Thursday, May 31, 2012

Report: Human Rights of U.S. Immigrants

The Program on Human Rights and the Global Economy (PHRGE) at Northeastern University School of Law has just released a report on how human rights strategies can be used to address the many challenges facing immigrants to the U.S. and their communities. Convened in October 2010, the “Beyond National Security: Immigrant Communities and Economic, Social, and Cultural Rights” institute (see previous post here) gathered community activists, human rights, immigrants’ rights, and civil rights attorneys, workers’ rights advocates, political scientists, sociologists, journalists, law students, and legal scholars to share concerns, strategies, and potential collaborations.
The new Report was drafted by Jessica Hahn and Rakhi Lahiri, 2011 graduates of Northeastern Law School who served as rapporteurs for the two-day workshop. IntLawGrrl contributor Professor Hope Lewis  (pictured below right) and IntLawGrrl guest Associate Professor Rachel E. Rosenbloom (pictured top right) co-chaired the institute. Although the workshop discussions occurred in 2010, all of the domestic, international, and transnational issues remain relevant today as we approach another U.S. presidential election:
►  separation of families;
► lack of access to quality health care and language barriers in detention and deportation proceedings;
► abuses of immigrant workers’ rights to fair wages, working conditions, and freedom of assembly, association, and collective bargaining;
► discrimination and profiling against indigenous peoples and racial, ethnic, religious, gender, sexual, and disability minorities who are, or are perceived to be, members of immigrant communities
► targeting of women and children from immigrant communities for human trafficking and other abuses:
► lack of access to education, health care, and other public goods due to actual or perceived fears about deportation or discrimination;
► housing discrimination.
(For a selection of IntLawGrrl posts on asylum and immigration issues, click here.)
In response to these and similar concerns, participants at the institute drafted a set of non-binding guidelines, the “Boston Principles on the Economic, Social, and Cultural Rights of Noncitizens.”  (See essay, Hope Lewis & Rachel Rosenbloom, “The Boston Principles: An Introduction,” here and our IntLawGrrls post here.)
Like other such guidelines, the Boston Principles are intended to influence progressive policy development and the further implementation of existing legally-binding treaties and instruments.
Heartfelt thanks to Sari M. Long ’13, Northeastern University School of Law, for her assistance in the preparation of this post.

On May 31

On this day in ...
... 1902 (110 years ago today), at Melrose House in Pretoria, representatives of Britain and of the Boers, or Afrikaner nationalists, with whom they'd been fighting for decades, signed the Treaty of Vereeniging (left). (image credit) The Boers ceded the independence, which they had maintained in South African Republic (Transvaal) and the Orange Free State, and submitted to the British Crown in exchange for amnesty and repatriation, some language and property rights rights, and, in a clause that augured the difficult years yet ahead in South Africa, a
'[p]romise of eventual self-government and an agreement that no decision would be taken regarding the franchise of black people until after the introduction of responsible government.'
(Prior May 31 posts are here, here, and here, here, and here.)

Wednesday, May 30, 2012

Special Court for Sierra Leone determines that Charles Taylor will serve fifty year sentence

(Another of IntLawGrrls' several posts on the Charles Taylor judgment, part of our Sierra Leone accountability series)
This post forms part of a continuing series on the delivery of judgment in the trial against former Liberian president Charles Taylor before the Special Court for Sierra Leone. As noted in previous posts, Taylor was convicted of planning and aiding and abetting eleven counts of crimes against humanity, war crimes and other serious violations of international humanitarian law on April 26, 2012. After Trial Chamber II considered submissions from both parties on aggravating and mitigating factors (their briefs are available here), with the Prosecutor requesting 80 years, Taylor was sentenced today at 11 am.
The sentence was delivered at the premises of the Special Tribunal for Lebanon, where the Special Court for Sierra Leone is based. Members of a Dutch-based organization of Sierra Leoneans stood outside the premises with signs stating ‘No Hiding for War Criminals’ and ‘Justice! What next for the victims?’, and they continued inside to the nearly full public gallery for the delivery of the sentence.

Alternate Judge Sow Absent
Full legal teams on both sides were present in the well of the courtroom. When the judges of Trial Chamber II filed in, Alternate Judge Alhaji Malik Sow was not among them – as noted in a previous post, he had attempted to make a statement following delivery of the summary judgment and had been subsequently removed from his position by unanimous vote of the other Special Court judges meeting in plenary (the judges of Trial Chamber II abstained). Bill Schabas has noted additional details about this issue on his blog here.

Chamber Notes Aggravating Factors Contributing to Long Sentence
The Special Court for Sierra Leone dispenses global sentences, which have ranged from 15 to 52 years. The Prosecution had requested 80 years in the Taylor case due to the magnitude and seriousness of the crimes for which he was held responsible. The defense had contended that an 80 year sentence was ‘manifestly disproportionate and excessive’, and they presented a number of potential mitigating factors including Taylor’s age, his conduct in trial and detention, his role in the Sierra Leonean peace process, and his decision to step down as president of Liberia.
In a forty minute statement, Trial Chamber II’s presiding judge Richard Lussick made a number of detailed references to the gravity of the crimes and the suffering of individual victims in Sierra Leone, including victims of sexual violence and amputations. Lussick noted that Taylor had aided and abetted as well as planned some of the ‘most heinous and brutal crimes recorded in human history’, and that the Chamber had considered the ‘tremendous suffering caused by the commission of the crimes’ in determining an appropriate sentence.
The Chamber’s massive 2,499-page full judgment (original available here and in searchable form here) documents Taylor’s support to Sierra Leonean rebel forces through supplying arms and ammunition and providing operational support for attacks such as the 1999 Freetown invasion. In pronouncing the sentence, Judge Lussick noted that the ‘cumulative impact of these various acts of aiding and abetting heightens the gravity of Mr. Taylor’s criminal conduct’ and suggested that if the rebel groups had not received this support from Taylor, ‘the conflict and commission of crimes might have ended much earlier.’

