Monday, October 31, 2011

A fair trial in Rwanda?

Does a formerly-high ranking Hutu official charged with genocide and crimes against humanity face a fair trial in Rwanda? Last Thursday, in the case of Ahurogeze v. Sweden, the European Court of Human Rights decided that Ahurogeze's extradition to Rwanda would not violate Articles 3 or 6 of the European Convention on Human Rights, which prohibit inhuman or degrading punishment and protect the right to a fair trial, respectively. The decision offers a glimpse of the dialogic power of international human rights law, as successive refusals to extradite by the International Criminal Tribunal for Rwanda and other countries pushed the Rwandan government to reform its trial standards for genocide suspects.
Ahurogeze is the former head of the Rwandan Civil Aviation Authority, and is accused of being an Interhamwe leader involved in a massacre of Tutsis in April 1994. In 2001, Denmark granted him refugee status, in large part due to his Hutu ethnicity. In July 2008, the Swedish police arrested Ahurogeze in Stockholm under an international arrest warrant. Rwanda issued a formal extradition request the following month.
At the time, neither the ICTR nor any country had agreed to transfer a genocide suspect to Rwanda. In 2008, the ICTR refused to transfer 5 genocide suspects to Rwanda for two central reasons. First, the available punishment was life imprisonment in isolation without appropriate safeguards. Second, there was no equality of arms in ensuring the presence and examination of witnesses, largely because defense witnesses scared to testify.
Based largely on these decisions, France has refused to extradite genocide suspects to Rwanda as recently as October 2010. Similarly, Germany refused to extradite a Rwandan genocide suspect in November 2008 based on the ICTR decisions. Finland did the same in February 2009 as did Switzerland in July 2009. In April 2009, the UK refused to extradite a Rwandan genocide suspect due to the lack of impartiality and independence of judiciary and the absence of guarantees of the availability of video technology to call witnesses who were scared to appear in person.
In May 2009, however, Rwanda amended its law on transferring cases from the ICTR and other countries to limit the maximum penalty to life imprisonment and to authorize video testimony. In response to this and other efforts to bring Rwanda's judiciary into line with international standards, the ICTR transferred its first genocide suspect to Rwanda on June 28, 2011.
The Uwinkindi case was subject to transfer for three reasons: (1) the change in permitted penalties described above (2) improved detention conditions, including monitoring by the African Commission on Human and People's Rights, and (3) improvements in laws regarding witness immunity as well as the creation of a new witness protection program. Though the Uwinkindi case is on appeal, it laid the framework for the ECHR's decision to allow the extradition of Mr. Ahurogeze, as well as Norway's decision to extradite a Rwandan genocide suspect in July of this year.
In Ahurogeze, the ECHR sets a high standard for finding that an extradition violates Article 6. The court notes that it has prevented only one extradition, in the 1989 Soering v. United Kingdom decision -- where the claimant faced the death penalty in the United States. It lays out the "flagrant denial of justice standard" for prohibiting extradition under Article 6, and determines that given Rwanda's recent legislative fixes, Mr. Ahurogeze would not face such a risk. Let's hope for his sake that international human rights law's conversation with the Rwandan government has led to real rather than superficial reform of its justice system.

On October 31

On this day in ...
... 1957, in Whitehorse in the Yukon Territory, Canada, Martha Louise Black (right) died at age 91. (photo credit) Born Martha Louise Munger on February 24, 1866 in Chicago, in 1898, pregnant with her 3d child and abandoned by her husband, she crossed the Chilkoot Pass and settled in the community of Dawson with her brother. Together they were miners. Eventually she married again, this time to a man who became the Commissioner of the Yukon Territory. She and he went to England during World War I; " there she received an OBE for her aid to Yukon servicemen and became a fellow of the Royal Geographical Society for her work with Yukon flora." After her husband fell ill, 70-year-old Black won election to Parliament, the 1st woman from Northern Canada and the 2d woman ever to sit in the House of Commons. There she served for five years until her husband recovered and reclaimed his seat.

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

Sunday, October 30, 2011

Laws and policies to consider this DVAM

(Delighted to welcome back alumna Mallika Kaur, who contributes this guest post)

A resolution declaring that “freedom from domestic violence is a fundamental human right,” which local governments have a responsibility to continue securing on behalf of their citizens, was passed on October 5 by the City Council in Cincinnati, Ohio.
Six days later, by a 7-3 vote, the City Council in Topeka, Kansas, repealed its local law that made domestic violence a crime. This withdrawal of local protection was justified as a means to manage the city’s struggling budget (by limiting the legal prosecutions that are paid out of the city’s budget).
These two moves this October, Domestic Violence Awareness Month (DVAM), come in the wake of a stern and public reminder to the United States of its duty to protect women, children, and men from intimate partner violence.
In mid-August, the Inter-American Commission on Human Rights published its opinion finding the United States on the wrong side of human rights and domestic violence survivors. (See IntLawGrrl Caroline Bettinger-López’ analysis of the opinion here).
The Commission had considered the case of domestic violence survivor Jessica Lenahan (formerly Gonzales), whose three daughters were abducted by her abusive husband, Simon Gonzales, in Castle Rock, Colorado, in 1999. The girls were eventually killed, in the face of police apathy towards Jessica’s repeated calls, despite her existing domestic violence restraining order against Gonzales. The Commission found that the U.S. had indeed violated human rights by failing to protect its nationals from domestic violence.
This international shaming has not been adequately internalized, as is clear from the policy decision in Topeka.
At the heart of the decision in Topeka in 2011 or the inaction by the Castle Rock police in 1999 is the continued relegation of crimes within the home to a secondary, non-urgent status, despite the clear evidence to the contrary.
On average, as per U.S. Bureau of Justice Statistics, more than three women and one man are murdered by their intimate partners in this country every day.
In fact, of all the women murdered in the United States, about one-third are killed by an intimate partner.
The Center for Disease Control has found that one in four women and one in nine men in this country report being victims of domestic violence at some points in their lives. It is quite impossible that each of us does not know at least one survivor of intimate partner violence.
Domestic violence, or vicious cycles of power and control, are strengthened by the lack of acknowledgment and attention from policy-makers, law enforcement, and society at large. A must-see documentary recently released on the issue, Crime After Crime, highlights the lack of understanding of the multiple ramification of domestic violence, and the travesties of justice that often result.
Money spent on domestic violence is still resented as money wasted on a ‘personal problem’ rather than necessary spending to promote public safety. Domestic violence advocates in our cities, countries, and states have always been over-whelmed with work while being under-resourced: A survey by the National Network to End Domestic Violence found that on September 15, 2010 -- in just one day -- 70,648 domestic violence victims were served and 22,292 hotline calls were answered by domestic violence programs across the United States, even as more than 9,541 requests for services were unmet due to inadequate funding or staff availability.
But the resource crunch reaches a whole new level in the face of sweeping policies that seek to simply decriminalize domestic violence!
This DVAM and throughout the year, we have the opportunity to:
► Begin Conversations. We can make a quick effort to educate ourselves and ours—family, friends, students, colleagues—on the prevalence of domestic violence (e.g. the Purple Purse campaign and the range of options available to survivors of such violence.
► Become Vigilant. These difficult economic times must not become an excuse for policy changes that put domestic violence survivors at further risk. Not in Our City.
► Remain Cognizant. While we remember tenacious survivors like Jessica Lenahan and millions of others, we must also remind ourselves in the U.S. about the recent Inter-American Commission on Human Rights decision—we have a long way to go. The change starts at home.

