Monday, April 30, 2012

Questions on aiding & abetting & international law

(Another of IntLawGrrls' several posts on the Charles Taylor judgment, part of our Sierra Leone accountability series)

Comments minimizing conviction for aiding and abetting deserve a double-take.
Chatter to this effect has been constant since last Wednesday, when Liberian ex-President Charles Taylor was found guilty of aiding and abetting 1990s rebels in Sierra Leone – but not of engaging in a "joint criminal enterprise" with the Sierra Leonean leaders of that rebellion. (credit for photo below of Taylor)
Our colleague Kevin Jon Heller was right to call this "a stunning rebuke" by Special Court for Sierra Leone Trial Chamber II – for the reason that the Office of the Prosecution had constructed its narrative of Taylor's criminality primarily on the framework of joint criminal enterprise theory.
But the failure to prove a joint criminal enterprise does not mean that Taylor was not found a criminal.
Quite to the contrary.
Paragraph 168 of the 44-page summary of the yet-to-be-released Taylor judgment states unequivocally:
'[T]he Trial Chamber finds beyond reasonable doubt that the Accused is criminally responsible pursuant to Article 6(1) of the Statute for aiding and abetting the commission of the crimes set forth in Counts 1 to 11 of the Indictment.'
Note the words "criminally responsible."
"Oh, but" – some seem to say – "but aiding and abetting isn't so bad. Not nearly as bad as JCE" (using the acronym by which supporters and detractors alike prefer to refer to joint criminal enterprise).
Closer examination undermines each of those claims, revealing both that the hierarchy of criminality implied in these statements is not universally accepted, and that the statements derive from judicial interpretation of a statute other than that at issue in the Taylor case:
►  The asserted hierarchy doesn't exist – at least not in the criminal law jurisprudence of one not-insignificant national criminal justice system. The United States' criminal code begins with this proclamation:
'Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.'
18 U.S.C. § 2(a). Applying that unequivocal statement is § 2 X2.1 of the Federal Sentencing Guidelines Manual (2007), which instructs judges to calculate the term of imprisonment for aiding and abetting as follows:
'The offense level is the same level as that for the underlying offense.'
Thus in the United States – a jurisdiction whose behavior contributes to the state practice that forms customary international law – an aider and abetter is equally criminally responsible, and subject to equal punishment, as the principal perpetrator of a crime. Both the principal and the aider/abetter stand on a higher plane than, say, the accessory after the fact, whose sentence is cut in half, or the committer of misprision of felony, who serves no more than 3 years in prison. Indeed, the principal and the aider/abetter stand on a higher plane of criminality than the conspirator: with regard to this national crime akin to the international theory of "joint criminal enterprise, 18 U.S.C. § 371, the United States' general conspiracy statute, permits no more than 5 years in prison.
► The notion that engaging in a joint criminal enterprise is worse than aiding and abetting seems to have won purchase among judges of the International Criminal Tribunal for the former Yugoslavia.

Former Argentine dictator admits to disappearances

The leader of Argentina’s last military dictatorship has admitted for the first time that his government disappeared people during its 1976-1983 rule, and that it gave some of the children of the disappeared up for adoption.
Earlier this month and late last year, former Argentine dictator Jorge Rafael Videla (right) gave several jailhouse interviews to journalist Ceferino Reato, during which he admitted for the first time that “7,000 or 8,000 people had to die to win the war against the subversives” between 1976 and 1981 (when Videla was President), and that they were disappeared
'so as not to provoke protests inside and outside the country.'
(my translation) (credit for 1979 photo)
CONADEP (the National Commission on the Disappearance of Persons), the truth commission that investigated the crimes committed during Argentina’s dictatorship, found evidence that nearly 9,000 people were disappeared by the government, though human rights groups estimate the number to be closer to 30,000.
Although Videla’s admission that the government disappeared people is certainly noteworthy, he skirted the issue of the abduction of children and babies who were taken from their disappeared parents and illegally adopted by families who sympathized with the government.
In a video taken during one of the interviews,Videla, now 86 and serving a life sentence for crimes against humanity in connection with the dictatorship, admits that some children were taken and given up for adoption, “with the best intentions,” but that there was no systematic plan to relocate children to other families.
As yours truly, Elizabeth B. Ludwin King, wrote about here, it is estimated that 500 children of the disappeared, some of whom were born in the clandestine detention centers where their mothers were tortured and killed, were taken by the government and given up for adoption, sometimes to couples who had a role in the disappearance of the child’s parents. Videla’s carefully chosen words are likely a reflection of the fact that he’s currently on trial for crimes relating to an alleged systematic plan to falsify documents and give babies born at ESMA (the Navy School of Mechanics) and Campo de Mayo – two of the former clandestine detention centers in Buenos Aires – up for adoption. The case centers specifically on 34 children, and the prosecutor has asked for a sentence of 50 years for Videla and another former dictator, co-defendant Reynaldo Bignone. Among the other co-defendants is alleged torturer Jorge “Tigre” Acosta and a doctor, both of whom worked at ESMA.
A judgment in the case is expected in late May.

Initial Reflections on JCE and Terrorism in the Taylor Judgment

(Another of IntLawGrrls' several posts on the Charles Taylor judgment, part of our Sierra Leone accountability series)

Among scholars who follow the jurisprudence of the Special Court for Sierra Leone and the Taylor trial in particular, there was much anticipation about how Trial Chamber II would rule on the issue of joint criminal enterprise, often abbreviated JCE.
This mode of liability has been widely used in various international criminal tribunals and has been the subject of much debate. (Prior IntLawGrrls posts.) The Special Court’s application of JCE is no exception – scholars and practitioners have questioned and criticized its application by the court nearly every step of the way.
In anticipation of receiving the full reasoned judgment (which, as Sara Kendall discussed in a post yesterday, is not yet available), this post will discuss the general issue of JCE in the Taylor trial, including a key decision about the alleged common purpose handed down by the Trial Chamber very late in the trial. It will also provide a few comments on the relationship between joint criminal enterprise and aiding and abetting, the latter being one of the modes of liability on which the Trial Chamber relied in its recent conviction of Charles Taylor.

