Sunday, September 30, 2012

Look On! Notorious take on post-WWII

(Look On! takes occasional note of noteworthy productions)

Recently I went to the BFI Southbank, the British Film Institute cinema in London, to see Notorious (1946) by Alfred Hitchcock.
Throughout this month, the British Film Institute is celebrating the 'Genius of Hitchcock', a festival showcasing some of the work by this master of suspense, who was born in London in 1899 and died in California in 1980.
For those unfamiliar with Hitchcock, his most famous movies include Psycho (1960), The Birds (1963), Marnie (1964), Rear Window (1954), and Vertigo (1958). He made many other amazing films, mixing suspense and humour, such as Strangers on a Train (1951) (remade by Danny DeVito as Throw Mamma from the Train (1987)), The Trouble with Harry (1955) and Rope (1948). (Prior IntLawGrrls posts on Hitchcock here and here.)
Hitchcock is considered to be one of the movie greats, having moved from silent film to modern cinema, influencing directors and filmmakers around the world. I've been looking for an opportunity to include a Hitchcock movie in my ongoing research on human rights and film, and Notorious seemed to present the opportunity to do so.
The movie is a film noir thriller, combining suspense with romance. It begins with the trial and conviction of a Mr Huberman for treason – a law connection. His daughter, Alicia Huberman (played by Ingrid Bergman (right)), is contacted by one Devlin (played by Cary Grant), and asked to go to Brazil to spy on Nazi friends of her father. (poster credit) US secret agents want to know what the Nazis are doing in Rio. Alicia agrees, and soon Devlin and Alicia begin a passionate affair, unaware of the details of the task. However, Alicia must use her female charms to get herself into the close circle of the leader, Alexander Sebastian (played by Claude Rains). She thus places her love and her life at risk.
The film recalls events in real life:
A number of Americans were prosecuted following the end of the Second World War for treason on account of their participation in the Third Reich. For example, Mildred Gillars and Rita Zucca, known as Axis Sallys, were American broadcasters employed to disseminate Nazi propaganda who were prosecuted by the US.  Mostly famously, 'Tokyo Rose' Iva Toguri D'Aquino, an American citizen, was prosecuted and convicted for treason in 1949 following public outcry over her role in the propaganda programme, the Zero Hour aired on Radio Tokyo.

(Cross-posted at Human Rights Film Diary blog)

Khadr comes home

Omar Khadr is back in Canada a full decade since he, then a 15-year-old boy, was seized in Afghanistan.
As we've posted, he was placed in U.S. custody, interrogated, and detained – eventually, at Guantánamo. It was there that, in 2010, he entered a guilty plea to 5 terrorism charges in exchange for a sentence then believed to include about a year more at GTMO plus 7 in Canada. Khadr is reported now to be at a maximum-security prison in Ontario. (credit for detail from 2008 photo (c) Joshua Sherurcij)
Transfer yesterday to Canada came a week or so after the 25th birthday of this onetime child soldier. (Don't get us started on the clueless CNN.com teaser headline of yesterday, "Gitmo detainee: Killer or child soldier?", as if the 2 were mutually exclusive.) Canadian media reports – compare headlines here and here – indicated divided opinion about his repatriation.

On September 30

On this day in ...
... 2011, the United States killed 2 Americans by drone strike in north Yemen. As then posted, the 2, who were among several al-Qaeda-linked men traveling in a car when struck, were Anwar al-Awlaki, 40, a cleric whom the United States had long sought (and whom President Barack Obama said "had taken 'the lead role in planning and directing the efforts to murder innocent Americans'"), and Samir Kahn, 25, the editor of an online magazine maintained by al-Qaeda. Media attention was concentrated on account of the nationality of the 2, and so sparked a new round of debate regarding the U.S. policy respecting the drone aircraft (example picture above left), about which we've frequently posted. And see this report on civilians and drones, a just-released joint project of the Stanford International Human Rights and Conflict Resolution Clinic and the Global Justice Clinic at New York University School of Law. (photo credit)

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

Saturday, September 29, 2012

'Nuff said

(Taking context-optional note of thought-provoking quotes)
'September 2012 marks one year since the Palestinian leadership introduced its bid for membership and recognition at the United Nations. Then, an international community – comprised of UN member states, NGOs, and Palestinians – watched the Palestinian leadership with apprehension and hope, eager that it would use the UN platform to embark on a new chapter of the Palestinian struggle for self-determination. One year onwards, it is clear that this leadership is more committed to preserving its rule in a truncated statelet than achieving national liberation.'
–  Noura Erakat (above right), Abraham L. Freedman Teaching Fellow at Temple University, Beasley School of Law and the U.S.-based Legal Advocacy Consultant for the Badil Resource Center for Palestinian Refugee and Residency Rights, in an editorial entitled "Statehood Bid One Year Later: No State, No Bid, No Freedom," posted on Jadaliyya, the e-zine she co-edits.  As previously posted, Noura's scheduled to present her paper entitled "U.S. v. ICRC – Customary International Humanitarian Law and Universal Jurisdiction" at the ASIL Midyear Meeting to be held in Atlanta and at the University of Georgia School of Law, Athens, from October 19 to 21 (meeting registration here).

Bensouda, Bellinger on ICC: video

Fatou Bensouda
The International Criminal Court: A New Approach to International Relations was the topic of a presentation earlier this month at the Council on Foreign Relations in New York.
Speaking was ICC Prosecutor Fatou Bensouda; moderating was John B. Bellinger III, former Legal Adviser to the U.S. Department of State.
Video of the hour-long event, which was cosponsored by the American Society of International Law, is here.

