Thursday, June 30, 2011

Honor Elena Bonner 1923-2011

(Delighted to welcome back IntLawGrrls guest/alumna Felice Gaer, who contributes this tribute)

Elena Bonner
was a remarkable woman and human rights defender, widely eulogized in the week since she died at 88 following heart surgery in Massachusetts. Bonner was, since 1972 the wife and after 1989, the widow of famed Soviet Nobel Peace Prize Laureate Andrei D. Sakharov – the moral giant who stood for human rights, peace and telling the truth.
Elena was herself a major public figure, as well as a demanding mother and doting grandmother – and a wonderful interlocutor, and a great role model. Her loss is huge.
She had many years of activism as well as repeated bouts of illness and infirmity. But it was her ability to rise again and again from infirmity to activism, to speak up and demand change, to exhibit courage when others were wilting from the repression that was directed against the tiny dissident/human rights community, for which we will always remember her. And of course, for the many institutions she created and preserved, so the message and moral views of Andrei Sakharov will live on in Russia and beyond.
I first met Elena Bonner when she came to New York for heart surgery in 1986 – we even took this photo together, standing on Sakharov-Bonner Corner, just down the block from the Soviet Mission to the United Nations. Before and in the years in between, I helped carry out the rapid-fire demands and requests that Mrs. Bonner conveyed when she was able to get through on a rare, closely controlled international phone line out of Russia. Her requests, frankly, were endless. Or so it seemed. When I learned that her eye trouble stemmed from being wounded at the front in World War Two, I thought – how ironic – she could have been a great General! She understood the need to combine strategy with action – to fight on several fronts, and never to give up.
In a New Yorker tribute, David Remnick recalls how Bonner was slandered by Soviet spokesmen as a “sexual brigand” and “predatory Jew” who somehow led Sakharov astray, but he reflects on how she served as Sakharov’s protector, his ‘lion at the gate’ – and that she was “unafraid” and resilient.
Former New York Times reporter Serge Schmemann simply describes her as “formidable,” “imposing”, “peremptory” and a “sergeant –major.”
Let’s be clear: Elena Bonner was not a minor player, not a “sergeant-major”-- she was courageous, demanding, and effective. And that is why she was one of the great human rights defenders of our time.
She was well aware of who she was and, of course, of the worldwide renown which her husband Sakharov had gained since his famous 1968 essay on human rights, “Thoughts on Progress, Peaceful Coexistence, and Intellectual Freedom."
I recall vividly visiting her in Newton, Massachusetts, in 1990 – about 6 months after Sakharov's untimely death, but well before the collapse of the Soviet Union had even been contemplated. It was the day of the Wellesley College graduation, just one town away, and the Soviet 1st Lady Raisa Gorbachev was the commencement speaker alongside U.S. 1st Lady Barbara Bush. There was a media frenzy around this – the first time that Mrs. Gorbachev, who was accompanying her husband, President Mikhail Gorbachev, on a state visit, was given such a platform in the United States.
When I arrived, Elena’s first question was, “What do you think of Raisa’s planned speech?”
I said I thought it was disgraceful, since the only reason Raisa Gorbachev was asked to be the commencement speaker at Wellesley was because she was the wife of a famous man.
Well, Elena responded immediately, “You could say the same thing about me..."
When I recovered my balance, I protested to the contrary – all the things she had done herself, the causes she championed, the organizations like the Moscow Helsinki Group and a fund for the children of political prisoner that she founded, among others. She was no mere reflection of a powerful man.
Still, Elena insisted that her ability to be heard – not to speak, but to be heard – depended in large measure on having been the wife of Andrei Sakharov, and that was now, well, a thing of the past. She remained the widow of Sakharov, but on her own, would anyone pay attention?
Bonner was devoted to Sakharov and his ideals, but he was just as devoted to her. (credit for photo of Sakharov and Bonner)
In the early 1980s, Sakharov was snatched on a Moscow street and exiled (we later learned he was in the Soviet city of Gorky), without charges or trial, and kept from communication with outsiders – both scientific colleagues and all others. Bonner became his sole link with the outside world, until she, too, was “detained”, tried, and sentenced to internal exile in Gorky. Sakharov warned that Bonner was at greater risk than himself:

‘This article is being taken to Moscow by my wife, my constant helper, who shares my exile and willingly takes upon herself the heavy burdens of traveling back and forth, handling my communications with the outside world, coping with the growing hatred of the KGB. Earlier she withstood the poison of slander and insinuation, focused more on her than on me. The fact that I am Russian and my wife is half-Jewish has proved useful for the purposes of the KGB.
‘Every time my wife leaves, I do not know whether she will be allowed to travel without hindrance and to return safely. My wife, although not formally under detention, is in greater danger than I am. I urge those who speak out on my behalf to keep this in mind. It is impossible to foresee what awaits us. Our only protection is the spotlight of public attention on our fate by friends around the world.’

After Sakharov’s death, Bonner spoke often, and was commonly controversial, challenging her hosts and looking to the future. She expressed concern about the direction of the modern human rights movement – concerned that too many had forgotten Sakharov and forgotten Russia.
She asked pointedly on her 2009 return to Oslo, where she had received Sakharov's Nobel Peace Prize in 1975 (left) (credit), about the reason for the silence of the world human rights community when it came to the release of Gilad Shalit, an Israeli soldier abducted in 2006 by Hamas fighters and held incommunicado since then. Why doesn’t the treatment of this prisoner of war trouble you, she asked human rights defenders, in the same way as the fate of the GTMO prisoners? You fought over that and got results. She called for Shalit’s release, and remarked that the only reason she could find for the way the NGO community ignored him was that he is a Jew. Bonner used the occasion to remark that Norwegian views on Israel had evolved strangely. In so doing, she crisply spoke truth to power, now calling herself “a public figure and member of the movement for democratic change.”
Her views were not always negative, as her remarks to the Institute that I direct indicates:
‘In the early ’70s, the Jacob Blaustein Institute for the Advancement of Human Rights (JBI) was one of the very few, if not the only one, among the Jewish organizations concerned with the general state of human rights in the Soviet Union, not limiting it to the issues of Jewish emigration, understanding that an injustice anywhere on the face of this earth is a threat to justice everywhere. This recognition drew common cause with the Soviet movement for democratic change in the 70s, lending it the authority and credibility much needed in what was then a climate of official malice, slander, and persecution. …
‘Among the people closely associated with JBI are those I am happy to call my friends. They have shared the same beliefs with me and Andrei Sakharov, they have stood up for us when we were in danger, they helped us in our efforts to make human rights ideals a reality. ...
‘It is hard to imagine or to remember today that these words 'human rights' were not always the accepted, respectable, almost commonplace words we take them for now. Yet it is true that they were the dangerous, impertinent and disturbing words many a state head could not bear hearing! It is thanks to individuals … and institutions like the JBI, who had the courage to be impertinent, that today it is more and more difficult for the rights-violating governments to challenge the universality of human rights and to ignore human rights concerns. This indeed is a sign of how much can be done by commitment and humanity to safeguard human life and dignity.'

