Tuesday, May 31, 2011

Félicitations à MDM et à la CPI

Delighted to announce that Dr. Mireille Delmas-Marty (right) has been appointed as an expert counsellor on international law. (photo credit)
No more fitting person could have been named as the Special Adviser on the Internationalization of Legal Issues to the Office of the Prosecutor of the International Criminal Court. (The French version of the announcement is here.)
As we've posted, since 2002 Mireille has held the Chair of Comparative Legal Studies and Internationalization of Law at the Collège de France, a Paris institution of higher education founded in the 1500s. She's also been a professor at the universities at Lille, Paris-Sud 11 and Paris 1 (Panthéon-Sorbonne). (All prior IntLawGrrls posts.)
According to a statement by ICC Prosecutor Luis Moreno-Ocampo,
'Given her renowned expertise in this area, Professor Delmas-Marty will advise the Office of the Prosecutor on matters related to the processes of internationalization of Law, focusing on the interplay between national, regional and international norms as seen through the prism of the universalism of human rights.'

Mireille's deep, creative, and original thinking on these issues is evident in her numerous writings -- including, we're proud to recall, the series of IntLawGrrls guest posts that Mireille contributed last year. Yours truly is one of several 'Grrls who have collaborated with her on various projects, among them the Réseaux ID she's organized to study French-American, French-Chinese, and French-Brazilian legal interactions.
The appointment accords with the Article 42(9) of the Rome Statute of the ICC, which states:
'The Prosecutor shall appoint advisers with legal expertise on specific issues, including, but not limited to, sexual and gender violence and violence against children.'

Others already thus appointed:
► Special Adviser on Gender Crimes: Dr. Catharine A. MacKinnon (right), Elizabeth A. Long Professor of Law, University of Michigan School of Law (prior IntLawGrrls posts). (photo credit)
► Special Adviser on Crime Prevention: Juan E. Méndez, Visiting Professor of Law, American University Washington College of Law (prior post).
► Special Adviser on International Humanitarian Law: Dr. Tim McCormack, Foundation Australian Red Cross Professor of International Humanitarian Law and the Foundation Director of the Asia Pacific Centre for Military Law, University of Melbourne Law School (prior post).
► Special Adviser on International Law: José Enrique Alvarez, Herbert and Rose Rubin Professor of International Law, New York University School of Law (prior posts).
Benjamin B. Ferencz, former prosecutor in the post-World War II war crimes trials at Nuremberg: Special Counsel to and honorary member of the advisory council of the ICC Office of the Prosecutor (prior posts).

Write On! Right to democracy

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

The Stanford Journal of International Law welcomes proposals for articles and speakers for its November 2011 symposium on the subject of the right to democracy.
Symposium Chair Elizabeth Espinosa, a member of Stanford's Class of 2012 and Director of Curriculum for its Afghanistan Legal Education Project, writes:
We wish to gather a number of speakers and writers to discuss whether there is a right to democracy and to examine the issue from a variety of perspectives, including what such a right would entail, the response of existing regimes to demands for democracy, and human rights and the responsibility to protect. We are hoping to examine the topic in light of the current protests and conflicts in the Middle East and North Africa.

Persons who wish to present a paper or have ideas of topics or speakers should contact Elizabeth no later than June 10, 2011, at espinose@stanford.edu.

On May 31

On this day in ...
... 1794, known according to the French Revolutionary calendar as 12 prairial an II, Eugénie Lochtenbergh was executed. A revolutionary tribunal in Arras had convicted Lochtenbergh, the mother of 4 children and the widow of Charles Joseph de la Forge,of treason for having saved some letters.

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

Monday, May 30, 2011

War memorial

To mark Memorial Day in the United States, we present a postcard sent on Memorial Day circa 1910. (photo credit) It was a time for recollection of the losses of the Civil War now in its sesquicentennial. A time when Americans could not have imagined the global war soon to come, nor another that would follow, let alone the violence of this still-new century.

On May 30

On this day in ...
... 1928, a daughter, Arlette, was born in Brussels, Belgium, to a mother who was French and a father whose family, of Greek ethnicity, had fled what then was called Asia Minor. She studied art in Paris and became a photographer, but by 1954 she had made a feature film -- the 1st in the illustrious career of filmmaker known as Agnès Varda (above left). (photo credit) Her work frequently comments on feminist concerns and other social issues. Her top 10 films include Cléo de 5 à 7 (1962) and Sans Toit Ni Loi (1985), known to English speakers as Vagabond. She is a Professor of Film and Documentaries at the European Graduate School in Switzerland.

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

Sunday, May 29, 2011

'Nuff said

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

No, Robin, there is no world government waiting to descend from the clouds, and frankly I'm relieved. With so many politicians governing me at the local, state, and national levels, I do not need another layer of unaccountable officials on top. Who knows what they might compel me to do, say, worship, believe, or think?

-- Northwestern Law Professor Anthony D'Amato, in a trenchant review essay, recently published in the American Journal of International Law, of 3 recent books that, as he details, span the current spectrum of international legal theory. (image credit) Reviewed were: The Perils of Global Legalism (2009) by Eric Posner (Chicago), How International Law Works: A Rational Choice Theory (2008) by Andrew T. Guzman (California-Berkeley), and Customary International Law: A New Theory with Practical Applications (2010) by Brian D. Lepard (Nebraska).