On September 29

On this day in ...
... 1972 (40 years ago today), in what then still was called Peking, amid a several-day official visit to the People's Republic of China by Prime Minister Kakuei Tanaka, who'd been invited by Premier Chou En-lai, was issued the Joint Communique of the Government of Japan and the Government of the People's Republic of China. It began with this clause:
'1. The abnormal state of affairs that has hitherto existed between Japan and the People's Republic of China is terminated on the date on which this Joint Communique is issued.'
It ended with this one:
'9. The Government of Japan and the Government of the People's Republic of China have agreed that, with a view to further promoting relations between the two countries and to expanding interchanges of people, the two Governments will, as necessary and taking account of the existing non-governmental arrangements, enter into negotiations for the purpose of concluding agreements concerning such matters as trade, shipping, aviation, and fisheries.'
That pledge to maintain a "normal state of affairs" has been sorely tested recently, as Japan and China spat over ownership of the East China Sea islands that the former calls Senkaku; the latter, Diaoyu. (prior post)

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

Friday, September 28, 2012

Welcoming Mónica Roa

It's our great pleasure today to welcome Mónica Roa (right) as an IntLawGrrls contributor.
Mónica is Programs Director at Women’s Link Worldwide (prior posts here and here), a not-for-profit human rights organization based in Colombia and Spain that seeks gender justice throughout the world. She views the judiciary as a pivotal branch in democratic society and has worked at Women's Link to foster greater dialogue between civil society and the courts on how to interpret rights from a gender perspective.
In 2006, she successfully argued before the Constitutional Court of Colombia to overturn the country’s restrictive ban on abortion.  Mónica was named "Person of the Year" by leading media outlets in Colombia in 2005 and 2006, and was recognized in 2011 as one of the ten most important leaders in Colombia. She has also faced threats to her life, as recently as this year, for her work on reproductive rights. 
Mónica holds a law degree from the University of the Andes, Bogotá, Colombia.  She earned her Master of Laws (LL.M.) as a Global Public Service Law Scholar from New York University.   Mónica teaches at the Academy on Human Rights and Humanitarian Law at the American University, Washington, D.C. College of Law.  Her publications include: "Bodies on Trial: Sexual and Reproductive Rights in Latin American Courts" (2002) and "Litigating Reproductive Rights at the Inter-American System for Human Rights" (Harvard, 2003).
In honor of International Right to Information Day, in her introductory post below, Mónica discusses a recent, landmark case in the Constitutional Court of Colombia regarding the right to access complete and impartial information from the government.
As have other contributors (prior posts), Mónica has chosen to honor Olympe de Gouges (right) as her international law foremother. (image creditMónica writes of this French feminist who lived from 1748 till she perished beneath the guillotine in 1793:
'My job is to work so that justice is adjudicated with a gendered perspective. I think of her every time that I demand equality and justice for women and some would like to behead me. So far we have come, so far we still have to go.'
Heartfelt welcome!

Right to Information Victory in Colombia

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

On September 11, 2012, the Constitutional Court of Colombia held that the Inspector General of Colombia (in Spanish, Procurador) and two of his deputies had failed in their constitutional obligation to provide truthful and accurate information on sexual and reproductive rights. Shortly thereafter, and within the limited time-frame for rectification outlined by the Court, the Inspector General held a press conference to correct the false information.
In 2011 we, a group of 1279 Colombian women, filed a tutela (a mechanism by which private citizens can bring alleged violations of their fundamental rights) alleging that our constitutional right to information had been violated when the office of the Inspector General published and disseminated false information about emergency contraception, abortion, and sex education.
The Constitutional Court found that the Inspector General and his deputies had, in violation of their legal obligations, issued misleading information on sexual and reproductive rights. For instance, they had stated, contrary to all current medical evidence, that emergency contraception is abortive, and that the use of misoprostol, an abortifacient approved by the WHO to perform safe abortions, was a danger to women and girls’ health.
The Court’s decision makes clear that public officials have an obligation under the law to provide impartial and complete information, irrespective of their personal, political or religious views. Their attempts to undermine women’s and girls’ rights by providing incomplete and false information were held to be in violation of the fundamental rights guaranteed by the Colombian Constitution. This decision ensures that Colombian women and girls will be provided truthful and accurate information on sexual and reproductive issues and are enabled and empowered to make free and informed decisions based thereon. Citizens have to be able to trust the information provided by representatives of the State, and even more so when it comes from the Inspector General’s Office, which is the institution responsible for ensuring the full protection of human rights in Colombia.
The case had been filed in the context of a series of declarations and actions by the Procuraduría, which not only failed to recognize the right to a legal abortion, but also the very existence of sexual and reproductive rights. The most recent manifestation of this threat to sexual and reproductive rights has taken the form of a criminal suit by Deputy Inspector General Hoyos against me personally in response to the allegations of the 1279 women in the tutela. She claims that these allegations, on which the Court has just ruled in our favour, are untrue and defamatory. Deputy Inspector General Hoyos has failed to retract the criminal complaint against me and, ominously, continues with her candidature to fill a seat on the Constitutional Court, the seat of the Judge who authored the decision ordering her to rectify her false statements. Similarly, the Inspector General continues with his campaign for reelection for a further four years.

Go On! Gender equality & human rights @ Stanford

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

"Advancing Gender Equality through Human Rights" is the theme of the International Public Interest Lawyering Symposium to be held this October 12 and 13 at the Levin Center for Public Service and Public Interest, Stanford Law School in California.
Keynote speakers will be Patricia M. Wald (left), former Chief Judge of the U.S. Court of Appeals for the D.C. Circuit and Judge of the International Criminal Tribunal for the former Yugoslavia, and an IntLawGrrls contributor; and Christopher Stone, since this past July the President of the Open Society Foundations.
Panelists are detailed here. They include, according to organizers:
'Executive Directors or Presidents of innovative human rights and international justice organizations and public interest attorneys from leading public interest legal organizations in Kenya, Nigeria, China, South Africa, Malaysia, Palestinian Territories, China and Chile.'
Questions to be addressed:
► What is the power of human rights ideas for transnational and local social movements?
► Using the Convention on the Elimination of All Forms of Discrimination Against Women and gender equality as a case study, have human rights created a political space for reform in particular countries and what have been the key challenges?
► What are the lessons learned from the global gender equality movement for other human rights struggles?
► Looking forward, what are the key challenges and opportunities for more strategic collaboration between the movement for gender equality and other aspects of the human rights movement?
Details and registration here and here.