Let us all remember to honor Elena Bonner’s memory by being impertinent, by working to defend human rights as she did – relentlessly.

On June 30

On this day in ...
... 1966 (45 years ago today), as described in a 2003 Time magazine essay by Betty Friedan (below left, an IntLawGrrls foremother), the National Organization for Women emerged in Washington, D.C., as a "furious" response to the "weekend of lip service" that she and other women at a U.S. government-convened 3d National Conference of the Commissions on the Status of Women. (photo credit) Friedan wrote:
The omens were not good. That week President Johnson and Lady Bird invited a few of us to tea at the White House. The President said he wanted to appoint talented women, but the problem was 'finding these women.' ...
... [A]s dignitaries yammered at the podium, I joined other furious women at the two front lunch tables, passing along notes written on napkins. ... I wrote on one napkin that NOW had 'to take the actions needed to bring women into the mainstream of American society, now ... in fully equal partnership with men.' As people rushed to catch planes, the founding members collected $5 from one another as our charter budget. Anna Roosevelt Halstead, Eleanor's daughter, gave me $10.

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

Wednesday, June 29, 2011

Bashir in China

The Le Monde headline says it all:

La Chine reçoit le président soudanais en grande pompe

That is, China has welcomed Sudanese President Omar al-Bashir "in grand pomp" and circumstance.
A most notable circumstance:
As our blogreaders well know, Bashir's named in an international warrant for arrest, on charges including genocide, issued by the International Criminal Court.
China's not a party to the ICC Statute. But it is, of course, among the 5 permanent members of the Security Council, the U.N. entity that in 2005 referred to the ICC the situation in Darfur, the wartorn western region of Sudan. Yet in spite of the result of that referral, China's giving Bashir "the red carpet treatment."
And what of other P-5 members? Britain's Telegraph reports with respect to another nonparty to the ICC:

'The US State department said it continued to 'oppose invitations, facilitation, support for travel by ICC indictees'. However, the US is thought to have tacitly condoned al-Bashir's visit, calling on China to help broker peace between the North and South.'

(And see here.)
Bashir arrived following his attendance at a conference sponsored by Iran, also an ICC nonparty -- but only after being refused air passage over Turkmenistan, yet a 4th nonparty state.

Not a moment too soon

OLC finally has a leader.
OLC stands for Office of Legal Counsel, an arm of the U.S. Department of Justice responsible for giving Executive Branch officials legal opinions on contemplated action. (photo credit) It's an acronym that IntLawGrrls readers will recall for at least 2 reasons:
► Out of this office came the some of the most notorious documents of the George W. Bush Administration, the so-called torture memos, which purported to construct a legal cover for the harshest methods of interrogation and detention.
► Even before his own inauguration, then-President-elect Barack Obama nominated Indiana Law Professor Dawn Johnsen, whose Bush-era critiques of the torture memos included an IntlawGrrls guest post. But her confirmation battle was nasty, brutish, and long. It ended with Dawn's withdrawal from consideration in April 2010.
At a Northwestern Law symposium in May, Dawn urged the confirmation of her successor nominee, Virginia Seitz (below left). (photo credit) The Sidley & Austin partner had been nominated the 1st week of this year, but her confirmation process too seemed stalled. In a vein similar to an op-ed she'd written the year before, Dawn stressed the importance of the work of OLC. Among the issues on which the office gave advice, she noted, were military targeting and others related to the laws of war.
Dawn's comments proved prescient in the middle of this month: The New York Times reported that the administration's top lawyers had divided on whether U.S. military involvement in Libya constitutes "hostilities" that require congressional approval pursuant to the War Powers Act.
Many commentators have pondered the personalities in that debate, mulled who took what side. (See, for example, Yale Law Professor Bruce Ackerman's criticism. State Department Legal Adviser Harold Hongju Koh testified on the matter before a Senate committee yesterday.)
Particularly noteworthy to this 'Grrl was that OLC had lost the President's ear. Times reporter Charlie Savage explained:

Traditionally, the Office of Legal Counsel solicits views from different agencies and then decides what the best interpretation of the law is. The attorney general or the president can overrule its views, but rarely do.

In the Libya war powers instance, however, Obama did overrule OLC's views -- as delivered through an acting head. One can only wonder whether those views would have carried more weight had the office been given the benefit of a permanent leader these last two years.
Yesterday the Senate confirmed the nomination of Seitz, a superbly credentialed lawyer. Formerly a law clerk to U.S. Supreme Court Justice William J. Brennan, and a member of the Women's Bar Association, she becomes the 1st woman to head the office in a permanent capacity, and the 1st permanent head since 2004, when Jack Goldsmith, now a Harvard law professor, left.
Confirmation came not a moment too soon. Here's hoping Seitz can reclaim for OLC the governmental gravitas it once enjoyed.

On June 29

On this day in ...
... 2006 (5 years ago today), in Hamdan v. Rumsfeld, the U.S. Supreme Court invalidated special military commissions established by fiat of President George W. Bush in the wake of the terrorist attacks of September 11, 2001. (photo credit) A majority joined most parts of Justice John Paul Stevens' lengthy opinion, which covered many aspects of Bush's commission plan. As discussed in posts available here and in my article here, within months Congress passed the Military Commissions Act, which reinstated much of that plan. The petitioner in Hamdan subsequently was convicted of material support for terrorism. The conviction was affirmed just last Friday, in United States v. Hamdan, a decision by a 7-member panel of the U.S. Court of Military Commission Review. (hat tip) This court, which was born out of the 2006 Act, held the offense to be cognizable as a war crime -- despite considerable commentary to the contrary.

