Wednesday, August 31, 2011

Just back from Chautauqua

Once again this year, IntLawGrrls had the honor of cosponsoring the International Humanitarian Law Dialogs at the Chautauqua Institution in upstate New York. The just-ended 3-day conference featured a number of 'Grrls:
Leila Nadya Sadat spoke on the project for an International Convention on the Prevention and Punishment of Crimes Against Humanity, which she spearheaded;
Beth Van Schaack provided a tour d'horizon of developments at international criminal courts and tribunals, and
►yours truly, Diane Marie Amann, delivered "International Prosecutors and International Politics," the inaugural Katherine B. Fite Lecture, named after a State Department lawyer who helped establish the International Military Tribunal at Nuremberg.
Our report on the 5th Annual Dialogs begins with today's publication of the Fifth Chautauqua Declaration, drafted and signed by prosecutors from the world's many international criminal tribunals. The document -- itself a snapshot of these courts' past accomplishments and future challenges -- appears below.


5th Chautauqua Declaration

Adopted August 30, 2011, at the 5th Annual International Humanitarian Law Dialogs:

In the spirit of humanity and peace the assembled international prosecutors and their representatives here at the Chautauqua Institution ...
Recognizing the continuing need for justice and the rule of law as a cornerstone to international peace and security;
Underscore that only through the rule of law will peoples of the world be truly free from want and fear and have an ability to freely worship and speak, principles that are the cornerstone of the United Nations Charter;
Note with pride the awarding to H. W. William Caming and Benjamin Ferencz the second annual Joshua Heintz Humanitarian Award for distinguished service to mankind;
Note with satisfaction the handing over to the International Criminal Tribunal for the Former Yugoslavia Ratko Mladic and Goran Hadzic for a fair and open trial; thus signaling to all fugitives from international justice the international community’s commitment to bringing them to account;
Note with satisfaction the International Criminal Tribunal for Rwanda’s arrest and commencement of proceedings against fugitive Bernard Munyagishari, the successful application for the referral of Jean Uwinkindi’s case to Rwanda for trial, and ongoing efforts to preserve evidence against three additional fugitives for use in future trials;
Note the conclusion of the first trial against a former sitting head of state, Charles Taylor, by the Special Court for Sierra Leone, and the completion of the trial against Thomas Lubanga, the first trial of the International Criminal Court;
Note the issuing of an arrest warrant by the International Criminal Court against Muammar Gadhafi, Saif al Islam, and Abdullah el Sennussi, and call for their arrest and prompt handover to the Court;
Note with satisfaction the issuing of an indictment by the Special Tribunal for Lebanon against four individuals alleged to be involved in the 2005 assassination of former Lebanese Prime Minister Rafik Hariri and others;
Note the commencement of the proceedings against the four most senior living members of the Khmer Rouge regime but also the widespread concern for the independence and integrity of the Extraordinary Chambers of the Courts of Cambodia;
Are aware of the movement by peoples all across the Middle East and elsewhere to establish representative governments, and call on all parties to respect the humanity involved in these events and to follow the precepts of international humanitarian law;
Further note with continued concern the outstanding arrest warrants issued by international courts and tribunals, requiring the cooperation of state parties and the international community as a whole for their enforcement;
Now do solemnly declare and call upon the international community to keep the spirit of the Nuremberg Principles alive by:
Continuing international support to all nations seeking to adhere to the rule of law and promote accountability in their societies;
Urging all parties to the ongoing armed conflicts in the Middle East to respect international humanitarian law, in particular, by refraining from targeting protected persons and places;
Cooperating with efforts to locate, arrest, and hand over to the various international courts and tribunals those individuals who have been indicted for international crimes wherever found;
Urging States and the international community to end impunity for the gravest of crimes by refusing to include or accept amnesty or immunity clauses in peace agreements;
Urgning States and the international community to continue to support international justice by ensuring adequate resourcing of all courts and tribunals and for the residual mechanism of those courts and tribunals whose mandates are coming to an end;
Recognizing the importance of complementarity between the efforts of national prosecuting authorities to enforce their own laws and those of the international courts and tribunals;
Emphasizing that independence of Prosecutors of international criminal courts is essential to the exercise of their mandates and the furtherance of international criminal justice, and urging all States and organizations to recognize and support that independence.

Fatou Bensouda
International Criminal Court

[James Arguin for] Hassan Jallow
International Criminal Tribunal for Rwanda

Serge Brammertz
International Criminal Tribunal for the Former Yugoslavia

Andrew Cayley
Extraordinary Chambers for the Courts of Cambodia

David M. Crane
Special Court for Sierra Leone

[James Johnson for] Brenda J. Hollis
Special Court for Sierra Leone

[Daryl A. Mundis for] Daniel A. Bellemare
Special Tribunal for Lebanon

Robert Petit
Extraordinary Chambers of the Courts of Cambodia



On August 31

On this day in ...
... 1801 (210 years ago today), a military campaign in Egypt, launched 3 years earlier by French Emperor Napoleon Bonaparte, came to an end when the Siege of Alexandria ended with the surrender of a Bonapartist general to British troops.

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

Tuesday, August 30, 2011

Go On! Breaking Into Law Teaching

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

It’s law faculty recruitment season again. Fortunately, more structured resources and networks are now available for IntLawGrrls who are considering entering the academy than were accessible when some of us were starting out two or three decades ago.

New Law Teachers Pipeline
For example, the Society of American Law Teachers (SALT) New Law Teachers’ Pipeline Committee is co-sponsoring a series of workshops on “Breaking into Law Teaching.” The workshops are hosted by law schools and faculty networks throughout the United States. Angela P. Harris, Professor of Law, University of California at Davis, and IntLawGrrl Hari M. Osofsky, Associate Professor of Law and Lampert Fesler Research Fellow, University of Minnesota School of Law, co-chair the SALT committee (on which yours truly, IntLawGrrl Hope Lewis, also serves).