On September 28

(credit)
On this day in ...
... 1939, in Moscow, Joachim von Ribbentrop and Vyacheslav Molotov, Foreign Ministers of Nazi Germany and the Soviet Union, respectively, signed the German-Soviet Boundary and Friendship Treaty in the wake of the 2 countries' joint invasion of Poland. The secret pact established each country's zones of influence, not only in Poland (left), but also in Lithuania. Six years later, at the end of World War II, Allies including, by then, the Soviet Union, would place von Ribbentrop in the prisoner's dock, as a defendant in the Trial of the Major War Criminals at Nuremberg. He would be convicted on all 4 counts and executed in 1946.

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

Thursday, September 27, 2012

Samoa makes it 2 and counting against aggression

The 2d state instrument ratifying amendments that would make the crime of aggression fully punishable by the International Criminal Court was deposited yesterday at U.N. headquarters in New York.
Above, Patricia O'Brien, Under-Secretary for Legal Affairs and U.N. Legal Counsel, accepted the document from Tuilaepa Sailele Malielegaoi, Prime Minister and Minister of Foreign Affairs of Samoa. (photo credit) At yesterday's event, he explained the reasons behind the Pacific island state's decision to ratify:
'Samoa is not a member of any military grouping and has no aspirations to become one. We do so because we place great faith in the rule of law and the vital protection that the law offers to all States, especially to the weak and small. From this perspective, we consider the International Criminal Court one of the most important developments in the affairs of the international community in the struggle against impunity ....'
Samoa joins 1 other state in adhering to the crime-of-aggression amendments, the text of which was adopted by a consensus vote of the ICC Assembly of States Parties at the close of its 2010 ICC Review Conference in Kampala, Uganda. Ratifying several months ago was Liechtenstein, as we then posted. As we've discussed in our series on the crime of aggression, entry into force of these amendments cannot occur any earlier than 2017, and then only if 30 states have ratified and the Assembly of States Parties has given a further vote of approval.

Kiobel: A Preview of the Arguments

(Part 2 of a 2-part series; Part 1 is here)

This Monday, October 1, the U.S. Supreme Court will hear reargument in Kiobel v. Royal Dutch Petroleum, on the extraterritorial reach of the Alien Tort Statute. (Prior ATS posts)
Based on the merits and amicus briefs, four issues will likely consume the oral argument; specifically, the:
►  Impact of the Court's 2004 judgement in Sosa v. Alvarez Machain;
►  Presumption against extraterritoriality;
►  Status of universal civil jurisdiction under international law; and
►  Adequacy of existing abstention doctrines.

The Case for Shell
In its supplemental brief, Shell seeks a categorical bar on extraterritorial ATS litigation, one that would foreclose not only actions against corporate defendants, but also actions against individual human rights abusers.
Shell’s case rests on a core assertion that extraterritorial ATS litigation violates foreign sovereignty and international law. The argument relies on two canons of statutory construction:
► First, invoking the presumption against extraterritoriality, Shell argues that courts must not recognize ATS actions for foreign human rights abuses because the ATS does not explicitly say that it applies extraterritorially. Citing to the Court's decision in Morrison v. Australia National Bank (2010) (prior post), Shell contends that this presumption limits a court’s power to recognize a federal common law cause of action, even if the substantive norms derive from international law.
► Second, invoking the Charming Betsy canon – that an ambiguous statute should be construed not to violate international law – Shell argues that the ATS violates international law because it lacks a basis for prescriptive jurisdiction.
Notably, Shell contends that the ATS is not a valid exercise of universal jurisdiction, for the reason that states have only consented to universal criminal jurisdiction, not universal civil jurisdiction. In Shell’s view, universal civil jurisdiction is a greater invasion of sovereignty, since private litigation is not checked by prosecutorial discretion. Harvard Law Professor Jack Goldsmith’s amicus brief for Chevron forcefully argues this point:
'Under international law, a nation’s sovereignty over activities within its territory is presumptively absolute, subject to exceptions by national consent. Nations […] have not, however, consented to allow a foreign court to entertain civil causes of action on the basis of universal jurisdiction, as is done in ATS cases.'
The Case for the Kiobel Plaintiffs
In their supplemental brief, the Kiobel plaintiffs argue that Sosa already answered the question of extraterritoriality. Sosa presumed that the ATS applies to abuses overseas: it embraced Filártiga v. Peña-Irala (2d Cir. 1980), and crafted a framework to address concerns of international comity. Shell’s categorical bar nullifies this framework.
Moreover, plaintiffs argue, the presumption against extraterritoriality does not apply to jurisdictional statutes such as the ATS. Even if it did, the statute’s text and history overcome the presumption. As the legal historians brief shows, when Congress enacted the ATS, it clearly intended the law to enforce international norms like piracy, which extended beyond U.S. borders. Indeed, Attorney General Bradford’s 1795 opinion – applying the ATS to actions in Sierra Leone – confirms that the framers understood the ATS to have extraterritorial effect.
The plaintiffs also argue that the ATS’s global reach is fully consistent with international law, as follows:
► First, the ATS exercises “adjudicative jurisdiction” rather than “prescriptive jurisdiction” – the ATS does not legislate regulations and project them overseas; it simply provides a forum to adjudicate international law claims.
► Further, under the S.S. Lotus Case (Permanent Court of Justice 1927) (prior posts), one state’s exercise of jurisdiction is presumed valid, unless it violates a specific prohibitory rule. Shell fails to prove that international law prohibits providing a civil remedy for foreign human rights abuses. To the contrary, international law authorizes universal jurisdiction and obligates states to provide effective remedy.
► Moreover, as Justice Stephen G. Breyer noted in his Sosa concurrence, universal criminal jurisdiction necessarily contemplates universal civil jurisdiction, since many countries allow civil remedies alongside criminal prosecution.
As demonstrated in a brief by the Yale Law School Center for Global Legal Challenges, on which Yale Law Professor Oona A. Hathaway (right) is counsel of record, many civil law countries permit plaintiffs to initiate universal jurisdiction proceedings, much like the ATS. (A few weeks ago, a post by IntLawGrrl Vivian Grosswald Curran outlined the amicus brief she authored, which puts forward further comparative law arguments.)
The brief of U.N. High Commissioner Navi Pillay, for which Santa Clara Law Professor David Sloss is counsel of record, further elucidates:
Navi Pillay
'Retributive and compensatory justice go hand in hand. If international law allowed States to exercise universal criminal jurisdiction over gross violations, while prohibiting them from offering victims compensation for the same violations, this would cut off the second leg of the principle of effective remedy, which universal jurisdiction is meant to protect.'
The U.S. Government Walks the Line
Though it argued for the plaintiffs in Kiobel I, the U.S. government filed an amicus brief on behalf of neither party in Kiobel II.

