Sunday, July 31, 2011

ICC Elections: A Worrisome Update

The International Criminal Court is about to experience a massive overhaul in its professional staff, as we've discussed in posts here, here, and here. Developments in the election process to date are worrisome.

In terms of nominations to the 6 open spots on the bench, the ICC Assembly of States Parties (left) recently published an updated report setting forth the status of nominations.
The list of candidates is available here and here by region. Nominations for List A (individuals with criminal law experience per Article 36 of the ICC Statute) abound. By contrast, however, there is only 1 nomination designated under List B, which encompasses individuals with humanitarian and human rights law experience. The African states have made 5 nominations, and the rest come from Eastern Europe (2), Latin America and the Caribbean (1) (GRULAC), and Western European and Other group (2) (WEOG).

Most troubling for readers of this blog, perhaps, is that so far, there are no women nominated for the ICC bench.
To repeat: No women.
Concerns continue to be raised that the elections will be based on vote trading rather than a genuine review of each candidate on the merits. An Independent Panel on ICC Judicial Elections, featuring IntLawGrrl alumna Patricia M. Wald as Vice Chair, is assessing the candidates based on the treaty's requirements, as we've discussed here.

The nomination period ends on September 2, 2011, although this can be extended.

In terms of the Chief Prosecutor position, the Search Committee will continue to accept submissions and expression of interest until September 9, 2011. (See here for the Committee's Terms of Reference.)
The Search Committee and the Coalition for the ICC report that at this moment the Committee has under consideration the names of approximately 26 persons, only 5 of whom are women. Fifteen hail from WEOG, 8 from the African Group, 1 from Eastern Europe, and 2 from GRULAC.
Notably, the Asian group has produced no candidates for either the bench or the prosecutor's office.
It is no surprise that Fatou Bensouda (right), Deputy Prosecutor, is in the running for Chief Prosecutor. (See our prior posts here).
Running too for a spell was Hassan Jallow, Chief Prosecutor of the International Criminal Tribunal for Rwanda. However, both individuals hail from the Gambia, so Bensouda would have had to step down or be relieved of her position as Deputy Prosecutor for Jallow to serve, since Article 42(2) requires the Prosecutor and Deputy to be of different nationalities. Jallow has apparently withdrawn his candidacy, although he had the support of influential states such as the United Kingdom, which has a seat on the Search Committee.
Belgian Serge Brammertz (prior IntLawGrrls posts), the Chief Prosecutor of the International Criminal Tribunal for Yugoslavia is also in the running, although it may be difficult for him to leave his current position with both the Karadzic and Mladic cases in trial. One other name that has been floated is Canadian Louise Arbour, former Chief Prosecutor of the ICTY and former High Commissioner for Human Rights

Assembly of States Parties.
The Bureau of the Assembly of States Parties (ASP) has announced that it will nominate Estonian Ambassador Tiina Intelmann (left) as a candidate to be President of the ASP for the next 3 years, replacing Ambassador Christian Wenawesar of Liechtenstein. Intelmann has represented Estonia before the United Nations and the Organization of Security and Co-operation in Europe. If approved at a meeting of the entire Assembly in December, Intelmann will be the first woman to lead the Assembly, which, following the recent ratification by Tunisia, now constitutes 116 states.
Elections will take place at the 10th ASP session in New York in December 2011. Stay tuned!

On July 31

On this day in ...
... 1942, a new order-in-council authorized the entry of Canadian women into the navy. The 7,000 women in the branch known formally as the Women's Royal Canadian Naval Service -- and informally, on account of its acronym, as the "Wrens" -- aided Canada's efforts during World War II. (credit for 1944 photo of women naval servicemembers leaving from Halifax, Nova Scotia, for Britain)

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

Saturday, July 30, 2011

[Statement.] Discuss.

A bit out of season for any but the summer-course teacher, a super law-and-policy essay question jumped out from Indiana Law Professor David P. Fidler's recent ASIL Insight on cyberintlaw.
Central to the Obama Administration cyber policy strategy released this past May, Fidler wrote, is "'building the rule of law.'" Policymakers felt the need to define "rule of law" (at page 5 of the 25-page strategy document), and it's from that definition that the exam question emerges.
Here's the proposed query:

Officials in the administration of President Barack Obama define the term 'rule of law' as 'a civil order in which fidelity to laws safeguards people and interests; brings stability to global markets; and holds malevolent actors to account internationally.'
Using this definition, choose an area of public policymaking -- counterterrorism, to name one example -- and discuss whether and to what extent the Obama Administration has been faithful to rule of law in that area.

Um, really?

As of last week, there is a bathroom for women members of the U.S. House of Representatives. (photo credit)
The 1st Congresswoman was sworn in 94 years ago.
Need more be said?

On July 30

On this day in ...
... 1956 (55 years ago today), by dint of a joint resolution of Congress that President Dwight D. Eisenhower signed into law, "In God We Trust" became the national motto of the United States of America. (photo credit) The move came 2 years after Congress inserted a similar phrase into the official version of the already-by-then-62-year-old Pledge of Allegiance. The propriety of the inclusion/omission of these slogans long has been controversial (see, most recently, here): the U.S. Supreme Court dodged the issue on procedural grounds in Elk Grove Unified School District v. Newdow (2004), and as long ago as 1907, U.S. President Theodore Roosevelt dropped the motto from a U.S. coin; its use was, TR asserted, "close to sacrilege."

