Decides to remain seized of the matter.

Leaving Libya

As the unrest in Libya has intensified over the past week, so have the flows of foreigners out of the country. Those lucky enough to come from wealthy nations have been evacuated in droves, while poorer migrant workers have had to fend for themselves. Many of these workers have been targeted by Qaddafi's regime simply for being foreigners, making their already precarious situation even more dangerous. While most have fled by foot to Tunisia and Egypt, the spectre of migrant flows to Europe has placed increasing pressure on the common European migration system.
The International Organization for Migration estimates that there were as many as 1.5 million foreigners in Libya when the crisis began; several thousand were US citizens, most working in the energy industry. Unable to evacuate many of its citizens through the airport, the US government has also sent a ferry but its departure has been delayed by stormy seas. Turkey, which has mounted its most extensive evacuation effort to date, has so far brought 5,000 people to Turkey and continues to ferry its citizens out of Libya. The Italians, the Chinese, and the Jordanians have sent ships or planes to evacuate their nationals.
Just as Libya's booming construction industry and rich oil fields drew these foreigners to the country, it also drew poorer migrant workers, who have not received assistance from their governments. Even worse, many of these foreigners have been specifically targeted by Libyan government forces, as Qaddafi has blamed Egyptians and Tunisians for causing the violence. Those fleeing report seeing dozens of their co-nationals killed and others subject to violent attacks including rape and torture, yet complain that their governments have not stepped in to protect them. Sub-Saharan Africans living in Libya have been similarly targeted because Qaddafi's forces think they are mercenaries. A UNHCR spokeswoman stated that it's dangerous "just having a black face" in Libya right now.
Over 30,000 of these poorer migrants have fled on foot to Tunisia and Egypt. This flow has been comprised largely of Egyptians and Tunisians, though Chinese and others have also escaped. Of greater concern are the tens of thousands of South Asians and Sub-Saharan Africans working in Libya, only a handful of whom have made it out of the country. The most desperate have taken the 1,000 mile trek across the desert to Niger. The UNHCR has emphasized the importance of open borders as crucial to protection of not only the 8,000 recognized refugees in Libya but also those fleeing the violence. While Egypt and Tunisia have so far been amenable to such requests, Europe is a different story.
The Italians continue to scaremonger, claiming that as many as 300,000 to 1.5 million migrant workers in Libya could end up in Europe even though most have fled to Egypt and Tunisia. Other EU leaders from nations such as Austria, Belgium, and Germany (whose borders are unlikely to be faced with such influxes) have remained skeptical that such flows will materialize and unwilling to take steps to assist Italy in advance (apart from a FRONTEX mission to help with screening and funding for Italian boat patrols in the Mediterranean). The general consensus among northern European states seems to be that Italy can handle the 5,000 migrants they've received so far. Italy's response? Northern League leader Umberto Bossi said that if migrants arrive, they'll take matters into their own hands by sending them into other EU nations through the Schengen border-free system.
The southern European states with Mediterranean borders, including Cyprus, France, Malta, and Spain, joined Italy yesterday in requesting EU funds to assist with the influx and burden-sharing on the part of other EU countries; those discussions continued into the night yesterday. One can only hope that they will discontinue the "push-back" policies for those fleeing the violence in Libya and other North African states, and offer a genuine protection process for refugees and other vulnerable migrants.

On February 25

On this day in ...
... 1956 (55 years ago today), in an address that the BBC called "sensational," former Soviet leader Joseph Stalin was reviled "as a brutal despot" by his successor, Nikita Khrushchev (right). The latter told an assembly of the Communist Party of the "regime of 'suspicion, fear, and terror' built up under the former dictator," who'd ruled from 1924 till his death in 1953. (photo credit) Khrushchev said his goal was to bring to an end what he called "the 'Stalin cult' that has held Soviet citizens in its thrall for 30 years." Americans and Britons would learn of the "Secret Speech" the following month, but it would not be published in Russia until 1988. It's estimated that during Stalin's rule "20 million died in labor camps, forced collectivization, famine and executions."

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

Thursday, February 24, 2011

Using Accountability Mechanisms to Change Corporate Practice in Mexico

(We're delighted to welcome back Natalie Bridgeman Fields, Executive Director of Accountability Counsel, who contributes today's guest post...)

Many thanks to IntLawGrrls for the opportunity to contribute a guest post.

On February 21st, construction of the Cerro de Oro Hydropower Project halted in Oaxaca, Mexico.

Accountability Counsel filed a complaint on behalf of three affected communities in November 2010 based on a wide variety of human rights and environmental problems associated with the Project. The communities received no information about the Project, were not consulted, impacts on indigenous groups were not considered, and there were insufficient plans to address and mitigate social and environmental impacts, including destruction of important waterways that communities depend on for household use, consumption and fishing. (The picture at right shows some of the project construction that is destroying the affected communities' creek, Arroyo Sal). The communities also have had problems with land acquisition and the lack of a required, local grievance mechanism to raise their concerns. The community complaints are here and here.

