Saturday, April 30, 2011

Guest Blogger: Beatriz Carta Wagman

It's IntLawGrrls' great pleasure to welcome Beatriz Carta Wagman (left) as today's guest blogger.
Beatriz is studying for her LL.M. in international law at the University of Miami School of Law, where she participates in the Human Rights Clinic whose founding Director is IntLawGrrls' guest/alumna Caroline Bettinger-López. While at Miami, Beatriz has been awarded Dean’s Certificate of Achievement in International Law and in Human Rights Law. In her guest post below, Beatriz discusses the United States' immigration policy with respect to migrants from post-earthquake Haiti.
Prior to beginning LL.M. studies, Beatriz, who earned her J.D. cum laude from Florida's Stetson University College of Law, had practiced law in the areas of commercial litigation and securities arbitration.
As did IntLawGrrl Susana SáCouto, Beatriz wishes to recognize as her transnational foremother Sor Juana Inés de la Cruz (below right) (image credit). Beatriz writes of this 17th C. Mexican nun (prior posts), who is known as the 1st feminist of the Americas:
I have admired her since I took a Spanish American Literature Course in college and read some of her works. She was a woman ahead of her time who valued her intellectual pursuits. Her independent spirit and brazen choice to pursue her life of studies has been inspirational for me. For me she embodies the idea that a woman has a right and a choice to engage in intellectual pursuits. As a mother of two girls, I am thankful that they are able to take their education for granted, thanks in no small part to women like Sor Juana Inés de la Cruz.

Heartfelt welcome!


U.S. deportations imperil Haitians

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


The United States executed its second round of deportations to Haiti last week, against both the recommendations of the Inter-American Commission on Human Rights and the urgings of human rights organizations. The government deported a total of nineteen men, some of whom are reportedly suffering from serious illnesses.
Now, almost two weeks later, it is believed that the United States soon will deport yet another planeload of Haitian men, men destined for the same fate as previous deportees.
U.S. immigration policy toward Haitian nationals continues to wreak havoc in the lives of many Haitians and their families in the United States. More than 700 Haitian nationals living in the United States and their families now face an uncertain and precarious future in light of the Obama Administration’s recent change in policy to resume deportations to Haiti.
Shortly after the earthquake in January of last year, the Administration had suspended deportations to Haiti on humanitarian grounds. However, citing improved conditions in Haiti, and asserting its sovereign rights to control immigration, the government has reversed its suspension, and has deported a total of 46 men to Haiti since January of this year. An article in the Los Angeles Times reports that there are plans to deport approximately 700 Haitians this year alone.
Contrary to U.S. assertions, one year after the earthquake, Haiti continues to face acute challenges, and its government remains unable to provide basic services to its nationals. As a New York Times highlighted article highlighted, approximately 680,000 people still live in displacement camps throughout the country. Additionally, authorities continue to battle a cholera epidemic, which is expected to affect almost 800,000 people this year alone.
Given the dire conditions in Haiti, the U.S. government’s decision to resume deportations has proven deadly.
Wildrick Guerrier, a Haitian man deported on January 20, died from cholera-like symptoms just a few days after arriving in Haiti and being placed in a jail. Upon arrival, and contrary to Haitian law, deportees from the United States are detained in jails and forced to endure dehumanizing conditions.
Members of our team – which is composed of the University of Miami School of Law Human Rights and Immigration Clinics, FANM/Haitian Women of Miami, Center for Constitutional Rights, Florida Immigrant Advocacy Center, Alternative Chance, and the Loyola Law School Center for Social Justice – traveled to Haiti in February to document the conditions and interviewed some of the deportees who were part of the January deportation.
The deported men reported that the jail cells in which they were held were filled with vomit and feces and had no working sewer system. The deportees were held for days without water or food and had to rely on relatives living in Haiti, if they even had any, to provide them with food and water. Some of them became ill from the unsanitary conditions and were denied medical care while in jail.
The inhumane and dangerous conditions in Haiti’s jails pose a particularly grave concern for Haitian women in U.S. detention awaiting deportation.
Neither the U.S. nor the Haitian government has given assurances that upon deportation these women will not be placed in jails alongside men, and thus exposed to the additional risk of sexual violence. Additionally, women and girls in Haiti continue to suffer from extreme forms discrimination and gender-based violence, which have only increased since the earthquake. (See this Petition for Precautionary Measures filed before the Inter-American Commission on Human Rights on behalf of women and girls victims of sexual violence.)
The Haitian community in the United States, already devastated by the earthquake in Haiti and by the loss of family members there, must now face the destabilizing force of continued deportations and begin to cope with the separation of more of its families.
Haitian community organizations and human rights groups continue to advocate before the Inter-American Commission of Human Rights to bring an end to the inhumane deportations
(More information on the case before the Commission and related advocacy here; see too the Petition for Precautionary Measures.)
As part of our advocacy efforts, we have also circulated a sign-on petition to send a message to the Obama Administration to reverse the deportation policy. (Sign the petition here.)
The media have now taken notice of the situation, and various articles and editorials have been published highlighting the situation (here, here, here, here, and here.)
Additionally, the newly elected President of Haiti, Michel Martelly, has called on the United States to halt deportations.
It is time for Washington to also take notice and suspend deportations to Haiti until conditions in the country are truly improved and no longer pose a threat to life.


(credit for photo above)


On April 30

On this day in ...
... 1948, the American Treaty on Pacific Settlement was signed during a meeting of the Organization of American States in Colombia. Also known as the Pact of Bogota on account of the city where it was signed, the treaty reaffirmed the commitment of countries in the Americas -- a commitment made a few years earlier via the U.N. Charter -- to
refrain from the threat or the use of force, or from any other means of coercion for the settlement of their controversies, and to have recourse at all times to pacific procedures.

It contemplated means such as arbitration or resort to the International Court of Justice in order to effect this pledge. Today the treaty has 15 states parties, the United States of America not among them.