Go On! Human Rights and the Global Economy

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

With the recent and continuing global economic and financial crisis, the new "Occupy Wall Street" movement around the world, and the old and ongoing crisis of poverty, violence, and discrimination, it is no surprise that advocates and scholars are focusing on the theme of "human rights and the global economy."
The Social Science Research Network abstracts journal sponsored by Northeastern's Program on Human Rights and the Global Economy, Human Rights and the Global Economy (co-edited by Wendy Parmet, George and Kathleen Matthews, Distinguished Professor, Rashmi Dyal-Chand, Professor of Law, and yours truly, IntLawGrrl and Professor of Law Hope Lewis), recently received an announcement that describes an interesting independent conference on these themes sponsored by colleagues at the Center for Public Scholarship at the New School for Social Research and its journal, Social Research. Here it is:

Wednesday and Thursday, November 9-10, 2011
John Tishman Auditorium, 66 West 12th Street, NYC

The Center for Public Scholarship presents the 25th conference from the Social Research journal at The New School. Join us as experts and scholars discuss human rights as a mediating language for discussions about social justice and the global economy. How does a wealthy nation determine what they can do to alleviate global poverty? What are the ethical obligations and how can such assistance be mutually beneficial? What are the human rights responsibilities and obligations of international financial institutions and corporations? Where are the opportunities in economic policies and institutions to strengthen human rights policies around the world and improve social justice?
Full program and registration available here.
Keynote on Wednesday, November 9, 2011 6:00 p.m.
Olivier De Schutter [right], United Nations Special Rapporteur on the Right to Food, will discuss the role of human rights in shaping international regimes
See conference site for regular registration fee.
All students (with valid ID): Free
All New School faculty, staff and alumni (with valid ID): Free
Contact: or 917-534-9330
The conference is made possible with generous support from the Climate Change Narratives, Rights and the Poor project at the Chr.Michelsen Institute (CMI) in Bergen, Norway.

On October 30

On this day in ...
... 1961 (50 years ago today), global voices joined in condemnation of the Soviet Union's explosion, in the Arctic, of "the world's largest ever nuclear device." At the the bomb was believed to be 50 megatons, equivalent to 50 million tons of dynamite. (credit for photo of the explosion on this day of what was called the "Tsar Bomb") According to the BBC,

It was subsequently revealed the Soviet bomb was 58 megatons -- the world's biggest explosion to date and nearly 4,000 times more powerful than the atomic bomb dropped on Hiroshima in 1945.

Emblematic of the arms-race mentality of the time, U.S. officials said they'd "known for many years how to make 50 and 100-megaton bombs but remain[ed] convinced that smaller weapons are more effective."

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

Saturday, October 29, 2011

Women & justice in conflict: Beyond rape victims

(Delighted to welcome back alumna Phuong Pham, who contributes this guest post)