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

Tuesday, June 28, 2011

Escaping recognition

Rather lost in this month's shuffle (at least to this 'Grrl) was an interesting article that Jenna Greene, Senior Reporter at the National Law Journal, published on June 7.
Entitled "Legal Experts Debate Whether Libyan Rebel Group Constitutes a Government," the article described what appears to have been a free-wheeling discussion at a D.C. meeting of the Advisory Committee on International Law of the U.S. Department of State.
Up for discussion: the meaning and consequences of U.S. recognition of the group now putting itself forward as a Libyan government. The Benghazi-based rebel group whose flag is at top left (credit) is known variously as the Transitional National Council, the National Transitional Council, or the Interim National Council. Whatever its name, the group is, as we've chronicled in posts available here, now receiving military assistance from a NATO coalition. The multinationals' aim, as phrased by U.N. Security Council Resolution 1973, is to prevent harm to civilians; however (posts here and here), numerous heads of coalition governments have declared that this depends on the ouster of Libyan President Muammar el-Qaddafi. (In related news, yesterday a Pre-Trial Chamber of the International Criminal Court issued arrest warrants against Qaddafi, his son, and another Libyan official.)
So why consider recognition before the latter goal is attained?
Money seemed a big reason.
According to Greene's report, recognition might give the rebels

access to $33 billion in frozen Libyan assets and would bolster its international standing.

Nonetheless, Greene wrote, meeting participants were divided on the utility, advisability, and feasibility of the idea. You can read the reported comments of what Greene called a "veritable who's who" of intlaw experts here. And an ASIL Insight on the issue is here.

On June 28

On this day in ...
... 2006 (5 years ago today), the General Assembly adopted A/RES/60/264, by which it admitted the 192d U.N. member state, thus agreeing with a Security Council vote taken 6 days earlier. The newest state -- and to date, the last to enter the United Nations -- was the Republic of Montenegro, which for many years had composed part of Yugoslavia. (map credit; flag credit)

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

Monday, June 27, 2011

New York State of Marriage

(Delighted to welcome back alumna Ruthann Robson, who contributes this guest post)

By an act of the state legislature late Friday evening, New York joined several other states in the United States in legalizing same-sex marriage; currently, Massachusetts, Connecticut, Vermont, New Hampshire, and Iowa, as well as the District of Columbia.
California and Maine had legal same-sex marriage for a limited time. As detaile
d in IntLawGrrls posts available here, California's Proposition 8 limiting marriage to opposite sex couples was declared unconstitutional by a federal judge, but that ruling was stayed and the case is presently on appeal.
Although in the United States marriage is within the province of state rather than federal law, the federal Defense of Marriage Act, passed in 1996, continues to define marriage as limited to opposite sex couples. DOMA is under serious challenge in the courts, including bankruptcy courts, and in the Obama Administration, which stated earlier this year it will not defend DOMA in court. Nevertheless, same-sex couples in New York who marry will not be married under federal law -- a confusing situation when it comes to immigration, taxes, and federal benefits such as Social Security.
“Marriage Equality,” as the New York statute is entitled, has been a hard fought battle.
New York’s highest court held that there was no state constitutional right to same-sex marriage in Hernandez v. Robles (2006), an opinion stunning in its contortions, as Seattle University Law Professor John Mitchell’s article demonstrates. The New York state Senate failed to pass a law in 2009, despite support of the bill from the then-Governor.
The new Marriage Equality statute has religious exemptions, which were also hard-fought, and several otherwise conservative state senators who voted for the bill specifically referenced the “protections” for religious entities contained in the law, and absent from the previous bill. These exemptions, however, reference solemnization and celebration rather than the status of marriage. In other words, the law articulates protections for religious officials should they decline to perform a same-sex marriage. Given the broad protections for religious officials to decline to perform any sort of marriage (or officiate at funerals for that matter), most speculate that this provision is more cosmetic than substantive.
There has been much jubilation amongst LGBT supporters in New York, especially because the bill - - - quickly signed into law by New York Governor Andrew Cuomo -- came only a few days before the LGBT Pride celebrations of June 26-27, which mark the anniversary of the Stonewall Riots in 1969. Indeed, on the evening that the law was passed, the Stonewall Inn in New York City was crowded.
Even LGBT people who do not support the institution of marriage, same-sex or otherwise, found themselves in a celebratory mood. Phrased as “equality,” support for same-sex marriage has become co-extensive with LGBT rights. Moreover, rhetoric against same-sex marriage, in the legislature and elsewhere, is often demeaning and at times virulently homophobic.
Yet critiques of same-sex marriage need not be conservative.
I’ve wondered whether marriage will now become essentially mandatory. Adapting Adrienne Rich’s critique of “compulsory heterosexuality,” I've argued that "compulsory matrimony" could be just as damaging. Contemplating the passing of the New York law, Columbia Law Professor Katherine Franke voiced similar worries:

'[W]e shouldn’t be forced to marry to keep the benefits we now have, to earn and keep the respect of our friends and family, and to be seen as good citizens.'

Indeed, some of the valorization of marriage is politically problematical. It is deeply troubling to read arguments in favor of same-sex marriage that rest upon marriage as indicating “maturity” or making an “honest woman” out of a woman who was merely “living with” a partner. Does that mean people who live together -- or alone -- are somehow immature or dishonest? Certainly, we can’t be saying that about LGBT people, especially women.
In the United States, “marriage” is freighted with a great deal of religious, social, and political meanings. It’s also, of course, an economic relationship. And it may be a boon to the local economy, with New York same-sex couples no longer having weddings -- and receptions -- in the neighboring states of Connecticut, Massachusetts, and Vermont.