Pleading JCE 
One of the central debates about joint criminal enterprise at the Special Court is how the prosecution pleaded the required common purpose. According to paragraph 574 of the prosecution’s final trial brief, Taylor, together with the Revolutionary United Front (RUF) and Armed Forces Revolutionary Council (AFRC)/RUF junta, shared a common plan involving
'the use of criminal means, a campaign of terror encompassing the indictment crimes, in order to achieve the ultimate objective of the JCE, to forcibly control the population and territory of Sierra Leone and to pillage its resources, in particular diamonds.'
This plan was allegedly hatched between Taylor and Foday Sankoh, leader of the RUF, in the 1980s – an allegation the Chamber rejected. (credit for above photo of Taylor, at right)
During the course of the trial, however, the prosecution had put forth various versions of the common plan. The initial indictment, similar to the indictments in the RUF and AFRC cases, alleged that the RUF and AFRC were participants in a joint criminal enterprise to take political and physical control of Sierra Leone and its diamond mines. The diamonds and other natural resources, according to paragraph 23 of the Original Indictment,
'were to be provided to persons outside Sierra Leone in return for assistance in carrying out the joint criminal enterprise.'
Taylor, according to paragraph 20, allegedly participated in the JCE by
'provid[ing] financial support, military training, personnel, arms, ammunition and other support” to the RUF in order to “obtain access to the mineral wealth of the Republic of Sierra Leone, in particular the diamond wealth of Sierra Leone, and to destabilize the State.'
The Second Amended Indictment (the final indictment) did not clearly specify a common purpose, but alleged that Taylor acted in concert with the RUF, AFRC and others to commit the crimes charged “as part of a campaign to terrorize the civilian population” of Sierra Leone (para 5). There is no mention of taking control of Sierra Leone, or of its diamonds or natural resources. However, in subsequent filings the prosecution argued various other common purposes, including the theory finally relied on in its final brief.
Adding to the confusion, the Trial Chamber determined yet another version of the common plan over a year into the trial and after the prosecution had rested its case (which was later re-opened for the Campbell testimony). Some ten months after a motion was filed by the defense challenging the JCE pleading, Trial Chamber II decided by a majority that the alleged common purpose was to engage in a “campaign to terrorize the civilian population of the Republic of Sierra Leone” and that the crimes charged were part of a campaign of terror or a reasonably foreseeable consequence therefore. This was upheld on appeal.

On April 30

On this day in ...
... 1927 (85 years ago today), Fathima Beevi (left) was born in Pathanamthitta in Kerala state, India. (photo credit) After earning her bachelor's and law degrees from University College in Trivandrum, she embarked on a career as a lawyer. In 1958 she was 1st appointed to a position in the judicial services, and she became the Kerala Sub-ordinate Judge 10 yearse later. (She is "the first Muslim woman to be appointed to any higher judiciary.")  Service in a number of other judicial appointment followed. In 1989 she was elevated to the Supreme Court of India -- its 1st woman Justice -- and served until her retirement in 1992. Thereafter she served on the National Human Rights Commission and as Governor of Tamil Nadu.

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

Sunday, April 29, 2012

'Nuff said

(Taking context-optional note of thought-provoking quotes)
'The situation in North Korea is a clarion call for the Security Council and other U.N. members to show courage in a case of political complexity. There can be few places in the world where the human rights situation is more egregious and yet more overlooked than North Korea.'
-- A joint op-ed in the International Herald Tribune by Geoffrey Nice, who served as chief prosecutor in the trial of Slobodan Milošević at the International Criminal Tribunal for the former Yugoslavia, and Professor William A. Schabas, Middlesex University, London. They lead by recount the story of a victim of the regime, Shin Dong-hyuk, as told in a brand-new book, Escape from Camp 14.  Nice and Schabas place this story in the context of he pattern of human rights abuses in the country formally known as the Democratic People's Republic of Korea. (map credit) Then, to quote the op-ed's title, they urge the international community to Put North Korea on Trial. As Nice and Schabas note, it's a goal realizable only by the Security Council, given that North Korea does not belong to the Rome Statute of the International Criminal Court.

The Taylor Verdict: Prosecution and Defense Claims, and a Judgment Deferred

(Another of IntLawGrrls' several posts on the Charles Taylor judgment, part of our Sierra Leone accountability series)

As part of the broader IntLawGrrls series on accountability at the Special Court for Sierra Leone, this post considers the uptake of arguments made by prosecution and defense in their final briefs in Trial Chamber II’s summary judgment in the Taylor case.
As noted in previous posts, the Chamber has not yet produced a full judgment, so we are unable to assess how its determinations were made and what evidence it was based upon. This may complicate efforts by both parties to substantiate their sentencing briefs, which are due on May 3 for the prosecution and on May 10 for the defense.
The Court’s Statute and Rules state that the judgment
'shall be accompanied by a reasoned opinion in writing.'
(Article 18 of the Statute; Rule 88 of the RPE). The forty-four page summary judgment read by Judge Richard Lussick on April 26 was made available on the court website. There has been no indication from the Special Court as to when the full-length reasoned judgment will be available, and Trial Chamber II stated that this summary judgment – which does not contain footnoted references to specific witness testimony and documentary evidence – should be sufficient to form the basis for the parties’ appeals.
Meanwhile, full judgments in the cases against members of the Armed Forces Revolutionary Council (AFRC) and the Civil Defence Forces (CDF) were available on the respective days when the verdicts were announced. Te full judgment in the case against members of the Revolutionary United Front (RUF) was provided within a week of the summary judgment. Given that closing arguments and final oral responses from both parties in the Taylor trial were heard over one year ago and that the Chamber has had over half a year since the estimated delivery date of the judgment (late September 2011), it is unclear why Trial Chamber II was unable to produce a full judgment in time for last week’s verdict.

Claims of the Parties: Prosecution
The prosecution’s closing brief attributes much of the responsibility for the armed conflict in Sierra Leone to Charles Taylor, alleging that
'the crimes suffered by the people of Sierra Leone would not have occurred but for Charles Taylor’s supervision and support for the RUF and AFRC.'
(para. 2) The prosecution claims that Taylor not only provided material support to rebel forces by sending arms, ammunition, funding and personnel, but also that Taylor created the RUF, designed and directed its strategy, and maintained effective control over the RUF and RUF/AFRC ‘junta’ from outside Sierra Leone. (map credit) In this account, the RUF was Taylor’s ‘surrogate army’ or ‘proxy force’ – the ‘younger sibling’ of Taylor’s National Patriotic Front of Liberia (NPFL). The brief argues that Taylor played a critical role in a joint criminal enterprise united by a common plan to
 'achieve forcible control over the population and territory of Sierra Leone and to pillage the resources of that country, in particular diamonds.'

