Friday, September 30, 2011

Palestine's application

The official, 5-page application seeking for Palestine status as a U.N. member state -- a bid about which we've written frequently, in posts available here -- is now online. Click here to access versions in Arabic, Chinese, English, French, Russian, and Spanish.



Regional migration

The Migration Policy Institute's newly updated World Migration Map (based on World Bank bilateral migration stock data for 2010) is fascinating for many reasons, but the statistic that caught my eye is that the majority of the world's 200 some million migrants move intra-regionally. Whether this phenomenon is caused by simple geography or political opportunities or constraints, it bears notice for those of us interested in international migration law.
Broken down by region, the data offer interesting trends to explore.
Africa for Africans. More than half of Africa's migrants remain within Africa while just over a quarter move to Europe. As it happens, more Africans migrate to Asia than to the Americas. Broken down within the region, most West and East African migrants move within Africa while Europe is the most popular destination for North Africans. Of the nearly 20 million migrants who live in Africa, over three quarters come from Africa.
Americans stay in the Americas. Over 80% of migrants from the Americas stay in the Americas, a rate higher than that seen in any other world region (perhaps unsurprisingly). To cut the data another way, over half of the nearly 60 million migrants who live in the Americas come from the Americas, just under a quarter come from Asia, and about 15% come from Europe.
Asians on the move. Asia as a region produces nearly 80 million migrants, the highest absolute number of any region. Over half remain in Asia while nearly a quarter move to Europe and nearly a fifth move to the Americas. As we see in the other regions, over half of Asia's migrants come from Asia, while less than 10% come from Europe.
European unity. While a mere 15% of Europeans migrate to the Americas, nearly two-thirds remain within Europe. Of the 70-some million migrants within Europe, over half are Europeans, with the the remainder coming largely from Asia (25%) and Africa (10%).
Exceptional Oceania. Oceania is the smallest region, sending fewer than 2 million international migrants. Over half migrate within the region, but surprisingly less than 4% move to nearby Asia, preferring the Americas and Europe. Alone among the regions, most of the nearly 7 million migrants in Oceania are from other regions, primarily Europe and Asia.
The overall trend suggests that regional agreements may be an effective route to rights protection not only for the reasons of cultural and political commonality often proffered, but also because they will cover the bulk of the world's migrants. The power balances vary by region, however, which may necessitate quite different governance models. Africa also reminds us that differences within regions must be taken into account.
In Asia, migrant-sending states might have more power than they think given the sheer number of their nationals who are migrants, presumably often workers, in the region. The same may or may not hold true in Africa, where the migrants may be seeking but not finding jobs and government functionality may be a more significant obstacle. In the Americas, intraregional destination states are a major draw, so may not be as willing to negotiate around migrants rights. Europe, of course, already has a robust legal regime in place to govern intraregional migration, while Oceania has such low numbers of intraregional migrants in absolute and percentage terms that a regional agreement may be less effective than in other areas. Whether or not these particular projections hold true, the new data offer a rich source of information that may enable us to craft a more effective legal regime to protect international migrants.


'Nuff said

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

International law now reaches into almost every aspect of our day-to-day lives. The possibility that such legal commitments could be made by the President without the input, much less approval, of Congress or the public raises serious questions about the potential of these agreements to undermine democratic lawmaking writ large.

— Our colleagues, Yale Law Professor Oona A. Hathaway (near right) and Berkeley Law Professor Amy Kapczynski (far right), in an ASIL Insight that expresses concern respecting the Obama Administration's announced plan to conclude a new multilateral pact as a sole executive agreement, which means, as Oona and Amy explain, "that it will enter into effect upon the signature of the President or his representative, without being formally presented for approval to either house of Congress." The scope of that pact, the 2010 Anti-Counterfeiting Trade Agreement, is intellectual property; however, the Insight authors argue that if the sole executive agreement process is used successfully in this instance, it would establish a precedent applicable to "any area in which an international agreement may be concluded — which is to say, nearly any area of law."


On September 30



On this day in ...
... 1946 (65 years ago today), as depicted above, Sir Geoffrey Lawrence, the Briton who served as President, or chief judge, of the International Military Tribunal convened a year earlier at the Palace of Justice at Nuremberg, Germany, began reading aloud the Judgment in the Trial of the Major War Criminals. (credit for video clip, courtesy of the Robert H. Jackson Center) The task would consume that day and the next, with all 8 judges, regular and alternate, taking turns. When it was done, all but 3 of the 22 persons tried were convicted of international crimes, and just over half those convicted were sentenced to death.