Prospects for Guatemala prosecutor's genocide case against former Army Chief of Staff

Culminating a decade of work by Guatemalan human rights and survivors’ groups and their supporters, Héctor Mario López Fuentes, former Chief of Staff of the Army during the regime of General José Efraín Ríos Montt, is under arrest in Guatemala.
Lopez Fuentes, now 81 years old, is accused of genocide, crimes against humanity, and forced disappearances in the early 1980s in the Guatemalan highlands.
Judge Carol Flores issued the arrest warrant. The Guatemalan public prosecutor's office announced the arrest on June 16.
The case against Lopez Fuentes was first filed by the Center for Human Rights Action (CALDH) in 2001. The other defendants included Rios Montt himself, who is now a member of Congress and thus protected by a limited immunity. The case had been stalled in the courts for a decade.
Lopez Fuentes is accused of 12 massacres in the Ixil region of northern Guatemala committed against Ixil Mayans.
Dr. Claudia Paz y Paz Bailey (above right), who became public prosecutor and Attorney General in December 2010, is the first woman to hold the post. She was selected by President Álvaro Colom after a previous candidate was forced to withdraw due to irregularities in the process and alleged ties to organized crime. Paz is a scholar of criminal law and human rights who worked for many years on women’s rights issues and was supported by civil society groups. She advised the U.N. Historical Clarification Commission on the issue of genocide; in its 1998 report, the Commission found that the army had committed “acts of genocide” in the Guatemalan highlands in the 1980s. (see executive summary of the report here).
One of the key pieces of evidence against Lopez Fuentes is the compilation of Army plans, reports, and documents known as “Operacion Sofia.” The document names Lopez Fuentes as one of the commanders of operations in the highlands. The document was introduced last year into the parallel case under way in Spain. That case, against many of the same defendants, has created a record of testimony and documents, many of which will be useful as the case in Guatemala moves forward.
The prospects for trial and conviction in this case are uncertain.
Guatemalan law allows for repeated delays in criminal cases as interlocutory challenges move through a lengthy appeals process. Many people involved in the genocidal campaigns of the 1980s still hold positions of power – including the country’s frontrunner for the presidency, Otto Perez Molina. If it is successful, the prosecution will be a breakthrough for the fight against impunity on a scale with the conviction of Peru’s former president Fujimori. Claudia Paz and her team deserve all the support they can get for their courageous effort.

On June 27

On this day in ...
... 2001 (10 years ago today), the International Court of Justice issued its judgment in LaGrand (Germany v. United States). The case involved 2 German-born brothers who had lived in the United States since childhood. Arizona authorities had executed the LaGrands for murder without ever having told them of their right to contact their consulate. The ICJ ruled that this breached Article 36(2) of the 1963 Vienna Convention on Consular Relations, and called upon the United States to review and reconsider similar cases.

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

Sunday, June 26, 2011

From the road

Nothing like a cross-country road trip to mark the summer. Seen here, clockwise: a "High-Desert Oasis" fallen on hard times; entering Arizona; road-seasoned traveler; the Memphis pyramid and two signs from Tennessee.
Now, Georgia ...

Work On! Open Society Fellowship

The Open Society Fellowship supports scholars, journalists, activists, policy experts, and others to work on projects that inspire public and policy debates, as well as to sharpen OSI’s thinking, question our assumptions, and broaden our understanding of pivotal social problems. (credit for image at bottom)
The Open Society Fellowship is open to individuals from around the world. Sought are innovative thinkers working on human rights, government transparency and accountability, citizen empowerment and participation, access to justice and information, and other areas of interest to OSI. Fellows' projects may include books, articles, online media, and efforts to seed new campaigns and organizations.
A fellowship project might identify a problem that has not previously been recognized, develop new policy ideas to address familiar problems, or offer a new advocacy strategy. Fellows should take advantage of the considerable intellectual and logistical resources of the Open Society Institute; in return, they're expected to contribute meaningfully to OSI's thinking.
Proposals are reviewed throughout the year, but those received by August 1, 2011, will be evaluated by November 25, 2011.
The fellowship does not fund programs of study or dissertation research.
More details are available here.

On June 26

On this day in ...
... 2011 (today), is marked the International Day in Support of Victims of Torture. The United Nations' General Assembly established the date in 1997, via A/RES/52/49,
with a view to the total eradication of torture and the effective functioning of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which entered into force on 26 June 1987.
(credit for image by Octavio Roth) One way to commemorate the date: support the UN Voluntary Fund for Victims of Torture, marking its 30th anniversary this year.

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

Saturday, June 25, 2011

State's "IDEA" on Global Diaspora

A Global Diaspora within the U.S.
Sixty-two million Americans are part of a first or second generation diaspora.
Among the most significant transnational connections maintained by such U.S. immigrant communities are the $48 billion in remittances sent home each year to countries throughout the globe. These monies and goods help raise children, feed families, build homes, provide healthcare and education, and respond to environmental and military disasters.
Further, as discussed here in the article Lionheart Gals Facing the Dragon and other pieces I’ve written on Jamaican migrant women, many maintain important transnational social and cultural ties as well.
But in addition to this massive “informal” flow of resources, many also start or develop businesses that employ thousands of workers in the U.S. or their countries of origin.

The International Diaspora Engagement Alliance (IDEA)
Now, Secretary of State Hillary Clinton has launched an initiative that recognizes the important foreign and domestic policy implications of migration. At a May 17-19, 2011, “Secretary’s Global Diaspora Forum,” in Washington, DC, Secretary Clinton announced the creation of “IDEA”—the International Diaspora Engagement Alliance.