On the Job! Clinical teaching fellowship @ USC

(On the Job! pays occasional notice to interesting intlaw job notices) 

From our colleague Hannah Garry, Clinical Associate Professor of Law and Director of the International Human Rights Clinic at Los Angeles' University of Southern California Gould School of Law, comes news that applications are now being accepted for the Audrey Irmas Clinical Teaching Fellowship, which will begin in summer 2013 and run for 2 years. Hannah notes that the current, inaugural Irmas Clinical Teaching Fellow, University of Texas Law graduate Elizabeth Henneke, "learned about the fellowship through IntLawGrrls" (news we're delighted to hear). Hannah writes:
'Candidates should have two to five years' practice experience, experience or interest in advocating on behalf of women and children, and an interest in pursuing a career in law school clinical teaching.'

Desirable is experience in one or more of the following: immigration law, international human rights and/or international criminal law; and criminal law. Other desirable attributes include: excellent academic record, membership in a state bar, analytical and writing skills, and skills in languages in addition to English.
The fellow will work among USC Law's network of clinics – the Immigration Clinic, the International Human Rights Clinic, or the Post-Conviction Justice Project – under the supervision of clinical faculty members. Duties will include supervision of students, co-teaching, curriculum development, casework, and some events programming.
Annual salary will range from $60,000 to $75,000, plus benefits.
Deadline for applications is November 30, 2012.
For further details on the position and how to apply, click here.

On September 27

On this day in ....
(credit)
... 1937 (75 years ago today), occurred the last killing of a Balinese tiger, in western Bali. The occasional claimed sightings of members of the subspecies never were substantiated, and these tigers are now believed extinct, as is another of the 3 subspecies found in Indonesia, the Javan tiger. The 3d, the Sumatran tiger, is critically endangered. Loss of habitat and hunting parties, like the 1911 one pictured at right, are said to be the causes.

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

Wednesday, September 26, 2012

Welcoming Sandra L. Babcock

It's our great pleasure today to welcome Sandra L. Babcock (left) as an IntLawGrrls contributor.
Clinical Professor of Law and the Clinical Director of the Center for International Human Rights at Northwestern University School of Law in Chicago, Sandra specializes in international human rights litigation, access to justice, death penalty defense, and the application of international law in U.S. courts. As indicated in a prior post, she's a noted expert on the applicability of the 1963 Vienna Convention on Consular Relations to criminal cases in national courts – in particular, the courts of the United States, where she's frequently litigated the issue on behalf of prisoners denied their treaty-based right to consular access. In her introductory post below, Sandra discusses a new decision in which the Nevada Supreme Court adhered to a 2004 International Court of Justice ruling with respect to the Convention.
After earning her bachelor's in international relations from Johns Hopkins University and her J.D. from Harvard, where she served as Executive Editor of the Harvard Civil Rights-Civil Liberties Law Review, Sandra began her career as a staff attorney at the Texas Capital Resource Center, a nonprofit dedicated to defending men and women facing the death penalty. She later practiced as a public defender in Minnesota, as a solo practitioner, and as Director of the Mexican Capital Legal Assistance Program, funded by the Mexican Foreign Ministry to assist Mexican nationals facing capital punishment in the United States. In 2003 Mexico recognized her work by giving her the highest honor accorded citizens of other countries, the Águila Azteca.
Since joining Northwestern's law faculty in 2006, Sandra has worked with students on, inter alia, the representation of Mexican nationals on death row, the representation of a detainee at Guantánamo, fieldwork designed to alleviate overcrowding in Malawian prisons, documentation of atrocities for the Liberian Truth and Reconciliation Commission, and advocacy surrounding the Convention on the Rights of the Child.
As did IntLawGrrl Dina Francesca Haynes in a post a while back, Sandra dedicates her post to Joan Fitzpatrick (right), a renowned expert on immigration and refugee law, human rights law, and international law. At the time of her sudden death in 2003, at age 52, she was the Jeffrey & Susan Brotman Professor of Law at the University of Washington School of Law in Seattle. Prior to that, she'd also taught at Arkansas and Virginia, and been a government lawyer in Washington, D.C. Colleagues honored her and another fallen human rights lawyer by publishing an essay collection, Human Rights And Refugees, Internally Displaced Persons And Migrant Workers: Essays In Memory of Joan Fitzpatrick and Arthur Helton (Anne Bayefsky ed., 2005). Sandra writes:
'I dedicate the post to Joan because she was deeply engaged in the struggle to end the death penalty, torture, and other human rights violations. For her it was more than an academic exercise.'
Heartfelt welcome!