On May 29

On this day in ...
... 1765, a newly elected member of Virginia's colonial legislature celebrated his 29th birthday by speaking out against the Stamp Act that Britain had imposed on the American colonies. Patrick Henry 's principal complaint was that the statute constituted impermissible taxation without representation; in a direct challenge to the power of Parliament, Henry (left) asserted that only colonial legislatures could tax their constituents. (image credit) He is said to have punctuated the thought with the following protorevolutionary declaration:

'If this be treason, make the most of it.'

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

Saturday, May 28, 2011

Ubuntu at Graduation--and Beyond

This year’s Northeastern University School of Law commencement speaker was United Nations Special Rapporteur on Violence Against Women, Rashida Manjoo (Northeastern University News photo, left). We’ve posted about her mandate and missions here and here.
Manjoo, and her husband Cassim, visited our community at a time of great opportunity and great challenge for newly-minted lawyers.
Yours truly, IntLawGrrl Hope Lewis, had the honor of reading the following citation as her Honorary Doctor of Laws was conferred:

Rashida Manjoo, gifted lawyer, visionary legal scholar, tireless advocate for women’s rights--
As Special Rapporteur on Violence Against Women for the United Nations Human Rights Council, you hold nations accountable for
meeting international standards that protect the human rights of women everywhere.
In your role at the International Criminal Court, as an advisor to the Women’s Initiatives for Gender Justice, you have applied your legal acumen, experience, compassion, and boundless energy to bring the
force of international law to securing women’s rights.
During South Africa’s transition from apartheid to democracy, you helped codify the rights of women in the South African constitution, and founded programs to ensure the efficacy of the nation’s
domestic-violence laws.

Looking out at our talented and committed class of 2011 as this remarkable and experienced "people's lawyer" was speaking, I thought back to my law school graduation 25 years ago. The mid-1980s was also a time of great opportunity and challenges for progressive lawyers.

25 Years of Challenges and Opportunities for International Law
No one knew what the future held. In that quarter century we’ve seen the fall of the Berlin Wall, the end of the Cold War; ethnic cleansing and genocide in the former Yugoslavia and Rwanda; the end of formal apartheid in South Africa; new jurisprudence on economic, social, and cultural rights from South Africa, India, Colombia, Venezuela, and Europe; the groundbreaking Beijing Fourth World Conference on Women; the rise of the internet as a human rights tool; large-scale terrorist attacks on civilians in Kenya, Tanzania, the United States, Bali, England, Russia, India, Pakistan, Iraq, and the Philippines; efforts to legitimize the arbitrary detention, torture, or abuse of suspects under the guise of counterterrorism measures; the creation of the UN Human Rights Council; UN Security Council Resolution 1325 on women and peace; the creation of UNWomen; the establishment of a permanent International Criminal Court; increasing scrutiny on violence against women in all its forms; a remarkable set of “people power” demonstrations in North Africa and the Middle East; the Responsibility to Protect; Security Council Resolution 1974; awful stories of hundreds of migrants dying in rickety boats off the coasts of the U.S., Spain, Italy, Libya, and Australia or in the deserts of North Africa and the United States; and the global collapse of “business as usual” in financial systems.
Each of these promising, or horrendous, events has involved the rule of law and the lawyers who interpret it.
Lawyering with Ubuntu
Special Rapporteur Manjoo, noting Northeastern’s commitment to social justice lawyering, reminded the audience about the great African philosophical concept of ubuntu. Roughly translated, the word means “I am what I am because of who we all are.” As Manjoo pointed out, the concept reflects the importance of a collective, as well as individual, sense of responsibility and care.
Many of our law students are going off to interpret trade agreements or the impact of multinational businesses on their workers and neighbors, to help prosecute international and domestic crimes, to work with international or regional organizations, or to battle human trafficking, public and private violence against women, poverty, or racism for community-based NGOs. Many will look for work in traditional law firms, corporate settings, or governmental departments.

All of them (and all of us) will do well to keep the concept of ubuntu in mind, no matter what the next 25 years bring.
Heartfelt congratulations to all the graduates, wherever they are in the world!

U.S.-France extradition

A curious note in initial coverage of the matter of NY v DSK was the claim that the United States and France have no extradition treaty.
Could that be?
Had relations between the 2 countries so frayed in recent years that they had forsaken cooperation to bring accused persons to justice? Was the Bush-Chirac brouhaha over Iraq the cause? The protracted effort to retrieve Polanski (prior post)? The Ira Einhorn case?
None of the above.
En effet
, the U.S.-France Extradition Treaty remains in effect. (photo credit) The current version (starting at page 341 of the linked document) was signed in 1996 and entered into force in 2002. It hearkens to precursor treaties, one dating to 1909.
This 1996 treaty, moreover, builds on a standard extradition-treaty template. Thus it includes: a pledge of mutual obligation to extradite fugitives in certain serious criminal matters; detailed procedures for such transfers; and exceptions from extradition, for certain offenses of a political nature, and for capital offenses absent assurances that the fugitive will not be subjected to the death penalty if convicted.
So why the initial claim that no such treaty exists?
Presumably it arose from the fact that this treaty -- again, following a template -- does not obligate either state to surrender its own national. The U.S. Executive Branch may do so "if, in its discretion, it deems it proper to do so." No mention of the French executive; as stated in a French legal dictionary,
[E]n principe la France n’extrade pas ses nationaux, mais les juge elle-même.

that is,
In principle, France does not extradite its nationals; rather, they are tried before French courts.