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

Thursday, September 29, 2011

Al Nashiri Charges Referred

The Military Commissions are ramping up again with the referral of charges against a Saudi detainee, Abd al-Rahim Hussein Muhammed Abdu Al-Nashiri. (The Press Release is here). His arraignment will occur within 30 days.
By way of background, the charges specified concern actual and attempted attacks on three vessels (the so-called "boats operation"):
  • USS Cole in the Port of Aden in 2000,
  • USS The Sullivans also in Yemen in 2000, and
  • M/V Limberg, a French civilian oil tanker, in 2002.
The photo at left is of USS Cole and comes from a website dedicated to the memorial to the victims of the attack. 17 U.S. service members died and dozens were injured in the attack. The Aegis class destroyer was almost destroyed; since repaired, it now sails out of Norfolk, Virginia.
Nashiri was captured in the United Arab Emirates in November 2002 and held in CIA "black sites." There, he was waterboarded, his family was threatened, and handguns and a power drill were employed as threats during interrogations. This treatment is conceded in the CIA's Office of Inspector General report of May 2004 (see, e.g., para. 22); the videotapes of his interrogations, however, were destroyed by the CIA.
In September 2006, he was transferred to Guantánamo. A December 2006 assessment identified him as a highly skilled operations coordinator who reported directly to Osama bin Laden, met regularly with other high-ranking Qaida operatives such as Khalid Shaikh Muhammed, and conceived and planned numerous plots against U.S. interests. He was considered a high threat with high intelligence value.
Earlier charges against him were dropped in 2009, when the Obama administration took office and revisited the original military commission scheme. In April, it was clear that Nashiri would be one of the first individuals to be prosecuted by the Obama Administration before the new commissions.
For his involvement in the boats operation, Nashiri has been charged with
  1. perfidy,
  2. murder in violation of the law of war (by means of perfidy),
  3. attempted murder,
  4. terrorism,
  5. conspiracy to commit murder and terrorism,
  6. attacking civilians & civilian objects (the M/V Limburg attack), and
  7. hijacking or hazarding a vessel.
The conspiracy charge includes allegations that Nashiri met with Osama bin Laden and others in 1997-2001 to plan the operation. The perfidy specifications relate that Nashiri invited the confidence and belief of one or more persons aboard USS Cole that two men dressed in civilian clothing and operating a civilian boat were entitled to protection under the law of war, and--intending to betray and make use of that confidence and belief--did thereafter detonate explosives hidden on the boat alongside USS Cole. All this was allegedly done "in the context of and associated with hostilities."
Given his mistreatment while in CIA custody, his defense counsel have asked that the death penalty be "off the table." They argued in a July 2011 Memorandum to the Convening Authority:
“The United States should not be permitted to kill a man it has brutally tortured and subjected to cruel, inhuman and degrading treatment.”
His lawyers, who will be paid by the Pentagon, have also argued that the military commissions do not have the procedural protections necessary for a capital case. None of the six other individuals prosecuted by military commission faced capital charges, so Nashiri would be the first.
Another interesting angle to the case is the question of whether a state of war or armed conflict existed between Al Qaeda and the United States at the time of the first two bombings. In 2000, the Cole attack was treated as a terrorism crime, and the FBI conducted the original investigations. The Supreme Court determined in Hamdan that at least as early as October 2011, the United States became involved in a non-international armed conflict. Justice Thomas, however, argued in dissent that this conflict began as early as 1996 when Osama bin Laden issued his fatwa against the United States. This condition precendent is vital, because the military commissions only have jurisdiction over violations of the law of war and the law of war only applies in the context of armed conflicts. The Military Commission Act thus requires at Sec. 950p(c) that:
An offense specific in this sub-chapter is triable by miltiary commission ... only of the offense is committed in the context of and associated with hostilities.
Nashiri's charge sheet and other documentation on the case can be found here. Stay tuned!

Go On! ILW 2011

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

Next month will see the 90th annual meeting of the American Branch of the International Law Association, for which IntLawGrrls alumna Ruth Wedgwood serves as President.
The meeting, of course, is International Law Weekend 2011, to be held the 4th weekend in October in New York: events on Thursday, October 20, will take place at the Association of the Bar of the City of New York; on October 21 and 22, and at Fordham University School of Law.
Co-chairing the conference are Fordham Law Professor Martin S. Flaherty, Sahra Diament of the U.N. Office of Legal Affairs, and Jill Schmieder Hereau of the cosponsoring International Law Students Association.
Organizers write that the conference, themed International Law and National Politics,

will explore the intersection of international rules and norms and domestic politics and policymaking. To what extent do international standards influence the application and interpretation of national law including complementary or countervailing policies sought by domestic policymakers, non-governmental actors and/or civil society? Expert panels and discussion sessions will examine these and other issues with regard to such diverse areas as human rights and humanitarian intervention, national security, immigration, trade, labor, health care and the environment.

