Thursday, December 13, 2012

All good things

All good things must come to an end, as they say.
And so it is today with IntLawGrrls.
After much discussion among ourselves, we editors have decided to close this forum – to take a break from daily blogging, and to pursue new adventures:
Yours truly is deeply honored to have been appointed by International Criminal Court Prosecutor Fatou Bensouda to serve as her Special Adviser on Children in and Affected by Armed Conflict.
Jaya Ramji-Nogales continues to do important work teaching and writing on immigration, refugee law, and transitional justice.
Kate Doty has been promoted to the position of Attorney-Editor at the American Society of International Law. In this new role, which takes effect at the New Year, she will be responsible for overseeing all of the content for International Legal Materials and ASIL Insights, and will write ASIL's International Law in Brief.
►And of course, Beth Van Schaack has been an editor emerita  since early this year, when she became Deputy to the Ambassador-at-Large for War Crimes Issues at the State Department's Office of Global Criminal Justice.
It's been our pleasure to create this cyberspace for – to quote our motto – voices in international law, policy, practice." Fully 307 women have contributed –  judges, professors in law and other disciplines, law students, prosecutors and defenders, advocates at nongovernmental and intergovernmental organizations, and filmmakers – since our birthdate of March 3, 2007.  Recently, we've also welcomed 4 men as very special guests.
Together, they've written 6,170 posts. According to Google statistics, IntLawGrrls has received an astounding 1.7 million page views. And rankings just released today indicate that we depart ranked among the top 25 law professors' blogs (and one of only a few at that tier with significant input from women contributors).
We look forward to seeing contributors' writings elsewhere, online and in print. I'll be posting now and again at my new personal blog, Diane Marie Amann, and I welcome you to follow it at the website or via LinkedIn or Twitter.
Deepest thanks from each of us to all our contributors and readers.
It's been a great run.

Wednesday, December 12, 2012

Go 'Grrl! Diane Marie Amann is Special Adviser to ICC Prosecutor on Children in Armed Conflict

Exciting news!
International Criminal Court Prosecutor Fatou Bensouda has appointed our own Diane Marie Amann, IntLawGrrls founder and editor-in-chief, to be her Special Adviser on Children in and affected by Armed Conflict.
Bensouda announced Diane's appointment in a notice posted today at the ICC website.  This newly created position is for a  term of one year, subject to renewal on a yearly basis by the Prosecutor.
As I've posted below, the ICC's notice also announces the appointment of two other Special Advisers, Patricia Viseur Sellers and Leila Nadya Sadat. They join Brigid Inder, who already has served several months as a Special Adviser.
In her capacity as Special Adviser on Children in Armed Conflict, Diane will, among other tasks:
► Provide advice on issues related to children involved in or affected by armed conflict;
► Support and advise on Office of the Prosecutor policies and training or awareness with regard to children involved in or affected by armed conflict; and
► Contribute to the development of a wide support base for the work of the that office.
It's a position for which Diane's amply qualified, as IntLawGrrls readers will know from having read her numerous IntLawGrrls posts.  Most recently, she presented on “Children and the Early Jurisprudence of the International Criminal Court” at the November 11-12 conference entitled ICC @ Ten, at Washington University Law in St. Louis; a paper based on those remarks is forthcoming in the Washington University Global Studies Review.
Her scores of articles on international criminal law and international humanitarian law include Calling Children to Account: The Proposal for a Juvenile Chamber in the Special Court for Sierra Leone and Message as Medium in Sierra Leone, both of which focus on child soldiers.
Diane teaches Public International Law, International Criminal Law, and the Laws of War at the University of Georgia, where she's the Emily and Ernest Woodruff Chair in International Law, and her husband, Dr. Peter D. O'Neill (prior posts), is Assistant Professor of Comparative Literature, and their son, Tiernan O'Neill (prior posts), is a freshman at Clarke Central High School (all three are dual U.S.-Irish citizens). Diane joined Georgia Law in 2011 from the University of California, Davis, School of Law, where she was Professor of Law, Martin Luther King Jr. Research Scholar, and founding Director of the California International Law Center.
Diane's also been honored for her tremendous contributions to the field of international law more generally. In addition to serving as a Vice President of the American Society of International Law, she's received an honorary doctorate in law from Utrecht Universiteit, the American Bar Association's Mayre Rasmussen Award for the Advancement of Women in International Law, and the Article of the Year in International Criminal Law Award from the American National Section of the International Association of Penal Law.
Beyond her expertise, we at IntLawGrrls have benefited immeasurably from Diane's energy and dedication to this blog.  Her new position, of course, will mean changes to come here at IntLawGrrls, about which we will post soon.  In the meantime, we are so proud of you, Diane, and wish you the best in your new venture!
Heartfelt congratulations!