Thus the claim was wrong on the whole, yet right in the precise circumstance:
Had Dominique Strauss-Kahn, then but not now the head of the International Monetary Fund, not been seized from an Air France jet moments before it left for Paris 2 weeks ago, there could not have been -- as to him -- any France-U.S. extradition.

On May 28

On this day in ...
... 1951 (60 years ago today), the Advisory Opinion on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide was issued. The case arose out of questions that the U.N. General Assembly had posed to the International Court of Justice issued the previous November. (credit for photo of Peace Palace, the ICJ's headquarters at The Hague, Netherlands) Answering those questions, the court ruled that when a state attached a reservation to its instrument of ratification or accession to a multilateral treaty, that reservation did not preclude the state's membership in the treaty regime, even if another member state objected to the reservation, as long as the reservation was compatible with the object and purpose of the treaty. Critical to the ICJ's judgment was the "humanitarian and civilising" purpose underlying the Genocide Convention -- a purpose best served by widespread state-party membership.

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

Friday, May 27, 2011

What can the ICC do for Kenyan IDPs?

The victims of Kenya's 2008 electoral violence have largely celebrated the International Criminal Court's investigation of six alleged perpetrators/leaders, as evidenced in the popular chant, "Don't be vague, go to the Hague." Given the lack of political will to account for these crimes in Kenya, their position is well-founded. But will the ICC be able to deliver justice to these Kenyans despite the intransigence of their government? One angle of the crisis is of particular interest to yours truly: the situation of the internally displaced.
In the Kenya cases, the prosecutor has accused all six of the defendants of forced displacement as a crime against humanity. The Pre-Trial Chamber will hold confirmation of charges hearings on September 1; if it includes forced displacement in those charges, this may be the first time this crime is to be prosecuted under the Rome Statute. The court's attention to the forced migration aspect of the crisis is crucial, particularly given the dimensions of the problem and the Kenyan government's failure to address it adequately.
During the violence, some 600,000 Kenyans were forced to flee their homes, and an estimated 250,000 Kenyans are currently internally displaced. The conditions faced by IDPs are dire. They lack shelter, food, and safe drinking water, and suffer from high rates of sexual and gender-based violence. Yet the Kenyan government's response to the internal displacement problem has been "poorly conceived, organized, and timed" and further hamstrung by a lack of sufficient resources. And with the 2012 elections looming, the attention of political elites is now focused on other questions than the situations of IDPs.
Assuming sufficient evidence, charges and convictions on the grounds of forced displacement would be a powerful first step towards recognizing the harms suffered by the internally displaced in Kenya. But charges and convictions alone will not improve the lot of Kenyan IDPs, and given the track record of the Kenyan government, are not likely to spur domestic institutions to address their woes. The ICC might, however, act as a catalyst in encouraging others, including its own Trust Fund for Victims, to play a role in addressing the situation of Kenyan IDPs. The court is often criticized for leaving little airspace for other important causes, yet in this situation and others, it has the power to draw attention to dimensions of crises that might otherwise be overlooked and encourage others to step in where it has left off.

Security Council Residual Mechanism

As a follow up to our "breaking news" of yesterday, it is worth returning to the issue of the tribunals' Completion Strategies.
In December 2010, with Resolution 1966 (Russia abstaining), the Security Council acting under Chapter VII created a residual mechanism to aid in the implementation of the Completion Strategies of the ICTY and the ICTR previously mandated by its Resolutions 1503 (2003) and 1534 (2004). The International Residual Mechanism for Criminal Tribunals (IRMCT) is meant to be a lean and efficient structure that will carry out the essential functions of the two ad hoc Tribunals after their closure. These functions will naturally include the trial of previously indicted fugitives who are among the most senior leaders suspected of being responsible for international crimes. Although the IRMCT will not be able to issue new indictments for international crimes, it will take on the responsibility of prosecuting charges involving alleged interference with the administration of justice (e.g., intimidation of witnesses), contempt, and perjury that arise during the remaining cases.
The Mechanism will return to a single prosecutor (originally the case with respect to the ICTR and ICTY), with a deputy in charge of each of the two branches. As needed, the President of the IRMCT will appoint judges off a standing list prepared by the General Assembly to preside over trials and appeals. Judges will be paid only when they are in service. The Rwandan branch will commence its operations on July 1, 2012; its ICTY counterpart will commence a year later. The IRMCT may be in place for many years, as it will also deal with repatriation/relocation issues that arise with respect to individuals who are acquitted or who have served their sentences.
With the arrest of Ratko Mladić (see here), almost all ICTY/ICTR indictees are now in custody. There is one high-level ICTY indictee still at large (Goran Hadžić) along with 10 ICTR indictees, the most important of which is probably Félicien Kabuga (right), who is accused of financing the 1994 genocide and is alleged to be hiding in Kenya. The IRMCT by Article 6 of its Statute can prosecute individuals not determined to be senior leaders only after it has exhausted all reasonable efforts to refer the case to a national jurisdiction (such as the nationality or territorial state). This division of labor parallels the system created by Rule 11bis of the ICTY/R Statutes.
Because Mladić was captured prior to the IRMCT's activation, he will probably be prosecuted by the ICTY itself. It is anticipated that all the other ICTY trials will be completed by 2012, except that of Radovan Karadžić, which will conclude in 2013. As a result, any appeals in the latter's case, which are anticipated, will be dealt with by the IRMCT's Appeals Chamber.
For more information, see here, here, and here.