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

Friday, July 29, 2011

Defining Persecution to Minimize Fraud

In the wake of the debacle surrounding the admittedly falsified asylum claim of Nafissatou Diallo, Dominique Strauss-Kahn's accuser, refugee advocates have not had much to celebrate. Subsequent articles in the New York Times and the New Yorker on fraud in the asylum process are cause for serious concern, especially in the run-up to an election year. Both reports focus on the practice of "bolstering" asylum claims, in some cases fabricating stories from whole cloth but in others embellishing accounts to meet immigration adjudicators' expectations of "real" persecution.
Though my experience leads me to believe that the levels of fraud in the asylum process are significantly lower than these stories insinuate, the problem is certainly real. There are numerous possible solutions, with my vote going to the provision of free legal services for asylum seekers. As my co-author Phil Schrag elaborates here, high quality legal representation will not only help to ensure that the stories of genuine asylum seekers are not bolstered with false and unnecessary details but will also weed out fraudulent claims. But of course, free representation comes with a price tag to which Congress is unlikely to agree, particularly in the current climate.
A less costly route is in the hands of asylum adjudicators -- define persecution in a way that reflects the real experiences of genuine refugees, rather than setting the bar for past harms so high that asylum applicants feel the need to bolster their stories to ensure their safety. Judge Posner has done just that in his most recent asylum decision, Stanojkova v. Holder.
Ivanka Stanojkova and her husband, Gjorgji Naumov, Macedonian Slavs, were attacked in their home by masked paramilitaries because Naumov refused, for political reasons, to be drafted into the Macedonian army. The three assailants rendered Naumov's parents, with whom the couple lived, unconscious with a chemical spray. One of the attackers pointed a gun at Naumov's head and told him that they were attacking the family because he and his wife were "betrayers of Macedonia." Another ripped open Stanojkova's pajama top and touched and grabbed her all over her body. When her husband tried to protect her, the attackers beat him on the head and back with their gun. Stanojkova had just learned that she was pregnant and feared losing her baby.
In his usual acerbic style, Posner takes to task the immigration judge and member of the Board of Immigration Appeals who denied Stanojkova and Naumov's claim. He finds that what their opinions "come down to is that one can imagine worse mistreatment than the Naumovs underwent. That is not a reasoned basis for rejecting a claim of persecution."
Posner also attempts to create a new definition of persecution to replace the muddled standard that has long governed in asylum law:

Persecution involves, we suggest, the use of significant physical force against a person’s body, or the infliction of comparable physical harm without direct application of force (locking a person in a cell and starving him would be an example), or nonphysical harm of equal gravity—that last qualification is important because refusing to allow a person to practice his religion is a common form of persecution even though the only harm it causes is psychological. Another example of persecution that does not involve actual physical contact is a credible threat to inflict grave physical harm, as in pointing a gun at a person’s head and pulling the trigger but unbeknownst to the victim the gun is not loaded.

Though this definition leaves some open questions, it's a good start on reforming a convoluted definition of persecution. Perhaps more importantly, the facts of the case signal to asylum applicants that one need not be beaten to the point of hospitalization or brutally raped to have suffered persecution; the real facts that led to flight may alone be enough to obtain protection in the United States. That's a welcome message and one, if implemented by all asylum adjudicators, might play a role in diminishing fraud in the process.

(hat tip to Geoff Heeren)

'Nuff said

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

'[T]wo decades after sitting through Hill's excruciatingly careful narrative, there is still no way for women to tell stories of sexual injustice that allows them to bypass character assassination.'

-- Rebecca Traister (right), Salon columnist and author of Big Girls Don't Cry (2010), a book about Hillary Clinton's 2008 Presidential bid (an election on which IntLawGrrls frequently posted). Traister's remark appeared in a thought-provoking New York Times Magazine essay that linked the 20th anniversary of the testimony of Professor Anita Hill (prior IntLawGrrls posts here and here) during confirmation hearings for Clarence Thomas, then a nominee to the U.S. Supreme Court, with contemporary treatment of various women's accounts.

On July 29

On this day in ...
... 1899, representatives of 26 states concluded a conference they'd begun more than 2 months earlier, on May 18, by adopting the Final Act of the 1st Hague Peace Conference. Russian Czar Nicholas II had convened the meeting, which came about after "[t]he various peace societies led by the indefatigable Baroness Bertha von Suttner, kept up a veritable drum roll of urgings and entreaties." The conference concluded with the adoption of several instruments, among them the 1899 Hague Convention (II) with Respect to the Laws and Customs of War on Land. (credit for photo of 2005 postage stamp honoring von Suttner, the 1905 Nobel Peace Prizewinner about whom we've posted)

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

Thursday, July 28, 2011

Terrorism in Oslo: overview of legal issues

(Honored to welcome back alumna Cecilia Marcela Bailliet, who contributes this guest post)

We at my home institution, the University of Oslo Law Faculty, are very moved by the expressions of sympathy extended by so many IntLawGrrls in reaction to the horrific acts of terrorism in Oslo last week.
Right-wing extremist Anders Behring Breivik bombed government buildings in central Oslo, killing 8 persons, and then proceeded to assassinate 68 persons (the majority of them youths) at a Labour Party youth camp in Utøya.
It has been reported that Breivik sought to eliminate the next generation of Labour Party leaders, as he held them responsible for promoting multiculturalism and flexible immigration. In fact, however, the Labour Party had supported restrictive amendments to the immigration law that curtailed family reunification significantly.
On that day in Utøya, several youths saved their own lives by swimming away from the island, hiding in the forest and among the grottos, or playing dead. There were many acts of heroism conducted by private individuals, who saved the children by plucking them from the water in boats.
The police were delayed 90 minutes, in part due to the diversion of the bomb. They arrested Breivik and he is currently being held in detention. The people of Oslo have filled the streets of the city with flowers and held a peaceful gathering of 200,000, holding roses in affirmation of the country’s core values of openness and democracy (above; credit).
Due to the amount of inquiries since last week's event, our research fellow, Nils Christian Langtvedt, has prepared an overview of the legal criminal system and legal issues related to the prosecution of Breivik. With thanks to Nils for his contribution, we reprint it in full here:

The Legal Process
At the first level, the judge will have two lay judges. In complicated cases the court will be composed of two judges and three expert lay judges.
The victims are not parties to the case, nevertheless they may serve as witnesses and tell their stories. After judgment is delivered, an appeal may be lodged within 14 days. The Appeals Court will consider whether there has been an error in the handling of the case, such as whether the establishment of guilt or the punishment is incorrect. The appeals court is composed of three judges, sometimes four, and other cases are subject to a ten person jury. Further appeal to the Supreme Court is possible. The judgment of the Supreme Court is final and may only be appealed to the European Court of Human Rights.

Pre-Trial Detention
Detention may be pursued if the authorities believe that it is necessary to investigate the case. The purpose of the detention is to prevent the accused from tampering with the evidence or commit another crime. Detention is not considered to be a criminal punishment, rather a coercive procedural method in criminal cases.
If the Court decides to detain the accused, it sets forth the time limit for such detention. This period will not normally be longer than 4 weeks, but it may be extended by up to 4 weeks at a time. The Court can under certain circumstances establish a longer period of detention, and in the case of Anders Behring Breivik, the Court granted the state’s request for 8 weeks detention.
A ban on reception of letters and visitors is possible, as well as a ban on newspapers, and isolation from other inmates. The Court set the isolation period for Anders Behring Breivik at 4 weeks. The accused has a right to private oral and written communication with his defender.

Detention is a punishment that can be pursued in the alternative of incarceration. It is pursued in cases involving serious crimes with a high risk of recidivism. Detention is conducted within penal system and is not subject to time limits. An order of detention shall establish the time period that normally will not extend past 15 years and cannot surpass 21 years. The minimum period of detention shall not be over 10 years. If the authorities consider the individual so dangerous that his release would pose a risk to society , the Court may extend the detention period up to 5 years at a time. There is no maximum limit for extensions.
In theory, the accused may spend the rest of his life in detention, pursuant to Court orders extending his detention 5 years at a time.
Anders Behring Breivik is being charged with violating the terrorism provisions of the penal code which carry a penalty of 21 years incarceration.
Furthermore, the prosecutors are considering pursuing a charge of violation of crimes against humanity which carry a maximum penalty of 30 years incarceration. This is a less plausible charge. The crime refers to actions by a State, organization connected to a state, or a paramilitary organization. It is unlikely that the Norwegian provision may be applied to an individual’s act without a relation to a larger organization.

What if he is found insane?
In order to be criminally punished, the individual must be found to be sane at the time of the commission of the crime. Breivik is subject to court-appointed psychiatric evaluation to determine whether or not he is psychotic. If he is found to be considered insane at the time of the commission of the crime, he may be committed to a psychiatric institution if it is considered necessary for the protection of the society. This type of detention is not subject to time limits, but the law requires that the Court review the case regularly in order to establish whether there is a risk of recidivism.

On July 28

On this day in ...
... 2011 (today), is marked a Day of Commemoration of the Great Upheaval, by 2003 decree of Adrienne Clarkson, then Governor General of Canada, the representative of British Queen Elizabeth II. The commemoration came as an acknowledgment of the 1755 forced removal of French-speaking Acadians (a tragedy on which we've previously posted) -- from the British-held Maritime Provinces of Nova Scotia, New Brunswick, and Prince Edward Island, once known as Acadie. (credit for 1893 depiction, by George Craig, of Acadians being deported from Grand-Pré, Nova Scotia, where commemoration will occur today)

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

Wednesday, July 27, 2011

Go On! Fourth IICI Analysis Skills Course 15-17 November 2011

The Institute for International Criminal Investigations (IICI) is an organization of professional investigators, military officers, lawyers, and academics dedicated to training professionals in the investigation of the international crimes of genocide, war crimes and crimes against humanity. It also deploys of teams of investigators to the scenes of war crimes around the world as needed and has assisted truth commissions and other truth and justice mechanisms. IICI is the brainchild of Ray McGrath and Nancy Pemberton, both private investigators based in San Francisco, and John Ralston, former head of investigations for the International Criminal Tribunal for the Former Yugoslavia. (Ray & John depicted at left).
IICI will host its 4th Analysis Skills course from November 15-17, 2011 in The Hague, The Netherlands. The deadline for applications is September 14, 2011. All interested persons should send:
The Analysis Skills course covers topics considered essential for individuals engaged in the investigation of serious violations of international humanitarian, criminal, and human rights law.
The course is open to individuals from a variety of professional backgrounds who are employed in the field of international humanitarian law or human rights, either within a recognised international organisation (governmental or non-governmental) or a national war crimes investigation unit. Fluency in written and spoken English is a necessity.
The tuition is €500; participants are responsible for their own travel, accommodation and meals (lunch will be provided on course days). The Hotel Sebel (walking distance from Course location in The Hague) offers a discounted rate for IICI course participants.

A course outline is available here.