Breaking Into Law Teaching: New England Region
Northeastern University School of Law had the pleasure of hosting the New England version this past June.
Jenny Rivera, Professor of Law and Director of the Center on Latino and Latina Rights and Equality at the City University of New York (CUNY) School of Law, was keynote speaker and recipient of the Keith Aoki Mentorship Award. (See posts on the late Professor Keith Aoki by IntLawGrrls Hari Osofsky and Diane Marie Amann, Emily and Ernest Woodruff Chair in International Law, University of Georgia School of Law, here and here.)

SALT Workshop Series
The first "Breaking In" workshop was held at SALT's 2011 Law Teaching conference hosted by Golden Gate University School of Law.
Workshop participants gather to learn from, and network with, current law teachers and law administrators. Topics include preparation; the roles and responsibilities involved in “podium,” clinical, adjunct, legal writing and research positions; the nuts and bolts of the Association of American Law Schools (AALS) recruitment process; teaching fellowships; and tips on entry-level teaching, scholarship, and service.
The series is aimed at increasing the presence and impact of lawyers from groups that are underrepresented in the legal academy (i.e., people of color, women, LGBT, and lawyers with disabilities). The goal is to share information, mentor prospective teachers and administrators, and break down barriers to access.
Most IntLawGrrls who are law professors know that we did not enter or thrive in the profession without the support of those who came before us and provided mentorship and informal advice. It is great to see further development and law school support for such efforts and networks.
What follows is a list of this year’s upcoming and previous workshops. Be sure to see the “New Law Teachers Pipeline” committee page on the SALT website, where very helpful resource guides and program summaries are linked.

Upcoming SALT Breaking into Law Teaching Workshops
►September 16, 2011--Chicago: “Breaking In: How to Become a Law Professor or Administrator. Co-sponsored by the John Marshall Law School, Northern Illinois University College of Law, and SALT. Click here to learn more and register.
►September 23, 2011--Seattle: "Promoting Diversity in Law School Leadership." Fred T. Korematsu Center for Law and Equality, Seattle University School of Law (workshop for prospective deans and other administrators).
►October 6-7, 2011: San Diego—LatCrit, Inc. SALT and LatCrit run a junior faculty mentoring workshop at the annual LatCrit, Inc. conference. Click here to learn more about the workshop and LatCrit XVI. This workshop attracts fellows and non-tenured faculty.

Previous Workshops
►June 17, 2011, Boston--Boston: “Breaking into Law Teaching: New England--The Pipeline to the Legal Academy.” Co-sponsored by Northeastern University School of Law and SALT.
►May 20, 2011, New York—“Breaking In: New Law Teachers Pipeline Project.” Co-sponsored by CUNY School of Law, Center for Diversity in the Legal Profession, and SALT.
►March 31, 2011, Fort Lauderdale—“Breaking into Law Teaching: Southeast.” Co-sponsored by Nova Southeastern and SALT.
March, 21, 2010, San Francisco--"Breaking Into Law Teaching," Golden Gate University School of Law and SALT.

Selected Resources for Aspiring Law Teachers
Fellowships for Aspiring Law Professors (2010-2011), TaxProf Blog (posted by Paul Caron, Charles Hartsock Professor of Law, University of Cincinnati College of Law)
2011 Bibliography of Resources (prepared by Nareissa Smith, Assistant Professor of Law, Florida Coastal School of Law).
Resource Guide for Breaking into Law Teaching: New England--The Pipeline to the Legal Academy,” compiled by Professor Hope Lewis, with Hyejin Park ‘11, Desiree Murphy ‘13, and Gautam Jagannath ’12, Northeastern University School of Law.
2010 Bibliography of Resources (from Golden Gate Workshop)
“From Both Sides Now: The Job Talk’s Role in Matching Candidates with Law Schools,” by Anne Enquist, Paula Lustbader, John B. Mitchell.
Vulnerable Populations and Transformative Law Teaching (Society of American Law Teachers & Golden Gate University School of Law (2011).

(Heartfelt thanks to Hazel Weiser, Executive Director of SALT.)


On August 30

On this day in ...
... 1341 (670 years ago today), the duke of Brittany died, setting off a War of Succession waged fiercely on one side by the late duke's niece, Jeanne de Penthièvre, and her husband, who would be imprisoned for 9 years before dying in the 1364 Battle of Auray. Jeanne was forced to give up actual control of the duchy, though she retained her title as Duchess of Brittany until her death in 1384. (credit for photo of her tomb)

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

Monday, August 29, 2011

Guest Blogger: Jean Galbraith

It's IntLawGrrls' great pleasure to welcome Jean Galbraith (left) as today's guest blogger.
As a Sharswood Fellow in Law and International Affairs at the University of Pennsylvania Law School, Jean teaches and has published in the areas of international law and foreign relations law.
She received her undergraduate degree summa cum laude from Harvard University and her J.D. from Berkeley Law (Boalt Hall). After law school, she clerked for Judge David S. Tatel at the U.S. Court of Appeals for the D.C. Circuit and Justice John Paul Stevens at the Supreme Court. Following her clerkships, she was an Associate Legal Officer at the International Criminal Tribunal for the former Yugoslavia, where she worked for Judge Theodor Meron.
In her guest post below, Jean presents a creative proposal to speed up the pace of U.S. treaty-making while at the same time enhancing the executive's credibility in treaty negotiating.

Heartfelt welcome!


Prospective Advice & Consent

(Many thanks to Diane Marie Amann and IntLawGrrls for inviting me to contribute this guest post!)

Under the current U.S. treaty-making process, treaties are first negotiated and signed by the executive branch, then sent to the Senate for advice and consent, and then ratified by the executive branch.
For important multilateral treaties, the Senate stage of this process can move slowly and sometimes endlessly. The oldest treaty in the Senate's queue of pending treaties arrived in 1949, and the backlog includes treaties supported by administrations from both parties, such as the Law of the Sea Treaty (prior IntLawGrrls posts). (credit for above left photo of Capitol's wing)
During an interview last year the previous the Legal Adviser of the U.S. Department of State, John Bellinger, described this backlog as weakening the credibility of current U.S. negotiators because

'our negotiating partners have no confidence that the executive branch will necessarily be able to get a potentially controversial treaty through the Senate.'