On May 27

On this day in ...
... 1647, a 47-year-old woman, Alse Young, was executed for witchcraft in Connecticut. Occurring nearly a half-century "before the more famous Salem witch trials," the hanging of Young (whose 1st name sometimes is spelled Alyse, Alice, or Achsah) took place in Hartford's Meeting House Square, now the site of the Old State House. (credit to Connecticut State Library website for drawing from Joseph Glanvill's Saducismus Triumphatus or, Full and Plain Evidence Concerning Witches and Apparitions… (3d ed. 1689))

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

Thursday, May 26, 2011

Breaking News: Ratko Mladić Captured!

After 16 years on the run, Serbian indictee Ratko Mladić—former commander of the Bosnian Serb Army (the VRS) (right)—was captured today by the Serbian Security Intelligence Agency. He had been living under an assumed name in northern Serbia (map left, photo credit).
Mladić has been under indictment before the International Criminal tribunal for the Former Yugoslavia (ICTY) since 1995 for genocide, crimes against humanity and war crimes. Mladić’s co-accused, Radovan Karadžić, President of the so-called Republika Srpska, was arrested in 2008 and has been on trial in The Hague since 2009.
The long-awaited arrest of Mladić opens the way to Serbia’s membership in the European Union, which has been contingent upon a showing of full cooperation with the ICTY.
Following the arrest of Mladic, only one indictee out of 161 remains at large: Goran Hadžić (right), former President of Republic of Srpska Krajina (a Serb break-away republic in Croatia), who has been indicted for crimes against humanity and war crimes.
The ICTY press release on the arrest is here; the Office of the Prosecutor's statement is here.

'Nuff said

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

Its contributors are women who teach and work in international law, policy and practice. Reading the blog feels like picking the minds of some of the most interesting women you could ever hope to have coffee with. They’re carving out a voice for women in international legal theory and practice, but it’s all written in a really accessible tone. Highly recommended, especially to future U.S. policy makers who will have to reckon with this growing voice in international politics.

-- Kate Alexander (left), a junior at Brandeis University, writing about us IntLawGrrls in a February Exploring Ethics blog post that we just discovered. Titled "Female judges, lawyers and rights – oh my! Chipping away at the glass ceiling in international politics," it too is well worth a read.
Heartfelt thanks for the kind words!

Write On! LSE transnational norms

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

Papers are being sought on Private Norms and Public Interests in Transnational Economic Law. They'll be presented an all-day Transnational Law Project 2011 Conference to be held June 17 at the London School of Economics. Ph.D. students working in the broad area of transnational law should send a 500-word abstract of their research project to J.A.Bomhoff@lse.ac.uk by May 30.
Details here.

On May 26

On this day in ...
... 1988, Elaine Black Yoneda (right) died from a heart attack in San Francisco. She'd been born Rose Elaine Buchman 81 years earlier in Connecticut, and she grew up in a Jewish neighborhood in Brooklyn, " in a strongly pro-labor (and non-religious) environment." Her parents had met while child workers in a match factory in Russia. The family moved to Southern California in the 1920s. Eventually she joined the Communist Party and became active in labor unions. (photo credit) She "was the only woman on the steering committee of the 1934 San Francisco general strike" about which we earlier posted. On account of her militancy she was known variously as ''the Red Angel'' and as ''Tiger Woman.''

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

Wednesday, May 25, 2011


An international law subtext dwells just beneath the surface of the U.S. Supreme Court's order to release tens of thousands of California inmates.
That order came Monday, in the Court's 5-to-4 decision in Brown v. Plata. In his opinion for the Court, Justice Anthony M. Kennedy held that the physical and mental health care California provides to its inmates is so deficient that it constitutes cruel and unusual punishment in violation of the 8th Amendment to the U.S. Constitution.
At footnote 3 Kennedy noted that plaintiffs had challenged "systemwide deficiencies," which, in their view,
subject sick and mentally ill prisoners in California to 'substantial risk of serious harm' and cause the delivery of care in the prisons to fall below the evolving standards of decency that mark the progress of a maturing society.

The Court endorsed this claim. Kennedy's opinion thus concluded:
The medical and mental health care provided by California’s prisons falls below the standard of decency that inheres in the Eighth Amendment.