We submitted the complaint to the U.S. federal agency that financed the project, the Overseas Private Investment Corporation (“OPIC”). (The picture below left depcits the indigenous Chinanteco community of Cerro de Oro voting to file a complaint). OPIC invested $60 million in U.S.-based Conduit Capital Partners, LLC, the key Project sponsor. The complaint is the fifth ever filed with the internal OPIC Office of Accountability, which U.S. Congress created in 2005 so that complaints like this one can be addressed in a fair and objective manner. The complaint seeks the Office’s assistance with resolving community concerns about the project through the problem-solving function, and seeks to hold OPIC accountable for its failures to uphold its own policies through the compliance function.

Before the Office of Accountability even initiated its problem-solving role, based on the information in our complaint to the OPIC Office of Accountability, members of the Oaxacan State Congress launched an investigation into the Project. Their Commission convened a meeting last Thursday, February 17th, where the company, communities, and governmental officials all presented their views. At the meeting, the communities demanded suspension of the Project by Monday, February 21st, and the Congressional Commission supported the community demand. The company, wisely realizing that continued construction was exacerbating the situation, called me on Friday to announce at least temporary suspension of work.

Now, with construction of the Project suspended, the communities and the company will be able to return to the OPIC Office of Accountability process to begin dialogue. We hope that this largely untested accountability mechanism will have a constructive role in the process. The complex dynamics at work here have created at least a temporary victory for the communities who were, until today, watching chemicals used in construction enter their drinking water and their livelihoods eroded. We hope the communities and company can reach a negotiated solution soon so that we can return to the portion of the complaint focused on OPIC itself – a U.S. federal agency that financed a project in vast non-compliance with OPIC’s own policies and procedures meant to protect people and the environment.

Accountability Counsel, a legal non-profit founded in San Francisco in 2009, aims to defend the environmental and human rights of communities around the world by creating, strengthening, and using accountability systems. In particular, we specialize in non-judicial grievance procedures related to international finance and development. We accomplish our mission by:
  1. raising awareness and providing legal support to facilitate community complaints to accountability mechanisms, and
  2. providing expert policy advice to advocate for new avenues of redress, and for reforms so that existing mechanisms are accessible, robust, and effective tools for justice.

On February 24

On this day in ...
... 1887, in British Columbia, Canada, Vancouver lost its city charter for having failed to quell rioting against immigrants. The day before, an anti-Chinese meeting provoked hundreds of people to march -- notwithstanding snowy weather -- to an encampment, raze it, and drive out its inhabitants in an anti-Chinese riot. "The Chinese didn’t return to Vancouver until the Attorney General in Victoria introduced An Act for the Preservation of Peace within the Municipal Limits of the City of Vancouver and brought 36 constables from Victoria to Vancouver." (credit for 1892 Vancouver Public Library photo captioned "Immigrants Mah Shou Hing and Lee Dye," pictured alongside this account of the 1887 riot)

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

Wednesday, February 23, 2011

Guest Blogger: Sue Westwood

It is IntLawGrrls great pleasure to welcome Dr. Sue Westwood (pictured left) as today's guest blogger. Sue is currently a PhD candidate at the School of Law, Keele University, England, where she also teaches tort law to undergraduates. She has a prior career in health and social care provision, with associated academic and professional qualifications, and has recently re-trained in both gerontology and law. Sue is also a freelance equality and diversity researcher and trainer, specialising in the needs and rights of older people with minority identities.
Sue’s doctoral thesis is on aging lesbian, gay and bisexual identities and experiences of harassment in housing, health and social care provision for older people, within the context of new UK anti-discrimination legislation which has specific exclusions from protection from harassment on the grounds of sexual orientation. Sue's guest post below discusses the very well-received talk she gave at the Aging As A Feminist Concern conference last month at Emory Law School, about which IntLawGrrl Naomi Cahn posted here.
Sue has selected Emmeline Pankhurst (pictured below right) as her transnational foremother. Born in 1858, Pankhurst was the leader of the UK suffrage movement. (Prior IntLawGrrls posts.) After initially pursuing political lobbying to get women the vote without success, she later advocated more militant activism, particularly after her husband died. Her militant attitude caused a split with other women activists, including her daughters, and Emmeline went on to form the Women’s Social and Political Union (WSPU).
The suffragists in the WSPU chained themselves to railings, smashed windows and committed acts of arson to call attention to their campaign for women to be given the vote. Many, including Emmeline herself, were imprisoned, and then went on hunger strike. The women were subjected to brutal force-feeding on a routine basis, and Emmeline said she would never forget the sound of the women’s screams from her times in prison. Many of the women, including Emmeline, had long-term health problems associated with both the self-starvation and forced-feeding.
Emmeline was a controversial figure. She became involved in Conservative politics in later life, saying her life experiences had caused her to revise her political stance, although she always remained deeply committed to equality between men and women. In 1918 some women over 30 were given the vote in the UK, but it was not until 1928, the same year that Emmeline died, that all women were given the same right to vote as men in the UK. In Sue's words:
Emmeline was a major driving force in women first getting the vote in the UK.
Today Pankhurst joins other IntLawGrrls foremothers in the list at right just below our "visiting from..." map.
Heartfelt welcome!