Gender & Millennium Goals

(Part 2 of a 2-part series; Part 1 is here)

Having written in yesterday's post on "Making Justice Systems Work for Women," today I will focus on "Gender Justice and the Millennium Development Goals." These subtitles refer to the first and second parts, respectively, of Progress of the World’s Women: In Pursuit of Justice, a report that, as IntLawGrrls posted, was recently released by UN Women.
The second part of the UN Women report brings a gender perspective to evaluation of the progress that has been made with respect to realization of the United Nations' Millennium Development Goals. Agreed to by 189 countries in 2000, these goals consist of eight quantitative benchmarks that comprise a framework for eradicating poverty by 2015 (bottom) (image credit).
The most recent progress report on the goals by the United Nations Secretariat acknowledges shortcomings in the realization of the goals for women and girls. In contrast, UN Women’s report evaluates global progress toward the goals through a uniquely gendered lens, as follows:

Goal 1: Eradicate extreme poverty & hunger
The UN Women report notes that although global poverty rates have declined, the number of unemployed women rose, from 76 million in 2007 to 87 million in 2010.
Women in Latin America, the Caribbean, and sub-Saharan Africa are more likely to live in poor households than men. Even within households, women are less likely than men to earn cash income and, perhaps more disturbingly, 34% of women who do earn cash income have no say in how that money is spent.
Finally, the report notes that millions of women are doubly burdened by family care and domestic labor, and this further limits their choices, by preventing them from pursuing education and paid employment. The report observes that labor-saving technology such as fuel-efficient stoves, combined with affordable child care, will reduce women’s workloads and facilitate a more equitable division of household labor.

Goal 2: Achieve universal primary education
Primary school enrollment has risen for girls -- with 96 girls now enrolled for every 100 boys, up from 91 girls for every 100 boys in 1999. Yet girls remain unlikely to complete even primary education. In the Middle East and North Africa, for example, 25% of women aged 17 to 22 have fewer than four years of schooling, compared to 11.5% of men.
The education gender gap is particularly wide in rural areas. The report notes that Bolivia has made significant strides in narrowing the educational gender gap in remote areas by establishing satellite schools, which send teachers to isolated communities. Between 1992 and 2001, the percentage of rural girls who completed six years of schooling in Bolivia jumped from 47% to 74%.

Goal 3: Promote gender equality & empower women
Women have made little headway in advancing in the workforce in the past two decades. Between 1990 and 2009, the percentage of women in wage employment outside the agricultural sector rose to just 40% from 35%. Yet the Report notes that while the number of women in parliaments around the world has increased, female legislators still only account for 5% of parliamentary members globally. And even though secondary school enrollment for young women has increased in a manner similar to that of primary school enrollment, attendance rates are low and significant gaps exist between the urban rich and the rural poor in part because of poverty, early marriage and discrimination. The Report advocates the use of stipends to keep girls in school and quotas to increase women’s participation in government. Rwanda’s Constitution, for example, requires that at least 30% of its parliament be comprised of women. As noted in yesterday’s post, women’s critical mass in that legislature has already led to important legislative reforms for women.

Goal 4: Reduce child mortality
The overall mortality rate for children under 5 has dropped from 89 deaths per 1,000 live births in 1990 to 60 per 1,000 in 2009. However, prenatal sex selection and infanticide has led to significant gender disparities in child mortality rates, particularly in Asia. (See this post by IntLawGrrl guest/alumna Mallika Kaur and this NPR report.)
The UN Women report observes that the Republic of Korea -- where in the 1980s 114 boys were born for every 100 girls -- has reduced this disparity by investing in girls’ education and by promoting women’s employment. These initiatives have helped to reverse the perception that girls are a financial burden on the family.

Goal 5: Improve maternal health
Only 14 countries are on target to reduce maternal deaths by 75% by 2015. This is a shocking statistic, given that up to 70% of such fatalities are preventable through health services and family planning resources. (credit for photo of maternal health clinic in Afghanistan)
Over 300 million women around the world suffer longterm health consequences and disabilities stemming from pregnancy or childbirth complications. Reduced aid for family planning, rural isolation, user fees, and lack of female staff at health care centers are some barriers to accessing the services needed to combat this epidemic. Consider that once user fees were no longer required in Burundi, the number of women giving birth in hospitals jumped 61%.

Goal 6: Combat HIV/AIDS, malaria and other diseases
Women have borne the brunt of the AIDS epidemic disproportionately. Over half the 33.3 million people living with AIDS worldwide are women.
Women are particularly vulnerable to infection as a result of poverty, violence, and discriminatory customs.
Once infected, women are further victimized. In China, for example, twice as many women as men report having been physically harassed and threatened because of their HIV status. According to the report, the Chinese government has launched a widespread campaign to combat HIV stigmatization.

Goal 7: Ensure environmental sustainability
The report notes that, because women perform the majority of the world’s agricultural work and are heavily impacted by weather-related disasters, they suffer the effects of climate change disproportionately.
Yet, women are often excluded from environmental policy discussions. An analysis of 423 National Adaptation Programs of Action reveals that only 16% of such plans refer to women when discussing food security or water. Less than 20% mention women in the context of health.

Goal 8: Develop a global partnership for development
The good news is that overseas development assistance has risen over the past decade and, by 2015, will have reached $126 million per year.
The bad news is, programs targeting gender equality are not reaping the benefits.
Programs in which gender equality was a secondary (but significant) component accounted for less than 30% of funding from the Organization for Economic Cooperation and Development-Development Assistance Committee between 2007 and 2009.
In November and December of 2011, the fourth High Level Forum on Aid Effectiveness will be held in the Republic of Korea. The report recommends adopting concrete actions to achieve gender equality at that meeting.