The Secretary’s Global Diaspora Forum
The Global Diaspora Forum (photo above, by Hope Lewis), co-sponsored by the Migration Policy Institute, the US Agency for International Development, the U.S. Department of State, and others, was attended by diplomats, development professionals, immigrants’ rights and human rights advocates, journalists, educators (including yours truly, IntLawGrrl Hope Lewis), and business leaders. The meeting highlighted ways that the global diaspora contributes to U.S. and international development.
Many diasporas were represented, including those from Barbados, China, Colombia, Cuba, Egypt, Ethiopia, Ghana, Greece, Haiti, India, Iraq, Ireland, Israel, Italy, Jamaica, Japan, Kenya, Lebanon, Mexico, Nigeria, Pakistan, South Korea, Uganda, and Vietnam, to name only a few. To the organizers’ credit, the historical African Diaspora was represented as well by the Director of the Smithsonian’s National Museum of African Art, Dr. Johnnetta Cole (photo, right, source here) and other African-Americans.
State signaled its commitment to diaspora issues through the presence of many high-level representatives such as Secretary of State Clinton, Undersecretary of State for Democracy and Global Affairs Maria Otero, Dr. Rajiv Shah, M.D., Administrator of the U.S. Agency for International Development, Leocardia Zak, Director of the U.S. Trade and Development Agency, and Gustavo Arnavat, U.S. Executive Director, Inter-American Development Bank, Fred Hochberg, Chairman and President of the Export-Import Bank of the United States, Mimi Alemayehou, Executive Vice President of the Overseas Private Investment Corporation, and Daniel Yohannes, Chief Executive Officer of the Millennium Challenge Corporation. Representation of U.S. Immigration, Customs, and Enforcement (ICE) were noticeably absent from the formal program, however, (as some participants pointed out in discussion sessions).
Topics covered during the three-day meeting included panel discussions on
►Diaspora News and Social Media
►Innovation and Technology

U.S.-Caribbean Partnerships
Miss Lou” (my IntLawGrrls alter ego) was quite interested to learn that Secretary Clinton announced this week that the Caribbean will be the first focus of the IDEA initiative. During a June 22 High-Level Meeting between the Foreign Ministers of CARICOM (the Caribbean regional community) and the United States in Montego Bay, Jamaica, she announced several new efforts in U.S. foreign policy toward the Caribbean.
Security. Clinton announced $77 million in additional funds for the Caribbean Basin Security Initiative aimed at international and regional organized crime control.
Energy and Climate Change. She also announced Caribbean-focused projects to further the Obama administration’s 2009 Energy and Climate Partnership of the Americas. A new Caribbean Climate Change Adaptation Initiative will establish research links on climate change between the University of the West Indies (UWI) and U.S.-based universities.
A Caribbean IDEA. Finally, Clinton noted a Caribbean-focused project would be the first to test the IDEA initiative:

[A] new partnership … will enlist the Caribbean diaspora to contribute to long-term economic growth. We believe that the people of Caribbean descent can be a major asset for their countries of origins and not just because of the money that is sent home in remittances, but they can put their talent and their energy and their entrepreneurial spirit to work as well. To tap this potential, the State Department recently launched the International Diaspora Engagement Alliance…, which is intended to bridge the gap between diaspora communities and entrepreneurs in their countries of origin. We want to promote trade, help start businesses and develop other ways of spurring economic growth.
We have chosen the Caribbean to be the first region in the world to demonstrate the impact of this alliance. We are launching the Caribbean IDEA Marketplace, which will foster collaboration between local entrepreneurs and members of the Caribbean diaspora. And we hope that this marketplace, which will offer access to capital as well as technical assistance, will begin bearing results next year.

A public-private partnership, the Caribbean IDEA Marketplace is sponsored by the U.S. Department of State, the Inter-American Development Bank, Digicel (a telecommunications company), and Scotiabank. (See coverage by Jamaican news media here.)

Opportunities and Cautionary Tales
Although I have long called for greater attention to the roles of non-state actors, including business enterprises in addressing the status of people in and from the Caribbean, caution is required in assessing this new venture.
Markets, marketplaces, and the entrepreneurs who run them, are no strangers to Caribbean history and socio-economic context. The islands were key sites in the notorious and continuing crimes of the Trans-Atlantic slave trade and the related trade in sugar, rum, and spices. Subsequent colonial and neo-colonial arrangements led to the exploitation of everything from bauxite to oil to illegal drugs and the trade in small arms. International trade policies have had devastating impacts on small banana and coffee farmers. Human trafficking and export processing zones have exploited the availability of low-wage labor and the limited job opportunities available to young people in small countries.
Nevertheless, the islands are also rich in traditions of African agricultural methods, marketwomen networks, cultural exchanges in literature, music, and other arts, beautiful environments for sustainable tourism, trained health care workers, high literacy rates, and strong labor unions. Let’s hope that the new U.S.-Caribbean initiative emphasizes those positive traditions in ways that benefit the majority of people who need them most.

Governments and Human Rights
So, amid celebrations of global diaspora's tremendous potential, government and civil society must exercise caution as well as enthusiasm. The desired “development” and “growth” must never sacrifice a state's obligation to protect the human rights of the people over which it has jurisdiction. (That includes the human rights of noncitizens within its borders as we note in a post on migrants rights in the U.S. here. )
True development must center human development--and is not possible unless each state fulfills its obligation to respect, protect, promote, and fulfill human rights for all.
As a responsible international and transnational actor, the U.S. has taken on legal, political, and moral obligations to observe and promote human rights and fundamental freedoms both externally and internally. If recent rhetorical pronouncements are to be further realized, these must also include the economic, social, and cultural rights so important to migrant and diaspora communities (see IntLawGrrl and Huffington Post comments here and here.)

Business and Human Rights
There's also reason for caution and vigilance about the roles of business enterprises in the new initiative. Banks and wire transfer services profit handsomely from those billions of dollars in remittances moved between the U.S. and sending countries. What are they doing to promote human development where most needed?
Diaspora business leaders can help to develop new enterprises that create decent jobs and working conditions in countries of origin, but they can also try to take advantage of lax labor or environmental regulations back home in order to exploit low-wage workers and the environment.
As noted in a recent guest post by Nadine Bernaz, the UN Human Rights Council has just endorsed Guiding Principles on Business and Human Rights prepared by Professor John Ruggie, UN Special Representative on Business and Human Rights. The “respect, protect, remedy” framework provided was influenced and commented on by many business leaders, diplomats, and members of civil society. Human rights NGOs such as Human Rights Watch and Amnesty International remain critical that stronger accountability measures are needed to implement the Guiding Principles so as to make businesses accountable.
All relevant actors—the U.S. government, sending countries, the business sector, other private actors, and migrants themselves—must help to make human rights a reality for everyone. That would be the best “idea” of all.