Older people with LGBT Identities

(My thanks to IntLawGrrls for the opportunity to contribute this guest post, and to Professor Nancy Knauer for suggesting me)

Older people with lesbian, gay, bisexual and transgender identities face unique challenges as they age. They are at greater risk of needing formal care provision in older age, due to fewer having children, and more having fragmented relationships with birth family associated with their sexual and gender identification. Yet at the same time, there are shared concerns in the USA, UK, Canada and Australia, that health and social care providers are failing to address the needs of older people with LGBT identities and that this, in turn, is causing people to avoid services even when they may desperately needs them. Professor Nancy J. Knauer of Temple Law School (pictured right) , has written an award winning paper about the problems of LGBT older people in the USA [LGBT Elder Law: Toward Equity in Aging, 32 Harvard Journal of Law & Gender 1 (2009)] and has a book on related themes about to be published [Gay and Lesbian Elders: History, Law, and Identity Politics in the U.S. (Ashgate Publishing, Ltd.)]. There has been only minimal research in the UK as yet, which I am seeking to redress, in part, with my own PhD research (described in my bio above).
Older people with lesbian, gay or bisexual (LGB) identities face two different kinds of problems related to being ‘out’ and receiving care. They may be faced with unwanted exposure if they have been ‘in the closet’, as many people with LGB identities pre-Stonewall (during the time of criminalisation and psychiatric attempts at ‘cures’) may have been. This particularly applies to being recognised as partners of people who are terminally ill or in need of long-term care (e.g. dementia care). If they do not get such recognition, they may find themselves excluded from their loved-one’s care, and even death and funeral, by service providers and/or birth family. On the other hand, others who have previously been out (either fully or selectively) may feel it necessary to go back in the closet, particularly in terms of their own care, in order to avoid homophobia from care providers and fellow service users. Older people with transsexual identities also have very real concerns about the need for personal care in frail, dependent later older age and potential transphobic attitudes among care givers. On top of this, most LGBT activists fail to address the needs of older people within their communities, due to ageism, leaving older people with LGBT identities with nowhere to turn.
The UK, in comparison with the USA, enjoys far greater recognition of same-sex relationships and transgender identities and more formal policies relating to health and social care provision for older people with LGBT identities in housing, health and social care. However, older people with LGB identities, in both the USA and the UK, are inadequately protected from discrimination in law. In particular, new anti-discrimination legislation, the Equality Act 2010, explicitly excludes protection from harassment on the grounds of sexual orientation outside of the workplace, including in housing, health and social care services. This limitation followed vigorous lobbying from the Church of England and other religious organisations who were concerned that anti-homosexual teachings might otherwise constitute harassment in law, thereby limiting freedom of speech. However, opponents of the exclusions (who did not include Stonewall, the leading LGB lobbying organisation which, oddly, raised no objections) have argued that they may conflict with other elements of the European Convention on Human Rights, namely ‘prohibition of discrimination’ (Article 14), ‘the right to respect for private and family life’ (Article 8), ‘freedom of thought, conscience and religion’ (Article 9), or ‘the prohibition on inhuman or degrading treatment’ (Article 3).
As a result of these exclusions, the UK has created two-tier anti-discrimination legislation with people with LGB identities receiving lesser protection. The exclusions disproportionately affect older people with LGB identities, as they are more likely to be users of (sheltered) housing, and of health and social care services. However, their invisibility in academia, service provision and activism has meant the impact on older people with LG identities has been overlooked.
There is an urgent need, both nationally, and internationally, to address the marginalisation of older people with LGB identities, and the needs of older people with transgender identities, in order to resolve these inequities.

On February 23

On this day in ...

... 2010, Letitia Long (right) was named the next director of the National Geospatial-Intelligence Agency by U.S. Secretary of Defense Robert Gates. At the time she was the deputy director of the Defense Intelligence Agency. She had 3 decades of engineering and intelligence experience, serving in other positions including deputy director of Naval Intelligence and coordinator of intelligence community activities at the Central Intelligence Agency. Upon taking over at National Geospatial last August, Long became the "the first woman to be a leader at a major intelligence agency" in the United States.