When it comes to gender equality, much needs to be done with respect to reaching the Millennium Development Goals. As the report put it:

'With only four years left until the target date of 2015, ending gender-based injustices that create barriers to women’s and girls’ opportunities must be the centerpiece of further action.'

On July 27

On this day in ...
... 1940, Pina Bausch (right) was born in Solingen, Germany, into a family of restaurateurs. (credit for photo by Wilfried Krüger) She began studying dance early on, moving in 1960 to New York, where she attended the Juilliard School and began dancing at the New American Ballet and the Metropolitan Opera. She returned to Germany and eventually founded the Tanztheater Wuppertal Pina Bausch. A "German choreographer and dancer whose innovative work transcended traditional barriers between dance and theater," she died at age 68 in 2009, 5 days after she received a diagnosis of cancer.

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

Tuesday, July 26, 2011

UN Women on justice for women

(Part 1 of a 2-part series; Part 2 is here)

The United Nations Entity for Gender Equality and the Empowerment of Women (also known as UN Women) has just published its first edition of Progress of the World’s Women, as IntLawGrrl Dina Francesca Haynes has noted.
The report, subtitled In Pursuit of Justice, recognizes that while great strides have been made on paper, too little of the legal and policy reform achieved over the past several decades has translated into discernible change in the lives of most of the world’s women.
The report is divided into two parts, which focus, in turn, on:
► Justice sector reform; and
► Women’s progress vis-à-vis the Millennium Development Goals.
In my post today, I will detail the first part of the report, subtitled "Making Justice Systems Work for Women." This part is divided into four chapters: legal frameworks, the justice chain, legal pluralism and justice for women, and justice for women during and after conflict.

Legal Frameworks
Chapter One sets out a three-part reform agenda for governments to move toward realizing gender equality:
End explicit discrimination against women.
The report notes that 48 countries still limit women’s right to work in certain industries, and that this exacerbates women’s poverty.
In 50 countries, the minimum legal age of marriage is lower for females than it is for males. Early marriage restricts women’s educational opportunities and exposes women to the risks of early pregnancy and childbirth.
Some countries have made progress, however, particularly in the area of family law. The report cites the case of Uganda Association of Women Lawyers and others v. Attorney General, in which a Ugandan court struck down as unconstitutional a law that made it more difficult for a woman to initiate a divorce than a man. (image credit) According to the report, the ruling resulted in the introduction of new family law before the Ugandan Parliament, one that will guarantee equal rights to divorce.
Extend protection of the rule of law to the private domain.
The report points out that women remain vulnerable to violence and discrimination in the private domain, particularly within marriage and the informal employment sector.
For example, even though 125 states have passed domestic violence legislation, many still fail to recognize marital rape as a crime.
Additionally, given the high percentage of women employed outside of the formal sector—in homes, small businesses and on farms—failure to include such jobs within the ambit of minimum wage and other labor legislation leaves many women (as many as 80% in sub-Saharan Africa and South Asia) without vital economic and personal protection. (photo credit)
Take responsibility for the law’s impact on women.
The report urges states to ensure that laws are implemented.
For example, while 117 countries have passed equal pay legislation, women continue to be paid 10% to 30% less than men.
Similarly, while 115 countries recognize equal property rights for women, the supremacy of discriminatory customs in some countries has resulted in little discernible access to land for women. The Report states that in Kenya, for example, women hold only 5% of registered land titles. Female parliamentarians in Rwanda (who account for over 50% of the national legislature) (prior IntLawGrrls post) have advanced legislation ensuring equal inheritance and titling rights. This legislative success suggests that gender balance in the political branches can lead to policy reform.

Justice Chain

Chapter Two examines the “implementation gap” between policy and practice.
It recognizes a high rate of attrition among female victims of crime, along a “justice chain” that includes police, forensics, prosecutors, legal aid, and courts. Reasons for this attrition include social barriers such as lack of knowledge about rights and the justice system, lack of access to justice systems without male relatives, and stigmatization associated with being a victim of sexual violence. Complicated reporting mechanisms, high administrative fees, and male-dominated police forces and judiciaries also impair women’s access to justice.
The report recommends that states reduce these barriers by implementing procedures and supporting institutions that increase women’s access to redress.
For example, the Ministry of Health in Kenya introduced guidelines requiring that rape survivors be provided emergency contraception and HIV anti-retroviral treatment.
In Fiji, where two-thirds of women have been abused by their partners, the Women’s Crisis Centre (logo at right) (credit) provides counseling and legal advice to survivors of violence.
Specialized courts, such as those in the Democratic Republic of the Congo, and gender-responsive policing, such as the all-female peacekeeping unit that was deployed to Liberia (prior IntLawGrrls post), can also facilitate women’s access to justice.

Legal Pluralism & Justice for Women
Chapter Three acknowledges that most of the world’s women live in states where two or more legal systems—civil, common, religious, and/or customary—govern. In such pluralistic States, protection of human rights can vary among legal systems, some of which hold primary jurisdiction over subject matters that greatly impact women, such as family law. The report notes, by way of example, that some customary and religious systems do not have sanctions against domestic violence.
In addition to harmonizing informal justice systems with the equal rights provisions of the formal sector, the report recommends, first, increasing women’s leadership in the informal justice system and, second, training civil society to assist women in challenging discriminatory customs.
One example of such an effort is UN Women's sensitization program in the traditional justice sector in Burundi, which has resulted in women accounting for 40% of bashingantahe, or traditional court members.