Nevada's high court follows ICJ consul rights ruling

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

The Nevada Supreme Court has become the second in the United States to uphold the decision of the International Court of Justice in Avena and Other Mexican Nationals.
In Avena, the ICJ held in March 2004 that the United States had failed to notify 51 Mexican nationals on death row of their consular notification and access rights pursuant to Article 36 of the 1963 Vienna Convention on Consular Relations. To remedy these violations, the ICJ held that the United States courts must review and reconsider the convictions and sentences of the condemned Mexicans to determine whether (and how) these men were prejudiced by the deprivation of their consular rights.
Last week, on September 19, in the case of Gutierrez v. State, the Nevada Supreme Court complied with that holding, on reasoning detailed below.
The only other court in the United States to have granted review and reconsideration is the Oklahoma Court of Criminal Appeals.
The Oklahoma court applied the ICJ’s ruling in the case of Osbaldo Torres. After conducting an evidentiary hearing, it concluded in Torres v. State (September 2004) that Torres had been prejudiced by the Vienna Convention violation. By that time, the Oklahoma governor had already commuted Torres’ death sentences to life imprisonment, based in part on the ICJ’s decision.
But in neighboring Texas, in the case of José Medellín, courts refused to follow Oklahoma’s example.
The U.S. Supreme Court ultimately held, in Medellín v. Texas (March 2008), that the ICJ’s Avena judgment did not preempt state procedural rules that barred prisoners from raising Vienna Convention claims in successive habeas corpus petitions.
In a concurring opinion, however, Justice John Paul Stevens pointed out that nothing prevented the states from voluntarily complying with the ICJ’s judgment. Citing Torres, Stevens (below right) urged Texas to review Medellín's Vienna Convention claim:
'One consequence of our form of government is that sometimes States must shoulder the primary responsibility for protecting the honor and integrity of the Nation. Texas' duty in this respect is all the greater since it was Texas that – by failing to provide consular notice in accordance with the Vienna Convention – ensnared the United States in the current controversy.'
Texas was not swayed by Justice Stevens’ plea, however, and José Medellín was executed in August 2008, without ever having received the review and reconsideration to which he was entitled under the Avena judgment. The ICJ subsequently held that the United States had breached its international legal obligations by carrying out his execution.
Then, in 2011, Texas executed Humberto Leal García in violation of Avena’s mandate, after the U.S. Supreme Court refused to review the case.  (IntLawGrrls' many opinions on these Vienna Convention cases available here.)
In last week's 5-to-2 decision in Gutierrez (available in full here), the Nevada Supreme Court distinguished the Medellín and Leal cases, noting that petitioner Carlos René Pérez Gutiérrez had presented substantial evidence of prejudice. Specifically:
► He had a sixth grade education, and spoke little English at the time of trial.
► The court interpreter falsified his credentials, and failed to correctly interpret the testimony of a number of witnesses.
In remanding the case for an evidentiary hearing (by a vote of 5 to 2), the Nevada Supreme Court cited Justice Stevens’ concurrence, noting, with emphasis, that while
'without an implementing mandate from Congress, state procedural default rules do not have to yield to Avena, they may yield, if actual prejudice can be shown.'

Go On! Migrant Domestic Workers, Gender Equality and the Limits of Rights, at University College Cork

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

The Centre for Criminal Justice and Human Rights, University College Cork is hosting a conference on October 19th 2012, on Migrant Domestic Workers, Gender Equality and the Limits of Rights.
The conference is organised in the context of European Anti-Trafficking events and includes a keynote address by OSCE Special Representative and Coordinator on Combating Trafficking Human Beings, Maria Grazia Giammarinaro (pictured below).
The conference addresses the position of migrant domestic workers in human rights law and the continuum of exploitation experienced by domestic workers. It marks the coming into force of the ILO Convention on Decent Work for Domestic Workers (about which we've posted here). Speakers include: Dr Jean D'Cunha, UN Women, Gender, Employment and Migration Adviser; Int Law Grrls Contributor Professor Janie Chuang, American University, Washington DC, Open Society Justice Fellow; Dr Bridget Anderson, COMPASS, Oxford University; Dr Cliodhna Murphy, Centre for Criminal Justice and Human Rights, Faculty of Law, University College Cork; Ludovica Banfi, Social Research Programme Manager, Freedoms and Justice Department, EU Fundamental Rights Agency; Noel Waters, Director General, Irish Naturalisation and Immigration Service; Siobhan O’Donoghue, Director, Migrant Rights Centre Ireland; Marriam Bhatti, Domestic Workers Action Group.
All Welcome! Full details are available here.

On September 26

(credit)
On this day in ...
... 1992 (20 years ago today), The New York Times quoted "senior Administration officials" who said that "'as many as 3,000' Muslim men, women and children were killed in May and June at Serbian-run detention camps near the Bosnian town of Brcko." The report of the atrocity -- said to be the 1st for which U.S. officials had "independent information corroborating" a reported massacre -- coincided with the voicing, by Acting Secretary of State Lawrence S. Eagleburger, of U.S. support for an inquiry. The ensuing U.N. war crimes inquiry commission would be headed by DePaul Law Professor M. Cherif Bassiouni.