Patricia Viseur Sellers and Leila Nadya Sadat named Special Advisers to ICC Prosecutor

Delighted to report that, in addition to Diane's new position, International Criminal Court Prosecutor Fatou Bensouda announced today the appointment of Patricia Viseur Sellers (pictured right) as Special Adviser on International Criminal Law Prosecution Strategies and IntLawGrrls contributor Professor Leila Nadya Sadat (pictured below left) as Special Adviser on Crimes against Humanity.
Patricia's position will focus on the OTP's policies and training around international criminal law prosecution strategies.  Leila will assist in the formulation of the OTP's strategic policies relating to crimes against humanity.
 Patricia, a Visiting Fellow at Oxford University, has extensive experience in international criminal litigation.  She has worked as Acting Senior Trial Lawyer, Legal Advisor for Gender, and Deputy Head of the Legal Advisory Section in the OTP at the UN International Criminal Tribunal for the Former Yugoslavia (ICTY).  In those roles, she advised teams of investigators and trial attorneys on the prosecution of sex-based crimes in international criminal law and international humanitarian law.  Patricia has worked several prominent international prosecutions, including the Furundžija, Kunarac and Akayesu cases. She has been widely published on sexual violence in armed conflict and has advised governments, international organizations and civil society groups on international criminal law strategies. She is a recipient of the American Society of International Law’s Prominent Women in International Law Award.
Leila is a leading global authority on crimes against humanity.  She is currently the Henry H. Oberschelp Professor of Law at the Washington University School of Law in St. Louis, where she directs the Whitney R. Harris World Law Institute and the Crimes Against Humanity Initiative. She is also the Alexis de Tocqueville Distinguished Fulbright Chair, University of Cergy-Pontoise and the the Director and Co-Founder of the Summer Institute for International Law and Policy at Utrecht University in The Netherlands. Leila the author of over 75 articles and books, for which she has won several awards, including the recently-published  Forging A Convention For Crimes Against Humanity which won the International Association of Penal Law's Outstanding Book of the Year Award in 2011.  Her extensive work in the field of international law has been recognized through her membership on the Council on Foreign Relations as well as her numerous leadership positions in professional associations and societies, including the International Law Association, the American Society of International Law, and the American Society of Comparative Law.
Heartfelt congratulations!

Go, 'Grrl! Beth Hillman named Academic Dean

Delighted to announce that IntLawGrrls contributor Elizabeth L. Hillman (left) will be the next Academic Dean of the University of California Hastings College of the Law in San Francisco.
Her appointment as the San Francisco-based law school's top academic officer will take effect on July 1, 2013. Beth will succeed Professor Shauna Marshall, who's served in the post since 2005.
Beth joined Hastings in 2007; before that, she was a law professor at Rutgers-Camden. She's also taught history at the U.S. Air Force Academy and Yale. Beth earned a J.D. and a history Ph.D. from Yale.
As is evident from our prior posts, Beth's an expert on military law. She serves as the President of the National Institute of Military Justice, a nongovernmental organization on whose board yours truly also serves. She's a co-author of Military Justice Cases and Materials (2d ed. 2012) and author of Defending America: Military Culture and the Cold War Court-Martial (2005). Her most recent publication is a review, published at pages 1611-13 of the December 2012 issue of the American Historical Review, of 2 recent books on a current area in which she's conducting research, aerial bombing.
Heartfelt congratulations!

New leaders of ASIL economic law interest group

I am pleased to announce yours truly, Elizabeth Trujillo of Suffolk Law (left), has just been elected to be Co-Chair of the American Society of International Law International Economic Law Interest Group.
Joining me as Co-Chair of the ASIL-IEcLIG will be Jason Yackee of Wisconsin Law (right). Co-Vice-Chairs are David Zaring of Penn-Wharton and Sonia Rolland of Northeastern Law.
Jason and I are stepping in after 2 years of being Co-Vice Chairs under the wonderful leadership of Sungjoon Cho and Claire Kelly.
The election took place at the ASIL-IEcLIG biennial conference, held at George Washington Law School in Washington, D.C., from November 29 to December 1. We will be assuming the position at the ASIL Annual Meeting, April 3 to 6, 2013.