Delighted to see numerous IntLawGrrls contributors on the program: ABILA Vice President Valerie Epps (Suffolk), Chimène Keitner (California-Hastings), Molly Beutz Land (New York Law School), Margaret E. McGuinness (St. John's), Barbara Stark (Hofstra), Jennifer Trahan (NYU), and, of course, ABILA President Ruth Wedgwood (Johns Hopkins).
Registration for the conference, which is free to members of cosponsoring organizations, is here; full program details are here.


Write On! Cultural Heritage

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

The Cultural Heritage & Arts Review is seeking articles for its upcoming edition. The focus of this issue will be looting and crimes against cultural property, but articles on all topics related to cultural heritage and the arts are welcome!
The Cultural Heritage & Arts Review is a publication of the Cultural Heritage and Arts Interest Group of the American Society of International Law. It is published biannually. Scholars and practitioners in the cultural heritage and arts field contribute to and receive this publication, about which IntLawGrrls alumna Jennifer Kreder has posted here and here.
Submissions should be limited to 3,000 words, although longer submissions may be considered. Include an abstract and biographical information with your submission. The deadline for submissions is October 31, 2011.
To have your article considered for publication, please submit it to Dr. Betina Kuzmarov, a review editor-in-chief and a member of the law faculty at Carleton University in Canada, at eic.char@gmail.com. You may also contact her with any questions.


On September 29

On this day in ...
... 1941 (70 years ago today), began a 2-day massacre of unthinkable proportions. On order of the military governor of Nazi-occupied Kiev, Nazi troops summarily executed nearly 34,000 Jewish persons to a ravine known as Babi Yar (right). (credit for 2004 photo) Others suffered similar fates: it's estimated that in the course of the war 100,000 persons more more -- among them Soviet prisoners of war, Ukrainian nationalists, Roma people -- were killed at Babi Yar. These incidents would result in the conviction and execution of one Einstazgruppen defendant at Nuremberg. The site moved Russian poet Yevgeni Yevtushenko to write a poem that begins:

No monument stands over Babi Yar.
A steep cliff only, like the rudest headstone.
I am afraid.


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

Wednesday, September 28, 2011

Call for Papers: The Institute for Transnational Arbitration's 1st Annual Winter Forum

I want to share this call for papers that may be of interest to IntLawGrrls readers:

In collaboration with the Academic Council, the Executive Committee and the Young Arbitrators Initiative of the Institute for Transnational Arbitration (ITA) are proud to announce the creation of a new annual Winter Forum, which will be held at the Stanford Court Renaissance San Francisco Hotel on February 2-3, 2012. Building on the Academic Council’s tradition of biennial exploration of scholarly papers and the format of the Friday Forum in Dallas, the Winter Forum will provide a unique opportunity for academic and scholarly debate – with a practical twist – for topical issues in international arbitration.

The first half of the Winter Forum will showcase several works-in-progress, including presentations by authors, commentary by internationally recognized academics and practitioners, and interactive discussions among all participants. Our objective is to integrate the unique insights of academics and practitioners, encourage collaboration, and promote the evolution of international arbitration during a time of global transition. After lunch and a keynote address by Professor George A. Bermann of Columbia Law School, the Winter Forum will conclude with a Tylney-Hall-style discussion forum.

Possible Topics for Works-In-Progress

In connection with this initiative, we now initiate a call for works-in-progress. Keeping in mind ITA’s objective to provide “leading educational and professional activities for legal counsel, arbitrators, business executives, government officials, academics and other professionals through programs that examine, critique and seek to improve the practice and study of international arbitration and provide opportunities to enhance the arbitration community,” we encourage authors to consider a broad variety of topics. Possibilities might include exploration of:

· Emerging issues of substantive law in international commercial arbitration or international investment law;

· Consideration of procedural issues, including issues related to arbitrator selection and challenge, evidentiary considerations, preliminary measures, concurrent proceedings, and enforcement and review;

· The relationship between international commercial arbitration and investment law, as well as between these two pillars and other branches of law, such as intellectual property and environmental law;

· The recent jurisprudence of national courts related to international arbitration, either domestic or comparative, and the implications for basic concepts of jurisdiction, arbitrator competence and independence;

· Innovative research methodologies for the exploration and consideration of international arbitration and transnational dispute resolution;

· The interactions among scholars, practitioners, government officials and civil society groups active in international arbitration;

· The consideration of international arbitration’s commercial impact, including implications of cost, the net value of arbitration and the opportunities to build sustainable dispute resolution into international business and investment.