Our negotiators, he suggested, were in a situation akin to “the boy who cried wolf.”
In an article forthcoming next year in the Yale Journal of International Law, I propose a new approach to treaty-making that would alleviate these problems – an approach that I call “prospective advice and consent.”
Briefly, I argue that under certain conditions, the Senate can and should give its advice and consent to treaties in advance of their final negotiation. Specifically, the Senate could give its advice and consent through the passage of a resolution that, by a two-thirds vote, authorizes the President to make a treaty or multiple treaties that conform to whatever conditions are set out in the resolution. Provided that the negotiated treaty or treaties ultimately conform to these conditions, the President could then ratify without further action by the Senate. This approach would both speed up the treaty-making process and strengthen U.S. credibility at the bargaining table, thus potentially allowing the United States to obtain more favorable treaty terms.
The article takes up two main questions: First, would prospective advice and consent be constitutional? Second, would it be workable and desirable? My answers are yes and yes, with some qualifications.


Constitutionality
The constitutional question centers on the Treaty Clause of Article II of the Constitution. I show that the text, historical context, and evolving practice of that clause leave the President and the Senate with the flexibility to determine the timing and specificity of the Senate’s advice and consent. The Treaty Clause simply gives the President the

'power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur.'

Once we accept – as we currently do – that “advice and consent” can come at the same time, nothing in the text dictates when this must occur. Indeed, on several occasions President Washington received the Senate’s advice and consent to negotiate treaty amendments and then, following successful negotiations, ratified these amendments without returning again to the Senate.
I also see no constitutional problem in the Senate giving its advice and consent to negotiating objectives rather than to the specific text of a treaty, provided that the negotiating objectives satisfy the intelligible-principle test. As I show, the Senate did this several times in relation to a series of treaties extending the U.S.-Mexico Claims Commissions in the 1920s and 1930s. In any event, this is how Congress authorizes the ex ante congressional-executive agreements that are the bread-and-butter of U.S. international agreements.

Practicality
On the practical side, I argue that prospective advice and consent would work well for certain types of treaties. In this post, I’ll discuss one type: major multilateral treaties where U.S. negotiating power would otherwise be reduced because other negotiators doubt the President’s ability to deliver the Senate. (credit for below left photo of White House)
Why might the Senate be willing to give prospective advice and consent to such treaties?
For one thing, to the extent that the United States can negotiate better terms if it can credibly signal the Senate’s agreement, then the prospect of better terms might in turn make the Senate more willing to act. The Senate can set tough terms in a resolution of prospective advice and consent.
For another, this approach would give the Senate a long-desired formal role at the negotiations stage, thus potentially making the inter-branch relationship more collaborative and less adversarial.
In terms of timing, I argue prospective advice and consent would best come late in the negotiating process, when the overall contours of the treaty are in shape but important points of contestation remain.
A few caveats:
► First, I don’t think prospective advice and consent would always work. Sometimes the Senate would not give it or the President would be unable to succeed in negotiating a treaty along the Senate’s terms. Instead, I make the modest claim that prospective advice and consent might sometimes work where post-negotiation advice and consent would not be obtainable (or would take many years to achieve).
► Second, I recognize that the Senate may be leery of ceding final review of a treaty. In response, I argue that the Senate could condition its resolution of advice and consent in a way that would preserve some form of post-negotiation review.
► Third, I don’t think prospective advice and consent is desirable for all types of treaties. There is a broad scholarly debate over how U.S. treaty-making can and should be legitimately accomplished (e.g., through the Treaty Clause, congressional-executive agreements, or executive agreements). I don’t think there’s a single answer to this question, and my article does not offer prospective advice and consent as a sole solution. Rather, I argue that it is a legitimate option that would work well in some circumstances.
Comments on this work-in-progress would be most welcome!


On August 29

On this day in ...
... 1957, Strom Thurmond, the former South Carolina governor who'd been sworn in as a U.S. Senator earlier in the year, ended his marathon effort to keep the Senate from voting on a civil rights bill already overwhelmingly approved by the House of Representatives. Thurmond had talked "for a brain-numbing 24 hours and 18 minutes," as The New York Times described what remains the longest filibuster in history. (credit for detail from photo of Thurmond holding streams of paper read during filibuster) This one did not succeed: the Senate approved the bill by a vote of 60 to 15, and President Dwight D. Eisenhower signed the Civil Rights Act of 1957 into law on September 9.

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

Sunday, August 28, 2011

Like Mother Like Son

To close the loop on a prior post, we should note that a Trial Chamber of the International Criminal Tribunal for Rwanda convicted the first woman for rape as a crime against humanity at the end of June.
The case involves six individuals accused of forming an alliance to eliminate Tutsis in Butare préfecture, which had one of the highest percentage of Tutsis residents in the country. The ranking defendant was Pauline Nyiramasuhuko (right), who served as Minister of Family and Women’s Development under the Interim Government headed by Jean Kambanda. Her son, Arsène Shalom Ntahobali (left), was jointly accused.
The ICTR indicted the two in 1997; soon after, they were arrested in Kenya. In 1998, the Prosecutor successfully sought to amend the indictment to add rape charges. The charges stem from allegations that Nyiramasuhuko and Ntahobali abducted, assaulted, and killed Tutsi individuals who had taken refuge in the Butare Préfecture Office. The prosecutor alleged that Nyiramasuhuko ordered members of the interahamwe under the control of her son to rape Tutsi women in their custody. Witnesses testified that she even ordered her own son to participate.
Because of defects in the pleadings in the indictment—which were not cured by subsequent submissions by the Prosecutor—the Chamber did not consider the rape allegations in connection with the genocide charges alleged against the two. Instead, these acts were considered crimes against humanity and as the war crime of outrages upon personal dignity. Reading the indictment as a whole, the Trial Chamber ruled:

While there is ample notice that Nyiramasuhuko and Ntahobali were being charged with rapes under the counts of rape as crime against humanity, and of outrages upon personal dignity as a serious violation of Article 3 common to the Geneva Conventions and of Additional Protocol II thereto, the Prosecution provided
insufficient notice of its intention to pursue rape as genocide.