‘Special Status’ as Head of State
The Chamber noted that Taylor’s conviction for the mode of liability of ‘planning’ was limited in scope, and it focused largely on Taylor’s role in ‘aiding and abetting’ the crimes of which he was found guilty. While granting that a conviction for accessory liability typically carries lower sentences in the jurisprudence of the Special Court and ad hoc tribunals for Rwanda and the former Yugoslavia, the Chamber found that ‘the special status of Mr. Taylor as a head of state put him in a different category of offenders for the purposes of sentencing.’ Noting that Taylor was in ‘a class of his own,’ the Chamber suggested that Taylor’s long sentence for what appeared to be largely accessorial liability was justified by his leadership role, and that his ‘betrayal of public trust’ is more significant for sentencing than the distinctions between different modes of liability. In effect, this brought Taylor’s sentence into the same range as those granted to principal perpetrators who had been convicted by the Special Court. Indeed, Taylor’s 50 year sentence was only surpassed by RUF leader Issa Sesay’s sentence of 52 years, and was the equivalent given to two members of the Armed Forces Revolutionary Council (Alex Tamba Brima and Santigie Kanu).
We will consider the implications of this finding in greater detail in further posts.

Victory for Slovak Republic in Investment Dispute

The Slovak Republic has defeated an investment treaty claim brought by Dutch investors, according to the text of an arbitral award rendered in April but only released publicly today.
The tribunal in Oostergetal and Laurentius v. Slovak Republic rejected all of the investors' claims under the Netherlands-Slovak Republic bilateral investment treaty and ordered them to pay the costs of the arbitration (equivalent to court costs in domestic litigation) as well as to bear € 2 million of the Slovak Republic's costs of defending against the suit.
The tribunal found that the claimants had not proven their claim that the Slovak Republic breached the treaty's obligations to treat them fairly and equitably, to afford them full protection and security, and to refrain from expropriating their investments without adequate compensation.  The investors challenged the state's pursuit of bankruptcy proceedings to collect back taxes.
Siding with the state, the tribunal criticized the claimants' presentation of their case, observing that they had failed to clearly articulate their factual allegations and legal arguments.  Such poor advocacy will be familiar to experienced international arbitration practitioners who have been in the frustrating position of deciphering the arguments of hopelessly inexperienced opposing counsel.  Presumably lack of experience explains the poor showing in Oostergetal; the identity of the claimants' counsel has been redacted from the award.

The ICC's Mbarushimana Appeal Decision

Today, the Appeals Chamber of the International Criminal Court (ICC) unanimously dismissed the prosecution appeal in the Mbarushimana case. The Prosecutor had charged Callixte Mbarushimana with responsibility for a range of crimes against humanity and war crimes carried out by the Forces Démocratiques pour la Libération du Rwanda (FDLR) in the Democratic Republic of the Congo. The FDLR have been described by the ICC’s Prosecutor as “the most recent incarnation of Rwandan rebel groups established by former génocidaires who fled Rwanda after the 1994 Rwandan genocide”. Mbarushimana was accused, under art. 25(3)(d) of the Rome Statute, of playing a leading role in the FDLR from his base abroad. He was accused of contributing to the implementation of a common plan to attack the civilian populations of the DRC’s North and South Kivu provinces (see map at right) in 2009, using murder, widespread and brutal rape, torture and destruction of property to “blackmail the international community and to extort concessions of political power in exchange for ending atrocities”.
This case was supposed to be a very important one for the ICC with respect to gender justice. The FDLR are well known to use sexual and gender-based violence on a large scale to terrorize and control the population. For example, the ICC’s Decision on the Prosecutor’s Application for a Warrant of Arrest detailed how the FDLR used rape to punish women and girls suspected of collaborating with opposing forces; raped women and girls before killing them; raped pregnant women, causing them to miscarry; forced civilian boys to rape civilian girls; killed women and girls who resisted rape; and sexually mutilated women and girls during and after rape – for example, by inserting sticks into their vaginas and cutting open the wombs of pregnant women. The charges against Mbarushimana reflected this: the case against Mbarushimana contained the broadest range of charges of gender-based crimes against any ICC suspect to date, including – for the first time in an international criminal tribunal – the crime against humanity of gender-based persecution. The Prosecutor described the case as a “crucial step in efforts to prosecute the massive sexual crimes committed in the DRC”, where over 15,000 cases of sexual violence were reported in 2009.
However, this did not turn out to be a case for the annals of gender justice. In December 2011, a majority of Pre-Trial Chamber I declined to confirm the charges against Mbarushimana. They found that there was not sufficient evidence to establish substantial grounds to believe that Mbarushimana could be held criminally responsible. In particular, they found that there were no substantial grounds to believe that the FDLR leadership constituted a ‘group of persons acting with a common purpose’ and that Mbarushimana did not provide any contribution to the commission of such crimes (paras. 29 and 292).
The Prosecutor appealed. He argued, inter alia, that the Pre-Trial Chamber may not deny the confirmation of charges by resolving inferences, credibility doubts and perceived inconsistencies against the Prosecutor, and that the Chamber erred in finding that it may evaluate the credibility of witnesses. The Appeals Chamber rejected these arguments: “Any other interpretation would carry the risk of cases proceeding to trial although the evidence is so riddled with ambiguities, inconsistencies, contradictions or doubts as to credibility that it is insufficient to establish grounds to believe the person committed the crime charged” (para. 46). The Prosecutor also argued that the Pre-Trial Chamber imposed a higher level of contribution than is required under art. 25(3)(d) of the Rome Statute, but a majority the Appeals Chamber found that, even if it would agree with the Prosecutor, “it would not reverse the Impugned Decision because the error would not have materially affected the decision” (para. 66).
This case raises significant questions as to how the ICC's Prosecutor investigates, frames and charges gender-based crimes against individuals removed from the scene of the crimes.