'Nuff said

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

A related aspect of restorative justice is the ability to create a historical record. Courts are thought to be appropriate mechanisms for such endeavors as they invite dialogue from all parties, and also because survivors often value official acknowledgement of the wrongs they have suffered. In some cases, people remained uncertain about what had happened to loved ones, and finding out their fate through gacaca has provided emotional closure, or more pragmatically, the requisite information to find bodies for a proper burial.
The extent to which ordinary Rwandans are free to construct this narrative, however, remains in question.

-- Shannon E.Powers, a Ph.D. candidate at George Washington University, in a new ASIL Insight entitled "Rwanda’s Gacaca Courts: Implications for International Criminal Law and Transitional Justice." (credit for photo of gacaca session)

On June 25

On this day in ...
... 1876 (135 years ago today), in what is now eastern Montana, the 2-day Battle of Little Bighorn, which pitted 263 members of the United States' 7th Cavalry against "several thousand" Lakota Sioux and Cheyenne warriors, began. At battle's end, all the U.S. personnel were dead -- among them Lt. Col. George Armstrong Custer (right). (photo credit) Leading the Native American opposition was the Lakota chief Sitting Bull (left), who took his followers north to Canada after the battle. (photo credit) In 1881, Sitting Bull would return and surrender to U.S. forces -- and would be "killed by Indian police on the Standing Rock Reservation in South Dakota on December 15, 1890."

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

Friday, June 24, 2011

Expanding HIV Prevention in Africa

Though much effort has been expended to protect female sex workers in Africa from HIV exposure, the same cannot be said for male sex workers in the region. The stigma that continues to attach to homosexuality in many African countries drives many male sex workers deep underground, leaving this group particularly vulnerable to HIV and other STDs. Researchers from the United Nations Development Program and the South African NGO SWEAT, in conjunction with the African Sex Worker Alliance, aim to change this state of affairs with the release of their new report on the situation of male sex workers in Kenya, Namibia, South Africa, Uganda, and Zimbabwe.
Beyond basic assessments of barriers to care and inclusion in current HIV prevention and rights advocacy strategies for female sex workers, the report suggests that male sex workers need specifically targeted social support, health education, and HIV prevention programs. Though the research highlights the particular needs of transgender sex workers, it does not focus on this group, and suggests this as one of many areas for future study. The study relies on a qualitative or narrative methodology, with data drawn from discussions with two sets focus groups, one with activists and advocates from all five countries and another with male sex workers in Kenya and Namibia.
The stories of these male sex workers tell of a life of exclusion and marginalization in cultures hostile to homosexuality. For many, sex work started as a means of survival when they realized they were gay and were either rejected by or moved away from their families. For most, however, sex work did not lead to financial security, but provided just enough money to live on and pay rent without the ability to save. Many reported unsafe sex, at times by force, at times because clients were willing to pay more money for sex without a condom. In seeking support, the male sex workers who participated in the study said that they were often excluded from efforts to assist female sex workers and even from LGBTI movements. For many, sex work offers an identity and a sense of belonging to a specific sub-culture.
The report also catalogues the very limited studies of African male sex workers that have been performed to date, largely in Kenya. This research found that many young male sex workers did not consider themselves at risk of contracting HIV and other STDs. Those who did were inclined to self-treat because of prejudice on the part of health care providers. This bias is further detailed in the UNDP/SWEAT report, including refusal by health providers to treat male sex workers and little effort to maintain private health information such as HIV status. The Kenyan studies also found that male sex workers were disinclined to report sexual abuse or violence because of prejudice on the part of police. Again, respondents in the the UNDP/SWEAT study reported significant violence, often sexual and unprotected, perpetrated by police officers.
The health risks for male sex workers created by their exclusion from HIV prevention programs are obvious and significant. But these dangers extend throughout society. Without protecting these men, any effort to protect female sex workers and others from contracting HIV appear doomed. Respondents reported that male sex workers often work with truck drivers, many of whom also have sex with female sex workers and presumably their wives in their home villages. One respondent told the story of a male sex worker who sells sex in a port town but lives as a heterosexually married man in his home village. Other male sex workers reported that it can be difficult to tell their intimate partners about their sex work and thus to get them to use condoms. Including male sex workers in HIV prevention efforts in Africa is not only the right thing to do, but also vital to sound public health policy.

(photo credit)

On June 24

On this day in ...
... 1916 (95 years ago today), in the early days of Hollywood, Mary Pickford (right) made a landmark deal with United Artists studio. She became the first woman to sign a $1 million film contract -- that is, a guaranteed $10,000 a week for 2 years -- and also the "first star to become a producer of her own pictures and to win a considerable degree of control over her work." (credit for photo of Pickford on the set of a 1917 film she produced and in which she starred, "The Pride of the Clan") Given the name Gladys Smith upon her 1892 birth in Toronto, Canada, had been a child star on stage. She'd begun her film career in 1909 in Brooklyn. By the time of her death in 1979, "America's Sweetheart," as Pickford was known, had appeared in hundreds of films and won 2 Academy Awards.

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

Thursday, June 23, 2011

In passing: Elena Bonner

'Until the party truly gives up all its wealth to the people who really earned it, everything, down to the last... rouble, Stalinism will still triumph and it will still triumph until we can establish the principle of sovereignty. Sovereignty of the individual, sovereignty of the family and home, sovereignty of every ethnic group and every state.'

So said Elena Bonner (above right), speaking about the Communist Party in 1991, the year of formal dissolution of the Soviet Union and its bloc of satellite republics, and 2 years after the death of her husband, Nobel Peace Prizewinner Andrei Sakharov.
A longtime human rights activist in her own right, Bonner died in Boston Saturday, 88 years after her birth in what is now Turkmenistan. She had continued her activism till the end, just last year lending her name to an online petition against Vladimir Putin, Russia's Prime Minister.

'Grrl blogging

(Delighted to welcome back alumna Jacqueline Hodgson, who contributes this guest post)

I'd like to introduce IntLawGrrls readers to my new online venture, called, aptly enough, Jackie Hodgson's blog.
This occasional blog, the link to which joins IntLawGrrls "connections" list in the righthand column, reflects on current developments in French criminal justice as well as broader reform in comparative criminal justice. Posts so far consider reforms of the rights of suspects held for police intrerrogatio in France (here and here), paying particular attention to the impact of European Court of Human Rights caselaw in shaping this. There is also a reflection post on the portrayal of defence lawyers as corrupt, and somehow always against the interests of achieving justice, in the US television series The Wire and the French series Spiral. This was designed to stimulate thought for "The Future of the Adversarial System," a conference held this past April at the University of North Carolina at Chapel Hill.
Future posts will follow developments in France, as well as the new European Union measures that will require all EU states to put in place key procedural safeguards for suspects.
Comments, suggestions and pointers to further information always welcome!