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

Friday, April 29, 2011

Intimate Violence in the Post-Conflict Context: New Data

In the post-conflict context, international and local institutions and actors may narrowly focus on particular forms of physical violence to the person caused by state or armed actors in addressing security. They aim to deliver conventional notions of security such as demobilization, protection for soldiers to return home, clearing landmines, and new roles for security officers. The focus is generally on official government actors and institutions and former militia members. They usually entirely exclude the ‘private’ and home domain from any understanding of a secure environment. The marked emphasis on public acts means that private acts are neglected, inscribing a distinction that feminism has challenged between the public and the private. What generally matters is what occurred on streets, in public spaces and in formal institutional settings. Violations occurring within the home, or close to private intimate spaces that women themselves describe as central to their experiences of vulnerability and violation are deemed to fall within the ‘private’ domain in most legal and social systems. As a result they are frequently outside the circle of notice and accountability. Thus, what happens within people's homes is not deemed important and is often entirely invisible.
Some studies, however, are breaking this silence. In 2007, an extensive survey by Global Rights of Afghan women, for example, found that almost 90% had experienced either forced marriage or at least one form of physical, sexual or psychological abuse. And, recently, at the Population Association of America Annual Meeting, a new study on violence in the Democratic Republic of the Congo documented the high levels of violence there. Although the underlying article is embargoed, the abstract notes that “[a]pproximately 1.69 – 1.80 million women report being raped in their lifetime (407,397 – 433,785 in the last 12 months), and 3.07 – 3.37 million women report experiencing intimate partner sexual violence in a country of approximately 63.23 – 66.97 million.”
As these studies make clear, gender security in the post-conflict context is a rich concept that extends beyond physical security to include civil, political, economic, and cultural security for men and women, boys and girls. It includes formal and enforceable legal rights as well as opportunities to participate in the economic and political life of the country.

[This post is primarily drawn from our forthcoming book, Fionnuala Ní Aoláin, Dina Haynes, and Naomi Cahn, On the Frontlines (OUP 2011).]


On April 29

On this day in ...
... 2011 (today), is celebrated International Dance Day, by proclamation of a UNESCO entity, the International Dance Council. The date was chosen in 1982 in honor of Jean-Georges Noverre, a master choreographer who'd been born on this day in 1727 in Paris, France. Events are encouraged:

The main purpose of Dance Day events is to attract the attention of the wider public to the art of dance. Emphasis should be given to addressing a “new” public, people who do not follow dance events during the course of the year.
...
Make sure that you include general information on the art of dance, its history, its importance to society, its universal character. This can be done in a short speech, a note in the program, a text distributed to those present. By adding this dimension you make the event different from dance activities taking place any other day.

(credit for Eadweard Muybridge's 1893 "Phenakistoscope" entitled "A Couple Waltzing")


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

Thursday, April 28, 2011

On the Enemy Combatant Front...

Since the Supreme Court decided Boumediene (see our prior coverage here, here, here, here), the district courts of the District of Columbia have been hearing petitions for writs of habeas corpus brought by detainees held at Guantanamo Bay. The Circuit Court of Appeals for the D.C. Circuit has been equally busy with habeas appeals, reversing many lower court opinions granting the detainee's petition. In the absence of further guidance from the Supreme Court and the political branches, the D.C. Circuit is thus producing a veritable common law of law-of-war detention in non-international armed conflicts, such as the conflict with al Qaeda.
By way of background, following Hamdi, the courts have analyzed the propriety of law-of war detention pursuant to the authority granted by Congress in the 2001 Authorization to Use Military Force (AUMF) as informed by the law of war. (The Bush Administration had also endeavored to ground this authority in the President's Article II Commander-in-Chief powers; the Obama administration has dropped that argument). The AUMF reads:

[T]he President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of inter-national terrorism against the United States by such nations, organizations or persons.

In Hamdi, the Supreme Court identified the power to detain enemy combatants to be an incident of the waging of war and thus within the exercise of the "necessary and appropriate force" Congress authorized the President to use.
The definitions of the term "enemy combatant" subsequently promulgated by courts and the Department of Defense suggest two bases for detention: (1) an individual's membership in a designated hostile organization and (2) an individual's conduct supporting such organizations. The courts have struggled with what quantum and types of evidence are sufficient to prove the alternative prongs of this test. (The D.C. Circuit ruled in Al-Bihani v. Obama that evidence establishing either prong could provide a basis for detention under the AUMF). A set of recent D.C. Circuit opinions has shed further light on the membership element.


(left), a Yemeni, was captured at the Afghan-Pakistani border 12 miles from Tora Bora, the mountainous site of a major battle between the United States and combined Al Qaida and Taliban forces in December 2001. The government's theory for the lawfulness of Uthman's detention is premised on the allegation that he was "part of" al Qaida. Indeed, Uthman is among 48 detainees that the Obama administration has deemed to be too dangerous to release but "not feasible for prosecution." (The New York Times' dossier on Uthman is available here).

In ruling on Uthman's petition for a writ of habeas corpus, the district court found the following facts:
  • Uthman was captured in the vicinity of Tora Bora (right) while traveling with Al Qaeda members and bodyguards for Osama bin Laden;
  • He attended a religious school from which al Qaeda had recruited fighters where he met his traveling companions; traveled to Afghanistan using a route frequented by al Qaeda recruits; and was seen at (although did not stay at) an al Qaeda guesthouse; and
  • He lied about a Yemeni sheik who supported terrorism paying his travel expenses to Afghanistan.

The district court concluded that other facts alleged by the government (that Uthman had attended an al Qaeda training camp, fought against the Northern Alliance, or served as a bodyguard for Usama bin Laden) had not been proven by a preponderance of the evidence. (Some of this evidence apparently came from other Guantanamo detainees, one of whom had been declared psychotic and others of whom had been tortured while in detention). The district court ultimately granted Uthman's petition for a writ of habeas corpus on the ground that the government had not shown it was more probable than not that petitioner was "part of" al Qaeda. The court reasoned that there was insufficient evidence in the record that he was part of the organization's command structure or combat apparatus in that sense that he had received and executed orders. In so ruling, the court applied a test for membership developed by another district court judge in Gherebi v. Obama.
Interestingly, apparently two versions of the district court's Uthman opinion exist. According to ProPublica, the first opinion was released and then immediately withdrawn from the public docket, apparently because it was "accidentally cleared for public release before government agencies had blacked out all the classified information it cited." A new ruling appeared weeks later, minus key passages in which the district court sharply criticized the government's case. The second opinion does not mention its predecessor or that classified information had been removed. ProPublica's line-by-line analysis of the two opinions is available here.
On appeal, the D.C. Circuit reversed. Citing appellate precedent (e.g., Salahi v. Obama) that had emerged since the original district court's ruling, the Court noted that satisfying the command structure test offers a sufficient, but not necessary, indicia of membership. Rather, the D.C. Circuit mandates a "case-by-case basis" analysis that employs a "functional rather than a formal approach" that focuses "upon the actions of the individual in relation to the organization." Thus, other indicia beyond the receipt or execution of orders may prove that an individual is sufficiently involved with an organization to be deemed part of it. In the case at bar, the appeals court indicated that the fact that Uthman was keeping company with al Qaeda members was itself probative of al Qaeda membership especially in light of all the evidence taken as a whole pursuant to the "mosaic" evidentiary theory. The Circuit Court rejected what it described as Uthman's "Forrest Gump" account of why he ended up where he was as "coincidence upon coincidence upon coincidence."
In the absence of additional evidence of Uthman's intent or belligerent conduct, and by relying on Uthman's associations with al Qaeda members or institutions connected to al Qaeda, this opinion comes perilously close to assigning guilt by mere association.
For more on issues of law-of-war detention of enemy combatants, see here, here, here, here, here, here, here, here.