'Nuff said

(Taking context-optional note of thought-provoking quotes)
'[I]f one heard that the government treated identical women's products differently from men's products, one might think it unfair. One might even wonder if this difference in treatment gives rise to a problem under the Equal Protection Clause of the U.S. Constitution.'

-- So begins Brooklyn Law Professor Claire R. Kelly, in an ASIL Insight that explains why "one's" assumptions probably will prove wrong: federal courts tend to require precise evidence of intentional sex discrimination, and tend not to find it. As Kelly explains, the latest court to join this trend is the Court of International Trade, in its judgment in Rack Room Shoes v. United States (Feb. 15, 2102).

On May 30

On this day in ...
... 1922 (90 years ago today), on the Mall in Washington, D.C., a marble commemoration of President Abraham Lincoln, who led the country through a Civil War and was assassinated just as it came to an end, was dedicated. Leading the ceremony at the Lincoln Memorial (left) was Chief Justice William H. Taft, himself a former President. (credit for photo of Memorial at night) Among those who attended was Robert Todd Lincoln, the fallen leader's only then-living son. Among the events to which the Memorial since has served as a backdrop were the 1947 open-air concert by Marian Anderson and the Rev. Martin Luther King Jr.'s "I Have a Dream" speech in 1963.

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

Tuesday, May 29, 2012

Go On! ICTR judge @ New York City Bar

(Go On! is an occasional item on symposia and other events of interest)
The New York City Bar Committee on African Affairs will host a presentation by Judge Vagn Joensen (right), President of the International Criminal Tribunal for Rwanda, at 7 p.m. Monday, June 4, at the House of the Bar Association, 42 West 44th Street in New York City.
Joensen, who joined the ICTR as an ad litem judge in 2007, previously was a judge at the Danish High Court and at the UN Interim Administration Mission in Kosovo. Among the topics that he's slated to discuss:
►  The International Residual Mechanism for Criminal Tribunals, set to start functioning this July 1, about which we've posted here.
►  Significant changes in ICTR rules undertaken since 2007, when Judge Joensen became Chair of the tribunal's Rules Committee.
►  ICTR jurisprudence respecting sexual and gender-based violence.
Details about and registration for this program, which is free and open to the public, here.

On May 29

On this day in ...
... 1932 (80 years ago today), in the throes of the Great Depression, a "Bonus Army" of military veterans converged on Washington, D.C. They had begun assembling a few days earlier; on this day, a contingent of a few hundred arrived from Oregon, having hopped freight trains to make the cross-country journey. "[S]oon tens of thousands were encamped in Anacostia Flats and other areas in the northeast quadrant of the Capitol." The efforts of these vets, to secure in advance payments, or "bonuses," promised on account of their World War I service (image credit), were in vain. Many left of their own accord. In late July the rest were forced out by troops acting on orders of the President, Herbert Hoover. A bonus bill finally would pass in the Roosevelt Administration; it since has been supplanted by the GI Bill.

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

Monday, May 28, 2012


Pleased to share on this Memorial Day the photo above, found in American Memory, a digital archive of the Library of Congress. Made by Royden Dixon and dated May 1942 -- when World War II raged -- it's captioned "Black troops at the Memorial Day parade, Washington, D.C., probably Constitution Avenue." (credit)

On May 28

On this day in ...
... 1998, declaring,
'We never wanted to participate in this nuclear race'
Prime Minister Nawaz Sharif announced in a televised statement that Pakistan had conducted 5 underground nuclear tests in Baluchistan, a region of Pakistan near its border with Afghanistan. (image credit) Sharif contended that the tests were "inevitable" following news 2 weeks earlier that India had conducted 5 similar nuclear tests. To this day, India and Pakistan remain  nuclear states outside the regulation of the Nuclear Non-Proliferation Treaty, and, also, tense neighbors.

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

Sunday, May 27, 2012

'Nuff said

(Taking context-optional note of thought-provoking quotes)  
'Electoral politics aside, it's important to note that Julian Bond, the former chairman of the NAACP and co-founder of the Student Nonviolent Coordinating Committee, personally embraced gay rights years ago and has since pushed black leaders inside and outside of the NAACP to do the same. For instance, in response to a 2004 query by Ebony magazine about whether gay rights should be considered a civil rights issue, Bond answered: "Of course.... 'Civil rights' are positive legal prerogatives--the right to equal treatment before the law. These are rights shared by all--and there is no one in the United States who does not--or should not--share in these rights. Gay and lesbian rights are not special rights in any way." ...
'In past discussions of the link between black civil rights and gay rights, Bond frequently noted that Bayard Rustin [above left], a gay man, played an important role in the civil rights movement.'
–  Harvard Law Professor Tomiko Brown-Nagin (right), in a Legal History Blog post entitled "'Historic' Decision: NAACP Endorses Marriage Equality."  As Tomiko explains, the NAACP action came within days of President Barack Obama's statement "that same sex couples should be able to get married." (photo credits here and here)

On May 27

On this day in ...
... 1999, at The Hague, Netherlands, the International Criminal Tribunal for the former Yugoslavia indicted the sitting President of Serbia, Slobodan Milošević (right), and top aides on charges of having committed war crimes and crimes against humanity in Kosovo, a breakaway province. (Our colleague Michael P. Scharf analyzed the charges in this 1999 ASIL Insight.) The indictment came 2 months into the bombing campaign that NATO, acting without U.N. Security Council approval, launched against Serbia on account of its crackdown in Kosovo. That bombardment would end fewer than 2 weeks later. Milošević would remain in power for a time, but then would lose an election and be transferred to ICTY custody in 2001. (photo credit) His trial dragged on, and he died in his Dutch cell in 2006.