On April 29

On this day in ...
... 1992 (20 years ago today), in what would prove to be days of rioting broke out in Los Angeles, California. (photo credit) -- the worst the city had seen since the Watts riots of the mid-1960s. Violence erupted after an all-white state court jury acquitted 4 white police officers implicated in the beating of a black man, Rodney King, that was caught on video tape. In a federal civil rights trial the following year, 2 of the 4 police officers were convicted and served 2 years each in prison; they city eventually paid King $3.8 million in damages.

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

Saturday, April 28, 2012

Judge Sow's struck statement & reflections on the Taylor judgment & the SCSL's legacies

(Another of IntLawGrrls' several posts on the Charles Taylor judgment, part of our Sierra Leone accountability series)

THE HAGUE – As IntLawGrrls contributors, former Taylor trial monitors, and now academics based in The Hague, the two of us, Jennifer Easterday and Sara Kendall, welcome this opportunity to share some observations from the delivery of the historic verdict in the trial against Charles Taylor, former President of Liberia.
On a typically cold and windy Dutch spring day, we went to watch the proceedings taking place Thursday at the premises of the Special Tribunal for Lebanon in Leidschendam, an unassuming Hague suburb – the Special Court has been renting space there following its relocation from its original Hague home at the International Criminal Court.
The delivery of the judgment was well attended by current and former court personnel, representatives of civil society organizations such as the Open Society Justice Initiative and Human Rights Watch (including IntLawGrrl Elise Keppler), staff from the broader Hague-based tribunal community, legal advisers to diplomatic missions, academics, journalists, and family members of Charles Taylor.
Less present in the public gallery, however, were members of Sierra Leonean civil society organizations and other individuals who may have been more directly affected by the crimes that the Special Court was set up to adjudicate.
All four U.S. and British citizens who had served in the role of Prosecutor during the lifespan of the Special Court returned to The Hague for the reading. In the public gallery were Stephen J. Rapp – now U.S. Ambassador-at-Large for War Crimes Issues – and David Crane, the court’s first Prosecutor, whose interpretation of the Court’s mandate to try those ‘bearing the greatest responsibility’ for the crimes that occurred in Sierra Leone resulted in the indictment of thirteen individuals. Seated inside the courtroom were the current Prosecutor, Brenda Hollis, as well as past Prosecutor Desmond Da Silva.
All three defense counsel – Courtenay Griffiths, Terry Munyard, and Morris Anyah – and their legal assistants were present, as well.
Charles Taylor appeared calm and largely expressionless throughout the reading of the judgment, and he stood when prompted for the delivery of the verdict.
These lawyers, diplomats, academics, members of civil society and members of the press witnessed the reading of this judgment, which was interpreted largely in journalistic accounts as a success for the prosecution for the Chamber’s findings of guilt on all eleven counts. The prosecution’s failure to prove key modes of liability (such as joint criminal enterprise and command responsibility) remained largely absent from popular commentary.
The Taylor trial will certainly influence the legacies of the SCSL court – if we think of the court’s work in terms of multiple legacies (as noted by Viviane Dittrich of the London School of Economics at a recent conference in Pittsburgh on the Special Court), as opposed to a singular, dominant legacy.
The court’s impact on Sierra Leone and the broader West African region will undoubtedly be contested.
This was made clear by the dramatic conclusion to Wednesday’s proceedings.
Judge El Hadji Malik Sow (right), a Senegalese jurist who serves as alternate judge for Trial Chamber II, attempted to speak following the end of Presiding Judge Richard Lussick’s reading of the judgment. (photo credit) Those of us seated in the public gallery heard a few words from an unidentified speaker before the microphones were cut off, and through the glass we could hear him continuing to speak.
Shortly thereafter, what appeared to be a metal grate was lowered over the glass, so that we could not longer see into the courtroom. As people waited for press statements from the prosecution and the defense, a paper began to circulate with the statement from Judge Sow. Apparently the court stenographer had continued to type into the transcription program which appeared on the screens of those seated in the courtroom, and one of the legal assistants from the Taylor defense team copied the text and saved it out of concern that the Special Court would strike the judge’s statement from the official record (after receiving transcripts from yesterday’s proceedings, we can confirm that the comments were indeed struck from the record).
Judge Sow’s statement is copied here in its entirety from the disseminated sheet:

Project on War & Security in Law, Culture, Society

Following up on Diane's notice yesterday, I'm pleased to announce the launch in Fall 2012 of the Project on War and Security in Law, Culture and Society at Emory Law School, where yours truly, Mary L. Dudziak, will be Director of the project and the (as yet unnamed chair) professor of law. (Emory's release on this news is here.)
While I have been thinking about an interdisciplinary law-and-war-related project for some time, I started putting thoughts on paper in a more focused way on this blog and elsewhere in response to reactions to my new book, War·Time: An Idea, Its History, Its Consequences, and related commentary. So I must especially thank Benjamin Wittes of the Brookings Institution, to whose comments I earlier responded in a post here.
There are a few reasons that this project will be at Emory.
Most important is that the law school is at the beginning of a promising era, with the appointment of Robert Schapiro as Dean, which has generated much excitement on campus. The university as a whole is a terrific fit for this project due to significant interest in war in the Political Science Department, beginning with its Chair, Daniel Reiter. Human rights history scholar and long-time friend Carol Anderson is also at Emory, along with others at the law school and elsewhere on campus who I look forward to collaborating with. And then there’s the end of cross-country commute, and other family-related reasons that make Atlanta attractive. Having a lateral offer is always a good time to pitch a new project, and both deans offered full support for the start-up. It is a project instead of a center because I think that not every idea needs a center and the bureaucracy that can go with it, so the focus will be on ideas and not infrastructure. At least for now.
The project’s first event will be a fall lecture by legal historian John Fabian Witt, Yale Law School, who will discuss his exciting book set to be released this September, Lincoln’s Code: The Laws of War in American History (date and details to be determined). A grad seminar and colloquium series will begin in spring 2013. I will also create a web presence for the project, and which I’ll post about when that’s up and running.
Here’s the basic idea, from the project proposal:
Many American law schools have developed programs focused on legal issues related to war and national security. Meanwhile, serious study of the nature of war and security is underway in many other disciplines, including political science, history and anthropology. Although interdisciplinarity is a central feature of American legal scholarship, programs on law and national security tend to focus intently on law and policy, and do not have interdisciplinary inquiry as a central objective. This deprives legal study of war and security of broader critical inquiry that is essential to understanding this area.
This Project proceeds from the premise that the study of law and war is necessarily an interdisciplinary inquiry.