Yesterday, the UN Security Council debated ways to strengthen women’s participation and role in conflict prevention and mediation. (photo credit)
Meaningful participation and leadership from women at all stages of the peace process—from prevention to peace building—is key to building inclusive societies and fundamental towards achieving sustainable peace. The work of recent Nobel Peace Prize winners, Sirleaf, Gbowee and Karman, should stand as a powerful testament to the critical role of women in peace building and reconstruction.
During the Security Council meeting Michelle Bachelet (right), the Executive Director of UN Women, stated that the UN will seek to increase post-conflict funding by 15% to support efforts on women empowerment and gender equality. (photo credit)
The UN should take this opportunity to focus on the role of women in bringing a more just and accountable society.
The eastern Democratic Republic of the Congo provides a salient example of women’s limited access to justice. In a region that is known as ‘the rape capital of the world,’ there has been encouraging progress over the last decade to ensure that perpetrators of conflict-related sexual violence are brought to justice. According to survey data, as many as 1 in 4 women experienced conflict-related sexual violence. In 2010, an astounding 16,000 cases were reported, but still many more have gone unreported. The use of rape as a weapon of war is an abject crime that has been internationally condemned, and women now have more opportunity to report the violence they suffered and see the cases brought to justice. In 2010 alone, based on the UN Development Programme court monitoring data, 3,111 cases of sexual violence were filed in the justice system in North and South Kivu and Ituri. (map credit) A small number of militia and military, including 16 commanders, have been found guilty for sexual violence committed by their troops.
UNDP’s court monitoring program is a powerful tool to hold the justice sector accountable to women. It is part of a larger program to support women’s political, economic, and social empowerment. Police officers, judges, and lawyers have been trained to ensure that crimes of sexual violence are treated adequately and that courts follow fair trials standards that are sensitive to the rights of the victims. Mobile courts, about which IntLawGrrl Kelly Askin has posted, have also been set up to overcome the lack of physical access to courts. Congolese prosecutors have initiated important investigations in cases where brutal violence was committed against civilian women.
Despite this progress, much remains to be done. Increasingly, sexual violence cases are filed in courts. However, the court monitoring work showed that out of the 3,111 cases filed in 2010, by the end of the year, a decision had been obtained only for 305. Civil damages awarded by these decisions remain to be paid to all victims. Research that my colleagues and I have conducted in the Congo also shows that women are less knowledgeable about the Court system, and less likely to have heard about the International Criminal Court, which is currently prosecuting several cases related to the conflict. The results point to the need to do more to reach out to women and to ensure that conflict-related sexual violence is effectively prosecuted and that judicial decisions are executed.
It is equally important to ensure that an adequate response is provided to other forms of violence against women.
An unintended consequence of the single focus on prosecuting conflict-related sexual violence is that there are few resources to assist survivors of other forms of violence against women, including pillaging, beating, abduction, or the killing of a family member, as well as non-conflict-related violence and inequalities. In 2010, sexual and gender-based violence represented about half the decisions in criminal cases in eastern Congo. These crimes must be prosecuted. However, addressing conflict-related sexual violence in isolation of other forms of violence against women will do little to strengthen women’s participation in—and access to—justice.
In effect, the current system may be creating two classes of victims—those who deserve assistance and those who do not; and two classes of crimes—those worthy of investigation and those that are not.
There is an urgent need to consult with women to better understand the role that they see for themselves in rebuilding their country. Strengthening women’s role and access to justice, combating inequalities across all spectrums of civilian life, and acknowledging their role as fully fledged citizens must be seen as fundamental to building inclusive, democratic, and ultimately peaceful societies.

Victims seek reparations in 2d ECCC case

Earlier this month, attorneys for 4,000 victims of the Khmer Rouge regime submitted a list of requested reparations to the Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia (logo at left) in what is known as Case 002. (IntLawGrrls' prior posts available here.)
The defendants in that case are: Nuon Chea, former Deputy Secretary of the Communist Party of Kampuchea; Ieng Sary, former Deputy Prime Minister for Foreign Affairs; Khieu Samphan, former Head of State; and Ineg Thirith, former Minister of Social Affairs. Each has been indicted on charges of crimes against humanity; grave breaches of the Geneva Conventions of 1949; genocide; and homicide, torture, and religious persecution withing the meaning of the Cambodian Penal Code of 1956.
Under Rule 23 quinquies of the Chambers' Internal Rules, the Chambers "may award only collective and moral reparations" to victims who participate in the proceedings as civil parties. Unlike Article 75 of the Rome Statute of the International Criminal Court, the Chambers' Rules do not provide for the award of monetary compensation to victims.
Among the reparations sought by the victims in Case 002 are:
  • establishment of a day of national remembrance;
  • health services for elderly victims;
  • vocational training to victims of forced marriage and their children (see previous IntLawGrrls post here); and
  • legal services for ethnic Vietnamese who the Khmer Rouge forcibly deported to obtain Cambodian citizenship.
Readers may recall that the Trial Chamber addressed victims' reparations in its first judgment, issued against defendant Kaing Guek Eav (alias "Duch") in July 2010 (see prior IntLawGrrls post here). In that case, the Trial Chamber granted some requests by the victims, such as including their names in the judgment, and compiling and publishing the defendant's statements of apology. Several other requests, including requests for free medical care and educational measures not unlike those sought by the victims in Case 002, were left unfulfilled, because Duch was found indigent and the Chambers lacked a mechanism for national authorities or third parties to supplement reparations.
Notwithstanding this precedent, in addressing the scope of the requests of the victims in Case 002, international lead co-lawyer for the victims, Elisabeth Simonneau-Fort (below right), said:

Reparations have to be satisfactory for civil parties. Reparations have to alleviate their pain and grief. It is our duty to be ambitious . . . If we are not ambitious, we cannot represent our civil parties.
(photo credit)
Simonneau-Fort's comments call to mind the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, which was adopted by the UN General Assembly in December 2005. In its resolution adopting the Basic Principles and Guidelines, the General Assembly stated that victims of gross violations of human rights law shall be entitled not only to restitution and compensation, but to rehabilitation and satisfaction as well.
According to news reports, the victims' request in Case 002 has the support of the prosecution while the defense maintains such requests are beyond the competency of the Chambers. There has been much criticism leveled at the Chambers with regard to realizing victims' rights. Hopefully the Trial Chamber will grant this most recent submission the weight it deserves.

On October 29

On this day in ...
... 1891 (120 years ago today), a daughter, Fania Borach, was born on New York's Lower East Side to Jewish immigrants -- her mother, Hungary-born Rose Stern, worked in a garment factory, and her father, Alsace-born Charles Borach, as a bartender. Her parents would separate, and the girl, a "chronic truant," would embark early upon a theatrical career that included much singing, dancing, and wisecracking in burlesque revues. Using the stage name Fanny Brice, she would become "[o]ne of America's great clowns," reliant
'on a Yiddish accent and a flair for zany parody. In an era when ethnic comedy was the norm, she delighted audiences for more than forty years and won a following in almost every branch of American show business.'

The clip below includes many photos -- plus a circa-1920s audio track of her singing "My Man" -- that indicate a much broader performance range. Brice was also the 1st woman to start in a "talkie," a motion picture with sound. She died in Los Angeles from a cerebral hemorrhage in 1951, at age 59.