Darth Remainder, Ducks, and Ninjas: A Thank You to Keith Aoki

Over the last few days, I have struggled for words as I have attempted to process losing Keith Aoki from this world. I have been privileged to have him as a close friend and mentor, and he has deeply shaped who I am and how I approach my job as a legal academic. My condolences go out to all who feel this loss, especially his family, and I encourage the many people who his life has touched to give generously to support his daughters.
The night I found out he was dying, though, there were words I needed to say to Keith, most importantly, thank you. Keith was always hard to thank, not because he didn’t richly and repeatedly deserve it, but because he would cut me off rapidly and decisively when I tried. He was profoundly modest and humble, as so many have said, but also exuded an irrepressible energy that demanded looking outward to the next challenge.
Yesterday, at my last property class of the semester, as I looked out at students already stressed in contemplation of their upcoming Con Law exam, I decided that one of the best ways to thank Keith was to continue to pass forward some of what I have learned from him. I reflected to them about two of the qualities that Keith had which really influenced me: embracing creative passion and being there for people (and the world). I do so here again in a somewhat different variation.
Many people have celebrated Keith’s creativity with ideas and his intertwining of art with scholarship, especially in his comics. One of the earliest of those comics, Casual Legal Studies—which he wrote with Luke Cole at Harvard Law School and sent to me with a kind note as we mourned that untimely loss—is displayed on the shelf of my office. I wish I had known Keith when he was a performance artist in New York, especially once he told me about wrapping himself in cellophane in one of the projects. I would love to just once attend a conference of law professors in which people wrap themselves in cellophane (at least figuratively) and direct their seriousness into playful creativity. Imagine the conceptual breakthroughs we could achieve. Keith modeled them.
But the embrace of the creative in the professional extended far beyond Keith’s writing. In my first year at Oregon’s law school, I taught Property for the first time and was terrified. Keith was there to walk me through it, generously giving me his syllabus, teaching notes, and PowerPoints, and suggesting that for future interests, we co-teach; after all, Keith, like any experienced Property professor, had a system for that somewhat daunting section of the course. On the day we taught the Rule Against Perpetuities, Keith showed up with his Darth Vader mask with voice changer and hid in the electronics closet. Here is the script, created by Keith, from my teaching notes:
Hari says: "First there was Darth Maul, then Darth Sidious, then Darth Vader, now there is .... Darth Remainder"
Then Keith steps out of the side room and says,"Obi-wan to Anakin for life, then to Jabba the Hutt if he loses 1000 pounds, if not then to Yoda on the condition that he shave the hair from his ears. Don't make me destroy you...name the estates and interests."
Then Hari says, “the chart is with you”

My teaching of future interests has never been as interesting as it was that year. I’ve never felt like I can pull off Darth Remainder without Keith.
That fearless embrace of creativity inspired me and so many others to stretch ourselves in ways that we would not have otherwise. My Ph.D. in Geography came directly from Keith. I was writing my first article on climate change litigation, and he stopped by my office to drop off a reprint of a piece that he humbly suggested might be helpful as I thought about sovereignty. When I went to him and told him that it was the most interesting thing I had ever read about mapping, he reacted by introducing me to the discipline of Geography, first handing me piles of books that our colleague Alec Murphy had given him to read and then talking me through them and how they might relate to law.
What made those stretches possible for those lucky enough to have Keith in their life is that he was always there to help us make them, both through his warmth and through his seemingly encyclopedic knowledge of a vast swath of scholarly literature. When I was trying to write about modernism and post-modernism for the first time, I would call Keith and he would rattle off lists of texts that I had to read and digest and then excitedly discuss them with me once I did. Keith made it seem possible to actually be a Renaissance scholar because he moved so seamlessly through ideas and interconnected them.
While it is impossible to tell any story about Keith without that second quality of being there for people and the world coming through, I want to celebrate it explicitly. One of the reasons that the hole that Keith’s loss leaves feels so big is that he always intuitively knew how to provide support in the most important practical ways that people need as they navigate the sometimes lonely world of legal academia. I would sit with or call Keith in those moments when I was unsure and afraid, and he would not just comfort me but give me unfailingly wise advice on how to move forward or how to help someone else who he had never met do so.
What makes this profession so scary, especially early on, isn’t simply the challenge of trying to contribute something worthwhile (and if one is oriented towards social justice as Keith was, having that contribution make the world a little better). The difficulty is also that the legal academy’s interstices and power structures, just like those of the broader world, are not always transparent or fair. Keith explored these issues of power in his work, but he also lived them. He dedicated enormous time to helping people navigate these complexities and to trying to make the academy better in the process.
In remembering these moments, which would fill so many pages, I think of two pieces of advice which Keith gave me in the middle of them. The first was to be a duck (the mascot of Oregon, a place that was such a big part of Keith and which he remained, even after leaving, such a big part of). Keith explained that ducks paddle desperately under water but the surface remains smooth. The second was the importance of ninjas in the legal academy, people who are there to help others quietly navigate the interstices. Keith modeled both of these qualities so well. Even as he produced staggering intellectual contributions and energetically taught his students (jumping on the table during class and shouting “moo ha ha” to explain power dynamics in property), he spent countless hours advising, writing tenure letters, making calls for people, sending emails to celebrate and connect people, and creating a safe space. He never wanted credit or recognition for these things, but did them because he wanted to help and thought they were the right thing to do. As others have said as well, the only times that I ever saw Keith angry were in reaction to injustice.
Since I can’t call Keith, I have been rereading emails from him dating back to when I first met him on the Oregon appointments committee in 2004. The sheer intellectual breadth and creativity is staggering, and reminds me of how much Keith opened my mind. Their generosity to me and others continuously comes through as well. I close with a brief quote from him that expresses the urgency of supporting the values Keith held dear even as his loss devastates us: “Do it ASAP, if you don't do it, who will?”