Agreeing with courts below that had attributed this deficiency to exponential overcrowding in the state's prisons -- double the stated capacity of 80,000 -- Kennedy sustained those courts' solution, the release of prisoners. (credit for detail from 2006 photo of overcrowding at California women's prison)
The majority decision drew dissent, not only for its bottom-line result, but also for its reasoning. Referring to the passage quoted above, Justice Antonin Scalia wrote:
[O]ur judge-empowering 'evolving standards of decency' jurisprudence (with which, by the way, I heartily disagree), does not prescribe (or at least has not until today prescribed) rules for the 'decent' running of schools, prisons, and other government institutions. ...

Regarding this disagreement, Scalia cited his 2005 dissent in Roper v. Simmons.
Therein lies the rub.
Simmons, of course, was the decision in which a majority of the Court overruled precedent to hold that the 8th Amendment forbids the execution of persons who were children when they committed murder. Its reliance on "evolving standards of decency" -- a formulation that, as I've written, derives from Weems v. United States, a 1910 Supreme Court opinion respecting the then-U.S.-held Philippines -- invited consideration of transnational as well as national norms. In Simmons the majority explicitly consulted such norms, found in, among other sources, the Convention on the Rights of the Child.
That reference provoked sharp dissents from members of the Court, not to mention threats of impeachment from some members of Congress.
Since its issuance of Simmons in 2005, the Court has remained notably silent with respect to foreign and international sources of law. Yet the muted exchange between Kennedy and Scalia in Plata speaks volumes about the degree to which this controversy continues to burble just below the surface of published opinions.

On May 25

On this day in ...
... 1951 (60 years ago today), Paula von Preradović died. She'd been born 63 years earlier in Vienna, Austria, then moved to Pula, a city on the southern tip of the Istrian Peninsula in what was then the Austro-Hungarian Empire but today is Croatia. Later she lived in Copenhagen and again in Vienna. (credit for image of Austrian postage stamp in her honor) A writer and narrator, Preradović is the author of the lyrics for Land der Berge, Land der Ströme (Land of Mountains, Land on the River), adopted in 1947 as Austria's national anthem.

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

Tuesday, May 24, 2011

SG confesses 1 detention error

The United States' top advocate before the Supreme Court has, as he put it, made a "Confession of Error" respecting his office's long-ago support of a detention policy.
In a Friday post on the blog of the Department of Justice, Neal Katyal, Acting Solicitor General since May 17 of last year, praised the roles that his predecessors played "in advancing civil rights." Katyal then continued:

But it is also important to remember the mistakes.

The mistake he had in mind:

the Solicitor General’s defense of the forced relocation and internment of Japanese-American during World War II.

Writing 68 years and 10 days after Solicitor General Charles H. Fahy presented oral argument in the 1st internment case to reach the Supreme Court, Hirabayashi v. United States, Katyal recalled that

the Solicitor General had learned of a key intelligence report that undermined the rationale behind the internment. The Ringle Report, from the Office of Naval Intelligence, found that only a small percentage of Japanese Americans posed a potential security threat, and that the most dangerous were already known or in custody. But the Solicitor General did not inform the Court of the report, despite warnings from Department of Justice attorneys that failing to alert the Court 'might approximate the suppression of evidence.' Instead, he argued that it was impossible to segregate loyal Japanese Americans from disloyal ones. Nor did he inform the Court that a key set of allegations used to justify the internment, that Japanese Americans were using radio transmitters to communicate with enemy submarines off the West Coast, had been discredited by the FBI and FCC. And to make matters worse, he relied on gross generalizations about Japanese Americans, such as that they were disloyal and motivated by 'racial solidarity.'

Acting Solicitor General Katyal noted that "it took nearly a half century for courts to overturn" the mid-1940s upholding of convictions against two U.S. born young men, Gordon Hirabayashi and the litigant in a subsequent case, Fred Korematsu (prior posts). Katyal stressed one such court's laying of blame on the office that Katyal now holds:

One court decision in the 1980s that did so highlighted the role played by the Solicitor General, The court thought it unlikely that the Supreme Court would have ruled the same way had the Solicitor General exhibited complete candor.

Though the convictions have been set aside, the balancing of individual security and national security that the Court established in the 2 cases has not been overruled. Katyal, who'd represented Salim Ahmed Hamdan in challenging trial at Guantánamo, said of the lingering precedents in Hirabayashi and Korematsu:

[T]hose decisions still stand today as a reminder of the mistakes of that era.

Katyal concluded that

our Office takes this history as an important reminder that the 'special credence' the Solicitor General enjoys before the Supreme Court requires great responsibility and a duty of absolute candor in our representations to the Court.

From the standpoint of transitional justice, Katyal's statement constitutes an admission of wrongdoing by one of many responsible governmental entities. It joins:
Proclamation 4417, Confirming the Termination of the Executive Order Authorizing Japanese-American Internment During World War II (1976), in which President Gerald R. Ford declared

not only was that evacuation wrong, but Japanese-Americans were and are loyal Americans.

► The Civil Liberties Act passed by Congress and signed by President Ronald Reagan in 1988. The statute, which accorded each internee about $20,000 in reparations, began with these words:

The Congress recognizes that, as described in the Commission on Wartime Relocation and Internment of Civilians, a grave injustice was done to both citizens and permanent residents of Japanese ancestry by the evacuation, relocation, and internment of civilians during World War II.