We encourage works-in-progress that are from both established and junior scholars and practitioners. The Winter Forum is intended to integrate the scholarly insights and perspectives of both academics and practitioners. Previous explorations of scholarly works-in-progress during Academic Council events have included presentations by international arbitration luminaries such as David Caron (“The Design and Operation of International Courts and Tribunals: A Theory of Bounded Strategic Space and Positional Logics”), José Alvarez (“The Once and Future Investment Regime”) and Jan Kleinheisterkamp (“The Impact of Internationally Mandatory Laws on the Enforceability of Arbitration Agreements”). We anticipate that the works-in-progress and commentaries presented in the Winter Forum will follow this tradition of excellence, and we intend to reserve one presentation for work by a junior scholar or practitioner.

Paper Submission and Selection

All proposals must be submitted by October 15, 2011, via email to ITAWinterForum@gmail.com in accordance with the following conventions. First, proposals should be made in a Word document that is no longer than 1,000 words. Second, your cover email should indicate your affiliated institution, your contact details and whether your paper has been submitted or accepted for publication elsewhere. In evaluating proposals, please note that priority will be given to unpublished papers and works-in-progress. Every paper proposal will be reviewed on a blind basis by at least two members of the Conference Committee (identified below).

We anticipate announcing the selected papers by November 15, 2011. Authors selected for the Winter Forum must be prepared to circulate a substantially complete draft of their paper no later than Wednesday, January 18, 2012.

While ITA cannot reimburse all travel expenses, selected authors will receive a waiver of the conference fee for the Winter Forum and two nights’ accommodation at a comfortable hotel in the Bay Area.

Paper Publication

Papers and commentary from previous scholarly events from the Academic Council have been published in the World Arbitration and Mediation Review (WAMR). While not required, publication in WAMR is encouraged for presentations at the January Forum.

Enquiries

Please submit enquiries to either of the ITA Winter Forum Co-Chairs, Susan Franck (francks@wlu.edu) or Leah Harhay (Leah@LeahDHarhay.com).


Saudi gears grind

Fast upon the news that "Saudi women to be given right to vote and stand for election in four years," as the Guardian put it, came the news that one Saudi woman has been sentenced to 10 lashes for driving her car, another is on trial and a third faces trial for the same "offense."
The latter efforts have been condemned by Right2Dignity, a Saudi-based organization that appears to be linked to Women2Drive, a group about which we've posted. (image credit)
Right2Dignity states what should be obvious:

This is completely unacceptable and certainly breaks laws and regulations as well as international treaties that Saudi Arabia has signed, such as CEDAW.

The announcement about women's suffrage also deserves a critical eye. It's not just that the promised franchise remains 4 years off -- and came days before an election at which women will not be permitted to vote. Also to be noted is that, despite the "right" language used in much media, official phrasing is rather different. For instance, the website of the Royal Embassy of Saudi Arabia in Washington, D.C., refers to

the announcement of the Custodian of the Two Holy Mosques King Abdullah bin Abdulaziz that Saudi women will be appointed to the Majlis Al-Shoura (consultative council) and will be allowed to participate in future municipal elections.

Terminology like "appointed" and "allowed" bears echo of noblesse (roi?) oblige -- of a deigning to accord something that yet might be taken away. That's a far cry from acknowledgment of a fundamental right.
Here's hoping events in Saudi Arabia move speedily in the direction of genuine rights. Preferably by automobile.


Write On! Africa & Intlaw

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

Papers are being sought for Africa and International Law: Taking Stock and Moving Forward, a conference to be held on April 13 and 14, 2012, at New York's Albany Law School. Cosponsoring the conference is the African Interest Group of the American Society of International Law, whose co-chairs are our colleagues Angela M. Banks, Associate Professor of Law at William & Mary, and James Gathii, Albany Law's Associate Dean for Research and Scholarship and Governor George E. Pataki Professor of International Commercial Law.
Featured at the conference will be:
► A keynote address by Judge Abdul Koroma of Sierra Leone, a member of the International Court of Justice since 1994;
► Another keynote, by Dr. Willy Mutunga, since June of this year the Chief Justice and President of the Kenyan Supreme Court; and
► Confirmed participation by Adama Dieng of Senegal, since 2001 the Registrar of the International Criminal Tribunal for Rwanda and U.N. Deputy Secretary-General.
Speakers will address "a broad range of themes from public to private international law, as well as international and regional economic and trade legal systems," organizers write. A sure topic for discussion is a topic we've frequently discussed in posts available here; that is, the relation among the International Criminal Court, the African Union, and the states party to either or both treaty regime.
Organizers write:

Abstracts and papers are invited on a broad range of themes including the French intervention in Cote D’Ivoire, the NATO/US allied action in Libya, the fledgling jurisprudence of regional integration tribunals as well as piracy trials being conducted under universal jurisdiction, the race for African resources by China and other countries.