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

Tuesday, September 25, 2012

'Nuff said

'The future must not belong to those who bully women – it must be shaped by girls who go to school, and those who stand for a world where our daughters can live their dreams just like our sons.'
–  U.S. President Barack Obama, to the U.N. General Assembly. The half-hour speech by the President, delivered earlier today (available in full here and viewable online here), ranged widely. (credit for White House photo) But it had a clear focus: promotion of tolerance and suppression of violence, particularly in regions still experiencing what Obama termed "convulsions that can accompany transitions to a new political order."

Have we that kind of agenda?

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'To what extent blogs such as this purposefully include or exclude certain other groups, or can be said to represent an identity-based ideological or political agenda, is altogether unclear.'
– So concludes footnote 307 of "Comparative International Law," published last year in the Brooklyn Journal of International Law by Professor Boris N. Mamlyuk of the University of Memphis' School of Law and Professor Ugo Mattei of the University of California Hastings College of the Law and the University of Turin, Italy.
The blog in question? Ours.
The footnote's linked to a statement in the article's text, that "identity and authenticity critiques also allow the demystification of the notion that given groups of scholars represent a particular minority" – that "minority" being in this instance, apparently, women.
Here in full is the rest of the footnote (altered so that cites are now hyperlinks, and so that yours truly's surname is correctly spelled). The passage precedes the footnote's last sentence, quoted above:
'In this respect, see IntLawGrrls, a blog co-authored by a number of influential female international law scholars, subtitled “voices on international law, policy and practice” and further subtitled “it's our world, after all.” The purpose of the blog seems to facilitate discussion and the dissemination of ideas. Diane Marie Amann, IntLawGrrls' Heartfelt Hello (“Women now have a hand in our world's affairs: think Albright and Arbour, del Ponte and Higgins, Ginsburg and Rice. Yet our voices remain faint, in backrooms and in the blogosphere. IntLawGrrls – women who teach and work in international law, policy and practice – hope to change all that. We embrace foremothers' names to encourage crisp commentary, delivered at times with a dash of sass.”).'
Pleased to receive the attention, and welcome the "influential" label. But not sure about all the points put forward.
Hard to see that our pink purpose, of cultivating more voices in public discourse, rises to the level of "ideology" – particularly as one might construe that term within the context of this journal article, which delves deeply into Soviet international law.
Is our pink purpose an "identity-based" agenda?
If the term's meant to speak of the fact that we identify ourselves via bylines at the bottom of posts, well, yes. But if it's meant to suggest that we purport to speak solely through our status as female human beings, not at all. Our posts frequently evince other, overlapping, complementing, sometimes contradicting identities – as friends/colleagues, spouses/partners, parents, daughters/granddaughters, students/professors/practitioners, lovers (or not so much) of art/music/film/literature, athletes/gardeners/outdoorswomen, foodies/fashionistas. You name the identity trait, one or more of our nearly 300 contributors likely possess it.
We have worked hard toward the "demystification" of which the authors' speak; that is, toward dispelling any "notion" that all women think and speak alike.
IntLawGrrls' posts have treated "gender justice," of course. But they've also covered areas as varied as the law of armed conflict, climate change, comparative criminal justice, information technology, and foreign direct investment.
In projects like our blog series and special journal issue on Women and International Criminal Law, we've looked not only at victims who seek justice from international legal mechanisms, but also at the creators of the international law within which those mechanisms work.
We've tried hard to include an array of approaches addressing this myriad of concerns.
As for whether we "purposefully include or exclude certain other groups"? (By process of elimination, "certain other groups" must mean men.)
Achievements of our male colleagues frequently are celebrated. You might say that men – like these co-authors, by way of this post – are given voice on the blog from one degree of separation.
And let's not forget our recent, very special (male) guest.
An exclusionary, ideologically driven agenda?
Just isn't pink.

Work On! Cambridge research fellow: deadline near

The Lauterpacht Centre for International Law at the University of Cambridge, England, invites applications for up to 2 in-residence research fellowships, lasting a period of at least 8 weeks in the course of 2013.
Winner(s) of the 2013 Brandon Research Fellowship, according to the Centre,
'will be welcomed as part of the community of Visiting Fellows at the Centre and will undertake their own project research on some aspect of public or private international law or international arbitration.'
The fellowship's maximum value is £ 3,000; additional expenses will be the responsibility of the fellow. The fellowship is funded by a generous gift from British lawyer Michael Brandon, who passed away earlier this year.
Final deadline is very near: Friday, October 5, 2012. Details and application forms here.

On September 25

On this day in ...
... 1972 (40 years ago today), by a vote of 53.5% to 46.5%, Norwegian voters rejected a plan for membership in the European Community. A referendum in 1994 failed by a similarly narrow margin; accordingly, Norway remains as one of Western Europe's few nonmembers of the European Union, successor to the EC. Nevertheless, as detailed at the Norway EU Mission website, Norway has ties to the EU and is a member of some discrete treaties, such as the Schengen Agreement on border controls, as well as a trade agreement to which Liechtenstein and Iceland also belong.

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

Monday, September 24, 2012

Path from Kiobel I to Kiobel II: What’s at stake in reargument on Alien Tort Statute & extraterritoriality

(Part 1 of a 2-part series; Part 2 is here)

A week from today, on October 1, the U.S. Supreme Court will hear a second round of arguments in Kiobel v. Royal Dutch Petroleum, a case concerning Shell Oil’s alleged complicity in the torture and killing of environmentalists in Nigeria.
The Center for Justice and Accountability, the San Francisco-based nongovernmental organization for which I serve as Executive Director, has filed two amicus briefs on behalf of the petitioners:
► A brief on extraterritoriality; and
► A brief on corporate liability.
We've also put together a number of resources on the case, including an overview, a complete docket of all the briefs, and summaries of key amicus briefs.(IntLawGrrls' prior posts on this case are available here.) In today's post, I first recall the path by which Kiobel became a case about extraterritoriality, and then discuss how an adverse ruling on that question could foreclose valuable assistance to survivors of human rights abuses. In a post later this week, I'll preview the oral arguments set for October 1 and recap highlights from the scores of briefs that have been filed.