On April 28

On this day in ...
... 1922 (90 years ago today), years ago today, a daughter, Jewel Stradford, was born in Chicago to a mother who was an artist and a father who argued before the U.S. Supreme Court and helped found the National Bar Association, the oldest U.S. organization of African-American lawyers and judges. Following undergraduate studies at Oberlin College, where she earned a degree in political science, in 1946 the daughter became the 1st African-American woman to graduate from the University of Chicago Law School. She then embarked on an illustrious career as an attorney, both in the private and public sectors. From 1973 to 1975, the lifelong Republican known through marriage as Jewel Lafontant (above right), she served as the 1st woman Deputy Solicitor General of the United States. (photo credit) Other accomplishments included: cofounding CORE, the Congress of Racial Equality (prior post); serving as an officer in the NAACP and ACLU; Ambassador-at-Large and Coordinator of Refugee Affairs in the U.S. State Department; U.N. delegate; and service on the boards of many for-profit corporations and nonprofit organizations. Jewel Lafontant-Mankarious, as she was ultimately known, died from breast cancer in 1997, at age 75.

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

Friday, April 27, 2012

Go, 'Grrl! Mary Dudziak to Emory Law

Delighted to announce that an IntLawGrrls contributor, Dr. Mary L. Dudziak (right), soon will move to Emory University School of Law in Atlanta, Georgia.
At Emory, Mary will take up a chaired professorship and serve as inaugural Director of the Project on War and Security in Law, Culture and Society. The project will build on her expertise in those areas: in her years as the Judge Edward J. and Ruey L. Guirado Professor of Law, History and Political Science at the University of Southern California in Los Angeles, Mary taught Constitutional Law, Equality and Liberty, 20th Century U.S. Constitutional History, Law and War in the 20th Century, Comparative Constitutional Law, Constitutional Politics in Africa, and a seminar on Law and Social Change in Post-1945 America. Her many publications have made pathbreaking contributions by analyzing, from the perspective of a  legal historian, international approaches to legal history and the impact of war on American democracy.
Mary's books include: the just-published War·Time: An Idea, Its History, Its Consequences, about which she posted for IntLawGrrls here, here, and here; the 2008 biography Exporting American Dreams: Thurgood Marshall's African Journey; and a 2000 study, Cold War Civil Rights: Race and the Image of American Democracy, published in 2d edition last year. She's now at work on How War Made America: A 20th Century History, under contract with Oxford University Press.
Winner of fellowships from the Guggenheim Foundation, Princeton's Law and Public Affairs Program, and others, and a board member of the American Society for Legal History and the Law and Society Association, Mary is the founding contributor of Legal History Blog, and also writes at Balkinization.
She earned her A.B. from the University of California, Berkeley, and her J.D., M.A., M.Phil. and Ph.D. in American Studies from Yale University, then clerked for Judge Sam J. Ervin III, U.S. Court of Appeals for the 4th Circuit, and taught law and history at the University of Iowa before moving to USC. She's a distinguished lecturer for the Organization of American Historians, was Visiting Professor of Lawand John Hope Franklin Professor of American Legal History at Duke Law in the fall 2011 semester, and also has visited at Harvard Law School and the University of Maryland.
A great catch for Emory Law, which also announced yesterday the permanent appointment of Dean Robert Schapiro (like this 'Grrl, a former clerk to U.S. Supreme Court Justice John Paul Stevens).
Heartfelt congratulations!

Introducing Cecile Aptel

It's our great pleasure today to welcome Cecile Aptel (left) as an IntLawGrrls contributor.
Cecile's an Associate Professor of International Law at the Fletcher School of Law & Diplomacy, Tufts University, Medford, Massachusetts. She joined that faculty after serving as the 2010 Jennings Randolph Senior Fellowship at the United States Institute of Peace, Washington, D.C.  Before that, Cecile followed a rich career in entities -- governmental, intergovernmental, and nongovernmental -- dealing with aspects of humanitarian law.  These included: the State Court of Bosnia-Herzegovina War Crimes Chamber, the Special Tribunal for Lebanon, the International Criminal Tribunals for Rwanda and for the former Yugoslavia, the U.N. High Commissioner for Refugees, the European Union, the International Center for Transitional Justice, and the U.N. Office on Drugs and Crimes.
She has particular expertise on children's issues; the subject of her introductory post below is the treatment of child soldiering in the just-released Special Court for Sierra Leone judgment of former Liberian President Charles Taylor. Her work in this area includes leadership of the International Center for Transitional Justice's Program on Children and publication of "International Criminal Justice and Child Protection," chapter 3 of a 2010 UNICEF volume.
Heartfelt welcome!