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

Saturday, May 26, 2012

Go On! National courts/intlaw crimes @ Amsterdam

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

Amsterdam's historic Trippenhuis, the permanent headquarters of the Royal Netherlands Academy of Arts and Sciences, will be the site of a conference on a subject about which frequently post, most recently here and here.
The conference, titled Pluralism v. Harmonization: National Adjudication of International Crimes,will be held this June 14 and 15.
Speakers will examine international criminal law "fragmentation at the international and national level," write organizers, including our colleague, Professor Elies van Sliedregt (below right), Dean of the Faculty of Law at Vrije Universiteit Amsterdam. The program promises many distinguished speakers in addition to Elies and her law faculty colleague Barbora Holá; among them, Andrew Cayley, International Co-Prosecutor at the Extraordinary Chambers in the Courts of Cambodia, and Dr. Sarah Nouwen, University Lecturer in Law and Fellow of the Lauterpacht Centre and Pembroke College at the University of Cambridge, England.
Topics to be addressed:
► To what extent is harmonizing international criminal law desirable, or even realistic? How does a pluralistic approach contribute?
► How to deal with the tension between collective action and individual responsibility when prosecuting international crimes?
► To what extent does the principle of complementarity as laid down in Article 17 of the Rome Statute of the International Criminal Court require adherence to international standards; does this also affect procedural law, in particular domestic laws of evidence?
► Given fact-finding impediments and evidentiary challenges when dealing with core international crimes, can national courts be of guidance to international criminal tribunals; or vice versa?
Details here; program here.
Register here before the June 4 deadline.

On May 26

On this day in ...
... 1916, Henriette Roosenburg was born into an upper-class family in the Netherlands. When World War II started she was in graduate school at Leiden University. She joined the Dutch resistance, using the nom de guerre "Zip," and also wrote for a Dutch newspaper. Arrested in 1944 and given the death penalty, she was incarcerated at Waldheim prison in Germany. Released days before V-E Day, she and 4 other former prisoners embarked on a weeks-long journey back to the Netherlands. That sojourn among U.S., Soviet, and other encampments became the basis of Roosenburg's memoir, The Walls Came Tumbling Down (1957), at least one edition of which issued with the cover at left. (image credit) A Europe-based writer for Time magazine after the war, Roosenburg died in 1972.

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

Friday, May 25, 2012

International authority & the responsibility to protect

(Part 2 of a 2-part series; Part 1 is here)  
With the end of the Cold War, in which the model of UN executive action outlined in yesterday's post developed, the concept of security, and the ends to which conflict prevention machinery of the United Nations was to be put, became more ambitious:
► Peacekeeping became established as a core technique of international executive action;
► Civilian administration became significantly more ambitious in scope and scale; and
► UN agencies in the humanitarian field began to exercise an increasing range of governmental powers.
With the expansion in the scope and complexity of international operations, it became clear that existing political and legal concepts could not address the questions about legitimacy, authority and credibility to which that expansion gave rise. (photo credit)
Both the achievements and the failures of UN operations during the 1990s placed the legitimacy of international executive action on the table:
► In cases seen as success stories, such as East Timor and Kosovo, local actors challenged the legitimacy of the authority exercised by international administrators, asking why the UN, rather than the people, should have the authority to decide who should govern?
► In cases of failure, such as Rwanda and Srebrenica, critics asked why the UN alone should have the authority to intervene in order to protect populations at risk if other external actors could do so more effectively?
Many of the debates about the legitimacy of international authority came to a head in 1999 when NATO intervened in Kosovo without Security Council authorisation. That intervention challenged not only the authority of sovereign states, but also that of the UN.

Development of responsibility to protect
The development of the responsibility to protect concept can be understood as an attempt to answer these growing questions about the basis of both state and international authority. (Prior IntLawGrrls posts)
Conceptually, the responsibility to protect asserts that the lawfulness of authority – both local and international – flows from the factual capacity and willingness to guarantee protection to the inhabitants of a territory. This argument for the lawfulness of authority does not prioritise self-determination, popular sovereignty, or other romantic or nationalist bases for determining who should have the power to govern in a particular territory. Rather, it asserts that authority, to be recognised and respected, must be effective at guaranteeing protection.
Practically, the implementation of the concept is aimed at strengthening the UN’s capacity to protect. In a series of reports on implementing the responsibility to protect concept, the Secretary-General has stressed that implementation will involve ‘utilizing the whole prevention and protection tool kit available to the United Nations system’, adopting a ‘unifying perspective’ and facilitating ‘system-wide coherence’, and expanding and refocusing the UN’s ‘early warning and assessment capacities’. Implementation of the concept thus involves further consolidating and integrating the techniques of executive action initiated by Dag Hammarskjöld, the second Secretary-General of the United Nations, and discussed in yesterday's post.