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

Friday, October 28, 2011

National, international law upended

(Delighted to welcome back alumna Leila Nadya Sadat, who contributes this guest post)

The majority opinion in Kiobel v. Royal Dutch Shell Petroleum (2d Cir. Sept. 17, 2010) has much in it to delight an international law professor:
► References to Article 38 of the Statute of the International Court of Justice;
► References to the Rome Statute of the International Criminal Court;
► Discussions of Nuremberg; and even
► The I.G. Farben case!
Unfortunately, however, even the citations of these authorities – shored up by recitations from leading publicists in the field – do not lead to the proper conclusion in the case, which, as IntLawGrrls have discussed in posts available here, is set for U.S. Supreme Court review this Term. In the humble view of this author, the majority opinion in Kiobel is based upon a fundamental conceptual flaw.
The question posed by the majority is whether liability for legal persons is a norm of customary international law. Concluding that the answer is no, the majority in Kiobel finds no liability for corporations in Alien Tort Statute cases.
In a country where corporations have First Amendment rights, and are subject to suit for almost everything else, this result seems particularly jarring; how can it be so?
Essentially, because the majority asked the wrong question.
To understand this, think about the ramifications of the opposite holding: that a rule of customary international law requires corporate liability for war crimes, crimes against humanity, genocide, torture and the like. Putting aside the strange feature of the Alien Tort Statute, which takes rules providing for criminal liability and transforms them into rules of civil liability, such a holding would mean that all states would have to amend their national laws to impose liability for these crimes!
Surely that is not the case!
Even among the 119 states parties to the Rome Statute of the ICC, some states impose criminal liability on legal entities for war crimes, crimes against humanity and genocide – including France, which recently adopted such a provision. But most states do not do this.
Nor is it correct that the Rome Statute prohibits such a rule of liability: as I note at pages 193 to 194 in my monograph on the Court (The International Criminal Court and the Transformation of International Law (2002), which, of course, is not cited by the majority), the Rome Statute is simply silent on the question because there was no clear consensus.
I take issue with the majority’s review of the travaux préparatoires – having been at Rome (and at many Preparatory Committee meetings), it is clearly incorrect to state that the ICC Statute affirmatively excludes liability for legal entities as a matter of customary international law.
What the majority opinion does not do is distinguish rules of substantive liability generated as a matter of international law from rules governing the application of those rules in national legal systems that are a matter of national (municipal) law. Modes of responsibility, jurisdiction in personam, kinds of remedies, etc. – all the rules that govern lawsuits in our legal system are rules of national and not international, origin, unless some international law rule has explicitly and clearly displaced them.
Consider the European Union, which has a much more integrated system of law in terms of overlap between EU and national courts, as well as provisions about the direct applicability of EU law norms in national legal systems. Even there, the jurisprudence of the European Court of Justice, beginning with Brasserie du Pêcheur v. Federal Republic of Germany (1996), allows national courts to apply municipal law to EU causes of action, so long as the national courts do not do so in a way that completely undermines the rights created or discriminates against the EU cause of action.
In our legal system, this would mean corporations have liability in Alien Tort Statute cases, for the reason that they can generally be sued for their torts.
States remain free to craft rules of liability (or not) regarding causes of action sounding in international law, so long as they do not violate international law in so doing. The majority’s analysis stands these basic principles governing the repartition of competences between national and international legal orders on their head. (photo credit) In so doing, it turns U.S. rules about tort liability for alleged corporate wrongs upside down as well.
Not much to be delighted about there.

Recent Remarks by Michael Posner

I had occasion to hear Michael Posner (left)—the Assistant Secretary of State for Democracy, Human Rights & Labor—speak this week. He was in the Bay Area for a conference with business leaders on the internet and human rights. The Center on Democracy, Development & The Rule of Law at Stanford University (my sabbatical home a couple of years back) was a co-host, along with Stanford-in-Government. CDDRL tweeted Posner's talk.
Posner gave a short talk on the Obama Administration’s approach to human rights and then took questions for about an hour. In his prepared remarks, he emphasized that the goal is always to ensure that human rights are raised at the highest level, even with countries with whom our relationship is fraught. He discussed the way in which the U.S. has engaged with civil society in preparing our Universal Periodic Review for the Human Rights Council, which he described as a still “flawed” body. He also discussed the priority of promoting internet freedom to create a common global platform for innovation, education, and political dissent and ensuring that activists understand the risks of using the internet in terms of threats to privacy.
During the Q & A, he offered these frank responses to questions from the audience:
1. In response to a question about the propriety of adopting a rights-based approach to international development, he stressed that all human rights are indivisible, but that we need to approach them in different ways. He stressed the importance maintaining accountability for international aid, ensuring that recipients have a stake in development programs, and prioritizing democracy-building institutions and not just infrastructure projects. He emphasized the need to focus on the NGO sector, where we get “more bang for our buck,” and to develop and apply better metrics to determine if our efforts are effective. In particular, he emphasized the United States’ support for Lifeline, the fund for embattled NGOs.
2. In response to my question about the United States’ position on the amenability of corporations to suit under the Alien Tort Statute (i.e., Kiobel), Posner (not surprisingly) declined to reveal the position the government would take in its brief, which is due in January. He stressed, however, that the U.S. government is not monolithic and that the process of gathering inter-agency views is underway and that “lively discussions” are occurring to map out the Administration’s position.
3. When asked about the treaty ratification process, he was pessimistic about the ability to get outstanding treaties ratified given the state of our Senate and its Foreign Relations Committee. Even the Convention on the Rights of Persons with Disabilities, which he described as being based on the Americans with Disabilities Act, is a non-starter at the moment. He noted that the problem stems from the lack of a domestic constituency for such initiatives, coupled with hostility from Tea Partiers and others to international engagement.
4. When asked about the role of government in encouraging pro-human rights policies within multinational corporations, he stressed three initiatives.
5. He described as “agonizing” the situation in Somalia, especially in light of the fact that aid was delayed for lack of a reliable local partner. He analogized Al Shabaab’s control over food aid to that of the Government of Sudan, which in the Kordofan region is using food as a weapon. He also predicted that Syrian President Bashir al-Assad would step down eventually, and described efforts to get the Arab League to weigh in.
6. Posner is en route to Burma. He declined to give details about his agenda there, but stressed the following observations:

He noted that the U.S. government supports in principle the Bali Democracy Forum, but that ASEAN should not be fooled into thinking Burma is on the road to democracy.