The Taylor Judgment and Child Soldiers

(My thanks for the opportunity to contribute this introductory post, another of IntLawGrrls' several posts on the Charles Taylor judgment, part of the Sierra Leone accountability series)

Trial Chamber II of the Special Court for Sierra Leone found Charles Taylor guilty yesterday of each of the eleven counts for which he was charged, including for conscripting or enlisting children under the age of 15 years into armed forces or groups, or using them to participate actively in hostilities.
 This is not the first conviction by the Special Court for this war crime, a violation of international humanitarian law, recognized under article 4(c) of its Statute. In fact, the Special Court broke new ground when it convicted three Armed Forces Revolutionary Council (AFRC) leaders for these crimes, in 2007: the very first time individuals were found guilty by an international or hybrid court for recruiting or using ‘child-soldiers’ (Judgment of Trial Chamber II – AFRC case). These convictions were followed by others before the SCSL, ultimately paving the way for the recent decision of the International Criminal Court, which convicted Thomas Lubanga Dyilo for recruiting children under the age of 15 years into his armed group, or for using them to participate actively in hostilities.
The Taylor judgment has added to the growing jurisprudence on ‘child soldiers’ by convicting an individual for aiding and abetting others in the conscription or enlisting of children under 15 into armed forces/groups, or using them to participate actively in hostilities. It will be interesting to see, once the judgment is available, how the Chamber applied this mode of liability to a crime for which knowledge of the age of the victims is essential. From the summary judgment available here, it appears that the Chamber found that Charles Taylor knew that RUF soldiers, under the command of NPFL officers, abducted civilians in Sierra Leone, including children, forcing them to fight within the NPFL/RUF forces against the Sierra Leonean forces and ULIMO (para. 126 of the summary judgment). As early as August 1997, when he became President of Liberia, he was informed in detail of the crimes committed in Sierra Leone, including the abduction of children (para. 129 of the summary judgment).
When reading the judgment, judge Richard Lussick, the presiding judge, recalled that:
'[…] the operational strategy of the RUF and AFRC was characterised by a campaign of crimes against the Sierra Leonean civilian population, including murders, rapes, sexual slavery, looting, abductions, forced labor, conscription of child soldiers, amputations and other forms of physical violence and acts of terror. These crimes were inextricably linked to how the RUF and AFRC achieved their political and military objectives […They ] pursued a policy of committing crimes in order to achieve military gains at any civilian cost, and also politically in order to attract the attention of the international community and to heighten their negotiating stance with the Sierra Leonean government.'
(Paragraph 150 of the summary judgment). On this basis, the conscription of children in Sierra Leone seems to have served a dual goal; it was a way to pursue this policy of criminal campaign against Sierra Leonean civilians, victimizing children and their entire families; and in turn, the children, once associated with the armed groups, were used as instruments to commit atrocities and further this policy.
Brenda Hollis (right), the SCSL Prosecutor, commenting on the conviction for recruiting and using child soldiers, declared:
'Children were taken from their families, and not only used to fight, but also to commit crimes against their fellow Sierra Leoneans. This robbed these children of their childhood, and the judges have sent a clear message that this will never be tolerated.'
Another aspect of the judgment that should hopefully prove interesting is the Chamber’s approach to defining the terms ‘use to participate actively in hostilities’, and whether it confirms the earlier SCSL jurisprudence on this, or departs from it.
To date, ‘active participation’ has been interpreted somewhat expansively by the SCSL, apparently in an attempt to include the many roles performed by children associated with armed groups and forces, notably by girls, who may be ‘used’ as sexual slaves or in other non-combat roles. This broad understanding has been enthusiastically supported by those seeking to remedy past trends, where girls were too often excluded from the benefits of disarmament, demobilization and reintegration programs because they could not turn in a gun. However, there is potentially a risk in too broadly defining ‘use to participate’ especially from an IHL targeting perspective, where individuals deemed to directly participate in hostilities lose their protection against direct attack. Perversely therefore, by trying to label more activities as child soldiering, one runs the risk of making more children open to attack.

Write On! "Intlaw in Africa," in Mozambique

(Write On! is an occasional item about notable calls for papers) 
Organizers of a major conference on International Law in Africa welcome papers.
Organized by the African Foundation for International Law, the Centre for Human Rights and the Institute for International and Comparative Law of the University of Pretoria, and the Universidade Eduardo Mondlante, Mozambique, the conference will be held October 5 and 6, 2012, in Mozambique's capital city, Maputo.
Taking place just months before the 50th anniversary of the establishment of Organization of African Unity -- forerunner to the African Union -- the conference, organizers hope, will
'provide a forum for reflection on the pan-African organisation in the specific context of human security, peace and development in Africa, and how the OAU/AU has responded to challenges in these areas.'
Deadline is very soon: this coming Tuesday, May 1, 2012, is the last date to submit abstracts of 500 or fewer words to adjovi@afil-fadi.org
Details here.

On April 27

On this day in ...
... 1919, Dr. Marie Davis Gadsden (left) was born in a town in south central Georgia, the daughter of a physician and a teacher. She grew up in coastal Savannah, the city to which her family moved after, she said, a lynch mob had threatened her father. After earning bachelor's and master's degrees from universities in Georgia, she took up studies at the University of Wisconsin, earning her Ph.D. in English in 1954. Then she studied at Oxford, as a Fulbright Scholar, and did postdoctoral work in Ireland. Gadsden worked as a university professor of English, and also trained teachers for the Peace Corps. Her work took her frequently to Africa and the Caribbean, where she worked on a variety of development and education projects for numerous foundations. She became the 1st black woman to lead Oxfam America, serving as its board chair. Gadsen died at age 92 just last month, on March 14. (credit for 1981 Fred Sweets/Washington Post photo)

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

Thursday, April 26, 2012

Go, 'Grrl! Bennoune to California-Davis

Delighted to announce that IntLawGrrl Karima Bennoune (left) is joining my former faculty, the University of California, Davis, School of Law (Martin Luther, Jr. King Hall).
Karima will become a Professor of Law at Cal-Davis following, in her words, "ten rewarding years" at Rutgers School of Law in Newark, New Jersey, where she's held the title of Professor of Law and Arthur L. Dickson Scholar. During that time she was honored with Rutgers' Chancellor's Distinguished Research Award and with the Derrick Bell Award given by the Association of American Law Schools Section on Minority Groups.
As readers of her IntLawGrrls posts well know, Karima is a noted expert in many fields of international law. She's now completing a book entitled Your Fatwa Does Not Apply Here, about people of Muslim heritage challenging fundamentalism. Her published scholarship includes "Terror/Torture," Berkeley Journal of International Law (2008), on which she posted here, and which Oxford University Press named among that year's Top Ten Global Justice Law Review Articles. Karima also wrote eyewitness accounts of events during the Arab Spring, for Britain's Guardian as well as for IntLawGrrls. Two of the United Nations' special rapporteurs – on protecting human rights while countering terrorism, and on violence against women – have cited her work.
Karima earned her juris doctor degree from the University of Michigan Law School, as well as a master's degree in Middle Eastern and North African Studies and a graduate certificate in Women’s Studies from Michigan. She went on to serve as a legal adviser for Amnesty International. Her human rights field missions have included Afghanistan, Egypt, Niger, Pakistan, Southern Thailand and Tunisia.  Karima serves on the board of the Network of Women Living Under Muslim Laws.
At Cal-Davis, Karima will contribute to the work of the California International Law Center founded by yours truly and now headed by our colleague Anupam Chander. And she'll be joining a faculty that includes a number of IntLawGrrls contributors: Afra Afsharipour, Andrea Bjorklund, and Lisa R. Pruitt.
Heartfelt congratulations!