On December 12

(credit)
On this day in ...
... 1977 (35 years ago today), were opened for signature 2 Protocols Additional to the 4 Geneva Conventions on the laws of war; both protocols would enter into force on December 12, 1978. Protocol I, which relates to the protection of victims of international armed conflicts has 172 states parties, while Protocol II, which relates to the protection of victims of non-international armed conflicts, has 166 states parties. The United States has neither signed nor ratified either treaty.

(Prior December 12 posts are here, here, here, here, and here.)

Tuesday, December 11, 2012

'Nuff said

(Taking context-optional note of thought-provoking quotes)
'The Court was explicit in explaining what is required to ensure indigenous and tribal peoples’ right to consultation. The Court stated that the obligation to consult is the responsibility of the state; therefore, planning and conducting the consultation process cannot be delegated to a private company or a third party. The Court also considered that the consultation process should entail a “genuine dialogue as part of a participatory process in order to reach an agreement,” and it should be conceived as “a true instrument of participation,” done in “good faith,” with “mutual trust” and with the goal of reaching a consensus.'
–  Lisl Brunner, a human rights specialist with the Office of the Special Rapporteur for Freedom of Expression, Inter-American Commission on Human Rights, and Karla Quintana, a human rights specialist with the Commission's Litigation Group, in an ASIL Insight entitled "The Duty to Consult in the Inter-American System: Legal Standards after Sarayaku." The co-authors set forth the reasoning in Caso del Pueblo Indígena Kichwa de Sarayaku v. Ecuador (June 27, 2012), in which the Inter-American Court of Human Rights held that the respondent state was liable for failing to discharge its duty to consult with the indigenous Sarayaku people in connection with an oil project, undertaken in 1996, that destroyed part of a rainforest in the people's traditional lands.
As Brunner (right) and Quintana (left) explain, although the decision arose within the inter-American human rights system, it is likely to have impact on actors brought before other regimes as well; for example, those that consider: the International Labour Organization Convention No. 169, titled the Indigenous and Tribal Peoples Convention; the International Covenant on Civil and Political Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, and the African Charter on Human and Peoples' Rights.

On December 11

On this day in ...
... 1946, the U.N. General Assembly adopted Resolution 57(I), "Establishment of an International Children's Emergency Fund." The resolution aimed initially at helping "children and adolescents of countries which were victims of aggression" in the recently ended Second World War. Over time, of course, the mandate of the Fund – known today by its acronym, UNICEF – expanded to include all children throughout the world. On this very same day in 1965, when UNICEF was awarded the Nobel Peace Prize in Oslo, the organization was praised for the results it had achieved:
'Differences of view have been welded, almost always, into an accepted concensus in the search for agreement on the best methods of providing assistance to alleviate the agony of children who are victims of cruel circumstance.'

(Prior December 11 posts are here, here, here, here, and here.)

Monday, December 10, 2012

The Future of Human Rights in the Americas: Update on the Inter-American Reform Process

Today, on Human Rights Day, as we mark the 64th anniversary of the adoption of the Universal Declaration of Human Rights, the inter-American human rights system – guardian of the world’s first international human rights agreement – faces an unprecedented threat to its independence and authority.
The Inter-American Commission on Human Rights – which oversees implementation of the American Declaration of the Rights and Duties of Man, adopted in April, 1948, eight months prior to the Universal Declaration – is undergoing a state-initiated “reform” process that may lead to controversial changes in the Commission's practices and procedures, without the consent of the Commission.
As IntLawGrrl Alexandra Harrington posted in February, since it came into existence in 1960, the Inter-American Commission has promoted and protected human rights in the 35 member states of the Organization of American States. It does so through reporting, country visits, precautionary measures, and the individual complaints mechanism. The Commission's exercise of its functions has motivated criticism and objections in recent years from some states that disagreed with specific decisions – as have Ecuador, Bolivia, Brazil, and Peru – or accused it of bias – as has Venezuela.
In June of 2011, the OAS Permanent Council created a Special Working Group with a mandate to study the Commission’s work and propose any reforms deemed necessary. The Special Working Group’s proposals, which the OAS Permanent Council approved this past January, focused on both the Commission’s institutional practices and its substantive mandate.
Among the most controversial proposed reforms were those that would:
► Restrict the Commission’s discretion in deciding requests for precautionary measures,
► Significantly alter Chapter IV of the Commission’s Annual Report, in which it highlights countries with particularly troublesome human rights practices,
► Reduce the autonomy of the Special Rapporteur on Freedom of Expression, and
► Impose additional restrictions on the processing of individual complaints in ways that could favor states at the expense of victims.
Civil society has criticized the proposed reforms, and the reform process itself, as lacking in transparency and input from advocates and victims.
A joint statement coordinated by CEJIL, the Center for Justice and International Law, and signed by over 90 organizations, called on the OAS and its individual member states to ensure that the process is truly aimed at strengthening the inter-American system and includes the input of advocates and victims. Representatives of nongovernmental organizations, academia, and the judiciary have also signed on to the “Bogota Declaration,” which echoes this call.
A politically motivated, state-imposed reform of the Commission’s authority and procedures is a unique and pressing cause for concern to all those invested in the protection of human rights in the Americas.
In the words of the Commission's chair, José de Jesús Orozco:

On December 10

On this day in ...
... 1931, the Nobel Peace Prize was bestowed on Jane Addams; she was a co-winner with Nicholas Murray Butler. Nobel Committee Chair Halvdan Koht said in his presentation speech:
(credit)
'America helped – perhaps it would be more correct to say compelled – Europe to create a League of Nations which would provide a firm basis for peaceful coexistence among nations. It was a crushing blow that America herself did not join this organization, and without doubt her failure to do so contributed largely to the failure of the League of Nations to live up to expectations. We still see too much of the old rivalries of power politics. Had the United States joined, she would have been a natural mediator between many of the conflicting forces in Europe, for America is more interested in peace in Europe than in lending her support to any particular country.
'It must be said, however, that the United States is not the power for peace in the world that we should have wished her to be. She has sometimes let herself drift into the imperialism which is the natural outcome of industrial capitalism in our age. In many ways she is typical of the wildest form of capitalist society, and this has inevitably left its mark on American politics.
'But America has at the same time fostered some of the most spirited idealism on earth.'
A longtime advocate of peace, suffrage, and measures to alleviate poverty, Addams was emblematic of that idealism – of "the work which women can do peace fraternity among nations," Koht continued. But Addams, who was then 71 years old, was admitted to a hospital in Baltimore on this day in 1931, and so was unable to attend the ceremony in Oslo, Norway. She would die 4 years later in the city where she had long lived, Chicago. We IntLawGrrls honor her as a transnational foremother.

(Prior December 10 posts are here, here, here, here, and here.)

Sunday, December 9, 2012

Welcoming a very special guest, Hans-Peter Kaul

It's IntLawGrrls great pleasure to welcome Judge Hans-Peter Kaul (left) as an IntLawGrrls contributor.
As we've frequently posted, he has been a Judge of the International Criminal Court since 2003, having served in the Pre-Trial Division and in the Vice-Presidency.
Qualified for the German Bar, he was appointed in 2002 as the Ambassador and Commissioner of the Federal Foreign Office for the International Criminal Court. From 1996 onwards, he was Head of the Public International Law Division of the Federal Foreign Office, responsible inter alia for cases Germany litigated before the International Court of Justice. Also in that role, he participated as head of the German delegation in the discussions and negotiation process that led to the Rome Diplomatic Conference and adoption, on July 17, 1998, of the Rome Statute of the International Criminal Court. In his post below, Judge Kaul brings that moment of adoption to vivid life, as an introduction to his examination of the ICC and the Nuremberg legacy. He focuses in particular on the role Americans then played in the advancement of international criminal justice and on an international ban on the crime of aggression. The post excerpts a lecture that he gave at the "ICC at 10" conference last month in St. Louis; the full text of the lecture is here.
Heartfelt welcome!

Nuremberg legacy & International Criminal Court

(My thanks to IntLawGrrls for the opportunity to contribute this post, an excerpt from "'The Nuremberg Legacy and the International Criminal Court': Lecture in Honor of Whitney R. Harris, Former Nuremberg Prosecutor," which I delivered last month in St. Louis. The full text of that lecture is here.)