Nonetheless, these acts were repeatedly mentioned in connection with the Chamber’s consideration of the genocide charges and were treated as evidence of the defendants’ specific intent to destroy the group in whole or in part. Any reference to rape in the genocide discussions was, however, accompanied by the caveat that

the Chamber recalls that it will not take rapes into account in assessing genocide, but instead will consider them for charges that were properly pled.

The Chamber also found beyond a reasonable doubt that Nyiramasuhuko distributed condoms to members of the interahamwe to be used in the raping and killing of Tutsi women. Apparently, Nyiramasuhuko ordered the woman to whom she distributed the condoms to:

'Go and distribute these condoms to your young men, so that they use them to rape Tutsi women and to protect themselves from AIDS, and after having raped them they should kill all of them. Let no Tutsi woman survive because they take away our husbands.'

In a somewhat baffling ruling, the Trial Chamber found that this statement did not constitute "direct and public incitement" to commit genocide.
The Chamber apparently considered the statement, while direct, to be insufficiently public, because it was addressed to only one person, although it was made in the presence of others. As such, the Chamber found instead that these statements were “more akin to a ‘conversation’” than incitement. That said, these statements were also invoked as circumstantial evidence of her genocidal intent.
Nyiramasuhuko was charged only under Article 6(3) of the ICTR Statute, for superior responsibility, whereas Ntahobali was also charged under Article 6(1), as a direct perpetrator. Although there was evidence that Nyiramasuhuko instructed her son to rape Tutsi women, the Chamber rejected allegations that Ntahobali could be considered Nyiramasuhuko’s "subordinate" within the meaning of the doctrine of superior responsibility. Specifically, the Chamber found that

the relationship between Nyiramasuhuko and Ntahobali in 1994 was complex, owing in part to the familial and interpersonal relationship shared by these two Accused. This complexity, however, cannot be confused for a superior-subordinate relationship. Cognisant that the burden of proof falls on the Prosecution to establish this element, the Chamber finds that there is insufficient evidence to enter a finding of a superior-subordinate relationship between Nyiramasuhuko and Ntahobali beyond a reasonable doubt.

Nonetheless, the Chamber did find that both accused exercised superior responsibility over members of the interahamwe, the militia. In addition, the Chamber determined that Ntahobali bore direct responsibility as a principal perpetrator for committing a number of criminal acts. Nyiramasuhuko was also convicted of conspiracy to commit genocide.
In addition to the apparent oversight in failing to charge rape as genocide, the Chamber more directly chided the prosecution for the way in which it charged the theory of responsibility vis-à-vis Nyiramasuhuko. In particular, the Chamber wrote that limiting the charges against her under Article 6(3) of the Statute was “a serious omission,” given its finding that Nyiramasuhuko had ordered interahamwe to rape Tutsi women at the Butare Préfecture Office.
The Trial Chamber sentenced both defendants to life imprisonment.
The case is on appeal. The defendants were granted additional time for their filings in light of the fact that the French version of the judgment is not expected until 2012. (The Prosecutor's office, which is capable of working in English, was also granted a short extension.) At almost 1,500 pages, the judgment is the lengthiest issued by the ICTR to date.
For more on female defendants before international criminal tribunals, see here, here and here.

On August 28

On this day in ...
... 1921 (90 years ago today), Lidia Gueiler (left) was born in Cochabamba, Bolivia. Having studied to become an accountant, she joined a left-wing party in her 20s; under its banner, in 1956 she became the 1st woman elected to Bolivia's Congress. Exiled 4 years later following a military takeover, Gueiler did not return to her country till 1979. That year she was elected President of the lower house of Congress. Amid political unrest when the 1979 Presidential elections failed to produce a clear winner, on November 16, 1979, Gueiler was made provisional leader -- the 1st and only woman President of Bolivia and the 2d in Latin America. (photo credit) On July 17 of the next year, before a new round of elections could be held, a general ousted her in a military coup. (He is now serving a sentence in Bolivia for human rights violations.) Following another 2 years' exile, Gueiler, who'd been involved in Bolivian feminist organizations throughout her life, served her country as an ambassador to Colombia, to West Germany, and to Venezuela. She died in La Paz on May 9 of this year.

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

Saturday, August 27, 2011

'Nuff said

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

To address reporting problems, researchers should consider including culturally appropriate questions about sexual violence in routine large-scale health and demographic surveillance surveys. And although recent U.N. Security Council resolutions have specifically demanded numbers, the international community must reconsider its insistence on statistics. Such an emphasis encourages the proliferation of 'false facts' about sexual violence and does little to aid understanding. It is essential that researchers, journalists, and policymakers cite credible data sources, lest they undermine their own efforts. Most important, policymakers must ensure that a focus on sexual violence does not crowd out other equally vital wartime issues, such as basic health care, displacement, and inequality.

-- Amber Peterman, Gender and Development Specialist and Research Fellow at the D.C.-based International Food Policy Research Institute, University of Minnesota Political Science Professor Dara Kay Cohen, Stony Brook University Preventive Medicine Professor Tia Palermo, and Amelia Hoover Green, a political science doctoral candidate at Yale University and a consultant to U.N. Action Against Sexual Violence in Conflict. The quoted passage appears in their excellent article, "Rape Reporting During War: Why the Numbers Don't Mean What You Think They Do," in this month's Foreign Affairs. Read it now!