Guest Blogger: Kathy Roberts

It is our great pleasure to welcome Dr. Kathy Roberts to IntLawGrrls!
Kathy (right) is a staff attorney at the Center for Justice and Accountability in San Francisco, where she investigates and litigates impact cases on behalf of survivors of torture and other severe human rights abuses. In her guest post below, Kathy reports on a recent New York state disciplinary hearing against a psychologist involved in interrogations of Guantánamo detainees.
With a background in civil litigation and social theory, Kathy also teaches International Human Rights Law part-time at the University of San Francisco. She holds a PhD in Philosophy from the University of Illinois, Urbana-Champaign, and a JD from the University of California, Berkeley.
Kathy dedicates this guest post to French philosopher, classicist, anti-colonialist, and trade union activist Simone Weil (1909-1943). Weil’s work explored, among other subjects, social and psychological oppression, feminism, anti-Semitism, the limits of political ideology, and Christian and Jewish mysticism.
Kathy has always loved Weil’s essay “The Iliad or Poem of Force,”which was published under a pseudonym during the German occupation. In this remarkable work, at once a literary interpretation and a political treatise, Weil (below left) compassionately and powerfully describes how violence affects the humanity of perpetrators and victims.
In Weil's words,

The true hero, the true subject, the center of the Iliad is force. Force employed by man, force that enslaves man, force before which man’s flesh shrinks away. In this work, at all times, the human spirit is shown as modified by its relations with force, as swept away, blinded by the very force it imagined it could handle, as deformed by the weight of the force it submits to. For those dreamers who considered that force, thanks to progress, would soon be a thing of the past, the Iliad could appear as a historical document; for others, whose powers of recognition are more acute and who perceive force, today as yesterday, at the very center of human history, the Iliad is the purest and loveliest of mirrors.

Today Weil joins IntLawGrrls' other foremothers in the list just below our "visiting from..." map at right.
Heartfelt welcome!

One Guantánamo Hearing That Did Take Place in New York

(Many thanks to IntlawGrrls for inviting me to contribute this guest post)

Earlier this month, in an unassuming Manhattan state supreme courtroom, I had the privilege to present oral argument at the first U.S. court hearing on whether a psychologist’s participation in abusive interrogations can violate professional standards of conduct. The Center for Justice & Accountability and the New York Civil Liberties Union represent New York psychologist Dr. Steven Reisner (left) in this proceeding against the New York Department of Education’s Office of Professional Discipline (OPD) for its failure to investigate his fellow New York psychologist Dr. John Leso for his role in the abusive interrogation program at Guantánamo Bay, Cuba.
Psychologists, like other medical professionals, assume the obligation to do no harm. But in response to the reported roles that psychologists have played in the interrogation of detainees taken into U.S. custody since September 11, seemingly bedrock principles of law and professional standards have become the subject of debate. While the American Medical Association and the American Psychiatric Association moved swiftly to endorse codes prohibiting their members from participating in abusive interrogations, the American Psychological Association has proved more ambivalent, claiming that psychologists are in “a unique position to assist in ensuring that such processes are safe and ethical for all participants.” But even so, the American Psychological Association has clarified its position that
Any direct or indirect participation in any act of torture or other forms of cruel, degrading or inhuman treatment or punishment by psychologists is strictly prohibited. There are no exceptions. Such acts as waterboarding, sexual humiliation, stress positions and exploitation of phobias are clear violations of APA's no torture/no abuse policy.
New York’s Department of Education and its Office of Professional Discipline find no such prohibition in the state’s professional ethics standards since they reject, at the outset, that such conduct constitutes the practice of psychology at all.
Dr. Reisner and CJA filed a professional misconduct complaint against Dr. Leso last July, alleging that while Dr. Leso served as a clinical psychologist at Guantánamo, he recommended a series of escalating physically and psychologically abusive interrogation tactics to be used on detainees and personally supervised and participated in interrogations where his tactics were used. The OPD declined jurisdiction, claiming that Dr. Leso’s alleged conduct at Guantánamo did not qualify as the practice of psychology as defined by New York law. To wit, if Dr. Leso intended to harm detainees on behalf of an institutional client (the Department of Defense) then they were not his patients. Because they were not his patients, his conduct in relation to them was not subject to professional standards. Thus, the complaint did not trigger an otherwise mandatory investigation. At the hearing, the Attorney General, arguing on behalf of the Department of Education, claimed that rejecting the complaint was correct, since Dr. Leso apparently was asked to use psychology as a weapon, an act that the Attorney General maintains is not contemplated by the legal definition of the profession.
Such arguments turn the healing nature of psychology completely on its head. By the same logic, if a school psychologist had recommended similar abuses to be applied to children, if a nursing home psychologist had done the same to elderly inmates, or if a prison or locked-ward psychologist had done the same to incarcerated inmates, these psychologists, too, would be subject to no professional standards or regulation whatsoever. In other words, the implication of the Attorney General’s position is that the intent to harm should immunize Dr. Leso and other licensed psychologists working in institutional settings from the professional ethics standards all New York psychologists are bound to uphold. Noting the controversial character of the case, the court queried whether it had any authority to rule differently, such determinations having been entrusted to the Department of Education and its Office of Professional Discipline.
Indeed, New York’s Department of Education, like the licensing authorities in other states and throughout the world, has been entrusted with the obligation to ensure that licensed professionals abide by professional standards of ethics, and they must not be allowed to shirk that responsibility. Although this case may seem controversial, New York’s is not the first licensing authority to face questions like those raised by our complaint. Similar authorities in South Africa, Brazil, Chile, and Uruguay have held doctors accountable under professional ethics standards for participation in torture and other human rights abuses. Professional ethics standards are designed not only to protect the public but also to protect health care professionals themselves from pressure to harm people in their care, to protect the very integrity of the profession. The complaint against Dr. Leso alleges that while he was acting on the authority of a New York license to practice psychology, he lost his ethical bearings in the context of abusive interrogations at Guantánamo. Whether New York will correct those bearings remains to be seen.
To learn more about the case, please click here. To learn more about intelligence ethics (including sources for this blog post), please click here.


Go On! Climate change/LSE

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

"Navigating the New Green Economy: The Challenges of Climate Change and the Opportunities for Clean Energy" is the subject of a conference to be held May 23-24, 2011, at the London School of Economics and Political Science, London, England. Cosponsoring along with LSE are the American Bar Association and the UK Environmental Law Association
The program's designed to promote interaction among government and industry leaders, academic scholars, and finance and legal experts from the European Union, the United Kingdom and the United States.
Featured will be keynotes from:
► Our colleague Lisa Heinzerling (left), Georgetown Law Professor and former Assistant Administrator of the U.S. Environmental Protection Agency; and
Anthony Giddens, member of the House of Lords and author of The Politics of Climate Change (2009).
Details and registration here.