Normative significance
What, then, does thinking about the responsibility to protect concept in light of this history suggest about its normative significance?

On May 25

On this day in ...
... 1997 (15 years ago), in a national referendum, Polish voters approved a new Constitution of the Republic of Poland, which had been adopted by the Sejm and Senate, the lower and upper houses of the National Assembly, in a joint session on April 2. Entering into force on October 17, 1997, the new document replaced a "Small Constitution" that "amended the main articles of the Stalinist constitution of 1952 and formed the legal basis of the Polish State between 1990 and 1997."  Still in effect, the 1997 Constitution guarantees many rights to individuals, with special reference to families and children.

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

Thursday, May 24, 2012

Bensouda on Bashir & Bosco (& Barack)

A lot of "B"s in one interview playing today at the Beeb.
Interviewed was Fatou Bensouda, who will become Chief Prosecutor of the International Criminal Court on July 1.
Karen Allen of the BBC  talked with Bensouda on the fringes of a conference in Cape Town, South Africa. Africa and the ICC, a theme on which we've frequently posted, thus was at the core of the interview. (Video, from which above image of Bensouda was made, is available here.)
The name of Bashir of course came up. That would be Omar al-Bashir, who has remained President of Sudan despite the years-old ICC warrant for his arrest. Some countries that belong both to the ICC and the African Union have allowed him safe passage; recently, one of them, Malawi, has reversed course and sought to ban Bashir.
On this, Bensouda said:
'[T]he step that Malawi has taken is very encouraging. We have of course had other African countries that have done similar things. I think Botswana has been very consistent in the position of arresting Bashir if he were to go to Botswana.
'But I also want to make one thing clear. What is out there in the media, mostly, is that African Union is not cooperating with the ICC. And of course there are certain examples why this is said. But I want to say that we have had tremendously good cooperation with individual African states.'
This comment moved conversation to another name, Bosco – Bosco Ntaganda, charged with war crimes when he, like his then-co-accused, Thomas Lubanga, was a Congolese rebel leader. Lubanga awaits ICC sentencing, having been convicted of recruiting child soldiers. Ntaganda managed not just to escape arrest, but also to become a general in the government's army, and so to wield much power. Earlier this month, the ICC added charges against Ntaganda, who reportedly "mutinied" in April and is now forcing children to join his new combat against the government.
On this, Bensouda said:
'[T]hose who have warrants out for them, for their arrest, should be arrested and surrendered to the ICC. This level of "blackmail," which I call it, in which perpetrators are saying that "If you do not drop warrants against me, or if you issue warrants against me, I continue to kill people," I think this is what the international community, especially those who are directly responsible for the arrest of Bosco, should take into account.'
Finally the BBC interview of Bensouda evoked the name Barack – President Barack Obama, who's deployed U.S. troops to Uganda to aid "the removal of Joseph Kony from the battlefield." On this, Bensouda reminded that the ICC relies on states to execute its warrants, including the years-old one for Lord's Resistance Army leader Kony, subject of a NGO-issued viral video, about IntLawGrrls have posted.
On the U.S. role, Bensouda said:
'It is not directly an assistance to the ICC as such, if I may put it that way. It is a request from Uganda, not from the ICC, from Uganda as a state. And also it is a push by Invisible Children on the United States government to do something. ... [T]he Kony 2012 video has done a lot to bring attention to this.'
Asked by the BBC if she thought the United States would ratify the ICC Statute should Obama win re-election this November, Bensouda gave a most politic reply:
'I have refrained from commenting on any state that is not party to the Rome Statute. But I do know that the universality of the court is a good thing for international criminal justice.'

Introducing Anne Orford

It's our great pleasure today to welcome as an IntLawGrrls contributor Dr. Anne Orford (left), Michael D. Kirby Professor of International Law and Australian Research Council Future Fellow at Melbourne Law School. She also served for many years as the law school's Foundation Director of the Institute for International Law and the Humanities.
We're especially pleased to welcome Anne this week:
Tomorrow, at Sweden's Lund Cathedral, Lund University will give her an honorary doctorate in law
'for her research that releases international law into its full intellectual, political and emancipatory complexity.'
(The other honoree will be Marianne Lundius, President of Sweden's Supreme Court and the 1st woman to hold that position.)
A scholar in many aspects of international law – international trade law, law and development, legal history, legal theory, and post-colonial theory – Anne's been awarded 2 Australian Research Council fellowships, the current one for a 3-year project entitled "From Famine to Food Security: The Role of International Law." She's visited as a teacher or researcher at many universities, among them Lund and Gothenburg in Sweden and Harvard and NYU in the United States. In Germany last month, she presented the Rechtskulturen lecture hosted by the Wissenschaftskolleg zu Berlin and Humboldt University Law School.
Anne earned a bachelor's degree from the University of Queensland, the Australian state where she's admitted to practice as a solicitor; a master's degree in public international law from the University of London; and a Ph.D. from the University of Adelaide, which also awarded her the Bonython Prize for the best postgraduate law thesis.
Among her many publications is International Authority and the Responsibility to Protect (2011). Anne drew on that work for her presentation at "Military Intervention and the Law of Peace," the plenary panel that opened the March 2012 annual meeting of the American Society of International Law. Patricia O'Brien, the Under-Secretary for Legal Affairs and the U.N. Legal Counsel already has honored us by contributing her remarks at that panel as an IntLawGrrls post. Today Anne does the same. Her introductory post below, as well as her post tomorrow, make up a 2-part exploration of the significance of a concept about which IntLawGrrls frequently have posted, the responsibility to protect.
Anne dedicates her contribution as follows:
'In terms of a transnational foremother, and in the spirit of receiving an honorary doctorate from Sweden, I would like to propose Alva Myrdal – a feminist intellectual who is now treated as one of the major architects of the Swedish welfare state. Myrdal's activism, scholarship, and policy development were based upon a deep-seated conviction that social planning based upon factual knowledge and explicitly articulated values is not only desirable, but also necessary, if the modern state is to be made hospitable for women and children.
'In 1949, at the invitation of the Norwegian Secretary-General Trygve Lie, Myrdal became head of the UN's Department of Social Affairs ­ the highest-placed woman in any international organisation. In that role, she worked on issues including population, human rights, refugees, and the status of women. From 1950 to 1955, Myrdal chaired the Division of Social Sciences at UNESCO. By 1953, Myrdal had begun to voice her concerns that development under UN auspices had become a field for outsiders enforcing American-financed development projects that required large capital outlays and bore little relation to the values and knowledge of local communities.
Myrdal left the UN to serve as Swedish Ambassador to India, Burma, Ceylon (now Sri Lanka), and Nepal from 1955 to 1961. During that period, she became a close friend and political ally of the Indian Prime Minister Jawaharlal Nehru.
'She is perhaps most famous for her later work on disarmament, ­as Swedish Ambassador to the Geneva disarmament negotiations, the Swedish Cabinet Minister for Disarmament (1966-1973), and the author of The Game of Disarmament (1976), ­ for which she was awarded the Nobel Peace Prize in 1982.'
Myrdal (photo credit), who died in 1986 in Stockholm, the day after her 84th birthday, joins other inspiring women on IntLawGrrls' foremothers page.