Justice for Women During & After Conflict
Chapter Four takes stock of several advancements in international law with respect to gender and conflict, including the recognition of rape as a war crime.
Yet the report acknowledges that, out of the 171 cases completed by the International Criminal Tribunals for the former Yugoslavia and Rwanda and the Special Court for Sierra Leone, less than 30% have produced judgments in which the conviction involved evidence or findings of sexual violence.
It thus states that prosecutions need to be increased and that barriers to international justice (which are the same as the barriers women face in domestic systems) need to be reduced.
The report further argues that reparations programs must be gender-sensitive and that women must be included in post-conflict reconstruction.
Interestingly, the report notes that women hold 27% percent of parliamentary seats in post-conflict states, as compared to only 11% in non post-conflict States.

(Coming in tomorrow's post: Gender and the U.N. Millennium Development Goals)

On July 26

On this day in ...
... 1946 (65 years ago today), dapper in dark suit and bowtie, Justice Robert H. Jackson, on leave from the U.S. Supreme Court while serving as Chief U.S. Prosecutor, delivered his closing argument in the Trial of the Major War Criminals before the International Military Tribunal at Nuremberg. (credit for photo of Nuremberg courtroom) He would be followed by counterparts from other Allied prosecution teams. Jackson's address was both a condemnation of the defendants and a defense of the international law then being made. On account of the horrors of World War II, he told the judges,

we were moved to redress the blight on the record of our era. ... In drawing the Charter of this Tribunal, we thought we were recording an accomplished advance in international law. ... The Agreement of London, whether it originates or merely records, at all events marks a transition in international law which roughly corresponds to that in the evolution of local law when men ceased to punish crime by 'hue and cry; and began to let reason and inquiry govern punishment.

The video montage below of this address, as well as video clips of other "Nuremberg Days," is available here.

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

Monday, July 25, 2011

Guest Blogger: Sheri Rosenberg

It's IntLawGrrls' great pleasure to welcome Sheri Rosenberg (left) as today's guest blogger.
Sheri is the Director of the Program in Holocaust and Human Rights Studies, as well as the Human Rights and Genocide Clinic, at Benjamin N. Cardozo School of Law, Yeshiva University, New York City. In addition to leading these clinics, she teaches international human rights, international criminal law, and minority rights.
Sheri has worked in the areas of civil rights and international human rights, with a specific focus on issues of discrimination, equality, and genocide. In addition to working with several human rights organizations, she was a civil rights litigator in private practice and an Assistant Corporation Counsel with the New York City Law Department.
In 2000 the U.S. Department of State selected Sheri to be one of two American lawyers to work for the Human Rights Chamber for Bosnia and Herzegovina, a quasi-international court established under the Dayton Peace Agreement. There she developed and coordinated the case work of the court and authored judicial opinions in a number of significant cases in the area of international human rights, including property repossession and non-discrimination. Additionally, she trained local lawyers and judges in human rights law.
Thereafter, Sheri was awarded a Human Rights Fellowship at Columbia University, where she worked for the United Nations, Office for the Coordination of Humanitarian Affairs, Policy Branch.
Sheri received her B.A. from New York University, her J.D. from Cardozo Law, and her LL.M. from Columbia University. In her guest post below, she writes about the responsibility to protect in the context of Libya.
Heartfelt welcome!

Taking the long view: Responsibility to protect, in Libya and beyond

(Thanks to IntLawGrrls for the opportunity to contribute this guest post)

In a watershed moment in international policymaking, there has been a clear declaration: there is a "responsibility to act" in the face of mass atrocity, to quote President Barack Obama's speech of March 28 on Libya.
But what is being done in Libya to uphold this responsibility must not be seen as the poster child of responsibility to protect, the evolving international principle/norm about which IntLawGrrls frequently have posted.
The responsibility to protect doctrine undoubtedly inspires this administration. Yet responsibility to protect is not fully encapsulated by its actions or words on Libya.
Responsibility to protect was, until recently, largely absent in public discourse.
As set forth in paragraphs 138-139 of the 2005 World Summit Outcome, responsibility to protect asserts that states have a responsibility to protect their populations from genocide, war crimes, crimes against humanity, and ethnic cleansing. When they fail to do so, the doctrine holds, the international community has the responsibility to act using all peaceful measures, with military intervention as a last resort. U.N. member states unanimously adopted responsibility to protect in a General Assembly Resolution in 2005, and the concept has developed significantly since then.
Measures to address allegations of mass killings of civilians by forces loyal to Libyan leader Muammar el-Qaddafi began with economic sanctions and travel bans. It was only when these measures failed to stop Qaddafi’s “no mercy” policy that the exceptional last resort of U.N. Security Council military action become a reality.
The effectiveness of using these measures in Libya remains open to debate. But it is purely positive that a number of world powers have reacted to protect innocent lives, in the face of the reality and threat of continuing massacres in Libya.
The public discussion of responsibility to protect in the context of Libya, however, has the unfortunate consequence of associating the concept solely with military intervention -- an intervention that is likely to be exercised rarely and only by Western nations against states outside their direct sphere of influence. To associate responsibility to protect exclusively with military intervention is a grave mistake; it will undermine the power and reach of this moral principle, and add to both the illegitimate and legitimate fears of many states about foreign invasion.
Responsibility to protect doctrine makes clear that successfully protecting populations from mass atrocities requires a continuum of actions by states: The continuum includes:
► Preventing mass atrocity;
► Reacting to the threat or mass atrocity taking place; and
► Rebuilding, which encompasses “a genuine commitment to helping to build a durable peace…”
Viewing responsibility to protect through the narrow lens of Libya obscures its primary commitment to "militaryless" prevention of mass atrocities. As with any successful act of prevention, success in averting civilian deaths leads to a lack of media coverage and further associates responsibility to protect exclusively with military intervention.
Responsibility to protect has been evolving and implemented to greater effect, before Libya:
► Fears over potential atrocities in South Sudan this year were actively averted by a variety of international and national actions.
► The prevention of a return to serious violence in Guinea in 2010, following the massacres of 2009, was also a successful invocation of responsibility to protect without military interventions.
► The same was true in Kenya after the 2008 elections, when swift international diplomacy averted mass atrocity.
These are instances in which the responsibility to protect principle will be most effective, in which states act to prevent mass atrocity without ever needing to get to the last resort of military action, a last resort that can only be fraught with moral, legal and political conundrums.
The nature of the news cycle and its appetite for major conflict often results giving violence greater attention than prevention of violence. The success of the moral principles embodied in the universal pledge to respect responsibility to protect will depend on ensuring that images and strategies of peaceful prevention -- and not, primarily, of military action -- are emphasized in utilizing the principle of the responsibility to protect.
Resort to military intervention will and should remain the exception not the rule.
We should wholeheartedly welcome the growing recognition that there is a global interest—indeed responsibility -- in preventing tyrants from committing mass atrocities. But let us not lose sight of the forest for the trees. Let us take the long view in Libya and beyond.