On April 28

On this day in ...
... 1761 (250 years ago today), Marie Fontaine was born in Crouttes, France; upon marriage to a farm worker employed by her stepmother's family -- the Perriers -- she became Marie Harel. The couple were married in the Camembert, and legend gives her credit for inventing Camembert cheese, to this day a French culinary delight. Like many legends this one does not hold up under scrutiny -- the cheese was famous before she was born -- but at least one author allows that Harel may deserve credit "for commercializing it beyond its traditional orbit." During World War II a Vimoutiers statue of Harel lost its head during a bombing raid and then disappeared, but an intact statue now stands again in a village square.

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

Wednesday, April 27, 2011

In passing: Keith Aoki

How to begin paying my respects to Keith Aoki?
Keith (right) worked across the hall from me these past 4 years. He'd joined us as a Professor of Law at the University of California-Davis in 2007, having been the Philip H. Knight Professor of Law at the University of Oregon.
It was always a delight to visit with Keith, to share in his ever-present cheerfulness as we mulled questions of law, politics, and myriad other areas.
Emphasis on "myriad."
Keith's expertise won renown in many fields:
► Law and social science.
Local government, intellectual property, Asian American studies, cultural geography, agriculture, critical theory, to name a few. This sampling of publications illustrates his breadth of intellectual endeavor: Seed Wars, Cases and Materials on Intellectual Property and Plant Genetic Resources (2008); "(In)visible Cities: Three Local Government Models and Immigration Regulation" (co-authored, 2008); and "Is Chan Still Missing? An Essay About the Film Snow Falling on Cedars and Representations of Asian Americans in U.S. Films" (2001).
► Art, too.
As explained at page 73 here: "In the mid-1980s" Keith, holder of bachelor's and master's degrees in fine arts, "decided to leave the bohemian art demimonde to go to Harvard Law School." Keith drew wonderful cartoons. Some made their way into graphic accounts of law, such as Bound by Law? Tales from the Public Domain (2006). Bound is available free online via a Creative Commons license -- a fact that hints at Keith's generosity, to colleagues, students, everyone. A couple years ago Keith gave a hard copy to my then-preteen son, who absorbed it avidly and is now wont to cite chapter and verse of copyright law. (Keith co-authored Bound with James Boyle and Jennifer Jenkins, the latter of whom remembers him here. IntLawGrrl Hari Osofsky remembers him here. Other remembrances are here, here, here, and here.)
Keith's creative expression included playing bass in a band, the Garden Weasels, and that avocation contributed to the forthcoming graphic book by him and his co-authors, Theft! A History of Music.
In addition to valuing his friendship, I've been particularly grateful for Keith's unflagging support for the California International Law Center at King Hall, the law school initiative founded 2 years ago. He was a member of our CILC Faculty Council, served on CILC committees, and helped immensely with program suggestions and speaker invitations.
Keith passed away yesterday morning, at age 55. He is survived by his wife Mona, their 9-year-old twin daughters, and a world of friends. We will miss him beyond words.


Guest Blogger: Cindy Soohoo

It is our pleasure to welcome Cindy Soohoo (left) as today's guest blogger. Cindy directs the U.S. Legal Program at the Center for Reproductive Rights. From 2001-2007, Cindy was the director of the Bringing Human Rights Home Project, Human Rights Institute, Columbia Law School and a supervising attorney for the law school's Human Rights Clinic. She has worked on U.S. human rights issues before U.N. human rights bodies, the Inter-American Commission for Human Rights and in domestic courts. Cindy is a founding Board Member for the U.S. Human Rights Network and is co-chair of the American Constitutional Society’s Working Group on International Law and the Constitution. She has written extensively on the right to health, social justice activism, and the domestic application of human rights norms. She is the co-editor of Bringing Human Rights Home (U. Penn. Press 2009) and a regular contributor to RH Reality Check blog, which is devoted to reproductive health issues.
In her guest post below, Cindy discusses the relationship of the United States to social and economic rights, and issues a call for the Obama administration not only to talk, but also to act, in this area.
Heartfelt welcome!


The United States & Economic & Social Rights

(Thanks very much to IntLawGrrls for allowing me this guest post!)

When the U.S. joined the United Nations Human Rights Council in May 2009, the U.N. High Commissioner for Human Rights, Navi Pillay (left), stressed the benefits of U.S. engagement with the U.N. for the
cause of human rights and to the standing of the U.S. in the international community.

Given that the Bush administration had sharply criticized the human rights body and refused to participate during its tenure, conventional wisdom is that the Obama administration’s decision to join the Council gave the institution important political support and a chance for the U.S. to reclaim its role as a global human rights leader and champion.
But signing on as a card-carrying member of the Council is really just the beginning if the U.S. seeks to bolster the Council’s credibility and its own human rights image. The real test, as Pillay cautioned, is the degree to which the government embraces the entire international human rights agenda -- whether we criticize our friends as well as our enemies; and commit to accountability on our own record on the full spectrum of human rights rather than just resting on the progress we’ve already made. As it stands, the U.S. has a history of failing to embrace economic and social rights, such as access to healthcare, education, and housing, as well as civil and political rights.
Historically, economic and social rights have been the stepchild of the human rights movement. So Pillay’s emphasis on economic and social rights serves as a wake-up call for the U.S. and a welcome development in the international community. Despite being included in the Universal Declaration of Human Rights of 1948—the foundational international human rights document—these rights quickly became known as “second generation” rights with the assumption that they came later, both in time and priority. As the international human rights architecture and agenda emerged post-World War II, this second-class status was reflected in, and reinforced by, the human rights mechanisms that were created and the amount of time the international community spent on economic and social rights.
For instance, although separate international treaties on civil and political rights (the International Covenant on Civil and Politic Rights or ICCPR) and economic and social rights (the International Covenant on Economic, Social and Cultural Rights or ICESCR) were simultaneously drafted, when the treaties entered into force in 1976 individual complaints could only be made concerning violations of the ICCPR. This division was also reflected in countries’ constitutions written after World War II, where socio-economic rights provisions were often drafted as principles that policies should be based upon rather than rights that must be enforced. Prior to the late 1990s, U.N. special procedures (U.N. experts and working groups tasked to monitor and report on important human right issues) focused exclusively on issues like torture, summary execution, and freedom of religion.
But, internationally, times have started to change. High courts around the world, in South Africa, India, and Colombia, have issued significant rulings enforcing economic and social rights, including the right to access to adequate housing and healthcare. One hundred and sixty nations are parties to the International Covenant on Economic Social and Cultural Rights (the U.S. is not among them), only five less than the International Covenant on Civil and Political Rights. According to a spokesperson for Pillay’s office, today more than half of the U.N.’s human rights procedures and programs (events, workshops, seminars, publications and missions in the field) focus on economic and social rights. And in 2008, the U.N. took steps to address the imbalance between the attention paid to economic and social rights verses civil and political rights by creating an individual complaint system for the ICESCR.
Over the last few months, the U.S. had an opportunity to show its commitment to economic and social rights as it went through its first Universal Periodic Review. The UPR, as it is often called, was recently created by the Human Rights Council (which is made up of representatives from forty-seven countries) and periodically evaluates the human rights records of all 192 member states. The U.S. review process included both a take home self-evaluation, in the form of a written report on its human rights record submitted to the U.N. Human Rights Council, and an oral quiz.
Last November, thirty-three high ranking officials from ten U.S. federal agencies and departments traveled to Geneva, Switzerland, to field questions from Council members and other U.N. member nations. During the review, it was clear that economic and social rights were as much a part of the conversation as the closing of Guantanamo Bay or the death penalty. Several countries raised questions about reducing poverty and eliminating disparities in access to housing, education, employment and healthcare. Other countries praised the U.S. for the passing of healthcare reform. Countries also repeatedly asked about the U.S. failure to ratify the International Covenant on Economic, Social and Cultural Rights.
Initially, the Obama administration’s position on economic and social rights sounded pretty good. The Obama administration expressed support for recommendations that it improve access to education, decent work and housing and to progressively realize the right to health. But two aspects of its position were troubling.
► First, the administration failed to commit to any concrete goals or policies to realize these rights.
► Second, it specifically rejected recommendations that it ratify the ICESCR even though it supported the ratification of several other human rights treaties.
In essence, the Obama administration agreed that it should be doing more to promote social and economic rights, but it refused to recognize that it has a human rights obligation to do so. This position was echoed by Assistant Secretary of State Michael Posner in a recent speech at the American Society of International Law. Although Posner championed the concept of economic and social rights, he disavowed recognizing them in a manner that would