On June 23

On this day in ...
...1887, the Rocky Mountains Park Act became law in Canada. By this statute, land near hot springs in Banff, Alberta, that had been set aside as a reserve became the 1st national park in Canada -- and the 2d in North America, the United States having established Yellowstone National Park in 1872. Today, Banff National Park "encompasses 6,641 square kilometres (2,564 sq mi) of mountainous terrain, with numerous glaciers and ice fields, dense coniferous forest, and alpine landscapes." (credit for 2007 photo by Chuck Szmurlo of Lower Consolation Lake at the Banff park)

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

Wednesday, June 22, 2011

United Nations' nod to business Principles: efforts to change business practices continue

(Delighted to welcome back alumna Nadia Bernaz, who contributes this guest post)

The United Nations Human Rights Council has endorsed a new set of Guiding Principles on Business and Human Rights. Last week's vote was a key moment for the booming area of business and human rights.
The Guiding Principles were prepared by Harvard Professor John Ruggie, the UN Secretary-General Special Representative on Business and Human Rights. They are Guiding Principles for the implementation of the United Nations' Protect, Respect and Remedy Framework, which the Council adopted in 2008 after three years of work and worldwide consultations with various stakeholders.
As described in prior IntLawGrrls posts available here, the Framework is based on the idea that states, and in particular the states of incorporation of multinational corporations, are under an international obligation to ensure corporations do not violate fundamental human rights when operating domestically or abroad (Protect). Additionally, corporations themselves must respect human rights, which means acting with due diligence to avoid infringing on the rights of others, and addressing harms that do occur (Respect).
Finally, states and companies must ensure that effective grievance mechanisms, both judicial and non-judicial, are available for victims of abuses (Remedy).
The Framework and Guiding Principles are aimed both at governments and at businesses of all sizes -- not only multinational corporations. The two instruments set up human rights standards and suggest ways for businesses to comply through the adoption of specific policies. Businesses are encouraged to:
► Make policy statements on human rights, which should be approved at the most senior level and widely communicated;
► Follow up on these statements; and, generally speaking,
► Communicate with respect to their human rights records.
This is easier said than done.
Businesses tend to dread attracting attention on their performances in this area, lest possible flaws expose them to the scrutiny of human rights NGOs and ensuing public relations nightmares. While this is changing, a prevalent idea within the corporate world is that human rights are for the government to deal with and that, in any event, corporate social responsibility departments are there to minimize adverse social impacts, keeping their activities separated from real business – the one that makes money. Yet, the Guiding Principles are about incorporating human rights considerations in business operations themselves, which will no doubt require full endorsement from business.
It will not be an easy journey, but the Guiding Principles are a great starting point. Their adoption should be welcomed by those who have been working to put human rights at the heart of global business.

Help plan ASIL meeting

The American Society of International Law has extended the deadline for proposals for next year's annual meeting. You can submit through this Friday, June 24.
Our earlier, detailed post on ASIL's call for proposals is here.

On June 22

On this day in ...
... 1966 (45 years ago today), following intense negotiations, Brazil and Paraguay signed the Act of de Iguazu, respecting hydroelectric development along the Río Paraná, which forms a border between the 2 countries. In 1984, operations would begin for the Itaipú Dam (above) that spans the river. (photo credit)

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

Tuesday, June 21, 2011

How to speed up ICC proceedings

The War Crimes Research Office at American University Washington College of Law recently launched the latest in its series of reports on the International Criminal Court at the Colombian Embassy in the Netherlands, at an event co-hosted by the Group of Friends of the ICC. The report, Expediting Proceedings at the International Criminal Court, examines means of avoiding delays in proceedings before the ICC.
In its less than one decade of existence, the ICC has achieved a great deal, opening formal investigations into six situations involving some of the most serious atrocities that have occurred since the birth of the Court in 2002 and initiating cases against a number of the individuals believed to bear the greatest responsibility for those atrocities. However, nearly ten years after coming into being, the ICC has yet to complete a single trial, raising concerns among States Parties to the Rome Statute and others regarding the effective functioning of the Court. Thus, while recognizing that the ICC is still a young institution faced with a variety of novel substantive and procedural challenges, the aim of the report is to identify areas of unnecessary delays in proceedings currently before the Court that are likely to arise again, and suggest ways in which such delays may be avoided in the future.
The analysis is divided into three sections:
► Delays arising at the pre-trial stage of proceedings, referring to proceedings conducted before the Court’s Pre-Trial Chambers;
► Delays arising after a case has been transferred to the Trial Chamber; and
► Delays cutting across both at the Pre-Trial and Trial stages of proceedings.

Pre-Trial Stage
The report addresses:
► Delays in the issuance of arrest warrants/summonses to appear.
The Pre-Trial Chambers have in several cases taken more than two months to respond to applications for a warrant of arrest or summons to appear under Article 58 of the Rome Statute, and in only two cases has a Pre-Trial Chamber responded to an Article 58 application in less than one month. By contrast, the ICTY, the ICTR, and the SCSL have regularly issued arrest warrants in a matter of days, rather than weeks or months, even in cases against senior leaders.
► Delays in the confirmation of charges process.
Before a suspect is committed to trial, a Pre-Trial Chamber of the ICC must hold a hearing to confirm the charges on which the Prosecutor intends to seek trial. As of the writing of the report, the ICC has concluded confirmation proceedings in five cases and, in each case, the confirmation process has taken anywhere from 8 to 14 months, even though the Chamber need only establish substantial grounds to believe the suspect is responsible for the crimes charged.
►Furthermore, cases are not actually “trial ready” when they move from the Pre-Trial Chamber to the Trial Chamber. Indeed, the period of time between the transfer of a case to a Trial Chamber and the actual first day of trial in that case has ranged between 13 and 22 months. Clearly the cases are not “trial ready” when they reach the Trial Chamber.