On October 28

On this day in ...
... 1886 (125 years ago today), the Statue of Liberty was dedicated. According to a contemporary New York Times report, ceremonies at "Bedlow's Island" [sic - as our friend and reader Rita Maran's pointed out, the Times should've spelled it "Bedloe," and in any event it's been called "Liberty Island" since the 1950s] in New York Harbor, the new home of the French-made, 46-meters-tall bronze figure, included a formal acceptance by U.S. President Grover Cleveland from the representive of the gift-giver, France. (credit for 1886 painting of unveiling) Another highlight was a waterborne parade of vessels (perhaps the source of the parade term, "floats"?). One vessel belonged to the Woman Suffrage Association, which had been excluded from the ceremonies.

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

Thursday, October 27, 2011

Sarei v. Rio Tinto: CA9 tackles the Alien Tort Statute (again)

(Delighted to welcome back alumna Chimène Keitner, who contributes this guest post)

In the wake of U.S. Supreme Court’s cert grant in Kiobel v. Royal Dutch Petroleum, the U.S. Court of Appeals for the Ninth Circuit has issued its second en banc opinion in Sarei v. Rio Tinto, which it had earlier tried to avoid by referring the case to mediation.
No wonder: yesterday’s opinion, which addressed multiple issues raised by the parties and at least one issue that the parties did not raise, reads like a virtual catalog of contested questions surrounding the interpretation and application of this 1789 provision from the First Judiciary Act.
All this in the context of a lawsuit originally filed in the year 2000 against the Rio Tinto mining company for its alleged role in genocide, war crimes, crimes against humanity, and racial discrimination against residents of Papua New Guinea's island of Bougainville.
I previously blogged at IntLawGrrls about an “emerging circuit split” in corporate ATS cases. This split is now manifest, which no doubt accounts at least in part for the Supreme Court’s decision to tackle the threshold question of corporate liability under the ATS in Kiobel (and the distinct question of whether liability under the Torture Victim Protection Act is limited to natural persons, presented by Mohamad v. Rajoub).
The Ninth Circuit’s opinion is much more wide-ranging:
► On the question of whether corporations can ever be held liable under the ATS, seven out of eleven judges sided with Judge Pierre Leval’s concurrence in Kiobel, which answered this question in the affirmative (slip op. at 19339-41). The Ninth Circuit therefore joins the District of Columbia Circuit in Doe v. ExxonMobil, the Seventh Circuit in Flomo v. Firestone, and the Eleventh Circuit in Romero v. Drummond, in holding that corporations may be found liable under the ATS in appropriate circumstances.
Although these circuit courts have reached the same result through different reasoning, I have argued here, and more recently here, that “the attribution of individual conduct to a corporate entity for the purpose of ascribing legal liability” under the ATS is properly governed by domestic law, meaning that it is somewhat beside the point in this context to ask whether “corporations” as such can or cannot violate international law.
►As Pepperdine Law Professor Trey Childress has indicated, the same Ninth Circuit majority also held in Sarei that the adjudication of transitory torts under the Alien Tort Statute does not violate a statutory presumption against extraterritoriality (slip op. at 19334-39) (or, I might add, international law constraints on the extraterritorial application of U.S. law, since the conduct-regulating norms being applied under the ATS come from international law).
► In addition, in response to an argument raised by the dissent, the majority found that claims relating to violations of international norms that meet the test of universal acceptance set forth in Sosa v. Alvarez-Machain “arise under” federal law for Article III purposes (slip op. at 19342-51).
► Finally, although the majority left open the question of whether knowingly as opposed to purposefully aiding and abetting an international law violation would give rise to liability under the ATS (slip op. at 19373), it held that at least purposeful aiding and abetting is actionable. Judges Harry Pregerson and Johnnie B. Rawlinson wrote separately in support of a knowledge standard (slip op. at 19384-89) and are (in my view) correct in pointing out that, even if one adopts the Rome Statute for the International Criminal Court as a guide to aiding and abetting liability under international law (which is questionable), the Rome Statute does not support a higher purpose standard in the context of aiding and abetting crimes committed by groups.
All in all, it promises to be an eventful Supreme Court term for those interested in international law in U.S. courts.
In the meantime, upcoming events touching on these issues include:
► A panel on emerging issues in ATS litigation at the American Society of International Law midyear meeting at UCLA on November 4;
► A discussion of transnational tort liability for multinational corporations [] in which Hofstra Law Professor Julian Ku and I will comment on a paper by Chicago Law Professor Alan Sykes, at the Georgetown Law Journal’s Centennial Symposium on November 17; and
► The ASIL International Law in Domestic Courts Annual Interest Group Meeting at Brigham Young University Law School on December 16 (details to be posted online soon).