create new domestic legal obligations . . . enforceable in courts [or] tie the hands of Congress and the states.

Now that the Universal Periodic Review is over, what is the hope for encouraging U.S. policies that show a greater respect for economic and social rights? The fact is we don’t need ratification of the ICESCR or a constitutional amendment to adopt policies to ensure that all Americans have access to education, housing and health care. It’s clear that the majority of Americans believe that the government has an obligation to protect, respect and even ensure economic and social rights. According to a 2008 Opportunity Agenda poll, a large majority of Americans think that education is a human right and almost three-quarters (72%) think health care should be a human right.
U.S. commitment to economic and social rights is not new. Franklin Roosevelt articulated his vision of human rights in his famous Four Freedoms speech and his 1944 State of the Union address helped inspire the Universal Declaration on Human Rights and ensured that economic and social rights were given equal status with civil and political rights. Post-World War II, our national commitment to ensuring “freedom from want” was embodied by social welfare legislation that has become a bedrock of American life – Social Security, Medicaid and Medicare – and continues today in legislation like healthcare reform. What made those reforms possible was President Roosevelt’s leadership and the political support to make his vision a reality.
Last November, Esther Brimmer (right), the U.S. Assistant Secretary of State for International Organizations Affairs, began the U.S. UPR review by stating,
For the United States, the UPR is a conversation in Geneva, but also one at home with our own people, to whom we are ultimately accountable.
While it is appropriate that the U.S. engages in a dialogue with other countries about its human rights record, in the end it is the American people who must demand that our policies respect, protect and ensure economic and social rights and hold our leaders to account if they fail. It’s certainly laudable for the U.S. to participate in the Human Rights Council and therefore, lend credibility to international human rights institutions, but it can only be a true human rights leader if it embraces the full human rights agenda at home. The Obama administration is starting to talk the talk, let’s make them walk the walk.


'Nuff said


Among adults 25 and older, 10.6 million in the U.S. who earned a master's degree or higher were women, compared to 10.5 million men.

-- More on these 1st-ever gender/work census data here.


On April 27

On this day in ...
... 1906 (105 years ago today), the Convention Between Great Britain and China Respecting Tibet was signed at the Chinese capital then known as Peking. It would be ratified in London on July 23 of the same year. By the treaty's terms Britain agreed "not to annex Tibetan territory or to interfere in the administration of Tibet"; meanwhile, China agreed "not to permit any other foreign State to interfere with the territory or internal administration of Tibet." Within years, occupation by Chinese troops would compel the flight to India of the 13th Dalai Lama, Ngawang Lobsang Thupten Gyatso (right). (photo credit)

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

Tuesday, April 26, 2011

Read On! Genocide prevention norms

(Delighted to welcome back alumna Felice Gaer, who contributes this Read On! guest post)

I’m writing to share the news with IntLawGrrls bloggers and readers that the Jacob Blaustein Institute for the Advancement of Human Rights (JBI), which I direct, has published a compendium of legal norms for genocide prevention, setting forth a set of risk factors for genocide and the normative basis in international law for those risk factors.
JBI’s Compilation of Risk Factors and Legal Norms for the Prevention of Genocide sets out the legal framework for and gives substance to the concept of “genocide prevention,” the cornerstone of the Special Adviser’s mandate and a core obligation of the 140 States that have ratified the UN Convention on the Prevention and Punishment of the Crime of Genocide. The Compilation was initiated at the request of the United Nations Secretary-General’s Special Adviser for the Prevention of Genocide, Dr. Francis M. Deng (below left). (photo credit)
As Dr. Deng stated in 2009, the JBI Compilation is designed to “encourage States to fulfill their genocide prevention obligations,” by encouraging them to take action to prevent the situations identified in the risk factors from spiraling into mass atrocities and even genocide when they occur. The JBI Compilation reminds States that they have obligations to prevent genocide based on internationally accepted norms with which they are expected to comply. It also may provide a basis for the Special Adviser to intervene in situations which appear to be pre-genocidal.
To quote E. Robert Goodkind, Chair of JBI:
As we know from the history of the Holocaust, the Rwandan genocide, and other atrocities, genocide does not begin overnight, and is always preceded by identifiable warning signs. The JBI Compilation will provide UN officials like the Special Adviser on Genocide Prevention, States, and others with a basis for taking early action to fulfill the promise of ‘never again.’