Heartfelt welcome!

Executive action at the United Nations, a basis for the concept of responsibility to protect

(My thanks to IntLawGrrls for the opportunity to contribute this introductory post, part of a 2-part series based on a paper that will appear in the 2012 American Society of International Law Annual Meeting Proceedings)

According to UN Secretary-General Ban Ki-moon (right), while the responsibility to protect concept came of age in 2011, the challenge facing the international community remains that of transforming the concept from ‘promise to practice’ or from ‘words into deeds’. In my view, the significance of the concept lies in its capacity to do the reverse – that is, to transform practice into promise, or deeds into words.
More specifically, the responsibility to protect concept offers a framework for rationalising and consolidating practices of international executive rule, many of which were developed by Dag Hammarskjöld (below left), the second Secretary-General of the United Nations, in the early years of decolonisation. (UN photo credits here and here)

Practices of protection: Executive action & the UN Charter
The idea that the UN has a responsibility to protect life in the decolonised world began to take shape with two operations that were undertaken while Hammarskjöld was in office:
UNEF, the UN Emergency Force in response to the Suez crisis of 1956; and
ONUC, the UN Operation in the Congo in 1960.
The techniques of executive rule developed under Hammarskjöld’s auspices during those early crises of decolonisation – fact-finding, peacekeeping, strategic forms of technical assistance, and civilian administration – have, of course, since expanded dramatically. Yet as Hammarskjöld recognised, little in the UN Charter suggests its authors envisaged the creation of an international executive that could undertake such wide-ranging forms of action.
In the Introduction to his 1961 Annual Report to the General Assembly (accessible here), Hammarskjöld noted that although ‘great attention is given’ in the UN Charter to elaborating ‘the parliamentary aspects of the Organization, little is said about executive arrangements’. To the extent that there exists an explicit legal basis for these forms of executive action, Hammarskjöld found it in the provisions of the Charter entrusting the Secretary-General with the execution of political decisions at the request of the political organs, and in Article 99, which provides that the Secretary-General
'may bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security.'
Hammarskjöld (prior IntLawGrrls posts) interpreted these provisions as giving the Secretary-General a position of full political independence and a broad discretionary mandate to engage in fact-finding, preventive diplomacy, and other behind-the-scenes activity necessary to carry out his functions. He thus did not interpret the limited attention in the Charter as a constraint on executive action. Rather, he considered that ‘the executive functions and their form have been left largely to practice’. He argued forcefully that it was necessary to stop thinking of the UN merely as a forum for ‘static conference diplomacy’ and instead reimagine it as a ‘dynamic instrument’ for ‘executive action, undertaken on behalf of all members’. And he emphasised the ‘margin of confidence’ that ‘must be left to those who will carry the responsibility for putting the decisions’ of the political organs ‘into effect’.
International lawyers in the 1950s and ’60s were well aware of the potentially radical effect of this expansion of international executive action. For example, Stephen Schwebel presciently commented in his 1961 book The Origins and Development of Article 99 (p. 382):

On May 24

On this day in ...
... 2002 (10 years ago today), at Moscow, in a ceremony featuring Presidents Vladimir Putin, at far left, and George W. Bush, Russia and the United States signed the Strategic Offensive Reductions Treaty. (photo credit) Known as SORT, the weapons control treaty entered into force in 2003 and remained so until 2011, when it was superseded by the New START treaty discussed in prior IntLawGrrls posts.

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

Wednesday, May 23, 2012

New East Asian trilateral investment agreement

On May 13, China, Japan, and Korea concluded a trilateral investment agreement, promising stronger protection of foreign investment and deepening their commitment to international arbitration for resolving disputes with foreign investors.

The three nations have previously concluded several bilateral investment treaties among themselves, including a 1988 treaty between China and Japan, and a 1992 treaty between China and Korea. However, the rights granted in those agreements were more circumscribed. For example, investors had the right to submit claims to international arbitration only in the case of expropriation and only for a determination of compensation owed under national law (rather than international law). A more recent treaty between Korea and Japan provided stronger investor protections.