Trial Stage
On this, the report addresses:
► Delays related to the number and assignment of trial judges.
There are currently eight judges assigned to the Trial Division of the ICC. Because each Trial Chamber is composed of three judges, in order to run three trials simultaneously, judges either need to be assigned to more than one active case at a time or a judge from the Pre-Trial Division needs to be temporarily assigned to the Trial Division. Yet there are drawbacks to these options. For instance, when the Bemba Trial Chamber was initially constituted, two thirds of the judges assigned to the Bemba Trial Chamber were already serving on the Lubanga Trial Chamber. Presumably, the idea was that the Lubanga trial would conclude well in advance of the start of the Bemba trial, and thus the judges would be able to serve on both trials. However, as the third chart above suggests, even before trial commences, judges assigned to a Trial Chamber have been called upon to render an extensive number of decisions and participate in a number of status conferences. Because the Rome Statute requires the functions of the Trial Chamber to be carried out by all 3 judges, a judge sitting on two Trial Chambers can only dedicate him or herself to one or the other, meaning that the trial proceedings in the Lubanga case and the pre-trial preparation in the Bemba case were likely both adversely affected by the overlap in the makeup of the Chambers. Additionally, as it turned out, the Lubanga trial was nowhere near conclusion by the time the Bemba trial was due to commence, meaning that the two judges who were serving on the Lubanga Trial Chamber had to be replaced for purposes of the Bemba trial. This change in the composition of the bench was one of the reasons that the start of the Bemba trial, scheduled to take place in July 2010, was delayed and only began in November of that year.
► Delays related to the requirement, found in Articles 39 and 74 of the Rome Statute, that.all three judges carry out the functions of the Trial Chamber and that all three be "present" at each stage of the trial and throughout their deliberations.
Obviously, delays are likely where one or more judges are assigned to more than one active case at a time. However, the requirement that all Trial Chamber functions be carried out by three judges may also be a source of undue delay even where there is no overlap in the composition of the various Trial Chambers. Indeed, this provision, read literally, requires all three judges to be involved in each status conference and in every order and decision issued by the Chamber – including coordinating communication between the parties and setting deadlines. Given the volume of work in the lead up to trial, this seems both unnecessary and inefficient. Additionally, the requirement that all Trial Chamber functions be carried out by three judges raises problems when one judge is unexpectedly unavailable, for instance, due to sickness or a family emergency.
► Delays related to the amount of time taken by live testimony.
It is true that the Rome Statute expresses a preference for evidence to be presented through a process of in-court direct- and cross-examination of witnesses. However, it is not necessarily true that all evidence needs to be presented via in-court examination. Indeed, in the context of atrocity trials, a significant amount of the evidence relates to matters other than the conduct of the accused in relation to the crime charged, such as background events, jurisdictional prerequisites, impact on victims, and factors relevant to sentencing. Furthermore, the length of time taken by live witness testimony at the ICC has arguably been exacerbated by a number of factors. For instance, the Trial Chambers’ prohibition on witness proofing has arguably prolonged witness testimony, as witnesses have had to be recalled after recanting testimony or have had to take a break from giving testimony after suffering an emotional breakdown. Similarly, the ban on leading questions – which, as a practical matter, is what has happened in the Bemba case – has also likely contributed to delays, as leading questions are often useful in “bringing witnesses to the point,” particularly on cross-examination or with respect to non-contentious issues.

Cross-Cutting Issues of Delay
Issues the report discusses regarding delays that cut across both the Pre-Trial and Trial stages of proceedings iclude:
► Delays in the interlocutory appellate process.
Delays in this area have occurred for several reasons. First, the Pre-Trial or Trial Chamber responsible for the initial impugned decision sometimes causes delays by waiting a substantial period of time before issuing rulings on whether to grant a party’s request to obtain interlocutory appeal. Second, the Appeals Chamber has regularly taken several months to render judgments on those issues that reach it, even though in many cases the proceedings below have been formally or effectively halted pending the judgment. Finally, although the Appeals Chamber regularly takes multiple months to rule on an interlocutory appeal, the resulting judgment is often brief, providing limited guidance to the parties and lower chambers of the Court.
► Delays relating to the process of disclosure.
Late disclosure of material by the Prosecution to the Defense has been one of the principal causes of delay at the ICC. Based on a review of the jurisprudence, the delays have arisen for several reasons. Among them is the fact that the Prosecution has had to postpone the disclosure of evidence containing sensitive information until any at-risk witnesses have been accepted into the ICC’s Protection Programme or the Chamber has approved an application from the Prosecution to redact confidential information from the evidence, both of which can be time-consuming processes. With respect to the Court’s Protection Programme, it takes an average of two to three months from the moment the Prosecution requests that a witness be included in the Programme until the witness is actually relocated. As the Pre-Trial Chamber explained in the Katanga case, this period increases to five or six months when the Victim Witness Unit is faced with processing dozens of requests in relation to the various cases before the Court. Notably, the Prosecution has applied for a significant number of its witnesses to be admitted into the ICCPP in each of the cases before the ICC. 20 of the Prosecution’s 28 witnesses were admitted into the ICC’s Protection Programme in the Lubanga case; and 19 of the Prosecution’s 25 fact witnesses were admitted into the Programme in the Katanga case. Similarly, decisions on requests for redactions can take weeks, if not, months.

In each section, the report proposes a series of recommendations aimed at expediting the proceedings. Some of the solutions proposed will require an amendment to the Rome Statute or the ICC Rules of Procedure and Evidence, both of which require adoption by a two-thirds majority of the Assembly of States Parties (ASP). Solutions that call for additional resources would also require action by the ASP. Other solutions could be accomplished by an amendment to the Regulations of the Court, which would require a favorable vote by a majority of the judges serving at the time of the amendment. The judges could also enact certain of the recommendations simply by adopting a different interpretation of the Rome Statute, Rules, or Regulations, or by taking a different procedural approach. Finally, some of the proposed solutions call upon the Office of the Prosecutor or the Registry to adopt certain changes in their practices.
The full report is available here.