Kiobel as a corporate liability case
As many IntLawGrrls readers will recall, the initial question, in what we're now calling Kiobel I, was whether corporations could be sued under the Alien Tort Statute for violations of international law. (On the ATS' anniversary today, see the post below.) In the U.S. Court of Appeals for the Second Circuit, a divided panel had held in 2010 that the ATS did not permit tort actions against corporations for human rights abuses. In so doing, it invoked a novel theory that international law binds only states and individuals, not legal entities.
But on February 28 of this year, Supreme Court oral argument in Kiobel I turned to a broader question: whether victims of foreign atrocities can continue to bring ATS actions against perpetrators or accomplices present in the United States.
A week later, the Court ordered reargument on the extraterritorial reach of the ATS.

Extraterritoriality in Kiobel I
Extraterritoriality was the road not taken when the Supreme Court last visited the ATS. In Sosa v. Alvarez-Machain (2004), the question was whether the ATS was a “stillborn” jurisdictional statute, and if not, which violations were actionable. The Court held that the ATS allowed the adjudication of a narrow set of common law tort actions, derived from international law norms defined by their specificity and universal recognition. In Sosa the Supreme Court endorsed Filártiga v. Peña-Irala (1980), the landmark decision in which the Second Circuit had recognized that torture in Paraguay was actionable in federal court under the ATS.
Like Kiobel, Sosa was extraterritorial – Álvarez-Machaín was a Mexican national, kidnapped in Mexico by a former Mexican official. The Sosa Court refused to adopt a categorical bar on extraterritorial ATS suits, a bar that had been proposed in the brief of the Bush Administration. Instead, the judgment in Sosa limited the ATS’s scope to universal human rights norms – norms that were already binding in the territory of foreign states. Sosa’s framework was designed to address comity concerns in ATS litigation, and would make little sense if the ATS were limited to U.S. territory.
Kiobel reprises the question of extraterritoriality.
The issue had been argued in the alternative in the merits brief for Shell (on which former Stanford Law Dean Kathleen Sullivan (right) is counsel of record). Extraterritoriality took center stage in the amicus brief for Chevron et al., by Harvard Law Professor Jack Goldsmith, and in the amicus brief for BP et al., by and John B. Bellinger III and Paul Clement, respectively, the former State Department Legal Adviser and the former U.S. Solicitor General.
These briefs make three basic claims:
► First, that the presumption against extraterritoriality requires construing the ATS to apply only to actions arising in U.S. territory or perhaps on the high seas.
► Second, that international law does not allow courts in one country to exercise universal civil jurisdiction over offenses committed by a foreign sovereign against its own nationals, in its own territory.
► Finally, that giving the ATS extraterritorial reach causes diplomatic friction.
Those claims caught the Court’s attention.

Go On! Servicemember accountability, at Stanford

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

"The Self-Interest of Armed Forces in Accountability for their Members for Core International Crimes" is the intriguing title of an expert seminar to be held November 27, 2012, at Stanford University's Hoover Institution in northern California. It's cosponsored by FICHL, the Forum for International Criminal and Humanitarian Law.
Organizers write: "Both the language of international legal obligation and that of politics can act on military or civilian decisions to investigate or prosecute, as a raised stick. This seminar is not concerned with the stick, but the carrot." They mean to ask "whether such accountability is in the self-interest of the armed forces," via questions like these:
► Why do soldiers, officers and military leaders themselves often prefer such accountability? Is it because accountability mechanisms distinguish them as military professionals who are uncompromised by such crimes? Or is it because of the way individual incentive structures, such as promotion, function?
► Are they concerned that the commission of war crimes may undermine the public's trust in the military, increasing the security risks faced and the size and cost of deployment in the area concerned? Or are they motivated by moral, ethical or religious reasons?
► Does accountability ensure higher discipline and morale and therefore secure more effective chains of command? Or is it because accountability gives them a political advantage vis-à-vis potential opponents? Or does it promote a better public image?
► Could such accountability be particularly crucial when the armed forces are involved in efforts to establish a new regime in a post-conflict situation or a process of democratization?
The speakers' lineup includes: IntLawGrrl Elizabeth L. Hillman, California-Hastings; Dr. Catherine P. MacKenzie, Cambridge; former U.S. Secretary of State George P. Shultz, Hoover Institution; former international prosecutor Richard J. Goldstone, visiting this year at Virginia Law and Stanford Law; Dr. Roberta Arnold, a Swiss military magistrate; and other military experts from countries as diverse as Britain, the United States, Indonesia, and Norway.
Details here and here.

On September 24

On this day in ...
... 1789, President George Washington signed the 1st Judiciary Act ever passed by the U.S. Congress. It established the framework for a federal judiciary comprising a Supreme Court and lower district and circuit courts, and further detailed the jurisdiction of these courts. Despite some amendments after the Civil War, the framework and jurisdiction today bear much similarity to those set up in this statute. Also of note is a passage in Section 9 of the act, which stated that district courts
'shall also have cognizance, concurrent with the courts of the several States, or the circuit courts, as the case may be, of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States.'
That line remains in the U.S. Code and is known now as the Alien Tort Statute -- a statute that, as Pamela Merchant outlines in today's post above, the Supreme Court is set to re-examine in the Kiobel reargument on October 1, just a week from today.