From the standpoint of contemporary justice, Katyal's statement begs comparison with ongoing detention controversies.
Yesterday, "[m]aking it eight in a row, the Court turn[ed] down the last of the Guantanamo Bay appeals it had considered this Term," as SCOTUSblog's Lyle Denniston wrote. The Office of the Solicitor General (with Katyal recusing himself) argued against the cert. petition filed by former child soldier Omar Khadr. The Office -- which is likely soon to be headed by nominee Donald Verilli -- had done the same in the 7 cases that preceded Khadr v. Obama.

(credit top right image of DOJ seal; credit for May 1942 photo above left, made by Dorothea Lange for the War Relocation Authority of the U.S.Department of the Interior, of Mochida family members as they awaited government-ordered transfer from their home in California; credit for bottom right photo of Camp Delta detention center at Guantánamo; hat tip to Kevin R. Johnson, whose ImmigrationProf blog post on this issue is here)

On May 24

On this day in ...
... 1968, in what a Guardian reporter wrote was "[a]n insurrection, there is no other word for it," protesters comprising "Trotskyites, Anarchists, and revolutionary students" signing the "Internationale" raised a red flag at the French stock exchange (right) and then set it, the Paris bourse, on fire. (photo credit) In Lyon, meanwhile, a police officer died in protests. The demonstrations came in response to a televised address by French President Charles de Gaulle.

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

Monday, May 23, 2011

Read On! Sexuality & law essays

We're pleased to announce that Ashgate Publishing Group in the United Kingdom is publishing a 3-volume Set, The Library of Essays on Sexuality and the Law (top right), this month. (photo credit)
The set is edited by one of us, IntLawGrrls guest/alumna Ruthann Robson (below left), and is targeted at libraries throughout the world. (photo credit) It is very global in focus, de-emphasizing works from U.S. law journals, which tend to be readily available.
Volume I focuses on "Families and Youth." It includes an essay by the other of us, IntLawGrrl Kathleen A. Doty (below right). It's titled From Frette to E.B.: the European Court of Human Rights on gay and lesbian adoption. (prior post) Also featured are pieces on Dutch law, South African law, intersex youth in cases before the Colombia Constitutional Court, lawyering for queer youth, and issues for LGBT people.
Volume II is entitled "Crime and Punishment," and begins with a discussion by openly gay Justice Michael Kirby (who retired in 2009 from Australia's High Court) about sodomy laws in Commonwealth nations. He argues that they were first imposed by colonial powers and now remain after colonial powers have abolished their own laws. This volume also includes the classic (but still not widely available) essay The Myth of Lesbian Impunity, in which Louis Crompton demonstrated that lesbian sex was not historically immune from criminalization. Featured as well are essays on the criminalization of sex work, hate crimes with sexual minority victims, crimes in which the defendant's sexuality is used to prove the nonsexual crime, and issues of imprisonment and punishment.
Volume III looks forward to "Sexual Freedom," even as it problematizes the concept. It considers hierarchies of sex in legal frameworks and hierarchies of nationalism in sexual-legal frameworks, asylum, gender identity, as well as legal education, judges, and their discourse and professionals within the legal system.
There are substantial introductions to each volume; they not only discuss the individual pieces but also situate the work within the wider global field of Sexuality and Law.
We hope IntLawGrrls' readers will encourage their school libraries to purchase one or all of the volumes.

On May 23

On this day in ...
... 1962, in what the BBC termed a surprise result, a military tribunal in Paris sentenced a former French general to life imprisonment rather than ordering his execution as expected. The 62-year-old, French-born defendant, Raoul Salan, had been convicted of leading the Organisation de l'armée secrète, responsible for acts of terrorism in France committed on account of its violent opposition to Algerian independence. Earlier that year, Time magazine had written that this "Not So Secret Army" was "an ugly, desperate new force" comprising "renegade army officers dreaming of old flags and vanished glories, and of hard-boiled European settlers determined to hold on to their possessions and privileges in Algeria," who "would not hesitate to destroy the present France to build the new France of their muddled dreams." Algeria would gain independence in July of the same year.

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

Sunday, May 22, 2011

Ba(nne)d behavior

In Saudi Arabia, apparently, the above depicts a woman behaving badly.
An English-language translation of the commentary in this YouTube video of a 32-year-old Saudi woman driving a car appears in this Al Jazeera English video story, while CNN reports on the detention of this woman, Manal al Sharif, yesterday. Authorities released her only after she complied with a demand "to sign a form promising not to drive again, she told CNN.
Sharif's a supporter of Women2Drive, a group using Facebook to advocate June 17 as a mass women's driving day. (image credit)

Write On! Eichmann @ 50

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

Papers are being sought for presentation at a conference entitled The Eichmann Trial at 50 and/or for publication in a volume to be published in an edited volume following the conference. Papers on any topic related to the proceedings, by Ph.D. candidates as well as more established scholars, are welcome.
To be held October 14 and 15, 2011, at the University of Melbourne Law School in Australia, the symposium will examine the capital trial of a former Nazi bureaucrat seized in Argentina and transported to Israel for trial before that country's national courts (below left). (photo credit) (IntLawGrrls' prior posts related to this case are here, here, here, here, and here.)
The law school's Asia Pacific Centre for Military Law is sponsoring the October conference. It will be the 3d of 4 symposia comprising the Australian Research Council-funded project “Invoking Humanity: A History of War Crimes Trials.” Organizers are our colleagues Kevin Jon Heller and Gerry Simpson.
Here's an excerpt from the call for papers:

On 11 April 1961, the trial of Adolf Eichmann began in the District Court of Jerusalem. The trial was broadcast internationally, the first televised trial in the history of television, drawing millions of viewers around the world. Eight months later, after the testimony of nearly 100 witnesses had changed perceptions of the Holocaust forever, the court convicted Eichmann and sentenced him to death. Five months after that, Eichmann was hanged and his ashes were scattered at sea, bringing to a close one of the most important trials of the 20th century.
2011 marks the 50th anniversary of the Eichmann trial. The trial has had a profound impact on a variety of academic disciplines – law, philosophy, literary theory, political science, and history, to name only a few – yet scholars in those disciplines have rarely interacted with each other. The goal of symposium is to bridge that gap by bringing together scholars who have nothing in common other than a shared interest in the trial.

Symposium participants will have to self-fund, although meals will be provided during the conference.
Abstracts of between 300 and 500 words, plus a short CV, should be e-mailed no later than June 15, 2011, to Professor Heller, c/o James Ellis at j.ellis@student.unimelb.edu.au. Questions about the symposium should be directed to Professor Heller, at kheller@unimelb.edu.au.

On May 22

On this day in ...
... 1992, a 3-member panel of the U.S. Court of Appeals for the 9th Circuit unanimously ruled that the ban against torture constituted not only customary international law, but also a jus cogens norm from which no state was permitted to derogate. The Republic of Argentina was held implicitly to have waived the sovereign immunity protections in the Foreign Sovereign Immunities Act. Thus the decision in Siderman de Blake v. Republic of Argentina, written by Judge Betty Fletcher, required the state to answer the civil lawsuit at bar. It alleged that while the country was ruled by a military junta, agents of Argentina had committed torture against an Argentinian family who'd fled to the United States. The decision has been cited widely both in the United States and abroad; it's featured in, for example, the "National Case Law" digest of the International Committee of the Red Cross. IntLawGrrl Michelle Leighton's American Journal of Law casenote on the decision is available here. The Siderman case settled 4 years later.

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

Saturday, May 21, 2011

Go On! Law's fortune-telling

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

If you're into future studies, this conference may be for you: Signposting the Legal Space of the Future, a Law of the Future Conference, to be held June 23 and 24, 2011, at the Peace Palace (below right), The Hague, Netherlands. (photo credit)
It's a project of the Hague Institute for the Internationalisation of Law.
Among those who will try to tell law's fortune in the next 20 years, in a private and in public sessions: Ana Palacio, formerly Spain's Minister of Foreign Affairs and Vice President of the World Bank; Dr. Faustina Pereira, Director of the Human Rights and Legal Services Program at BRAC, the Bangladesh Rural Advancement Committee, and a member of the Bangladesh Supreme Court; Gabriela Knaul of Brazil, U.N. Special Rapporteur on the Independence of Judges and Lawyers; Nicole Fritz, Executive Director of the Johannesburg-based Southern Africa Litigation Centre; Dr. Anne van Aaken, Professor of Law and Economics at Switzerland's University of St. Gallen; and Abiola Makinwa, Ph.D. candidate, and Elaine Mak, researcher, both at the Faculty of Law, Erasmus University Rotterdam in the Netherlands.
Details and registration (fee charged) here.

On May 21

On this day in ...
... 1851 (160 years ago today), slavery was abolished in Colombia (flag at left). This landmark is commemorated each year as el Día de la Afrocolombianidad, or Afro-Colombian Day. As IntLawGrrls' guest/alumna Gay McDougall last year posted, Colombians of African descent continue to combat the reality that
'the legacy of slavery endures and is manifested in communities that are socially and economically marginalized, facing racist attitudes and structural discrimination.'

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

Friday, May 20, 2011

Meanwhile, back in Iraq . . .

Though Iraq has been pushed to the back burner of the news cycle as the world has focused on the tremendous developments in other parts of the Arab world, the unrest in Libya and Syria has had significant ripple effects on Iraqi refugees.
Syria is currently host to an estimated one million Iraqi refugees, many of whom may have serious concerns about the instability and insecurity of life in in Iraq. Only 100,000 of these refugees are currently under the protection of UNHCR and therefore eligible for resettlement in a third country, leaving the rest with few options but to return to Iraq. But the Iraqi government and UNHCR face serious shortfalls in their funds to assist returnees. Both are preparing for the possibility of a mass influx of Iraqi returnees from Syria, with the Iraqi government chartering flights from Damascus for its citizens and UNHCR amassing humanitarian supplies on the Iraqi side of the border with Syria. This limited assistance will not likely be adequate to support a large-scale return of Iraqis.
In contrast, Libya hosted only 3,300 Iraqi refugees and asylum seekers prior to the crisis, though many more Iraqis likely lived in the country without having registered with UNHCR. The Iraqi government reports that over 500 Iraqis have been evacuated from Libya and Yemen in the past few days. It is working on evacuating nearly 150 more Iraqis from Libya. Where will these Iraqis go? A lucky few refugees will be resettled to third countries, but many other Iraqis will face the unappealing choice between a marginal existence in Egypt or Tunisia, a dangerous and uncertain journey by boat to Europe, or return to a highly unstable Iraq. With international attention now focused on other parts of the Middle East, it is unlikely that forthcoming funds will be sufficient to stabilize the situation of those Iraqis who are now twice displaced.