Following that lead, the new trilateral treaty establishes all three countries' firm commitment to relinquish national jurisdiction over investment claims by one another's nationals. The treaty may herald a broader shift toward increased integration among the three economies. Trade representatives involved in the treaty negotiations announced that efforts will begin in earnest this year to conclude a free trade agreement. A China-Japan-Korea trade area would be an historic development in international economic law, dwarfing both the NAFTA trading bloc and the EU in population size and surpassing the EU in share of world output, at around a quarter of global GDP.

However, it remains to be seen whether a free trade agreement between the largest East Asian economies is politically feasible—such a treaty would dramatically impact the agricultural sectors of Korea and Japan, which maintain among the world’s heaviest farm subsidies.

(Photo credit: Japan Cabinet Public Relations Office)

Bernaz on capital punishment

IntLawGrrls contributor Dr. Nadia Bernaz, Senior Lecturer at London's Middlesex University, appeared on "Punishable by death," an Al Jazeera television program that examined global trend toward less use of the death penalty, a trend confounded by an increase in the absolute number of executions.
Watch here.

Searchable version of 2499-page Taylor judgment

The April 26 judgment of the Special Court for Sierra Leone in Prosecutor v. Charles Taylor, about which a number of IntLawGrrls have posted, was finally published yesterday: 2499 pages in a non-searchable file of 30MB!
It is the longest judgment of an international tribunal so far.
We academics like searching through files to identify the legal issues of a judgment we are particularly interested in. The defense team would most probably also want to search keywords. So would NGOs who might want to find out what the judgment says about particular geographic locations or specific individuals the NGOs may have worked with. Or journalists. Or people who are simply curious on a particular aspect of the judgment but who cannot read through 2500 pages.
I thought at least we need a searchable file. So I gave it a try and converted the judgment with a text recognition software. It's available here.
It doesn't look nice, of course, and the file contains many mistakes from the conversion and all the formatting is lost, but at least one can search for key terms. Nor does it change anything to the excessive length of the judgment.
But I hope it at least alleviates the challenges a little bit, and allows people to find the parts of the judgment in which they are particularly interested.

Gender and Armed Conflict

I just returned from a conference entitled "Gendering Conflict and Post-Conflict Terrains: New Challenges and Opportunities," which was organized by the University of Minnesota Law School with the Transitional Justice Institute (TJI), Belfast.  Fellow Intlawgrrls, Naomi Cahn (George Washington University Law School), Dina Haynes (New England Law), and Fionnuala Ní Aoláin (University of Minnesota and TJI), organized this fantastic conference with the support of ASIL and the Robina Foundation.  The full list of participants (including a number of intlawgrrls bloggers) is here.

The conference brought together approximately thirty participants from around the world to discuss emerging issues for women in conflict and post-conflict contexts.  The conference opened with remarks from Zohra Rasekh, an elected member of the Committee on the Elimination of all forms of Discrimination Against Women (CEDAW), who discussed the CEDAW Committee's 2010 decision to adopt a general recommendation on women's human rights in conflict and post-conflict settings.  The concept note for the general recommendation is available here.
The opening discussion on CEDAW's general recommendation was followed by a number of fascinating presentations, including the value of indicators in measuring women's experiences of harm, the effectiveness of U.N. Security Council Resolution 1325 and the National Action Plans that the resolution inspired, the importance of and difficulty in collecting meaningful data on sexual violence in armed conflict, the significance of reparations in the lives of women victims of violence, the limitations of equating women with victims and the corresponding failure to fully explore the role of women as perpetrators and men as victims of armed conflict, the significance of women's representation at the negotiating table, gendered harms and the law of occupation, and the intersection of culture, poverty, and religion and women's rights in armed conflict.

The two-day event also included a poignant and inspiring tribute to Arvonne Fraser, a leading women's rights activist for decades and author of the autobiography, "She's No Lady: Politics, Family and International Feminism."  (Listen to her discuss her life and memoir on Minnesota Public Radio here). In addition to being a wonderful mentor and friend to me and many others, Arvonne has dedicated her life to improving women's status around the world.  She was the founder and co-Director of the International Women's Rights Action Watch and served as U.S. ambassador to the United Nations Commission on the Status of Women.  She continues to inspire us all.

On May 23

On this day in ...
... 1846, a daughter, Belle Aurelia Babb, was born into a farming family in Burlington, Iowa. Having grown up largely without her father present (the California Gold Rush lured him from home) she was graduated from Iowa Wesleyan College in 1865, the Civil War having opened seats for women students. She and her brother placed 1st and 2d, respectively, in that graduating class. Subsequently married to one of her college professors, Arabella Mansfield (right), as she became known, studied for the bar in her brother's law office, took the bar exam notwithstanding a state law barring anyone but white men over 21, and, in 1869, became the 1st woman admitted to the Iowa bar. (photo credit) Though she never practiced law -- becoming a university dean instead -- she belonged to the National League of Women Lawyers. Mansfield also led her state's campaign for women's suffrage. Nearly 70 years after her 1911, she was inducted into the Iowa Women's Hall of Fame; 2 decades after that, an award was established in her name to honor "outstanding women lawyers in Iowa who have promoted and nurtured women in the legal profession."