(hat tip to the ever-amusing and informative wronging rights blog)


On August 27

On this day in ...
... 1858, Amélie Zurcher (right) was born in Bollwiller, a village in Alsace. At first she attended school in the village, but when Alsace came under German control, she earned her baccalaureat at a convent in Nancy, France. Zurcher returned in 1877 to care for a brother who'd been wounded in the Franco-Prussian War; together they purchased and managed a farm. When drought struck, she looked for sources of income underground, and so discovered valuable deposits of potash, a mineral used to make fertilizers and other goods. She thus founded her own mining company, Gewerkschaft Amélie. When France resumed control of Alsace after World War I, it took control of the company, and transformed the economy of the region. (photo credit) Zurcher reportedly said:

L’essentiel est que la France profite de cette découverte, voilà ma plus belle récompense.

that is,
What matters is that France profits from this discovery. There is my compensation.

She died in 1947, aged 88.

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

Friday, August 26, 2011

Refugee Roulette, European Style

Lest you thought that "refugee roulette" was a uniquely American affliction, the European Council on Refugees and Exiles, relying on statistics published by the UN High Commissioner for Refugees, has published four stunning maps of asylum disparities in the European Union. Overall, grant rates for asylum and complementary protection range from 2% in Ireland and 3% in Greece to 61% in Finland and 73% in Switzerland. (The map also reports a grant rate of 100% in Portugal, which awarded protection to only 57 refugees in 2010.)
Breaking down the figures by country of origin, Afghans faced a grant rate for asylum and complementary protection varying from 8% in Greece to 47% in Germany to 91% in Italy. Similarly, Iraqis saw grant rates of 10% in Greece, 54% in the Netherlands, and 79% in Belgium. And grant rates for Somalis ranged from 13% in Greece to 55% in the United Kingdom to 97% in Switzerland.
What gives? We've posted before about the disastrous state of Greece's asylum system, but why do the data show such varying grant rates for those seeking protection from three countries particularly known for severe and widespread human rights abuses?
A report published last month by UNHCR on comparative EU law and practice with respect to asylum seekers fleeing indiscriminate violence aims to shed some light on these disparities. The report examines the implementation of Article 15 of the EU Qualification Directive, particularly subsection (c), which offers "subsidiary protection" for those who do not qualify for refugee status but face a serious and individual threat of indiscriminate violence in armed conflict.
The report begins by noting that Afghans, Iraqis, and Somalis together represented 20% of asylum applicants in the EU in 2010. They were granted protection, whether it was refugee status or subsidiary or complementary protection, in the first instance, at average rates of 49% for Afghans, 66% for Iraqis, and 77% for Somalis.
Breaking apart the data, even among only six EU countries -- Belgium, France, Germany, the Netherlands, Sweden, and the United Kingdom -- there were enormous variations in refugee status recognition rates in the first instance. Afghans were granted asylum in the Netherlands at a rate of 2.6% and in Belgium at a rate of 35%; Iraqis faced a grant rate of 5.8% in the Netherlands and 55.8% in Germany; and Somalis were recognized at a rate of 1.8% in the Netherlands and 74.3% in Germany. UNHCR attributed these disparities to inconsistent interpretations of the 1951 Convention Relating to the Status of Refugees.
Moving to first-instance decisions on subsidiary protection, we see that Germany, relatively generous in granting asylum, offered subsidiary protection at rates of 5.4% to Afghans, 0.4% to Iraqis, and 15.1% to Somalis. The Netherlands, rather stingier in asylum grants, offered subsidiary protection to Afghans at a rate of 21.9%, to Iraqis at a rate of 32.9%, and to Somalis at a rate of 32.5%. Though Germany's overall international protection rate (refugee recognition plus subsidiary protection) for Iraqis and Somalis was higher, the Netherlands granted international protection to a higher percentage of Afghans.
EU member states appear to interpret Article 15(c) in very different ways. Indeed, the six nations studied could agree on only one city in one region of one country that meets the requirements of 15(c): Mogadishu, Somalia. Some of these states read the Article's provisions narrowly, requiring extremely high levels of indiscriminate violence to avoid the "pull factor" of group recognition. Some countries take into account individual risk in armed conflict as an additional factor in favor of protection. Others disqualify even Somalis as having "internal protection alternatives" in their country of origin. And each member state studied has a different national form of complementary protection.
While UNHCR offers hopeful recommendations to harmonize interpretations of the Refugee Convention and Article 15(c), it is hard for yours truly to shake the nagging thought that, in the absence of an injection of significant resources, the expansion of mechanisms of protection simply creates more opportunity for inconsistency in asylum adjudication.


On August 26

On this day in ...
... 1346 (665 years ago today), amid the Hundred Years' War, English and French troops fought the Battle of Crécy, a landmark in weapons technology: "the longbow triumphed over crossbowmen and armoured knights." (image credit) The contest heralded "the rise of England as a world power."

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

Thursday, August 25, 2011

Guest Blogger: Neha Jain

It's IntLawGrrls' great pleasure to welcome Dr. Neha Jain (left) as today's guest blogger.
An Adjunct Professor of Law and Law Research Fellow at Georgetown University Law Center in Washington, D.C., Neha focuses her scholarship on criminal law, public international law, legal theory and comparative law.
She earned B.A. and LL.B. degrees with honors from National Law School of India University, Bangalore, and master's degrees and her doctorate in law from Oxford University in England, where she was a Rhodes scholar and Editor-in-Chief of the Oxford University Commonwealth Law Journal.
Prior to coming to Georgetown, she worked as a Research Fellow at the Max Planck Institute for Foreign and International Criminal Law in Freiburg, Germany. As a member of that institute’s comparative criminal law project, she participates in a study that examines certain legal systems with an aim to develop a general theory of comparative criminal law. Neha also has served as a law clerk to the former Chief Justice of the Supreme Court of India and interned with the Office of the Prosecutor at the Extraordinary Chambers in the Courts of Cambodia.
In her guest post below, Neha applies the methodology of comparative criminal law to examine international criminal law concepts respecting the means by which persons may be held liability for international offenses. Heartfelt welcome!