(My thanks to Daniel Stewart, Visiting Lecturer and International Human Rights Clinical Teaching Fellow with the Human Rights and Genocide Clinic at my home institution, Cardozo Law; he contributed significantly to this post)

ICC Prosecutor search

The committee appointed to come up with a short list of candidates to succeed Luis Moreno-Ocampo as Prosecutor of the International Criminal Court welcomes "constructive engagement," and "will continue to accept submissions and expressions of interest until 9 September 2011."
So says ICC Assembly of States Parties President Christian Wenaweser respecting developments leading toward the December election about which we've posted.
Five men compose the committee: the Committee's Coordinator, Prince Zeid Ra’ad Zeid Al-Hussein, Jordan's Permanent Representative to the United Nations; the Committee's Deputy Coordinator, Miloš Koterec, Slovakia's Permanent Representative to the United Nations; Baso Sangqu, South Africa's Permanent Representative to the United Nations; Joel Hernández, Legal Adviser to Mexico's Ministry of Foreign Affairs; and Sir Daniel Bethlehem, Legal Adviser to Britain's Foreign and Commonwealth Office.
Wenaweser's full statement, plus details on how to engage constructively, as he put it, may be found here.

On July 25

On this day in ...
... 1961 (50 years ago today), in an address televised from the Oval Office of the White House (right), President John F. Kennedy declared:

[O]ur presence in West Berlin and our access thereto cannot be ended by an act of the Soviet Government. The NATO shield was long ago extended to cover West Berlin and we have given our word that an attack upon that city would be regarded as an attack upon us all.

(photo credit) Two days later Kennedy's Secretary of State, Dean Rusk (namesake of the University of Georgia School of Law Center where this 'Grrl's now officed), took a somewhat different tack, stating "that the United States and its allies would try 'to find opportunities for a peaceful adjustment' of the Berlin crisis." The crisis -- essentially, a new Cold War struggle for control of postwar Berlin and Germany -- would persist through the autumn.

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

Sunday, July 24, 2011

Read On! Woman against war criminals

Thanks to our blogreader Anne-Marie Bilodeau, at Amnesty International in Canada, for news of a new book of note: Zones sensibles, une femme contre les criminels de guerre (2011). The "woman against war criminals" who wrote the book is Céline Bardet, an international affairs consultant whose prior posts include Head of Legal Department, Brčko, for the Office of the High Representative in Bosnia and Herzegovina. (book cover credit)
In her recent discussion of the book with Marine Deffrennes -- posted as an interview at Terrafemina, an online, French-language women's magazine -- Bardet related that her interest in international criminal law was piqued by the work of the International Criminal Tribunal for the former Yugoslavia. She wrote a thesis on the Erdemović case, and eventually worked with ICTY President Claude Jorda; these experiences led to the Bosnia work that composes the core of her book.
Touching on one of the subjects of her book, Bardet expressed concern about lingering impunity in Brčko, site of numerous atrocities during the 1990s conflict in the Balkans:

'Beaucoup de victimes croisent leur ancien bourreau au marché ou au détour d’une rue. Les gens se connaissent et n’osent pas témoigner, parce que tout se sait, ils ont peur de l’effet boomerang.'

that is,

'Many victims run into their torturer at the market or at a bend in the road. People are aware of this and and do not dare testify, because it will be found out, and they fear repercussions.'

Like the interview, the book looks to be well worth a read. And the message in the quote -- that many perpetrators are likely to remain free notwithstanding the entry this week of the ICTY's last fugitive, Goran Hadžić, into custody at The Hague -- is well worth pondering.

On July 24

On this day in ...
... 1904, was appointed an international commission to investigate abuses on rubber plantations controlled by Belgium's King Leopold II in what then was called Congo Free State (flag at right). (credit) According to this website,

The commission revealed that the Congolese were victims of a slave labor system and other human rights abuses. The king instituted certain reforms, but these proved ineffective. As a result, in 1908 the Belgian parliament voted to annex the Congo Free State, making it a colony that became known as the Belgian Congo. While the most unfair labor practices were eliminated, most Congolese people fared little better under the new administration.