The JBI Compilation identifies a number of “risk factors” – severe and systematic human rights abuses which have been committed in the lead-up to past genocides and atrocities, the presence of which should serve as an early warning to States to take remedial measures. The document also identifies a set of “special circumstances” that are not as closely linked to genocide as the risk factors, but which can still increase the possibility that genocide might occur. Among the risk factors cited in the text, here are three that address gender-related matters which IntLawGrrls readers may wish particularly to note:
► The systematic use of rape and sexual violence, including the incitement thereof, targeting members of a particular group.
► The systematic forced marriage of women, enforced sterilization, forced pregnancy, the prevention of births of children from a particular group, and other acts aimed at destroying a particular group in whole or in part, including although not limited to, bans on intermarriage or forced marriage to individuals from the state-privileged identity/ies.
► The systematic forcible transfer of children of a particular group from their families to individuals with a different identity for the purpose of changing their identity and assimilating them into another group.
These can then be invoked to strengthen the basis for states taking protective action. The term ‘particular group’ refers to those set forth in Article II of the Convention against Genocide – i.e., members of a national, ethnic, racial or religious group.
For these and each of the other risk factors cited, the 137-page Compilation presents existing legal norms, drawn from diverse instruments – national, regional and international – that are relevant to the prevention of genocide.
JBI developed the Compilation with input and guidance from a number of leading international human rights experts, including several current and former UN special rapporteurs, the UN Special Representative of the Secretary-General on the Prevention of Genocide and his staff, and scholars and advocates.
We were fortunate to release the Compilation at the United Nations at an event at UN headquarters in New York that featured a discussion on genocide prevention with expert panelists: moderator Goodkind; Dr. Deng; Dr. Edward Luck, the Special Adviser to the Secretary-General on the Responsibility to Protect; and yours truly. In addition to an engaged audience of NGOs and diplomats, we were joined by Roberta Cohen, formerly Senior Fellow at the Brookings Institution, who played a key advisory role on the project.
Principal researchers for the Compilation were Jo-Anne Prud’homme, formerly of JBI’s staff, and Naomi Kikoler, of the Global R2P Center. In addition, we were especially grateful to Christen Broecker, JBI’s new International Human Rights Officer, who brought the project to and through its final publication.
The Jacob Blaustein Institute for the Advancement of Human Rights, celebrating its 40th anniversary in 2011, has a long and dedicated history of supporting projects and initiatives related to genocide prevention, as well as longstanding commitment to strengthening human rights protections through international institutions and mechanisms.
Click here to download the Compilation; if you would like to receive a hard copy, please write to Jennifer at jbi@ajc.org.


On April 26

On this day in ...
... 1986 (25 years ago today), an explosion and fire at a power plant in Ukraine, then part of the Soviet Union, touched off the Chernobyl disaster. (photo credit) It would be 2 days before officials acknowledged the accident, a nd then only after Scandinavian countries detected "abnormally high radioactivity" in their atmosphere. "The battle to contain the contamination and avert a greater catastrophe ultimately involved over 500,000 workers and cost an estimated 18 billion rubles, crippling the Soviet economy." Nuclear crises in the wake of the earthquake in Japan last month -- a crisis provisionally raised to Level 7, the same as Chernobyl -- have prompted reexaminations of Chernobyl, previously described as "the world's worst nuclear accident."

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

Monday, April 25, 2011

ICC Dress Code & Other Developments

Earlier this month, the so-called "Ocampo Six" (at left, photo credit, and depicted on their own facebook page) made their initial appearances before the International Criminal Court. See our prior coverage here and here about the opening by the ICC prosecutor of an investigation into the situation in post-election Kenya.
At this hearing (right, photo credit), Pre-Trial Chamber II set the date of the hearing on the confirmation of charges for September 1, 2011.
Kenya has challenged the admissibility of the cases in accordance with Article 19 of the ICC Statute. The Application on behalf of the Government of the Republic of Kenya pursuant to Article 19 of the ICC Statute is available here. The government argues that the August 2010 constitution envisions important judicial reforms (such as the appointment of a public prosecutor independent from the Attorney-General) that will be put in place in September 2011. These reforms, it is argued, will enable Kenyan national courts to prosecute post-election violence cases, including those now pending before the ICC. The government makes an impassioned plea to respect the principle of complementarity and give the country time to "get its house in order." Written observations on the petition by the prosecutor, defense, and Office of Public Council are due this week (on April 28, 2011). Kenya has also requested the assistance of the Court pursuant to Article 93(10) of the ICC Statute in its internal investigations into post-election violence.
At the close of the initial appearance hearing, the presiding judge, Ekaterina Trendafilova (Bulgaria, above right), made the suggestions that counsel not wear wigs in the courtroom. (credit for photo at left of Australian barrister Margaret Battye) Trendafilova apparently said:

This is not the dress code of this institution ... In this quite warm weather maybe it will be more convenient to be without wigs.


Hear, hear!


Guest Blogger: Margaret Zimmerman

It is our great pleasure to welcome Margaret Zimmerman (right) as a guest blogger!
After having worked in the field of international human rights and international criminal law, Margaret is currently a Ph.D. student at The Queen’s University Belfast, School of Law researching the application of a jus post bellum framework to the peacekeeping, peacebuilding and ownership phases of the post-armed conflict environment. Having both the benefit of human rights advocate and academic experience, Margaret spends much of her time bridging interdisciplinary gaps within the substantive fields of international relations, law and politics as well as between practitioners and academics in those fields.
In her guest post below, she introduces the Winter Issue of Accountability, the newsletter of the Interest Group of the American Society of International Law. Her post provides a roadmap for the issue’s look at judicial and legislative commentaries as well as updates from the ICC. Margaret is the Newsletter Editor of the International Criminal Law Interest Group for the American Society of International Law.
Previously, Margaret was an International Fellow at the Istituto Superiore Internazionale de Scienze Criminali, in Siracusa, Italy. Following the fellowship, she continued as a Program Officer working with Professor M. Cherif Bassiouni as the coordinator for the Fighting Impunity and Promoting International Justice Project. She was also a Guest Researcher with the Max Planck Institute for Foreign and International Criminal Law in Freiburg i. Br., Germany. Margaret received her J.D. and a Certificate in International and Comparative Law from DePaul University in Chicago, Illinois, where she is a licensed attorney. She also holds a M.st. in International Human Rights Law from Oxford University. Margaret has also studied in Costa Rica focusing on human rights law and the Inter-American Court of Human Rights. Previously, she has been a Sullivan Fellow with the International Human Rights Law Institute where she received funding through the Vincentian Endowment Fund to perform research and coordinate a symposium entitled Darfur: Facing Genocide in Africa. She has lectured on topics of transitional justice, responsibilities of non-state actors, humanitarian law and human rights law. Margaret has also published contributions and reports for The Pursuit of International Criminal Justice Set: A World Study on Conflicts, Victimization, and Post-Conflict Justice, a 2-volume set published in 2010.
Margaret dedicates her work on the blog to Margaret Bourke-White (1904-1971) (prior IntLawGrrls post), who was the first female war correspondent, the first woman to work in a combat zone, and the first Western photographer allowed entry into the Soviet Union in 1930. Of Bourke-White (right), Margaret writes:
Margaret Bourke-White pioneered the field of photojournalism. One need only look at the photos from Vietnam, Abu Ghraib and the recent Arab World to see how media alters social change. She valiantly paved the way for women to play a role in documenting armed conflicts and changing the way that the public views the effects of war. Bourke-White documented life in Communist Russia and Nazi Germany where, travelling with General Patton’s troops, she crossed the border into Germany and in 1945 became the first individual to document concentration camps. Her photographs taken at Buchenwald (left) compelled Life magazine, for the first time, to openly publish the visual horrors of war. Bourke-White would then travel east chronicling the racial tensions and partitioning of India and Pakistan, immortalized by Candace Bergen’s portrayal of her in the 1982 Academy Award Best Picture, Gandhi. Bourke-White went on to photograph moments of apartheid in South Africa and the Korean War. Photojournalists remain key actors in shaping public and state opinions regarding atrocities and modern conflicts. Working in the predominantly male field of photojournalism within a masculine arena of war, Margaret Bourke-White set the stage for women to bring images of humanitarian tragedies to the populous spreading the unseen consequences of armed conflicts and injustices.
Bourke-White joins IntLawGrrls' other foremothers in the list just below our "visiting from..." map at right.
Heartfelt welcome!