ICL & individual responsibility

(Thanks to IntlLawGrrls for the generous invitation to contribute this guest post)

The tension between the individual and the collective is an enduring feature of international criminal law.
Hardly any area of the law, ranging from the definitions of crimes to the design and procedural framework of international criminal institutions, remains impervious to its infiltration.
However, international criminal law's greatest challenge -- and paradoxically, its most culpable neglect -- has been in the demarcation of modes of liability that can truly reflect our intuitions about the nature of individual responsibility for crimes that are by their very nature collective.
Indeed, the entire edifice of accountability for international crimes has been constructed in the absence of any coherent theory of principal responsibility for the commission of the crime.
In discussing modes of responsibility, courts and commentators oscillate between the doctrines of joint criminal enterprise, or JCE (prior IntLawGrrls posts), on the one hand, and co-perpetration and indirect perpetration, on the other:
► A doctrine largely influenced by common law, joint criminal enterprise has close analogues in the doctrine of joint enterprise in English law and in the Pinkerton conspiracy doctrine in U.S. law. JCE has been in vogue for much of the existence of the ad hoc criminal tribunals, especially the International Criminal Tribunal for the former Yugoslavia (top right) and the International Criminal Tribunal for Rwanda (lower right) (credit for photo courtesy of the ICTY; credit for ICTR photo)
► Co-perpetration and indirect perpetration are based on established modes of responsibility in German criminal law, and are currently the favored doctrines at the International Criminal Court (above left). (photo credit)
Whether as a result of its accessibility to common law lawyers, or because of its more established presence in tribunal jurisprudence, almost no aspect of JCE has been left unanalyzed.
Co-perpetration and indirect perpetration have proved more elusive.
English-language literature on both doctrines is limited: most commentators on the doctrines, mainly academics trained in the civil law tradition, only provide the gist of the doctrines or allude to specific aspects, without examining the theories and the controversies surrounding them in any detail.
The elucidation of the doctrines in the jurisprudence of the tribunals is also quite sparse, and is based on primarily German- or Spanish-language sources. Not surprisingly, persons without sufficient command of legal literature in these languages have been compelled to understand and critique the doctrines through reliance on scattered, and sometimes opaque references, by academics and by the ICC.
In my article "The Control Theory of Perpetration in International Criminal Law," forthcoming in the Chicago Journal of International Law, I seek to lay the foundations for an informed debate on theories of responsibility for international crimes.
To do so, I familiarize the audience of comparative and international criminal lawyers with doctrines of perpetration in German criminal law and their adoption by international criminal tribunals. I also take the first steps in this debate, by subjecting to scrutiny, and ultimately by rejecting, recent criticisms that have been leveled against these perpetration concepts. While I remain committed to the view that an uncritical and wholesale transfer of these domestic modes of responsibility to the international courts would be deeply problematic, I highlight their importance to the project of building conceptually sound and practically useful doctrines of responsibility for international crimes.
Although my article touches on the fairly narrow issue of attribution of responsibility, it opens up a host of issues that I believe remain insufficiently addressed and that will be crucial to the project of international criminal justice:
► What, for instance, is the relationship between comparative criminal law and international criminal law?
► To what extent does international criminal law’s composite identity -- as an amalgam of public international law and criminal law-- impact the methodology and sources of law that lawyers, judges, and scholars may rely on in refining concepts in this area of the law?
► How do we ensure that the international criminal lawyer is truly a world citizen who is comfortable navigating the criminal law systems of different countries, notwithstanding the constraints of language, legal culture, and legal training?


Write On! ASIL due dates near

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

Deadlines loom for 2 conferences to be sponsored by Interest Groups of the American Society of International Law:
► Works-in-progress abstracts are due tomorrow, August 26, for the Fall Workshop of ASIL's International Organizations Interest Group. The workshop will take place on October 28, 2011, at the Fletcher School of Law and Diplomacy, Tufts University, Medford, Massachusetts. The full call is here.
► Proposals are due next Tuesday, August 30, for the Research Forum of ASIL's International Economic Law Interest Group. The forum, themed Post-Crisis International Financial Regulation: Fragmentation, Harmonization and Coordination, will be held on December 2, 2011, at Suffolk Law School in Boston, Massachusetts. The full call for papers is here.


On August 25

On this day in ...
... 1921 (90 years ago today), having failed to ratify the Versailles Treaty that ended conflict for many countries, the United States signed a World War I peace treaty with Germany. In the pact, which the American diplomat Ellis Loring Dresel (right) signed at Berlin, Germany agreed to pay certain reparations to the United States. (photo credit)

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

Wednesday, August 24, 2011

Justice Cascade in Central America?