1998 Rome Conference (c) Coalition for the International Criminal Court
Then, on 17 July 1998, after a last dramatic tussle, comes the breakthrough, the climax.
After the decisive vote on the Rome Statute, our founding treaty, there is some kind of explosion, an enormous outpouring of emotions, of relief among those present, unparalleled for such a conference: screams, stamping, exultation without end, tears of joy and relief; hard-baked delegates and journalists who have frowningly watched the entire conference hug each other in a state of euphoria. And a German delegate, normally a level-headed man, jumps up and down like a rubber ball and keeps punching me in the ribs, completely breathless,
'Herr Kaul, Herr Kaul, we've done it! We're getting an international criminal court!'
And then, in all this "Tohuwabohu", in all this chaos of clapping and screaming, something strange, something unexpected happens: I see Professor Harris standing up, and with a serious face, he begins to walk towards the German delegation, across the entire conference hall. While he is striding towards us, maybe 40 yards, undisturbed by the cheering delegates, I realise that he is constantly looking at me. Even today, this scene is still in my head, I see his walk in some kind of slow motion; I ask myself, why, what does he want?
A moment later, he shakes my hand and says – I do not recall his exact words – this is a great day for the entire world. It is a breakthrough, the fulfilment of many hopes. In a foreseeable future, we will have a world criminal court. He believes that the German delegation has played a decisive role, that without Germany the crime of aggression would not have been included in the treaty.
I admit, I am shaken, confused, and touched at the same time. That this prominent former US Nuremberg prosecutor is acknowledging the work of my people and of myself is almost too much. Finally, Mr Harris takes me by the shoulders, then he says: now, you must promise that from now on we will remain in close contact. Still shaken, I promise.
Then comes a further sentence, almost an order:
'and from now on, you call me Whitney, understood?'
When he embraces me briefly to say goodbye, I feel, for the first time, the special heartiness and warmth of Whitney which were so characteristic of him.
Well, this is, this was the beginning of a lasting friendship with Whitney, a relationship for more than a decade, with countless exchanges and contacts; with meetings in Germany, in Berlin, in Nuremberg, in St. Louis and elsewhere. And it is so wonderful that the friendship with Whitney soon includes Anna and Elisabeth, my wife, and also Leila Sadat.
Whitney R. Harris (1912-2010)
There is no doubt: Whitney was one of the foremost pioneers of the Nuremberg Trials – and I am convinced not only of their continuing historic significance, but also of their significance for the world of today and tomorrow. Today, we realize and it is obvious that these trials were based on a breakthrough, on some kind of intellectual and legal quantum leap of enormous significance. Notwithstanding the involvement of the three other victorious powers, Nuremberg is in essence an American invention, a contribution of men like Justice Robert H. Jackson, Telford Taylor, Whitney Harris, Benjamin Ferencz and others. Their ideas and actions made a difference, they provided lasting international awareness for the necessity of the rule of law in international relations. All these innovative ideas, the contribution of the Nuremberg Trials and of the underlying principles have had a decisive and on-going influence on international law. Thus, without Nuremberg, there would have been no ad hoc tribunals, without Nuremberg there would have been no International Criminal Court. There would be no recognition for the principle which is universally recognised today: nobody is above the law; there can be no impunity for grave crimes which concern the international community as a whole, regardless of the rank or nationality of the perpetrators in question. And, above all, Nuremberg achieved, for the first time, clarity about a fundamental principle: aggressive war, which had been a national right throughout history, should henceforth be punished as an international crime.

How to "fix that" United States elections process

(Final part of a 4-part series comparing voting in the United States and Venezuela, in light of the International Covenant on Civil and Political Rights. Part 1 is here; Part 2 is here; Part 3 is here.)