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

Saturday, July 23, 2011

A growing IntLawFamily

Delighted to announce the birth of little Anna Grace Derhak, born at 3:54 a.m. on July 16th -- a week ago today -- to IntLawGrrl Valerie Oosterveld and her husband, Walter Derhak.
Valerie reports that the wee 'Grrl arrived via "a lovely and (thankfully!) short home birth assisted by our midwife, Jennifer, student midwife, Disha, and doula, Jill."
Named after Valerie's maternal great-grandmother, Anna Grace weighed 9 pounds, 4 ounces.
Everyone is doing very well. Anna is a little sister for Jasper (8 years) and Caroline (almost 3 years old). As you see, they have enthusiastically welcomed Anna into the family.
Heartfelt congratulations to all!

On July 23

On this day in ...
... 1881 (130 years ago today), in Liège, Belgium, enthusiasts of gym-based exercise formed the European Federation of Gymnastics, member states of which included the host country, France, and the Netherlands. When it began admitting non-European states in 1921, it was renamed the Fédération Internationale de Gymnastique (FIG) / International Federation of Gymnastics (IFG). Headquartered in Lausanne, Switzerland, it's the world's oldest international sports organization. Its regulatory mission includes developing a points code and setting minimum-age standards.

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

Friday, July 22, 2011

In Siem Reap, tempest over a temple

SIEM REAP – We’ve just arrived in this city, the launching point to visit the spectacular Angkor Wat temple complex.
The big news here is Monday's International Court of Justice order for provisional measures in the Request for interpretation of the Judgment of 15 June 1962 in the case concerning the Temple of Preah Vihear (Cambodia v. Thailand) (Cambodia v. Thailand).
Made pursuant to Article 41 of the ICJ Statute, provisional measures are akin to the issuance of a preliminary injunction in U.S. litigation practice.

The dispute
As Jaya posted in May, the matter arose out of an April 2011 request by Cambodia that the ICJ, pursuant to Article 60 of its statute, interpret its June 1962 judgment in Preah Vihear. In that earlier opinion, the Court had declared that

the Temple of Preah Vihear is situated in territory under the sovereignty of Cambodia

notwithstanding that the temple (right), being on an escarpment, is geographically more accessible from Thailand.
The ruling was premised in part on interpretations of French maps, drawn up in 1907 by the Franco-Siamese Mixed Commission, which placed the territory in Cambodia. Thailand had helped generate these maps, and subsequently used them for its own purposes, suggesting an acceptance of their contents. As a result, international lawyers normally cited the ICJ's June 1962 opinion in Preah Vihear for the principle of estoppel, which the court identified as a general principle of law as contemplated by Article 38(1)(c) of its statute.
Yet Thailand now opposes the placement of the temple in Cambodia.
In 2008, UNESCO listed the temple as a World Heritage Site, one of two in Cambodia. In response to this statement that the temple is situated in Cambodia, Thailand withdrew from both the 1972 Convention Concerning The Protection Of The World Cultural And Natural Heritage and the World Heritage Committee.
Additionally, Thailand has launched a number of military incursions into the area since 2008. Clashes between government forces on both sides have resulted in casualties and the destruction of property – including harm to the temple itself.
Clashes intensified this year, fueled – it appears – by assertions of Thai nationalism in the face of domestic political turmoil.
In February 2011, Cambodia brought the conflict to the attention of the U.N. Security Council, which called for a permanent ceasefire to be established between the two parties and expressed its support for the efforts of the Association of Southeast Asian Nations to find a solution.

Arguments before the ICJ
In its recent pleadings before the ICJ Thailand, in an effort to defeat the request for provisional measures, advanced the argument that the original ICJ opinion related only to the temple itself, and not to the entire area surrounding it, where the recent clashes have occurred. Similarly, it argued that the court did not delineate the entire frontier between the countries, which remains contested, in Thailand's estimation.
Cambodia countered that by determining that the temple falls within Cambodian sovereign territory, the ICJ by implication had determined the border between the two countries, at least with regard to the temple vicinity. Thai incursions, it contended, thus are akin to violations of Article 2(4) of the U.N. Charter. On the strength of the original opinion, Cambodia has argued that Thailand remains under a continuing and general duty – rather than a mere instantaneous duty applicable only in 1962 – to withdraw its troops from the area and to respect the integrity of Cambodian territory.

ICJ ruling
In Monday's order in this current Preah Vihear dispute, the ICJ first determined that

  • the rights asserted by Cambodia were at least plausible;
  • the rights from which the request for provisional measures derive from the earlier judgment;
  • a link exists between the alleged rights and the provisional measures sought; and
  • irreparable prejudice could be caused to those rights.

Thus the ICJ ordered, inter alia, that

all armed forces should be provisionally excluded from a zone around the area of the Temple, without prejudice to the judgment which the Court will render on the request for interpretation submitted by Cambodia.

The Court then defined this zone with reference to particular coordinates, mapped above left. In addition, the parties were ordered to continue to cooperate with ASEAN and to allow observers to have access to the provisional demilitarized zone.
The newly appointed American judge, Joan E. Donoghue (right) (prior IntLawGrrls posts), voted with 4 other judges against the establishment of the demilitarized zone. Moreover, she was the sole judge to vote against all other aspects of the provisional measures. This passage of Donoghue's dissenting opinion sums up the basis for her deliberations:

Without a doubt, the Court hopes that the measures that it indicates today will defuse a tense situation and thus will protect lives and property. This is a laudable goal, but it cannot overcome a lack of jurisdiction to impose the measures contained in today’s Order. Accordingly, I have voted against those measures.

At the scene
Here in Siem Reap, our guide announced with confidence that now that the ICJ has ruled, it is perfectly safe to visit the temple.
Such faith in international law.
But, do I subject my children, who've accompanied me on this voyage, to potentially risky international law tourism?
Stay tuned...