On August 8, nine Salvadoran former military officers turned themselves in to a military base in San Salvador, attempting to avoid arrest. It didn’t work: the officers were arrested by the Salvadoran police and jailed on an arrest warrant from a Spanish court, accusing them of involvement in the killings of six Spanish Jesuit priests, their housekeeper and her daughter in 1989. The crime was one of the most brutal and emblematic of that country’s civil war. An extradition request is expected soon.
On August 12, Guatemala arrested four alleged participants in the 1982 Plan de Sanchez massacre, in which almost 300 people were killed. The four are tobe tried soon. The arrests in that case follow close on the heels of the convictions last month of four kaibiles (Special Forces) for participation in another massacre in the hamlet of Dos Erres, and the arrest of the former army chief of staff for Rios Montt’s government, Oscar Mario López Fuentes, on genocide charges.
Two high-ranking former police officials are also in the dock accused of forced disappearances. One is Pedro Arredondo, former head of a secret police unit and the person widely believed to be responsible for the firebombing of the Spanish Embassy in 1980. The other is Hector Bol de la Cruz, who is being held in the disappearance of union leader Fernando Garcia; the police operatives in that case were tried and convicted last year. The evidence in the forced disappearance cases is believed to be largely based on the Police Archives discovered several years ago.
While advances in trying perpetrators of past human rights violations have led to hundreds of trials in the Southern Cone (written about here and here), until recently Central America provided a dismal counterexample.
Both El Salvador and Guatemala experienced military-dominated regimes that waged brutal counterinsurgency wars. The 12-year Salvadoran civil war, beginning in 1979, killed an estimated 75,000 people. Meanwhile, the 36-year Guatemalan conflict, originating in 1960, resulted in approximately 200,000 deaths, as well as genocide against some Mayan groups. The conflicts in El Salvador and Guatemala ended with the signing of peace accords and transitions to elected government, but the new governments continued to face constraints on democracy due to the persistent power of the military and economic elites over the political system.
In El Salvador (prior IntLawGrrls posts), the legislature passed a blanket amnesty law days after an internationally backed Truth Commission found that the military had committed massive human rights violations. The Supreme Court in 2003 allowed for exceptions to the amnesty law where fundamental rights were at issue, but the prosecutor has never seen fit to find a single case where he alleged that this was the case.
In Guatemala (prior IntLawGrrls posts), the Law of National Reconciliation provided for amnesty, but made the amnesty inapplicable to international crimes, including genocide, torture and forced disappearance. Nonetheless, the public prosecutor there never saw fit either to bring cases involving crimes relating to the conflict, and defendants used the courts to delay and sidetrack any investigations. A culture of impunity prevailed, kept in place not only by the former military but by drug cartels and gangs, some connected to former security forces.
So what’s happened to create the current movement?
In El Salvador, the election two years ago of a center-left journalist, Fernando Funes, moved the government from a position of implacable opposition to any weakening of the amnesty law to one where the government expressly left these decisions for the courts.
The Spanish case involving the Jesuit murders, although brought under Spain’s universal jurisdiction law, involves mostly Spanish citizens, and so is perhaps less of an intrusion on sovereignty. The Spanish judge heard extensive evidence in the case, including from two former prosecutors who now hold high ranking-positions in the government and on the Salvadoran Supreme Court, before issuing arrest warrants in May for 20 people. However, a majority of that court's members are still fairly conservative, and it’s not clear that they will grant the extradition request.
And for cases involving only Salvadoran citizens, the amnesty law is still a potent barrier.
In Guatemala, cases alleging genocide have been brought in both the domestic (2000 and 2001) and Spanish (1999) courts.
The Spanish case led to temporary arrests of some of the defendants in 2007, but the Constitutional Court denied the validity of Spanish arrest warrants in the case.
Although the Spanish case may have helped provide evidence and testimony and keep the issue alive, the big change has been the appointment of prosecutor Claudia Paz y Paz Bailey (right), about whom IntLawGrrls have posted. (photo credit) She is a long-time international criminal lawyer and human rights lawyer, and has taken decisive action to beef up her ability to try these cases -- many of which have been the subject of hearings before the Inter-American Commission and/or Court of Human Rights.
She needs to move fast, since the expected electoral victory of hardliner (and former military officer accused of crimes during the conflict) Otto Perez Molina will make her job more difficult. So we can expect more high-profile cases to be brought to trial in the next few months. Whether convictions can weather appeals in Guatemala’s conservative higher courts is anyone’s guess.
The U.S. government has taken an ambiguous stance with respect to these cases.
In the Guatemalan Dos Erres case, it arrested one former kaibil (who was sentenced to ten years in prison on visa fraud charges), deported a second back to Guatemala, and is seeking the extradition of a third from Canada.
On the other hand, the Department of Justice has so far refused to cooperate with the Spanish courts in the Jesuit case, even though one of those indicted in that case is residing openly in Massachusetts.
And the State Department has to date said nothing about the allegations that Guatemalan presidential candidate Perez Molina was involved in crimes against humanity during the 1980s, when he commanded a military outpost in the most hard-hit area of the country.
So far, it’s been the combination of internal changes and outside pressure that has managed to crack open a bit the façade of impunity. Those outside Central America owe it to the courageous people inside to keep that pressure up.


'Nuff said

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

'There is a lack of any debates about women's rights, certainly not in terms of how to take them forward. ... Partly, it's a reaction to the way the former regime used women's rights, and partly it's a concession to the Islamists.'


-- Ahlem Belhaj (above left), president of the Tunis-based Association tunisienne des femmes démocrates/Tunisian Association of Democratic Women. (photo credit) Belhaj was quoted in an Al Jazeera English story whose title, "Tunisia: Women's rights hang in the balance," provides a pithy commentary on women's campaign for recognition as the post-Ben Ali regime is shaped.


On August 24

On this day in ...
... 1901 (110 years ago today), Clara Louise Maass (right), a 25-year-old nurse who worked on contract for the U.S. Army in Cuba, died there after agreeing twice to be bitten by infected mosquitoes in order to aid research into yellow fever, a disease plaguing military personnel there. (Prior IntLawGrrls posts on this malady here and here.) She been born in 1876 in East Orange, New Jersey, the eldest of 9 children, and by age 19 had completed a 2-year nursing training in Newark. In addition to Cuba, Maass had served as a nurse to U.S. servicemembers stricken by smallpox, typhoid, and yellow fever in the Philippines. The United States' human-subject experiments on yellow fever in Cuba ended with her death. (credit for image of postage stamp honoring Maass)

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

Tuesday, August 23, 2011

Guest Blogger: Anne van Aaken

It's IntLawGrrls' great pleasure to welcome Prof. Dr. iur. et lic. rer.pol. Anne van Aaken (left) as today's guest blogger.
The Max-Schmidheiny Tenure Track Professor for Law and Economics, Public, International and European Law at the University of St. Gallen, Switzerland, Anne was a Fellow at the Institute for Advanced Study in Berlin, Germany, in 2010-11, and has taught as a guest professor in Asia, Africa and Latin America. She holds a master's degree in economics from the University of Fribourg in Switzerland as well as doctorate in law. She is admitted to the bar in Germany.
Vice-President of the European Association of Law and Economics, Anne is a member of the Programmatic Steering Board of the Hague Institute for the Internationalisation of Law, and also of both the Investment Committee and the Committee on Non-State Actors of the International Law Association.
Anne has published widely; her international law research focuses especially on international investment law and its interaction with other areas of international law, such as international legal theory and behavioral law and economics. Other topics of her research are corruption and state liability.
In her guest post below, Anne describes her current paper, to be presented in Bern, Switzerland, next month. Coauthored with Tobias A. Lehmann, her research assistant and a candidate for a master's in law and economics at St. Gallen, the paper explores links between international investment law and sustainable development.
Heartfelt welcome!