They add:

Selected papers presented at the conference will be published in the inaugural issue of a new international law journal which will serve as an authoritative mouthpiece of the African international law experience.

Deadline for submitting proposals to jgath@albanylaw.edu is this week -- September 30, 2011. Details are in the full call for papers here.


On September 28

On this day in ...
... 1871 (140 years ago today), a law known as Lei Rio Branco or Lei Vente Livre was promulgated by the Brazilian Parliament. (1871 map credit) It provided that children born in Brazil to slaves would not themselves be considered slaves. "Although the children were set free, the measure allowed the parents’ owners to require such children to work until they reached age 21." The law was one of several incremental steps toward the complete abolition of slavery in Brazil. (prior post)

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

Tuesday, September 27, 2011

'Nuff said

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

The Syrian regime doesn’t want you to know that its security forces and the gangs that support them are killing, arresting and abusing mostly peaceful protesters: The UN says over 2,700 people have died in the last six months, some of them under torture in prison. It doesn’t want you to know that it is preventing many from meeting peacefully to discuss reform. It wants you to hear only one version of the truth – its own. And to see only one way out – the return to authoritarian rule where fear surpasses a desire for freedom. This is a regime that remains determined to control every significant aspect of political life in Syria. It is used to power. And it will do anything to keep it.

-- Damascus-based British Ambassador Simon Collis (above left), in this post published at the blog of the British Foreign & Commonwealth Office. (photo credit; hat tip) IntLawGrrls' prior posts on Syria are here.


In passing: Wangari Maathai

(In passing marks the memory of a person featured in IntLawGrrls)

Dr. Wangari Maathai (left) succumbed Sunday to ovarian cancer at a hospital in Nairobi, Kenya.
She'd been born on April 1, 1940, in Nyeri, a foothills district in the same country.
After earning a biology degree as a scholarship student at a small college in Kansas, followed by a master's degree at the University of Pittsburgh, she went on to become the 1st woman in East or Central Africa to earn a Ph.D. -- in veterinary anatomy, from the University of Nairobi.
Maathai there served as a professor and department chair in the 1970s.
Toward the end of the same decade she founded the Green Belt Movement, which she founded in 1977. Its mission:

to mobilize community consciousness -- using tree planting as an entry point -- for self-determination, equity, improved livelihoods and security, and environmental conservation.

For her efforts Maathai, about whom we've posted on numerous occasions, was awarded the 2004 Nobel Peace Prize. (photo credit) She is the only African woman to have been so honored.
In her Nobel Lecture, Maathai said:

Activities that devastate the environment and societies continue unabated. Today we are faced with a challenge that calls for a shift in our thinking, so that humanity stops threatening its life-support system. We are called to assist the Earth to heal her wounds and in the process heal our own – indeed, to embrace the whole creation in all its diversity, beauty and wonder. This will happen if we see the need to revive our sense of belonging to a larger family of life, with which we have shared our evolutionary process.
In the course of history, there comes a time when humanity is called to shift to a new level of consciousness, to reach a higher moral ground. A time when we have to shed our fear and give hope to each other.
That time is now.

As this passage indicates, her efforts extended well beyond the narrowest confines of environmentalism. In one of her later public statements, she endorsed the work of the International Criminal Court, an international organization subjected to considerable scrutiny in Maathai's native Kenya.
Tributes to Maathai from world leaders, including Barack Obama, Mary Robinson, and Nelson Mandela, may be found here.


Write On! "Asian Identity?"

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

Papers are being sought for the 9th annual conference of the Asian Law Institute, a consortium of more than a dozen Asian law schools. The theme for the conference, which will take place on May 31 and June 1, 2012 at the Faculty of Law, National University of Singapore is Law: An Asian Identity? Organizers write:

The purpose of the annual conference is to bring together scholars of Asian law from within and outside Asia to interact, share ideas and build collegial networks which may facilitate dialogue and research collaborations.

Abstracts for individual presentations, poster presentations, or panels are due December 1, 2011. Details at the full call for papers.


On September 27

On this day in ...
... 1996 (15 years ago today), the capital of Afghanistan, Kabul, fell to Taliban forces. (photo credit) Fully "three days of fierce fighting" between the Taliban (variously described as an "opposition militia," a "radical Islamic group," and "militants") and Afghan government forces neared an end when the former succeeded in "storming the presidential palace -- the country's seat of government." Deposed officials were on the run, and Mohammed Najibullah, a Communist-supported ex-president, had been executed. The BBC reported:

One-eyed opposition leader Mullah Mohammed Omah and his student fighters had been repulsed from the city twice before, but this time it appeared government forces lost the will to fight.