Read On! ICL Interest Group Newsletter

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

The International Criminal Law Interest Group for the American Society of International Law, chaired by Beth Van Schaack and Linda Malone, and of which I am delighted to serve as Newsletter Editor, has released the Winter Issue of Accountability (previous posts regarding the group are here). This issue has grouped articles around themes outlining the forward thinking aspects of international criminal law. The issue is separated into three sections - Judicial Commentaries, Legislative Commentaries and a section focusing on the ICC. Each section provides new insights in different aspects of ICL yet the common theme throughout all the articles is found in the newsletter’s name – Accountability.
Our journey through relevant ICL Judicial Commentaries begins with two pieces by Gentian Zyberi and Alexis Demirdjian taking us through the recent decisions by the ICTY Appeals Chamber regarding the Haradinaj and Šljivančanin cases. Zyberi points out not only the substantive questions raised by the decision surrounding witness intimidation, but more importantly what he views as the dangerous precedent of ordering a retrial and failing to show deference to the Trial Court. Demirdjian’s piece also notes a proactive Appellate Court in Šljivančanin where the court determined the five year sentence handed down by the Trial Court was insufficient as related to the gravity of the crimes committed and increased the sentence to 17 years. Subsequently, the Appellate Court reviewed the testimony of an officer who informed the Court that Šljivančanin (left, on the right) had not been informed of key information that placed those to whom he owed a legal obligation in imminent danger and left him with a ten year sentence.
This section closes with a piece by Alexandra Meise Bay, who analyzes Case 001 – Duch - of the ECCC. In this piece, she lays out the arguments and judicial split, between international and national judges, surrounding the extension of the statute of limitations to domestic crimes within the jurisdiction of the ECCC. In her discussion, she outlines the international and domestic standards applicable to the retroactive extension of a statute of limitations within the context of Cambodia. (Photo at left by A.K. Meise Bay depicts a member of the Cham Muslim minority watching Duch over a live feed of the reading of the verdict in Case 001 from the public viewing area of the ECCC. (July 26, 2010)).
As we move from the Judiciary to the Legislature we begin with Magne Frostad’s look into the regulation of the death penalty under modern international criminal law. In doing so, Frostad notes the changing attitudes towards the death penalty over the past sixty years and utilizes the European framework, and some international mechanisms, to explore available enforcement mechanisms. Specifically, he examines the ECHR, how relevant protocols affect state and non-state parties and what criteria judges appear to be using when analyzing cases involving the possibility of the death penalty.
Accountability then moves from the death penalty to mutual legal assistance as regards frozen Duvalier assets that were removed from Haiti. In this article, Konstantinos Magliveras looks specifically at Swiss legislation that should allow for the restitution of illegal acquired state assets, but given the length of time are now treated as legal for mutual assistance purposes. This piece is of particular timeliness, as in January 2011 Duvalier returned to Haiti and was immediately charged with corruption and crimes against humanity domestically. The affect these charges will have on the restitution of the Swiss assets will be of great interest in upcoming months.
The section on Legislative Commentaries closes with a move from Haiti back to Europe and Africa in the form of the EC and the Saharan Fisheries Partnership Agreement. J.J.P. Smith
evaluates changes to the agreement pertaining to EC interaction with Western Sahara and the over-fishing over her waters. Smith utilizes the crime of pillage, under various historical definitions, and international criminal liability theory to agree with recent EU Legal Service statements citing violations by the EC.
The largest section of Accountability looks to the future of the ICC as concerns US engagement, new preliminary examinations the Court has taken on as well as continued discussion surrounding the crime of aggression. (Assembly of States Parties at right). Carl Christol opens the section with a general background piece to international criminal law and the history of the United States and the ICC through the Kampala Conference. The commentary provided by Rachel Gore furthers this discussion by noting what future interactions and implications are awaiting both the US and the ICC. Her piece recounts the ASIL Expert Forum that took place allowing experts (including IntLawGrrl Beth Van Schaack) to comment on the proceedings in Kampala and the way forward. A key issue in the way forward, and noted in Gore’s commentary, is the view on the crime of aggression both in terms of US foreign policy, the UN Security Council and the ICC. Stefan Kirchner continues the aggression story by looking at US opposition to the definition while being a non-state party that was very actively involved in Kampala. Noha Aboueldahab takes the Kampala discussion even further looking at the effects the definition of the crime of aggression will have on territorial sovereignty and the role of domestic inquiries in defining the crime. Moreover, Aboueldahab responds to the point-counter-point discussion begun in the last issue of Accountability by Dov Jacobs and Keith Petty. This section of the issue closes with a look towards the ICC’s future with Nick Allen’s piece on the recent preliminary examination into North Korean war crimes. Allen discusses which particular incidents would fall under the subject matter jurisdiction of the ICC, issues of admissibility and the possibility of escalation given the gravity of nuclear weapons. This exploration into jurisdiction and enforceability as regards North Korea is new territory for the ICC.
This issue provides a unique look at the progression of international criminal law from a judicial and legislative perspective. Moreover, the pieces that further the crime of aggression discussion begun in the last issue and the way forward for the ICC continue themes between issues raising the level of scholarship in Accountability. Check out the full issue here!!