President Lyndon Johnson & Dr. Martin Luther King Jr., 1965
In the United States, citizens must continue to advocate vigorously to hold on to landmark historic voting rights protections and inclusionary guarantees.
For example, consider a controversial case soon to be argued before the U.S. Supreme Court. Entitled Shelby County v. Holder, the case, arising out of the U.S. Court of Appeals for the District of Columbia Circuit, represents a challenge to the constitutionality of the preclearance provisions of Section 5 of the Voting Rights Act of 1965 – provisions that require jurisdictions with a documented history of discrimination to obtain approval from the federal government before changing their election procedures.
For over 40 years, the Voting Rights Act has been upheld as constitutional. The Act worked to ensure historically disenfranchised minorities' increased participation in U.S. elections, and was reauthorized in 1970, 1975, 1982, and again, unanimously by a Republican Congress in 2006, during the administration of President George W. Bush.
Now, the most effective civil rights law in U.S. history faces an unprecedented challenge with Shelby County, which puts at stake the constitutionality of the VRA under the Tenth Amendment and Article IV of the U.S. Constitution.
As Corey Dade of NPR has recalled, the preclearance provisions are still quite relevant in 2012, given that federal courts applied the preclearance provisions to block voter identification requirements in Texas, and other procedural electoral changes, ahead of the U.S. general election on November 6.
Similarly, California-Irvine Law Professor Rick Hasen, an election law expert, said :
'There is still evidence of unconstitutional conduct as found this year in the Texas redistricting case ... There certainly is some evidence of continued racial discrimination in voting, although it is far less common than in the 1960s. And when it occurs, it is more subtle. Section 5 has served to be an important bargaining chip.'
Indeed, many voting rights advocates point to the support that U.N. Under-Secretary-General Ralph Bunche provided Dr. Martin Luther King, Jr. and the civil rights movement during the 1960s, which ultimately turned up the pressure on President Lyndon Baines Johnson to sign the Voting Rights Act of 1965. Bunche, winner of the 1950 Nobel Peace Prize  on account of his diplomatic efforts in the Middle East, had participated in the 1963 March on Washington. In a public statement at the Montgomery Statehouse during the 1965 march from Selma to Montgomery, he said that the United Nations supported the civil rights movement in the United States:
'In the UN, we have known from the beginning that secure foundations for peace in the world can be built only upon the principle and practice of equal rights and status for all peoples, respect and dignity for all.'
This resonated for me during my October service as an elections observer in Venezuela. While there, as depicted at left, I had the opportunity to meet the 1992 Nobel Peace Prize recipient, Rigoberta Menchú Tum. An indomitable indigenous rights advocate, she too was part of the International Accompaniment that observed voter access and participation. (photo courtesy of CUNY Professor Ron Hayduk) Menchú’s lifework reminded me of why it is so important to stay vigilant in the protection of these civil rights both at home and abroad.
Much work remains to be done.
 As I posted in Part 1 of this series, the 2009 Nobel Peace Prizewinner, U.S. President Barack Obama, said of U.S. voting-rights issues during his November 6 victory speech:
'We have to fix that.'

On December 9


On this day in ...
... 1987 (25 years ago today), a day after a crash involving an Israeli truck killed 4 Palestinian workers in Gaza, an act seen by some as deliberate, protesters took to the streets of Gaza and, soon, the West Bank and Jerusalem. Thus began what would come to be known as the 1st Intifada, or uprising. It would last till 1993.

(Prior December 9 posts are here, here, here, here, and here.)