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

Tuesday, February 22, 2011

Go On! Global criminal justice

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

The 24th International Conference of the International Society for the Reform of Criminal Law will be held August 7-11, 2011, at the National Arts Centre in Ottawa, Canada. The theme is "Globalization of Crime - Criminal Justice Responses."
The interdisciplinary gathering will bring together judges, legal practitioners, senior law enforcement personnel, corrections officers, academics, and non-governmental representatives from around the world. The leadership of its sponsor, the Society, includes colleagues of ours like (below right) Sara Sun Beale (Duke), Linda Malone (William & Mary), and Ellen S. Podgor (Stetson). Cosponsoring the conference with the Society is the Vancouver-based, U.N. affiliated nonprofit International Centre for Criminal Law Reform and Criminal Justice Policy, which this year celebrates its 20th anniversary.
The aim is "a forward-looking conference focusing on emerging crimes and new approaches to combat crime." Organizers write:
Domestic criminal justice systems are facing the globalization of crime. Transnational organized criminal groups are trafficking increasing quantities of drugs, firearms, counterfeit products, stolen natural resources and people, as well as smuggling more migrants across borders and engaging in maritime piracy and cybercrime. The response in many nations has been to expand the extraterritorial application and enforcement of domestic criminal laws and to increase mechanisms of international cooperation in the areas of extradition, mutual legal assistance and information-sharing. At the multi-lateral level, a permanent international criminal court has been established and there are renewed calls for various internationalized tribunals to address piracy. Countries continue to seek guidance on when and how domestic courts should exercise universal jurisdiction.

How do judges, prosecutors, policy-makers, representatives of law enforcement agencies and concerned citizens make sense of this shifting reality? How can we best formulate the criminal law and policy response to these challenges moving forward?

Program, fees, and other information are here.

On February 22

On this day in ...

... 1986 (25 years ago today), what soon would come to be called the "People Power" movement began in the Philippines. (It's an anniversary with special resonance this year of "North African People Power.") Precipitating events was a Presidential election after which longtime dictator Ferdinand Marcos (prior posts) refused to step down despite contentions that his opponent, Corazon Aquino, had won. On this day couple "senior members" of his government called for Marcos to step down. Soon "hundreds of thousands of civilians responded to calls for an uprising" -- one that would force the autocrat and his wife, Imelda Marcos, to flee (leaving behind her 2,700 pairs of shoes). (photo credit) He died in Hawaii in 1989; Aquino in Manila in 2009. Imelda Marcos opened a museum filled with her shoes in 2001; she remains mired in corruption lawsuits to this day.

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

Monday, February 21, 2011

'Nuff said

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

'I have never felt as at peace and as safe as I did during those days in Tahrir. There was a sense of coexistence that overcame all of the problems that usually happen - whether religious or gender based.'

-- Mona Seif (above left), a 24-year-old researcher who helped organize demonstrations in Cairo that led to the resignation of Egyptian President Hosni Mubarak. (Prior IntLawGrrls posts.) Seif was quoted in an Al Jazeera English article and video entitled "Women of the revolution" by Fatma Naib (right). The item appeared amid news of continuing political unrest -- and some violent crackdowns against same -- in countries including Algeria, Bahrain, Iran, Libya, Morocco, and Yemen.

On February 21

On this day in ...
... 2001 (10 years ago today), following discussions with officials of the European Commission, Britain suspended all exports of livestock, milk, and meat in the face of an outbreak of foot-and-mouth disease. The New York Times reported the anticipated harm to Britain,
already reeling from the prolonged crisis over mad cow disease, an outbreak of classical swine flu last summer and severe flooding on farms across the country over the winter.
(photo credit) More than 10 million sheep and cattle would be killed before the outbreak's end in October.

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

Sunday, February 20, 2011

Go On! Languages @ War

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

An interdisciplinary and international conference entitled Languages at War: policies and practices of language contacts in conflict will be held April 7 to 9, 2011, at the Imperial War Museum in London, England.
Kicking off the conference will be a discussion of art and war inspired by "Baghdad Car," an installation featured a bombed automobile, by prizewinning artist Jeremy Deller. Delivering keynotes during the conference will be: Joanna Bourke (far right), Professor of History in the Department of History, Classics and Archaeology, Birkbeck College, University of London; Professor Mona Baker (near right), Professor of Translation Studies at the University of Manchester; and representatives from the British Council and the British Ministry of Defence. Panelists on the Provisional Programme hail from institutions in England, of course, but also in Belgium, Canada, Cyprus, Finland, France, Germany, Ireland, Italy, Japan, Macedonia, Slovenia, Spain, the United States, and Wales.
Questions to be addressed:
► What are the foreign language policies of government, military and multilateral agencies in conflict situations?
► What are the language-related experiences of those involved 'on the ground' in these conflicts?
► What are the implications for language intermediaries who work in conflict zones?
Details and registration here.