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

Tuesday, May 22, 2012

Go On! Human rights & CLE @ ASIL this summer

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

The American Society of International Law again will host a summertime continuing legal education series. Cosponsoring is the Academy on Human Rights and Humanitarian Law at American University Washington College of Law. This year's overall theme is human rights.
All events will take place on Wednesdays, at Tillar House, the ASIL headquarters located at 2223 Massachusetts Avenue, N.W., Washington, D.C.
This is a great opportunity for anyone based in D.C. this summer – summer interns and summer associates, of course, but also practitioners, given that the course sessions will carry MCLE credits for many jurisdictions. Registration's free and open to ASIL members and nonmembers alike.
Here, as also set out in the series flyer, is the 3-session lineup:
►  The Case of Hissène Habré: The Role of International Law and Courts in the Victim's Quest for Justice, May 30, from 12:30 to 2 p.m. (lunch will be served).
Serving as instructor for this session about the long-running, multifaceted effort of human rights groups to bring Chad's former dictator to account (about which we've posted here) will be Reed Brody, Counsel and Spokesperson, Human Rights Watch. Juan E. Méndez, U.N. Special Rapporteur on Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, will serve as moderator.
Details, registration, and a zip file of course materials available here.
The U.N. Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions and the Challenges of Monitoring Gross Human Rights Violations, June 6, from 5:30 to 7 p.m. (half-hour reception to follow).
Instructor for this session, on one of the many mandates of the U.N. Human Rights Council, will be Christof Heyns, U.N. Special Rapporteur on extrajudicial, summary or arbitrary executions. Moderator will be Elizabeth Andersen, ASIL Executive Director and Executive Vice President.
Details, registration, and a zip file of course materials available here.
The Future of the International Criminal Court: The Lubanga Judgment and Beyond, June 13, from 5:30 to 7 p.m. (half-hour reception to follow).
Instructor for this session on the March 14, 2012, Trial Chamber judgment in Lubanga (prior IntLawGrrls posts) – the 1st ever for the 10-year-old court – will be ICC Judge Sylvia Steiner (right) and ICTY/ICTR Judge Fausto Pocar. (credit for photo ©ICC-CPI/Jiri Buller) Moderator will be Claudio Grossman, Dean of American University Washington College of Law
Details, registration, and a zip file of course materials available here.

On May 22

On this day in ...
... 1949, Nancy Putnam Hollister (right) was born in Marietta, an Ohio city across the river from West Virginia. (photo credit) At age 32 Hollister, a Kent State graduate and a Republican, was elected city councilmember. She was mayor of her hometown from 1984 till 1991, when she was appointed director of the Governor's Office of Appalachia, concerned with 29 Ohio countries in that multistate region. Elected lieutenant governor in 1994, she filled a vacancy to become Ohio's only woman governor, for 11 days in December 1998 and January 1999. She lost her last election, for the Ohio state legislature, in 2004 – a defeat attributed to her opposition to a constitutional ban on same-sex marriage.

(Prior May 22 posts here, here, here, here, and here.)

Monday, May 21, 2012

Chávez vs. Inter-American human rights system

The regional human rights system of the Organization of American States is under attack.
Venezuelan President Hugo Chávez, struggling against both cancer and an emboldened opposition, is making a high-profile push for Venezuela to withdraw from the Inter-American Human Rights Commission.
The Presidents of Bolivia, Ecuador and Nicaragua have joined Chávez in calling for the creation of an alternative regional human rights system sans United States and Canada.
And even the more centrist Latin American leaders are taking shots.
A group of states including Brazil and Peru have asked the OAS to curb the Commission’s power to issue preliminary measures.
President Dilma Rousseff of Brazil  temporarily withdrew the country’s envoy to the OAS last year after the Commission called on Brazil to halt work on the massive Belo Monte dam.
President Ollanta Humula of Peru accused the Commission of exceeding its mandate by referring to the Inter-American Court of Human Rights a highly polemical case still stalled in Peru’s courts. He seemingly vowed to defy any future Court order for Peru to punish those responsible for the crimes at issue.
Are these threats serious?
► On the one hand, ire from political leaders is nothing new to the Inter-American system, and arguably even a symptom of its effectiveness. Like muckraking journalists, perhaps human rights bodies are at their best when everyone is mad at them.
Much of the pushback, at any rate, is symbolic politics.
► On the other hand, the threat from Chávez (prior IntLawGrrls posts) may be genuine cause for concern.
Chávez, who seems to be losing his battle against cancer, recently constituted a Council of State, the Venezuelan Consejo de Estado, and announced that its first order of business should be Venezuela’s withdrawal from the Inter-American Commission. (credit for above photo of OAS headquarters in Washington, D.C., where Commission meets; credit for photo below of Inter-American Court headquarters in San José, Costa Rica)
 It is not clear what this would mean. As OAS Secretary General Miguel Insulza pointed out, there is no mechanism for withdrawing from the Commission: the Commission was created pursuant to the OAS Charter, so perhaps the only way is to withdraw from the OAS itself.
The Council of State is still studying the matter.
That Venezuela denounced the Convention on the Settlement of Investment Disputes between States and Nationals of Other States last January shows that Chávez’s threats are not idle.
More troubling still is that Chávez is a regional trendsetter.
His closer allies, including Ecuador’s President Rafael Correa, Bolivia’s President Evo Morales, and Nicaragua’s President Daniel Ortega, could try to follow suit. All of them have been targeted by the Commission for their suppression of media freedom of expression, and all have voiced exasperation with a system which, they claim, is unduly influenced by the regional hegemon (that would be the United States, which, though an OAS member, has not given jurisdiction to the Court, and mostly ignores the Commission’s opinions).
Venezuela’s withdrawal would be a serious blow.
As noted in a letter of protest from over 200 concerned academics (among them, IntLawGrrls contributors Caroline Bettinger-López and me, Alexandra Huneeus):