The SCSL's Taylor Judgment: A Summary

(Another of IntLawGrrls' several posts on the Charles Taylor judgment, part of our Sierra Leone accountability series)

At 11 a.m. today Hague time, Trial Chamber II of the Special Court for Sierra Leone released its long-awaited judgment in the case of Charles Taylor, former President of Liberia. Taylor faced an 11-count indictment for crimes against humanity and war crimes. These charges included the crimes against humanity of murder, rape, sexual slavery, enslavement and other inhumane acts, and the war crimes of committing acts of terror, murder, outrages upon personal dignity, cruel treatment, pillage and conscripting or enlisting children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities. In a unanimous judgment, Trial Chamber II convicted Taylor on all counts of aiding and abetting the Revolutionary United Front (RUF) and Armed Forces Revolutionary Council (AFRC) rebel groups and/or Liberian fighters operating in Sierra Leone. Specifically, Taylor was found to have provided assistance to the RUF, the AFRC or the joint RUF-AFRC junta in the following ways:
►By providing arms and ammunition, either directly or through intermediaries. For example, he facilitated two large shipments of arms used by the RUF and RUF-AFRC in their military operations, including Operation Pay Yourself and the Freetown invasion. These weapons and ammunition had a substantial effect on the crimes committed by the RUF and RUF-AFRC during the indictment period.
►By providing military personnel, including the Scorpion Unit, who helped commit crimes in various operations;
►By providing operational support, such as phones and radio contact;
►By providing financial support – for example, funds to Sam Bockarie (RUF Battlefield Commander) to purchase arms. He provided a guesthouse in Monrovia for the RUF, which facilitated their procurement of arms and ammunition;
►By providing security escorts, free passage through checkpoints, medical support, safe haven for RUF fighters, food, clothes, cigarettes and alcohol for the RUF; and
►By providing moral support through ongoing advice and encouragement to senior members of the RUF on tactics.
Taylor was also found guilty of working with Bockarie to select strategic areas within Sierra Leone to attack and control, such as the diamond mining areas and Freetown. The Trial Chamber referred to this as the Bockarie-Taylor two-pronged plan. Taylor was found to have told Bockarie to make the attacks “fearful” and Bockarie repeated this request again and again as he conveyed his orders for the attacks. Taylor was also found to have told Bockarie to “use all means” to get to Freetown. The Trial Chamber found that he was kept aware of the evolution of the Bockarie-Taylor plan and the resulting RUF-AFRC crimes committed against civilians.
The verdict is surely a disappointment to the Prosecutor, who was found to have failed to prove beyond a reasonable doubt that Taylor had superior responsibility for the RUF, AFRC, joint RUF-AFRC junta and/or Liberian fighters, or that he had participated in a joint criminal enterprise (JCE) with these groups.

Breaking news: Taylor found guilty of aiding rebels

The Special Court for Sierra Leone has just delivered its verdict finding former Liberian President Charles Taylor (right) guilty of aiding and abetting rebels during the civil war of the 1990s in Sierra Leone. (Our colleague Kevin Jon Heller's terse pronouncement on the rejection of charges that Taylor also took part in a joint criminal enterprise: "Absolutely shocking ... a stunning rebuke to the prosecution.")
Taylor's sentencing hearing's been set for May 16.
A breaking-news article is here; IntLawGrrl Valerie Oosterveld's analysis of the judgment is now online here.

Write On! IntLawGrrl/guest-editor invites articles for special transitional justice journal issue

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

The International Journal of Transitional Justice invites submissions for its 2013 special issue titled ‘The role of international criminal justice in transitional justice,' which I'm pleased to announce will be guest-edited by yours truly, Naomi Roht-Arriaza (below right), Professor of Law at the University of California, Hastings College of Law. I'm hoping to get some good papers on the subject from IntLawGrrls readers.
International criminal justice has been a key ingredient in shaping the field of transitional justice. The focus of the 2013 special issue is on the impacts of international criminal justice on transitional justice processes and goals. The timing of this special issue – the 20th anniversary of the establishment of the International Criminal Tribunal for the former Yugoslavia; slightly over a decade since the entering into force of the International Criminal Court Rome Statute; and the 10th anniversary of the Special Court for Sierra Leone (which today delivers judgment in the case against Charles Taylor, former President of Liberia) – provides significant scope for reflection. The issue will seek to share critical reflections on the contribution of international criminal justice – its mechanisms, concepts, movements and ideas – to the development of the transitional justice field.
While some argue that international justice has played a key role in combatting impunity and filling deficits of justice in post-conflict and post-authoritarian contexts, others criticize the international justice ‘movement’ for undermining national processes of transition and local initiatives. The human and financial resources dedicated to creating and operating these courts have ‘sucked the air’ out of more local initiatives, in this view. In light of rapid developments in this area over the last two decades it is appropriate and timely to reappraise the role for international criminal justice in political transitions and post-conflict environments in building sustainable peace.
Looking at the historical record of these international justice institutions and present burning policy debates, the Special Issue invites questions about the legacy of the ICTY, the International Criminal Tribunal for Rwanda, and subsequent internationalized criminal justice institutions not only for the contexts in which they have functioned, but also for the development of international criminal justice and its future trajectory as well as for justice in transition generally.
 Furthermore, how can the lessons gleaned from the experiences of these justice institutions be applied to the ongoing role of the ICC?
While hybrid and country-specific courts were specifically set up to help transitions, the ICC, by virtue of being a ‘world court’, has a far broader agenda and is therefore more distanced from the contexts in which it operates.
In addition, increased attention is being paid to the concept of complementarity, both as a legal norm binding state and international action and as a politically negotiated space between the UN, state representatives, national leaders, and civil society advocates. Thus, attention to international criminal justice is not limited to consideration of cases and countries where an international or internationalized court operates or has operated, but also to the effect of the threat of international prosecution and the discourse of international criminal justice even in countries where neither the ICC nor a country-specific court is now actively seized of a case.
The IJTJ special issue will provide an opportunity for scholars and practitioners to explore the evolution of the mechanisms, ideas/concepts, and movements of international criminal law and justice, and consider their current forms, as well as how they may continue to shape transitional justice.
Some of the key questions to explore in this regard include:

On April 26

On this day in ...
... 1607, English who'd sailed across the Atlantic made a 1st landing on the shore of what's now Virginia, a Commonwealth of the United States. A few days later, one George Percy reported, the group landed again "'set up a cross at Chesupioc'" -- now Chesapeake -- "'Bay, and named the place Cape Henry.'" (map credit) Nearly 175 colonialist years later, off this same coast French ships beat the British in a naval battle that "set the stage for General George Washington's victory at Yorktown," and so the Americans prevailed in the Revolutionary War. This dual identity of the spot moved the National Park Service to this poetic musing about the site:
'The beginning and end of British America has roots on these windswept sands.'
(Prior April 26 posts are here, here, here, here, and here.)

Wednesday, April 25, 2012

'Nuff said

(Taking context-optional note of thought-provoking quotes)
'As a young man, I was a death penalty supporter. Then I spent years as a prosecutor and pursued dangerous felons in court, including murderers. In the trenches of a criminal courtroom, I learned firsthand that our system of justice is very imperfect. While it’s a good system designed with the highest ideals of our democratic society in mind, like most of human experience, it is subject to the fallibility of those who participate in it. I saw people who were poorly served by their counsel. I saw people wrongly accused or mistakenly identified. I saw discrimination. In bearing witness to those things, I came to believe that doing away with the death penalty was the only way to ensure it would not be unfairly imposed.'

-- Governor Dannel P. Malloy today, in the statement issued as he signed the law by which Connecticut abolished capital punishment and thus made life imprisonment without parole the most severe punishment that may be levied in the state. (image credit) The District of Columbia and 16 other states also are abolitionist; as posted, in at least one other, Oregon, there is a moratorium on the death penalty.

The SCSL and the Taylor Judgment

Tomorrow at 11:00 a.m. Hague time, Trial Chamber II of the Special Court for Sierra Leone (SCSL) will release its judgment in the case of Charles Taylor, former President of Liberia. This event will also be streamed live, and can be viewed online (see instructions here). IntLawGrrls will be publishing a series of posts on the Taylor judgment.
Taylor was charged with 11 counts alleging responsibility for crimes against humanity, war crimes and other serious violations of international humanitarian law committed by rebel forces in Sierra Leone during the country’s civil war. He pleaded not guilty to all charges.
Taylor’s trial opened on June 4, 2007, in The Hague, but was adjourned immediately after the Prosecution’s opening statement when Mr. Taylor dismissed his defence team and requested new representation. He subsequently secured new defence counsel and witness testimony commenced on January 7, 2008. Closing arguments took place in February and March 2011.
The prosecution presented 94 witnesses in person, and written statements from four additional witnesses. The defence presented 21 witnesses, including Taylor himself. The trial judges have considered 50,000 pages of witness testimony and 1,520 exhibits.
 If Taylor is acquitted on all charges, the appeals process will begin immediately. If he is found guilty on any of the 11 counts, the Trial Chamber will schedule sentencing proceedings. See this SCSL press release for more details.
Given the impending release of the Taylor judgment, it is a good time to review developments at the SCSL since our last SCSL-related post:
► In December 2011, the Sierra Leonean Parliament passed the Residual Special Court for Sierra Leone Agreement Act 2011, to ratify the agreement between the UN and the Government of Sierra Leone on the establishment of a Residual Special Court for Sierra Leone. 
► At the end of 2011, as a result of the intense difficulties in securing adequate voluntary state contributions to cover its budget, the United Nations General Assembly agreed to a subvention of over $9 million USD to cover the SCSL's 2012 budget. This is meant to cover operations of the Court to the close of any Taylor appeals process.
►On January 31, Taylor’s defence team filed a motion to request that his case be re-opened. The defence team wished to argue that the December 7, 2011 Panel of Experts Report on Liberia showed that Liberian fighters could easily cross the Cote d’Ivoire border for their own gains, and that this demonstrates that Liberian fighters could do the same during the Sierra Leonean conflict. This request was denied on February 9. 
►On February 27, in preparation for expected appeals in the Taylor case, Justice Philip Waki of Kenya was sworn in as an alternate judge of the SCSL’s Appeals Chamber. 
►In early March, Taylor’s defence team requested that the April 26 date for the release of the judgment be changed, as Taylor’s lead counsel had prior engagements on that date and because Sierra Leone celebrates its 51st independence anniversary on April 27. This request was unanimously dismissed by Trial Chamber II.
►On March 26, the United Kingdom announced additional funding for the SCSL in the amount of £600,000, bringing the UK’s total contribution to the SCSL to £27.6 million since 2002. 
►At present, the SCSL continues to prepare for its transitionto the Residual Special Court for Sierra Leone. It is also reducing staff, liquidating its assets and preparing for handover of the physical site in Freetown. The Residual Special Court is expected to have a budget of $1.6 million in its first year, all of which is to be covered by voluntary contributions. 

(1st of several posts on the Charles Taylor judgment, part of IntLawGrrls' Sierra Leone accountability series)

Go On! Early Reflections on the Taylor Judgment

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


Together with IntLawGrrls contributor Jennifer Easterday, yours truly, Sara Kendall, is pleased to announce that Leiden University’s Grotius Centre for International Legal Studies will be hosting an event in conjunction with the Open Society Justice Initiative following the delivery of the judgment in the trial of Charles Taylor at the Special Court for Sierra Leone.
For those of you in The Hague this Friday, one day after the trial judgment is pronounced, we invite you to join us for the early reflections of Brenda J. Hollis (below left), Prosecutor of the SCSL, as well as those of academics and representatives from the Sierra Leonean and international civil society communities.
Details are as follows:
Early Reflections on the Taylor Judgment
With Brenda J. Hollis, Prosecutor, Special Court for Sierra Leone
Friday, 27 April 2012
6:30 p.m. to 8:00 p.m.
Lange Houtstraat 5-7, Room 403
Den Haag
Reception to follow at Barlow Bar & Restaurant, Plein 15-16, Den Haag.
We look forward to seeing you there.