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

Sunday, September 23, 2012

Look On! Carte Blanche, on ICC's Bemba case

(Look On! takes occasional note of noteworthy productions)

The Office of the Prosecutor of the International Criminal Court has its own Public Information Officer, who deals with external media relations and liaises with external actors interested in the work of the Prosecutor. This officer is also responsible for relations with filmmakers who wish to make documentaries on the work of the Office of the Prosecutor.
(credit)
Under the former Chief Prosecutor of the ICC, Luis Moreno-Ocampo, a number of documentaries were made featuring Moreno Ocampo and the work of the Office of the Prosecutor. For example, the making of The Reckoning (2009), about which filmmaker Pamela Yates and other IntLawGrrls contributors have posted, required the crew to follow the former Prosecutor around for approximately three years. Other such documentaries that I plan to review in the course of my ongoing research on human rights and film include The Prosecutor (2011), a Peter Raymont film that focused on Moreno-Ocampo, Darfur Now (2007), and, in this post, Carte Blanche (2011).
Made by Swiss director Heidi Specogna (right), Carte Blanche is set in the locations of The Hague, the Netherlands, and Bangui, Central African Republic (CAR).
The film examines the work of the ICC and Office of the Prosecutor concerning the Jean Pierre Bemba case. Bemba has been the subject of prior IntLawGrrls posts. For nearly 2 years Bemba, the  former Vice President of the Democratic Republic of the Congo and leader of the Congo Liberation Movement, has been on trial in the ICC on 8 counts of war crimes and crimes against humanity, alleged to have been committed in the CAR between 2002 and 2003.
Carte Blanche takes us through the confirmation hearings (under the Rome Statute of the ICC. The purpose of these hearings is to act as a filter, determining whether there is sufficient evidence for a case to go to trial at The Hague. The film also brings us to Bangui, on an ICC mission with Gloria Atiba-Davies, victims' expert, and Dr Eric Baccard, forensic pathologist. In this way, we are given a holistic snapshot of the workings of the Office of the Prosecutor. The trial stage plays a minor part in the film with the investigations forming the main focus of the film which aims to show the ground work which goes into bringing a case and prosecuting those responsible for crimes against humanity and war crimes. (A running blog of the trial proceedings, maintained by the Open Society Justice Initiative, is here.)
The film constantly reminds us of the human elements to the prosecutions.  The filmmakers  interview some of the witnesses and survivors of the attacks on Bangui. These voices give personal testimony to the crimes for which Bemba has been indicted with special emphasis on the rapes and other sexual violence suffered by men, women, and girls.
Aesthetically, the film features beautiful landscape shots, interspersed with black and white photographs of the victims. Water and the rain also play important roles in the beginning and end of the documentary.

(Cross-posted at Human Rights Film Diary blog)

Report from U.N. meeting on Somali piracy

On September 17-18, 2012, I had the opportunity to attend the 11th meeting of the U.N. Contact Group on Piracy off the Coast of Somalia, Working Group 2, in Copenhagen, Denmark. Professor Michael Scharf of Case Western Reserve University Law School and I, in our capacity as independent academics as well as members of the Public International Law and Policy Group, Piracy Working Group, were invited to give a presentation at the Working Group 2 meeting. (We're pictured above left, and below with Ambassador Thomas Winkler, the Chair of Working Group 2.)
Our topic was juvenile pirates – the treatment of detained juvenile pirates by the capturing and/or prosecuting state, as well as the need to aggressively detain and prosecute those who recruit juvenile pirates. Our brief presentation was followed by an intense question-and-answer session, during which we attempted to answer many provocative inquiries addressed at us by the delegations of more than 50 states represented at this meeting.
It was our recommendation that juvenile pirates should not be caught and released, but that instead they should be prosecuted under special circumstances, taking into account their age as well as the possibility to retrain, re-educate and rehabilitate them.  If juvenile pirates are released, they should not be simply "dumped" on the shore of Somalia; instead, every effort should be made to contact their family members for the purpose of reuniting them.
It was also our recommendation that those who affirmatively recruit juvenile pirates should be treated more harshly: for example, that the use of juvenile pirates would be an aggravating factor in sentencing. Another innovative approach would be to argue that the use of juvenile pirates is a crime against humanity, citing international criminal tribunal precedents in which the accused were convicted of of child-soldier recruitment.
In addition to our presentation on the issue of juvenile pirates, Working Group 2 members discussed several other important topics. The meeting started with updates by member states on any developments regarding their own experiences in combating Somali piracy in the last six months. Some such notable developments include:
►the first-ever post-conviction transfer of Somali pirates, convicted in the national courts of the Seychelles, to Somaliland, where they will serve their entire sentences;
►the first-ever extradition of detained pirates from the Seychelles to the Netherlands for the purposes of prosecution in the Netherlands;
►the signing of transfer agreements between Mauritius and several maritime nations, whereby Somali pirates captured by the latter will be transferred to Mauritius for prosecution in this country’s national courts;
►the update by Kenya that a long-awaited appellate judgment, which could effectively restart piracy trials in Mombasa, will be rendered at the end of September.
Working Group 2 members then discussed various human rights considerations linked to the detention and possible prosecution of suspected Somali pirates.

On September 23

On this day in ...
... 1907 (105 years ago today), Anne Desclos (left) was born in Rochefort, France. Educated at the Sorbonne, she worked 1st as a journalist and then at Gallimard publishing house, where she adopted one of her pen names, Dominique Aury. She translated into French English-language authors including Virginia Woolf and F. Scott Fitzgerald. Reacting to the contention of her employer/lover that women could not write erotic novels, under the pseudonym Pauline Réage she penned Story of O (1954), which sparked an obscenity prosecution. (photo credit) Declos/Aury/Réage, who was named a Chevalier of France's Legion d'Honneur, died in 1998.

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