(cross-posted at Opinio Juris)

Guest Blogger: Amber Charles

It is a pleasure to welcome Amber Charles (right) as today's guest blogger.
Amber Charles is in her second year at Boston Uni­ver­sity School of Law, where she is a Pub­lic Inter­est Scholar and G. Joseph Tauro Dis­tin­guished Scholar.
From July to September of this year, she served as a legal intern at the Institute for Justice & Democracy in Haiti, a non-profit organization committed to providing legal assistance to Haiti’s poor. Amongst other projects focused on prisoners' rights, unlawful evictions, and Haiti’s Universal Periodic Review, IJDH and its Port-au-Prince-based affiliate, the Bureau des Avocats Internationaux, are active in advocating for the fair prosecution of Jean Claude-Duvalier as a means to bring justice to his victims and curtail future judicial impunity in Haiti. IJDH/BAI represents a number of individual victims of Duvalier in their legal complaints before the Haitian tribunal. Amber discusses the Duvalier case in her guest post below.
Prior to her time at IJDH, Amber worked in the area of international democracy assistance at the Carter Center, based in Atlanta, Georgia. In this work, Amber focused on the appli­ca­tion of pub­lic inter­na­tional law to inter­na­tional elec­tion obser­va­tion, participating in election observation mis­sions in West Africa, the Mid­dle East, and South­east Asia. Her past work also included assessing election laws in region of the Organization for Security and Co-operation in Europe, with an aim to ensure compliance with inter­na­tional legal oblig­a­tions and regional best prac­tices.
Amber holds an undergraduate degree, magna cum laude, from the Uni­ver­sity of Geor­gia.
As her transnational foremother, Amber dedicates this post to Jeannette Rankin (below left). We've posted about Rankin here; Amber elaborates:

Rankin embodies many of the principles and beliefs which underlie my legal passions. Rankin, the first woman to serve in Congress (Montana 1917), was elected on campaign of universal suffrage, child welfare reform, and pacifism. She introduced a bill that would have allowed for women’s suffrage and opened floor debate on what would become the Nineteenth Amendment. Rankin was a co-founder of the American Civil Liberties Union and strongly committed to women’s rights. After leaving Congress she gave frequent lectures on disarmament and gender equality and led the 5,000 strong “Jeanette Rankin Brigade” in a demonstration against the Vietnam War at the age of 87. Rankin’s commitment to improving the life and rights of women is today embodied by the Jeannette Rankin Foundation’s provision of education grants to low-income women. My personal introduction to her work came when my mother, who left school in the eighth grade due to severe dyslexia, received her college degree with the help of one such grant. This modern-day example is illustrative of the continued impact of Rankin’s legacy for women both in the United States and abroad. Gender equity and the non-violent resolution of disputes remain critical issues at the forefront of international policy and law today, and our perception of such issues and work towards their resolution is fundamentally shaped by the women that came before.

Welcome, Amber!

Justice Delayed? Jean Claude Duvalier and the Case for Prosecution

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

Upon his return from exile in 2010, Jean Claude “Baby Doc” Duvalier (left) was promptly charged for financial and political crimes. (prior post)
Since that time, a team of domestic and international human rights lawyers and advocacy groups have been actively engaged in pushing for prosecution to the fullest extent of the law. International support has come from the Inter-American Commission on Human Rights and the U.N. High Commissioner for Human Rights. Domestically, civil society groups have formed to advocate for victims and to educate Haiti’s youth about the crimes of Duvalier.
However, despite these efforts, many media reports suggest prosecution has stalled, and Duvalier is commonly seen out in Port-au-Prince, dining in restaurants and attending clubs.
Duvalier supporters also interrupted a recent Amnesty International press conference, harassing and intimidating AI advocates who were attempting to peacefully release their report, You Cannot Kill the Truth: The Case Against Jean-Claude Duvalier. The acceptance of such activities and intimidation on the part of Duvalier and his supporters suggest continued impunity and a lack of viable avenues to justice for Duvalier’s victims.
In part, the delay in prosecution is attributable to historical corruption, significant institutional losses from the 2010 earthquake, and long delays in the formation of a government after Haiti’s most recent elections, which left many key ministerial posts vacant. Just this week, however, Haiti’s new government finally took power. Thus comes a unique opportunity to reignite prosecution, ideally silencing fears of interminable delays ensuring an efficient and fair judicial resolution for Duvalier’s victims.
The rule from 1971 to 1986 of Duvalier (historical photo at right) was marked by brutal violations of human rights. Opponents were silenced by either fear or force. Extrajudicial killings, torture, forced exile, and unlawful detention were common, with prisoners often succumbing to malnutrition and disease absent any formal charge. Duvalier’s control was near-absolute: the Constitution made him President for Life, and the legislature—filled with Duvalierists—was effectively under his command. Ultimate control of both military and paramilitary forces—including the violent Tonton Macoutes (commonly known as the “bogeymen”)—was also vested in the President alone.
Justice for these crimes is clearly needed, and the time for prosecution is ripe.
The Inter-American Court of Human Rights has joined other tribunals and international bodies in concluding that crimes against humanity cannot be prescribed by a domestic statute of limitations. In addition, the last century has seen an increased recognition of both the existence of immutable, inherent human rights and the need for criminal liability to redress gross violations of such rights. Since the end of World War II, international law has recognized liability through command responsibility and culpable omission. In short, Duvalier is directly answerable for the crimes of his regime.
Haiti’s prosecution of Duvalier may do more than render justice for his past victims.
It offers a critical opportunity for Haiti to move forward, to denounce its reputation for judicial impunity, and to ensure that future leaders are bound by the rule of law.
It is also fundamental to post-earthquake recovery and future development that Haiti significantly increase the capacity of and trust in its judiciary—necessary in part to sort out the seemingly intractable issues of land rights and inadequate oversight of building codes which contributed heavily to the extent of earthquake destruction.
If Duvalier is allowed to remain in Port-au-Prince absent a full and fair investigation and prosecution his presence will serve as a constant reminder to future leaders that their actions are not bound by the rule of law and to the Haitian citizenry that their rights are not adequately protected.
In contrast, prosecution may prove that Haiti’s judiciary:
  • is committed to ensuring all persons liable for political violence or financial crimes are subject to proper retribution,
  • has the political will and institutional capacity to fairly conclude such complex cases in a domestic forum, and
  • is deserving of public confidence as an effective forum for dispute resolution.
To date, more than a dozen individual victims have filed complaints before the Port-au-Prince judge. Institutional and political support to the Haitian judiciary is critical to give voice to these victims, representative of the thousands more suffered under Duvalier’s regime.
The United States is uniquely situated, given its long history in Haiti and stated commitment to human rights abroad, to contribute such support. Further, relevant U.S. Department of State documents, cables, and intelligence reports could be significant in establishing Duvalier’s personal knowledge, and therefore responsibility, for the crimes of his regime. However, to date, the United States has been silent, refusing to encourage Haiti to fulfill its international legal obligations. This silence comes despite the ample experience at high levels of Department of State in both prosecuting crimes against humanity globally, and in working with development issues in Haiti.
France, which harbored Duvalier for over two decades, has also failed to step forward in support of Haiti’s efforts at prosecution.
The silence of these countries, both uniquely involved in Haiti’s history, is particularly telling in contrast to the commitments of support from the Inter-American Commission and the U.N. High Commissioner.
International and domestic advocates, recognizing the critical nature of prosecution, remain committed, actively engaging in legal representation of victims and political advocacy in Haiti and abroad. Despite the real and significant challenges, the formation of a new government and the continued commitment and bravery of Duvalier’s victims to ensuring justice give reason for cautious optimism. These advocates and individuals seek to ensure both justice for past crimes and a better future for all of Haiti, as should we all.