On April 25

On this day in ...
... 1984, in Moscow, Canada and the Soviet Union signed an agreement to cooperate on research and development in the Arctic. This Protocol of Canadian/Soviet Consultations on the Development of a Programme of Scientific and Technical Cooperation in the Arctic and the North set the stage for further exchange programs between the two countries.

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

Tuesday, April 24, 2012

Brazil’s Amnesty Commission: A combination truth and reparations body

I had the honor of attending a public session of Brazil’s Amnesty Commission recently. The Commission was sitting that week in Porto Alegre, where I participated in a conference entitled Limites e Possibilidades da Justiça de Transição: Impunidade, Direitos e Democracia (Limits and Possibilities of Transitional Justice: Impunity, Rights, and Democracy), held April 13 at the Catholic University of Rio Grande do Sul.
A little-known transitional justice mechanism, Brazil's Amnesty Commission has some interesting characteristics:
►It was formed to deal with a wide range of violations: Brazil suffered relatively few deaths (some 400) during the years of military dictatorship – defined as 1961-79 – but extensive political repression including torture and detention, exile, loss of jobs and blacklisting. It combines some truth-telling with a grant of reparations.
Amnesty was a fundamental demand of civil society during the transition from the military to a civilian government. Amnesty here is used in the same sense as in Amnesty International – removing the civil and criminal disabilities of regime opponents. There’s a whole other fight in Brazil about the other meaning of amnesty – that which protects the military from prosecution for crimes committed during the dictatorship. More on that below.
In 2002, the government created the Commission, which is officially part of the Ministry of Justice. It’s been holding hearings around the country and providing reparations for the harms committed by the dictatorship.
The hearing I saw involved 6 cases. The 15 Commissioners, about half academics and half social activists, sat on the stage. The national anthem was sung. The first case involved a woman who had been forced into exile with her husband for their political activities. One of the Commissioners, acting as rapporteur, summarized her file, waxing eloquent on the harms she suffered and detailing the proof she had provided to the Commission. Apparently, the case had been denied once before for lack of adequate documentation. This time, the Commissioner recommended amnesty. The amnesty seeker then was given up to ten minutes to address the session, which she did, thanking everyone and recounting some of the political activism that preceded her family’s flight from Brazil. Finally, each of the Commissioners voted on whether to accept the rapporteur’s recommendation, and then everyone stood while the president of the Commission officially pronounced her an amnestiado politico, asked for pardon in name of the Brazilian state for forcing her into exile and changing her life’s plan, and awarded her a lump sum payment. She got a hug and a flower from a member of the Commission’s staff, and everyone applauded.
A similar procedure followed for the rest of the cases.
In one, a former student leader who had been stripped of his Brazilian citizenship because of his activism had it reinstated, along with a sum of money and an apology (The Commission can obtain benefits for victims from other state agencies, and has read its mandate to do so); he had flown in from the US especially for the ceremony.
The most famous case was that of former Brazilian President João Goulart’s grandson, who offered a political speech and received reparations for having been forced as a child to move from one country to another, in fear, after his grandfather was overthrown. While the Commissioner’s recognized the existence of inter-generational trauma, they were quick to note that just being the grandchild of a political exile or prisoner was not enough to qualify for amnesty.
The most interesting case, for me, was of a former state bank workers’ union leader who had been forced out of his job in the wake of a strike and then blacklisted.

On April 24

On this day in ...
... 2007 (5 years ago today), Souhayr Belhassen of Tunisia was elected president of FIDH, the Paris-based nongovernmental organization the full name of which is Fédération internationale des droits de l'homme. (Prior posts.) A journalist since the late 1970s as well as a human rights activist, Belhassen (left) was born in Tunisia in 1943 and educated at the University of Tunis and at Sciences Po in Paris. Her FIDH tenure has been marked by her promotion of women's human rights; just this past March, she was the 1st-named signatory of "L'appel des femmes arabes pour la dignité et l'égalité" ("The Call of Arab Women for Dignity and Egality"), published in the Paris daily Le Monde.

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

Monday, April 23, 2012

Introducing Jihan A. Kahssay


It's my great pleasure to welcome a former student, Jihan A. Kahssay (left), as an IntLawGrrls contributor.
Jihan is a student at the University of California, Davis, School of Law, from which she expects to receive her J.D. degree at the end of this year. Jihan focuses her studies on international human rights and refugee law, and has just been honored as the 2012 recipient of the Pritikin Award for best student article submitted to the UC Davis Journal of International Law & Policy. Her paper, "Lessons Learned from Somalia: Returning to a Humanitarian-Based Humanitarian Intervention," will appear in a forthcoming edition of the journal.
Her family is originally from Eritrea, although she grew up in Saudi Arabia and Canada. For several months last year, Jihan worked in partnership with the U.N. High Commissioner for Refugees field office Addis Ababa, Ethiopia, assisting Eritrean and other refugees seeking resettlement. Jihan discusses lessons learned from that experience in her introductory post below.
She went to Ethiopia as a University of California-Davis Human Rights Fellow -- one of 2 last summer; the other was Joanna Cuevas Ingram, who also has contributed an IntLawGrrls post. In the summer after her 1st year of law school, Jihan worked for Legal Services of Northern California, as a King Hall Legal Foundation Fellow and Hogan Award Recipient. This summer, she will work as a research assistant for California-Davis Professor Leticia Saucedo.
Jihan dedicates her post to Zewditu I (below right), who reigned as Empress of Ethiopia from 1916 to 1930. (photo credit) Jihan writes:
Empress Zewditu held the title of "The Queen of Kings," and was the first woman head of an internationally recognized state in Africa. Under her rule, Ethiopia entered the League of Nations and abolished slavery.
Today Zewditu joins other inspiring women in on IntLawGrrls' transnational foremothers page.
Heartfelt welcome!