Now there are 115

Grenada has become the 115th state party to the Rome Statute of the International Criminal Court.
The Caribbean country (flag at left) deposited its instrument of accession yesterday. (image credit) Thus, nearly 60% of the membership of the United Nations has joined the ICC.
According a release by the Coalition for the International Criminal Court,

With Grenada’s accession and the ratification of Saint Lucia in August 2010, only three states in the CARICOM have yet to ratify the Statute (Bahamas, Jamaica and Haiti).
The Caribbean Community, or CARICOM, as that regional group is known, met to discuss the ICC with Court officials earlier this week.

'Nuff said

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

'There comes a time when you have to ask if a penalty that is so permanent can be available in such an imperfect system. ... The only guarantee against executing the innocent is to do away with the death penalty.'

-- Jeanne Woodford (above left), formerly the Warden of San Quentin Prison, which houses California's Death Row. Quoted by Los Angeles Times reporter Carol J. Williams, Woodford explained why, after a 30-year corrections career in which she supervised 4 executions, she has just become the Executive Director of Death Penalty Focus, an anti-capital punishment group. (photo credit)

On May 20

On this day in ...
... 1996 (15 years ago today), the U.S. Supreme Court held unconstitutional a state constitutional provision that would have barred localities from extending protection against discrimination on account of a person's sexual orientation. The 6-3 decision in Romer v. Evans rested on an interpretation of the Equal Protection Clause of the 14th Amendment to the Constitution -- a level of scrutiny known as "rational basis with teeth" because it used the language of low-level reasonableness yet ruled against government action.

(Prior May 20 posts are here, here, here, and here.)

Thursday, May 19, 2011

ALI inches toward Restatement 4th

For international lawyers, a most significant achievement of the 88-year-old American Law Institute is the 2-volume Restatement of the Foreign Relations Law of the United States. (photo credit) It’s a trove of principles and black-letter law – international law as it pertains to matters that arise in the courts of the United States.
It was, in fact, this ’Grrl’s introduction to this area of law. Sections 401 et seq. were essential to my litigation, before the U.S. Court of Appeals for the Ninth Circuit, of extraterritorial jurisdiction principles at issue in a case called United States v. Olaf Juda (1995).
Then as now, ALI’s most recent effort in this area is what’s called the Third Restatement. That number’s a misnomer: as detailed in a speech that Michael Traynor, Bay Area litigator and immediate past President of the ALI, delivered at this year’s International Law Weekend-West, “There was no Restatement First of foreign relations law.” (Entitled “The Future of the Foreign Relations Law of the United States,” the speech, available in prepublication format here, is forthcoming in the Southwestern Journal of International Law.) To correspond with ALI’s internal numbering the initial effort, proposed in 1955 and completed in 1965, was dubbed the Second Restatement.
Having enlisted luminaries like Louis Henkin and Louis Sohn to work on a revision, ALI published the Third Restatement 13 years later, in 1987.
Nearly a quarter-century has lapsed since then. And the Third Restatement is showing its age.

'The Restatement is about three Supreme Court cases behind,'

with respect to all kinds of issues, as Georgetown Law Professor Barry E. Carter put it during a session on New Project Development at the annual meeting of the ALI this week in San Francisco. On some issues, such as immunities, state secrets privileges, and the reach of the Alien Tort Statute, the current Restatement offers little help at all.
Indications are that the Institute is moving toward some form of revision.
In his ILW-W speech, Traynor had suggested starting small, first with commissioned short papers, then with an invited meeting of stakeholders, and then “a deeper study of various related areas.” Finally, Traynor suggested, the ALI might then launch a “project” – perhaps a “Statement of Principles,” perhaps a Fourth Restatement, perhaps some other format. “[W]e could wait a few years,” Traynor said, “before christening the baby.” Traynor’s model is not writ in stone, however; how to go forward is a question to be studied by ALI’s Program Committee.
Why not even this level of movement till now?
No doubt it’s because the law in many areas that would undergo review is not as settled as the “black-letter” trope would signify. The U.S. doctrine of (non-)self-executing treaties remains a point of contestation in the wake of the Supreme Court’s still-debated judgment in Medellín v. Texas (2008). So too the interfederal balance of powers respecting foreign relations, the legality and contours of detention in the post-9/11 context, and myriad other issues.
This week’s ALI session proposed a way forward notwithstanding this concern.
“There are a number of areas where you could get some degree of consensus about where the law has moved,” said Southwestern Law Professor Robert E. Lutz. “The issue is not whether we take it up, but how we take it up.”
ALI Director Lance Liebman, a Columbia Law professor, invited suggestions on how to go forward.
Seems a good time for lawyers interested in this issue – or in other issues that may be on ALI’s near-term agenda, such as sex crimes, national security, immigration, and Indian law – to renew or try to establish membership in the Institute.