The Taliban would remain in power until the U.S.-led post-9/11 counterassault in 2001 -- the beginning of an armed conflict that, as we've posted, continues to this day. The President deposed in the 1996 takeover,
Burhanuddin Rabbani, by 2011 head of Afghanistan's Peace Council, was assassinated a week ago, and this past Sunday a shooting at an annex to the U.S. embassy in Kabul resulted in the deaths of an assailant and a CIA employee.

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

Monday, September 26, 2011

Guest Blogger: Sari Bashi

It's IntLawGrrls' great pleasure to welcome Sari Bashi (left), about whose groundbreaking work we've posted several times, as today's guest blogger.
Sari is the Executive Director of Gisha - Legal Center for Freedom of Movement, an Israeli NGO that aims to protect the right to freedom of movement of Palestinians, especially Gaza residents, that is guaranteed by international and Israeli law. She founded Gisha in 2005 as a Robert L. Bernstein Fellow in International Human Rights.
Sari received a Bachelor of Arts degree summa cum laude and a Juris Doctor degree from Yale. After graduating from law school, she clerked on the Israeli Supreme Court for Justice Edmond Levi. She is a licensed attorney in Israel and New York.
Prior to studying law, Sari worked as a correspondent for the Associated Press in Jerusalem and conducted research on ethnic identity among Ethiopian immigrants to Israel as part of a Fulbright Scholarship. She was previously awarded a two-year fellowship for her work at Gisha by the Echoing Green Foundation in the United States.
In her guest post below, Sari writes about the Palestinian bid for membership at the United Nations, adding her insights to our previous coverage; specifically, to one guest post by Saira Mohamed and to another guest post by Yaël Ronen.


Heartfelt welcome!


Defining Palestinian Statehood

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

As the director of Gisha, an Israeli human rights organization that promotes the right to freedom of movement in the occupied Palestinian territory, I sat riveted to this weekend's television coverage of the submission of the Palestinian request for UN membership. (Prior IntLawGrrls posts available here.)
On my mind was a seemingly trivial question:
Do we need to stop saying and writing the "occupied Palestinian territory" and start saying "occupied Palestine"?
I'll say more about the substance of that decision at the end of this post, but the fact that I – and much more importantly, world leaders – are raising this question highlights a benefit of the statehood bid: pressing the Israeli government (and the rest of the world) to decide what Gaza and the West Bank are and, therefore, who is responsible for safeguarding the rights of the residents of those places.
Here I'll confess to a frustrating aspect of litigating human rights and humanitarian obligations within the Israeli legal system: the pick-and-choose attitude toward international law displayed by the Israeli government.
In the West Bank, Israel claims the authorities of an occupying power, including arrest, detention, confiscation and military courts. But it also settles hundreds of thousands of Israeli citizens there, proclaiming that "in Judea and Samaria, the Jewish people are not foreign occupiers."
Just this month, the Israeli Supreme Court rejected a petition brought by Palestinian landowners who challenged confiscation of their land for construction of an express rail between Tel Aviv and Jerusalem, citing the provisions of the Hague Regulations that permit confiscation of private property in occupied territory for the good of its residents. The court noted but was not overly troubled by the fact that the planned rail-line will be off-limits to the residents of the occupied territory, as it is to be a commuter rail for Israelis only. A similar situation exists in Gaza: Israel claims a right to control who and what enters Gaza's borders, yet claims that it is no longer occupying Gaza and therefore owes only minimal obligations to its residents in exercising power over their lives.
Perhaps one outcome of the statehood bid will be to press the Israeli government to make up its mind: There's a claim that the West Bank and Gaza are a state. If you disagree, please explain what you think they are.
Of course, the very act of calling the West Bank and Gaza a state will not make them any less or any more occupied, nor will it change Israel's powers and responsibilities as an occupier. But the recent flurry of statements proclaiming the West Bank as belonging to the Jewish people (check out this Israeli Foreign Ministry animated clip) suggests a renewed interest in legal definitions, perhaps because they are starting to matter more.
If the West Bank is part of Israel, then its 2-million-plus Palestinian residents must be granted Israeli citizenship, including full political, civil and social rights. If it is occupied territory, then its residents must be granted the full range of protections offered by international humanitarian law, including the protection against citizens of the occupying country being transferred into their land. If Gaza is not a state (under blockade) and not occupied territory, then under what legal authority is Israel controlling its borders?
I still believe that international law can play a role in protecting civilians subject to control by a foreign power. I think that renewed international attention to defining Israel's relationship to the territory where 4 million Palestinians are living under its control could lead to increased protections for those residents. After all, international law is enforced primarily through diplomacy.
By the way, it is not only Israel who adopts a pick-and-choose attitude toward international law – Gisha has repeatedly tried to remind those who claim that Israel, as an occupying power in Gaza, has no right to stop ships from reaching its shores of a basic principle of the law of occupation: it allows the occupying power to determine travel arrangements for the occupied territory, including a ban on maritime travel. International law also requires the occupying power to allow people and goods to enter and leave by other means. Israel is not meeting this obligation, but failure to do so does not negate the authority to stop ships.
Now back to my own struggle to define Gaza and the West Bank, where we offer legal services to residents seeking to overcome Israeli-imposed travel restrictions in order to access schools, jobs, and family members.
I have scheduled consultations with colleagues, read some interesting background material, and talked to other international lawyers about whether Gaza and the West Bank constitute a state.
I have questions about the Montevideo Convention criterion requiring a state to have an effective government. Even if we can get beyond the Gaza-West Bank split, there is the reality that the Palestinian Authority was created by agreement with the occupying power, and its competences are delegated to it by Israel and exercised under Israeli supervision and approval.
I am also sympathetic to arguments that whether Palestine should be viewed as a state is a political question whose resolution depends largely on the ramifications of the UN bid, still in its infancy.
I'll let you know what I discover, but one thing is sure – whatever the Palestinian territory is or isn't, its people have rights that must be protected. I hope the renewed debate over their status will lead to greater protection of those rights.