On October 27

On this day in ...
... 1951 (60 years ago today), Egypt abrogated its 1936 Treaty of Alliance with Europe, which would have allowed Britain a military base for an additional 20 years. (credit for 1951 postcard of British troops on patrol in the Suez) Also unilaterally denounced was an 1899 agreement by which Egypt had permitted British presence in Sudan. The New York Times reported:

In one of their formal notifications, the Egyptians charged that the continued presence of British forces in the Suez Canal and the Sudan c0nstituted aggression as defined by the United Nations.

The action contributed to the Suez Crisis that would play out over the years of this decade.

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

Wednesday, October 26, 2011

Burning the veil

An act of liberation in Yemen.

Officials must stop conflating Human Trafficking with other Political Agendas

The U.S. government offers roughly 5,000 visas a year to illegal immigrants who agree to testify against the traffickers who brought them to this country and then forced them into prostitution or other servitude. But in the first eight months of this year, only 524 victims applied for the visas and less than half were issued. Federal prosecutors and officials say they want to raise awareness about predatory human traffickers and put them in prison. U.S. Citizens and Immigration Services officials are conducting a national tour, speaking to immigrant advocates and law enforcement officials about the visa program. But they are facing the challenge of convincing illegal immigrants to come forward when sentiment against them is on the rise, and the Obama administration is touting a record number of deportations over the last year.

So writes Laura Wides-Munoz for the Associated Press. But as he announces this "tour," Wides-Munoz quotes Director Alejandro Mayorca as stating "Just because someone agreed to be smuggled into the country doesn't mean they should be victimized."
One might ask the Director why he is further confusing potential victims of human trafficking by talking about "smuggling" when addressing human trafficking. It is the continued conflation of human trafficking with other political agendas (stemming the tide of immigration, securing borders, abolishing prostitution) that has taken us so far off track in the now eleven years since the Trafficking Victim Protection Act was passed into law. ICE, FBI and local law enforcement must be encouraged to not only seek out and "rescue" victims, but to listen to them (not deport them), when they come forward. Only when victims know that they are more likely to receive continued presence than detention will USCIS begin to receive applications. Finally, rather than funding, for example, singer Ricky Martin to make anti-traffciking PSA's, the federal government should spend its trafficking budget to create legal representation for trafficking victims.

Consensus bound

And now there are 4.
Vying to become the Prosecutor of the International Criminal Court are 1 woman and 3 men chosen from among the 52 in the initial pool and the 8 who were interviewed. As detailed in this just-released report (see p. 7 and CVs beginning at p. 39), they are:
Fatou Bensouda of Gambia (left) (prior posts), the ICC's Deputy Prosecutor since 2004, and before that, a prosecutor at the International Criminal Tribunal for Rwanda, and Gambia's Minister of Justice and Solicitor General (photo credit);
Andrew T. Cayley of Britain (left) (prior posts), since 2009 the International Co-Prosecutor at the Extraordinary Chambers for the Courts of Cambodia, and formerly a defense lawyer at the Special Court for Sierra Leone and the International Criminal Tribunal for the former Yugoslavia, Senior Prosecuting Counsel at the ICC and at the ICTY (photo credit);
Mohamed Chande Othman (right), since December the Chief Justice of Tanzania and formerly a chief prosecutor at ICTR and a prosecutor in East Timor’s U.N. administration (photo credit); and
Robert Petit of Canada (left) (prior posts), Counsel in the Crimes Against Humanity and the War Crimes Section of Justice Canada who preceded Cayley as the ECCC International Co-Prosecutor (2006-09), and has also served as a prosecutor at ICTR and in the Serious Crimes Unit of the United Nations' East Timor mission, and as a Senior Trial Attorney for the Special Court for Sierra Leone. (photo credit)
Election's set for the December session of the 119-member ICC Assembly of States Parties.
By then, the ICC search committee hopes, there'll be no contest.
The 5-man committee -- a geographically diverse group coordinated by Prince Zeid Ra’ad Zeid Al-Hussein of Jordan and also comprising Baso Sangqu of South Africa, Joel Hernández of Mexico, Daniel Bethlehem of Britain, and Miloš Koterec of Slovakia -- has made clear its desire to put forward a single candidate whom the Assembly will then approve by consensus.
In its effort to attain this goal, the committee continues to extend the formal deadline for nominations; by dint of the 4th and most recent extension, that date is now this Friday, October 28.
Pleased to see a number of prosecutors whom we've come to respect not only on account of their courtroom accomplishments, but also through their participation in events like the annual International Humanitarian Law Dialogs. Looking forward to further developments.