Developing an analysis of international investment law & sustainable development

(Thank you to IntLawGrrls for the opportunity to contribute this guest post)

International investment law, like international trade law, has an economic rationale as its background.
Indeed, international investment law developed after 1966, when the Convention on the Settlement of Investment Disputes between States and Nationals of Other States entered into force. Administered by the Washington, D.C.-based International Centre for Investment Disputes, an autonomous organization within the World Bank Group, the ICSID Convention now has 147 states parties.
The Convention would not have had a mandate for negotiation at all would it not have been for the goal of development. Nevertheless, this economic rationale, and the empirical insights into assumed causal links, play a much smaller role in investment than they do in trade law.
An article that I have coauthored with Tobias A. Lehmann, my research assistant and a master's candidate at the University of St. Gallen, sets forth the relationship between investment law and sustainable development. Entitled Investment and Sustainable Development: Developing a New Conceptual Framework, it is to be presented at a conference on investment law in Bern, Switzerland, next month. (image credit)
Our paper aims at filling the gap between international investment law and economic theory and empirics by:
► Surveying the economic insights into the link between foreign investment and sustainable development; and
► Suggesting adequate interpretative arguments and places -- that is, the jurisdictional phase versus the merits phase --in investment arbitration.
We find that if empirical research and institutional economics, or law and development literature, are taken into account, the sometimes-opposed goals of international investment law and sustainable development seem to be already much more aligned.
Consequently, coupling international investment law and economic insights might help to ground this area of law firmly in the goals it pursues.
The classical assumed causal chain is that bilateral investment treaties, or BITs as they are often called, foster foreign direct investment. Foreign direct investment is assumed to lead to economic growth, and growth in turn to lead to enhanced welfare of the population.
By now we know that some of those causal assumptions are empirically fragile, or that the assumed causal link works only under certain circumstances.
The proper way of aligning sustainable development and investment is, of course, by adequate treaty drafting. However, since most treaties continue to be in force formulated as they are, it is more interesting to focus on how to integrate sustainable development into law application.
There is consensus that a preamble serves as one means for the teleological interpretation of treaties. Finding the object and the purpose of a treaty is, however, not an easy task.
To name a few examples, the US Model BIT 2004, the Swiss Model BIT, the now-discarded Norwegian Draft Model BIT, and the ICSID Convention all reveal a means/end relationship between investment and development. Nowhere is investment protection as such the purpose of any of these treaties.
Since from the empirical evidence it is clear that investment protection does not equal development, tribunals are mistaken when they taking the protection of investments as the purpose of BITs (i.e. when they implicitly equate both protection and development).
If it is accepted that
► the first layer, investment protection, is the object of the treaty,
► investment promotion an intermediary purpose, and
► development is the ultimate purpose of an international investment agreement,
then this may lead to different approaches in the interpretation of such agreements.
The next question arising is then obviously whether "development" has by now evolved to mean sustainable development.
If one accepts that sustainable development is evolving into a customary law principle, then it should also be used as a principle in investment arbitration.
The last remaining question is where development could have a place in the interpretation of international investment agreements.
From an economic point of view, it does not make sense to integrate "development" at the jurisdictional stage of the proceedings (that is, the stage that considers the definition of "investment"). This is because it is impossible for a tribunal to decide whether a certain investment contributes to (economic) development or not.
Rather, tribunals can contribute to sustainable development by taking into account these trade-offs. To do so, they should balance decisions in the merit phase; for example, when interpreting the concept of indirect expropriation or of fair and equitable treatment.
Discussion on the means of integrating sustainable development goals and international investment law has centered partly on the use of the proportionality principle, as I noted in a 2008, Fragmentation of International Law: The Case of International Investment Protection.
To our knowledge, the first tribunal to use the proportionality test in indirect expropriation was the 3-member arbitral panel that in 2003 decided, within the ICSID framework, Tecnicas Medioambientales TECMED S.A. v. United Mexican States, a matter concerning an investment in the State of Sonora, Mexico. (credit for map showing Sonora in dark color)


'Nuff said

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

'I am not here by mistake, because it was time to put a girl here. I was the right person for the job.'

-- U.S. Marine Corps Brigadier General Lori Reynolds (right), a veteran of the conflicts in Iraq and Afghanistan, on the post that she took up in June: Commanding General at Parris Island, the South Carolina depot described as a "sandy, swampy spit of land that has transformed rawboned recruits into macho Marines for nearly a century" in the Washington Post article in which the quote at top appears. (A 2007 account of Parris Island history is here.) The Post article places Reynolds' appointment in the context of rapid changes in the military; our posts on some of those changes may be found here.



On August 23

On this day in ...
... 1911 (100 years ago today), Elizabeth Robinson (right) was born. (photo credit) She would win 3 Olympic medals -- a gold in the 100-meter race and a silver in the 4x100 meters relay at the 1928 Amsterdam Games, as well as a gold in the 4 x 100 at the 1936 Berlin Games. The 1st medal, earned the 4th time that she'd ever run that distance, constituted the 1st woman to win an Olympic medal in the 100-meter race. She retired from competition after Berlin, but kept her hand in athletics as an official. She died in May 1999.

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