'Nuff said

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

I will always live with these images—with “nagging doubt,” even though I do not believe that any of the executions carried out under my watch were mistaken. I hope that, in the future, men and women will not die for their crimes, and other men and women will not have to kill them. The United States should be like every other civilized country in the Western world and abolish the death penalty.


-- Dr. Allen Ault, dean of the College of Justice & Safety at Eastern Kentucky University in Richmond, Kentucky. As the former Commissioner of the Georgia Department of Corrections. While serving in that position from 1992 until 1995, Ault, as he puts it in this Newsweek op-ed, "built" Georgia's Death Row. (credit for photo of entrance to state's prison center)


On September 26

On this day in ...
... 1919, Matilde Camus (right) was born in Santander, a community in the Cantabria region of Spain. (photo credit) The complications of childbirth would lead to her mother's death within a month. At age 9 Camus would write her first poem, about her father who was raising her as a single parent. A long career as a writer and researcher followed. Today she celebrates her 92d birthday.

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

Sunday, September 25, 2011

Go On! Teach-in on U.S. Death Penalty

Hadar Harris, Executive Director of the Center for Human Rights and Humanitarian Law at the Washington College of Law, American University, sends the following announcement about a timely teach-in on the U.S. death penalty:

In the wake of three executions in the US last week, including the highly contentious case of Troy Davis, please join the Center for Human Rights and Humanitarian Law at American University Washington College of Law on Tuesday, September 27 from 12pm – 2pm for a live webcast Teach-In on the Death Penalty with speakers including Prof. Juan Mendez in his capacity as UN Special Rapporteur on Torture; Laura Moye, who led the campaign for Troy Davis as director of the Amnesty International Death Penalty Abolition Campaign; Richard Deiter, executive director of the Death Penalty Information Center; Maryland State Senator Prof. Jamin Raskin discussing efforts in Maryland to abolish the death penalty; Prof. Rick Wilson, drafter of the EU amicus brief in Roper v. Simmons discussing the death penalty and international law, Prof. Ira Robbins discussing post-conviction remedies, Prof. Angela Davis discussing prosecutorial discretion, Prof. Darren Hutchinson discussing social movements and the death penalty, and more.

To patch in, click here. An e-mail address will be available for those watching remotely to send questions/comments for consideration in the discussion.


Guest Blogger: Katie O'Byrne

It's IntLawGrrls' great pleasure to welcome Katie O'Byrne (right) as today's guest blogger.
Having just completed a term as an associate to Justice Kenneth Hayne AC of the High Court of Australia, this academic year Katie is studying for her LLM at the University of Cambridge -- at Jesus College, as a David M Livingstone (Australia) Scholar. She graduated with a BA/LLB in 2009 from Monash University in Melbourne, Australia, with first class honours in Law.
Katie has spent time volunteering with refugee communities in Serbia, and worked as an assistant legal officer to the pre-trial chamber in the case of Prosecutor v Radovan Karadžić at the International Criminal Tribunal for the former Yugoslavia. She has practiced commercial law in Melbourne, in addition to undertaking pro bono and law reform work and coordinating a schools education program on international humanitarian law for the Australian Red Cross.
She has previously published in the area of gender perspectives on international humanitarian law. In her guest post below, Katie discusses her latest article, "Beyond Consent: Conceptualising Sexual Assault in International Criminal Law" (available at her personal website, here). Presented at the October roundtable cosponsored by IntLawGrrls and the American Society of International Law, the article was just published in the new special issue of the International Criminal Law Review on “Women and International Criminal Law”, dedicated to IntLawGrrls alumna Patricia M. Wald. Katie's post today is one of a series we've posted on the project.
Katie dedicates her post to Jessie Street (below center). (Prior post) Katie writes of Street:

She was one of Australia's most prominent feminists and something of a visionary in her work for peace and social justice. She campaigned courageously and untiringly for many important causes, from volunteering with prostitutes in London when she was very young, to promoting work rights and pay equity for women, to leading the lobby for Indigenous reconciliation in Australia including drafting the amendments to the Constitution which passed in the 1967 referendum. In her extensive international work, she made a significant contribution as the only female adviser in the Australian delegation to the 1945 United Nations Conference on International Organization, where she assisted in negotiating the insertion of 'sex' into the clause 'without distinction as to race, sex, language or religion' wherever it appears in the United Nations Charter. She chaired many committees and was an executive member of the World Peace Council and the British Anti-Slavery Society. She is still a great inspiration who showed what Australian women can achieve.

(credit for above left National Library of Australia photo captioned "Jessie Street representing Australia at the United Nations") Today Street (1889-1970) joins other foremothers in IntLawGrrls' list just below our "visiting from..." map at right.

Heartfelt welcome!


Beyond consent: sexual assault & ICL

(My thanks for the opportunity to contribute this guest post as part of IntLawGrrls' Women & International Criminal Law series)

My article "Beyond Consent: Conceptualising sexual assault in international criminal law," which I have posted at my personal website here, appears in the new special issue of the International Criminal Law Review. I presented a draft at the IntLawGrrls-sponsored roundtable on "Women and International Criminal Law" last October.
My research focuses on:
► On the crime of sexual assault, as distinct from the crime of rape, in the body of sexual violence crimes in international criminal law, and
► On related issues of coercion and consent.
The article first provides a chronological overview of the evolution of sexual assault as an international crime.
While there is no human rights or humanitarian law treaty that contains the term "sexual assault", jurisprudence has developed the conceptualisation of the crime, from the first definition of "sexual violence" by the Trial Chamber of the International Criminal Tribunal for Rwanda in Prosecutor v Akayesu (1998) to the recent articulation of the elements of "sexual assault" by the Trial Chamber (right) of the International Criminal Tribunal for the former Yugoslavia in Prosecutor v Milutinović et al (2009) (currently on appeal as Prosecutor v Šainović et al). (photo credit)
The Rome Statute of the International Criminal Court and the ICC's Elements of Crimes take a slightly different approach to defining the crime of "sexual violence".
The result of the cross-fertilisation of sources has been the emergence in recent years of a spectrum or 'genus' of sexual crimes, referred to as "sexual assault" or "sexual violence".
The Milutinović Trial Chamber expressly found that sexual assault is

an offence that may include rape.

This is a significant development because it conceptualises sexual assault not as a residual category of offences falling short of actual penetration, but as an integrated class of offences including rape.
What also becomes clear from the overview is a conceptual split between definitions focusing on the non-consent of the victim and definitions focusing on coercion. Following the lead of the ICTR Appeals Chamber in Prosecutor v Gacumbitsi (2006), the Milutinović Trial Chamber attempted to bridge the divide by effectively conflating the concepts of coercion and consent in holding that "the disparity is of a formal nature only".
My article challenges that theoretical reconciliation.
It draws on earlier rape-focused writings of Tilburg Law Professor Anne-Marie de Brouwer (left) and other academics to argue that the question of consent is rendered irrelevant in the context of international sexual crimes, given that the prosecution must establish at the outset the chapeau elements of war crimes, crimes against humanity, or genocide, all of which involve inherent coercion.
As foreshadowed by Antonio Cassese and others, conceptual difficulties have arisen from the uncritical translation of domestic criminal law ideas of consent into international criminal law without full consideration of the particular significance of wartime circumstances.
My articles sets out case examples of sexual assault not involving penetration in order to show that, in reality, sexual crimes committed in the context of armed conflict are crimes of violence and should be treated as such to avoid disempowering victims.
It is suggested that the element of coercion, with consent as a defence only, is the preferable test to use in order to achieve a principled and progressive conceptualisation of all international crimes within the sexual violence spectrum. The risk arising from this existing jurisprudence is that judges of the ICC will deviate from the more principled focus on coercion in the ICC foundation documents, and will attempt to embrace, in a single test, concepts which do not sit well together. Future developments in this space, including any judicial interpretation of the distinction by the ICC, will determine what path will ultimately be followed in framing the elements of sexual violence crimes.