On October 26

On this day in ...
... 1896 (115 years ago today), was signed the Treaty of Addis Ababa between Italy and Ethiopia. It abrogated the 1889 Treaty of Wichale, which had granted Italy protectorate status over Ethiopia. Italian control effectively had come to an end in March, with the Italian loss in the Battle of Adwa, and this treaty confirmed Italy's recognition of Ethiopia as a sovereign and independent state. Italy retained a protectorate over Eritrea, but the expanse of this colonial territory was reduced. (map credit)

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

Tuesday, October 25, 2011

Go On! Framing Economic, Social and Cultural Rights for Advocacy and Mobilization

The Program on Human Rights and the Global Economy at Northeastern University School of Law is hosting another "institute," this time titled
"Framing Economic, Social and Cultural Rights for Advocacy and Mobilization: Towards a Strategic Agenda in the United States."
The institute combines public events with closed-door strategy sessions and takes place on Thursday, November 3, 2011, noon to 5:30 PM.

Keynote speaker
Marshall Ganz, Harvard Kennedy School

Additional Speakers
Catherine Albisa, National Economic and Social Rights Initiative
Larry Cox,Amnesty International
James Haslam, Vermont Workers' Center
Richard Healey, Grassroots Policy Project
Steve Hitov, General Counsel, Coalition of Immokalee Workers
Bill Kennedy, Legal Services of Northern California
Tara Melish, University at Buffalo Law School
Robert Raben, Raben Group

Institute Description

Over the past several decades, the United States government has been ambivalent, and sometimes openly hostile, to economic, social and cultural rights (ESCR). This past year, however, the Obama administration acknowledged that it has obligations for ESCR, both in its reports to the UN Human Rights Council for the Universal Periodic Review, as well as in a speech by Michael Posner, Assistant Secretary of State for Democracy, Human Rights and Labor, before the American Society of International Law in March 2011. (See IntLawGrrls posts here and here.)
As a result of this new development, it is timely for human rights scholars and practitioners tore-examine strategies for advancing ESCR in the United States.
The Institute on “Framing Economic, Social and Cultural Rights for Mobilization and Advocacy: Towards a Strategic Agenda in the United States” is a collaborative effort by the Program on Human Rights and the Global Economy at Northeastern University School of Law, the ESCR Working Group of the Bringing Human Rights Home Lawyers Network based at the Columbia Law School Human Rights Institute, the National Economic and Social Rights Initiative and Human Rights USA.
The Institute will bring together the legal activists in the ESCR Working Group and academics engaged in sophisticated social movement analysis to think through strategies for moving an ESCR agenda forward in the United States.
The Institute will focus in particular on the role that lawyers can play instrategic and effective framing of ESCR as a key step to support and empower this movement. Considering such diverse topics as housing, health and decent work, participants will begin to develop effective frames for the multiple forums in which ESCR are shaped and contested, such as media, grassroots organizing, legislative advocacy and litigation.

In passing: Antonio Cassese

The international criminal justice community has lost one of its lions.
A formidable figure in the academy and on the bench, Antonio Cassese, died from cancer Saturday at his home in Florence, Italy.
Cassese (prior IntLawGrrls posts) had been a professor at Università degli Studi di Firenze for more than a quarter-century. (photo credit) His scholarly career also included positions at the University of Pisa, All Souls College at Oxford, the European University Institute, and Université Paris 1 (Panthéon-Sorbonne).
It was at that last institution where I met Nino Cassese, as he was called. He held the distinguished Chaire Blaise Pascal in the same period that I was a professeur invitée at Paris 1. It was an honor to talk with him about international criminal law. The attacks of September 11, 2001, had just occurred, and so often the talk turned to the United States' responses to those attacks.
A few years later, I returned to Paris to speak about U.S. detention policy as part of a joint lecture, with Cassese, entitled Crime contre l’humanité, génocide et torture. When Cassese arrived for our lecture at the Collège de France, he flung what he'd been reading on the table. It was the just-leaked Taguba Report on Abu Ghraib, in which an Army officer had found that U.S. military personnel abused Iraqi detainees in violation of the 3d Geneva Convention. Cassese was incensed, and not only at the acts alleged. The suggestion that only one treaty applied likewise astonished him. "Where is the mention of the Convention Against Torture?" he asked. "And what about the ICCPR?" For Cassese, in this and all allegations of crime, the fullest extent of all the laws must be brought to bear.
That breadth of vision was apparent in his writings.
An example was "Y-a-t-il un conflit insurmontable entre souveraineté des États et justice pénale internationale?" -- "Is There an Insurmountable Conflict Between State Sovereignty and International Criminal Justice?" -- a chapter Cassese contributed to a 2002 volume, Crimes internationaux et juridictions internationales, which he co-edited with our colleague Mireille Delmas-Marty. Tracing international criminal justice to Hugo Grotius (1583-1645), who"fervently defended universal repression of serious crimes, because he believed in natural law," Cassese acknowledged that natural law had given way to positive law. (p. 20, my translation) Yet he saw evidence of the earlier form in contemporary international criminal justice:

'As a consequence, today, we can return to the ideas of Grotius, because we have a kind of new natural law, but this time it is a part of positive law,'

Cassese wrote. His list of crimes forbidden under this new natural-positive law:

'war crimes, crimes against humanity, genocide, torture, grave manifestations of international terrorism.'

Cassese's contention that the last-named offense had reached the status of a jus cogens crime would form the centerpiece of the opinion on terrorism that he issued this spring as the President of the Special Tribunal for Lebanon. (He held that position from 2009 until his retirement earlier this month at age 74, on account of his illness.)
Service as the first-ever President of the International Criminal Tribunal for the former Yugoslavia, from 1993 to 1997, similarly shaped the law respecting international crimes. Cassese's October 1995 Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction in Prosecutor v. Duško Tadić affirmed that the U.N. Security Council lawfully had established the ICTY, that internal armed conflicts could give rise to war crimes, and that crimes against humanity might occur in time of peace. These rulings entrenched courts as a contemporary international mechanism for postconflict accountability.
He served in many more ways -- the Journal of International Criminal Justice and many books, the European Commission on Human Rights, the Darfur Inquiry -- more than can be stated here.
We will miss Judge Cassese, even as we continue to draw from his legacy much inspiration.