Saturday, December 8, 2012

Mauritius: Forum for Somali piracy prosecutions

Greetings from Mauritius, a small island nation in the south of the Indian Ocean, where Professor Michael Scharf and I have traveled to meet with various government officials regarding Somali piracy issues (pictured left).
Mauritius is about to start prosecuting Somali pirates in its national courts, pursuant to transfer agreements which it has signed with the United Kingdom and the European Union. Under the terms of these agreements, alleged Somali pirates detained by maritime fleets of the United Kingdom or countries in the European Union can be transferred to Mauritius, where they can be prosecuted in Mauritian courts under Mauritian law.
Kenya and the Seychelles have similar transfer agreements in place and have successful prosecuted dozens of Somali pirates. Mauritius joined this “club” of piracy-prosecuting nations earlier this year, and although no actual transfers of suspected pirates have actually taken place as of today, many in the international community are eagerly awaiting the start of prosecutions in this new venue.
Professor Scharf and I have previously engaged in various projects related to Somali piracy about which I have previously posted. The visit to Mauritius is a continuation of these projects: we are here both as representatives of the Piracy Working Group, an expert group within the auspices of the Public International Law and Policy Group, a Washington D.C.-based NGO, and as independent academics and representatives of our respective institutions, Case Western Law School and the Cleveland-Marshall College of Law.
One of our goals is to advise the Mauritian government on best strategies regarding various aspects of piracy prosecutions. Toward that end, we delivered a presentation at the Deputy of Public Prosecutions’ office, to an audience consisting of prosecutors, judges, practicing attorneys, and other government officials, on the issue of juvenile pirates. It was our recommendation that Mauritius should not shy away from prosecuting juvenile pirates, but that instead, it should put in place an appropriate mechanism under which juveniles can be prosecuted in separate proceedings, detained separately from the adult prison population, and accorded educational opportunities in order to properly rehabilitate them. It was also our recommendation that those who recruit juvenile pirates should be treated more harshly, and that the recruitment and use of juvenile pirates should be an aggravating factor in sentencing.
Another goal in Mauritius is to establish a working relationship with the prosecutor’s office, whereby Mauritian prosecutors will be able to commission legal memoranda on challenging legal issues which may arise in connection with future piracy prosecutions from the Piracy Working Group. Various members of the Piracy Working Group, including Professor Scharf’s and my own students at our law schools, have already produced such memoranda for the Kenyan and Seychellois prosecutors. It is our hope that in the future members of the Piracy Working Group will be able to assist Mauritian prosecutors in a similar manner.
We anticipate that Mauritian prosecutors will face very difficult legal issues once they open their courtroom doors to Somali pirates. Some such issues, in addition to the treatment of juvenile pirates mentioned above, include the possibility of expanding jurisdiction to cover preparatory acts falling short of traditional notions of piracy, the question of whether the prosecuting forum should be divested of jurisdiction if the detained suspected pirates were mistreated by the arresting nation, whether Mauritius can use any extradition treaties in addition to its existing transfer agreements to acquire jurisdiction over suspected pirates, the issue of respecting the suspected pirates’ right to a speedy trial, as well as the question of long-term incarceration for any convicted pirates and whether Mauritian prisons have the adequate capacity if pirates are to serve lengthy sentences in Mauritius.
Our other meetings over the next few days in Mauritius include a visit at the U.S. Embassy in Port Louis, the capital city, a working session with the Attorney General, a visit to the University of Mauritius Law School, as well as a conversation with the Mauritian police forces, whose role may prove to be of vast importance once Mauritian authorities began to handle detained pirates. I will be happy to report on these future meetings upon my return home.

Voting access & participation in Venezuela's indigenous & Afrodiasporic communities

(Part 3 of a 4-part series comparing voting in the United States and Venezuela, in light of the International Covenant on Civil and Political Rights. Part 1 is here; Part 2 is here; Part 4 is here.)

October 7, the general Election Day in Venezuela, falls on a Sunday. That day, in my capacity as an international election accompañamiento, or "accompaniment," I traveled to many sites in Venezuela. Specifically, I visited eleven precincts across the eastern state of Monagas, along with two domestic observers, a Swiss human rights advocate, a Brazilian professor of international law, and two journalists from Chile and Uruguay.
When we arrived at the remote indigenous Warao community of Mosú at 8:40 in the morning, we observed that 60% of the people in the community had already exercised their right to vote.

Our delegation spoke with Santo Garcia, the elected administrator of the indigenous school in the town of Mosú. Garcia stated:
'Every person who wants to exercise their vote has been able to do so…. As it says in the Constitution approved in 1999, every indigenous community needs to elect their representatives.'
No outsiders – other than the staff of Consejo Nacional Electoral, also known as the National Electoral Council or CNE, as well as officials, observers, and international accompaniers – were allowed to enter the community, under the local regulations regarding indigenous autonomy.
CNE is an independent, fourth branch of government. It derives from the power of the people as set forth in Articles 136 and 296 of the 1999 Venezuelan Constitution, and works affirmatively to create spaces for indigenous and afrodiasporic minority voters to exercise the franchise. (credit for photo by Uruguay Delegation, CNE Accompañamiento Internacional de las Elecciones del 7 de octubre, 2012, Comunidad Indigena Mosú, Caripito, Bolívar, Estado de Monagas, Venezuela)
Professor Esther G. Pineda (left), a sociologist at the Universidad Central de Venezuela, writes:
'In creating new electoral centers in remote communities that historically had been forgotten as afrodescendent and low-income communities, the initiatives of the Consejo Nacional Electoral (CNE) create a system that prioritizes security and confidence in the voters, as a massive investment in the education and formation of voters who respect the procedures to exercise the right to vote. This investment has clearly had a return, and a significant impact on reducing the numbers of abstentions and null votes. In a highly politicized and polarized society such as Venezuelan society, in which the population has become a part of the political process every day – this has become an evolving process in the participatory and active exercise of one’s citizenship.
(photo source)
'As a result, there has been a major consolidation of spaces for debate in a society in which diverse opinions and thoughts were formerly silenced; now afrodescendent men and women have the opportunity to express themselves and reflect on their own situation and experiences, specifically those which have resulted in the massive formulation of policy proposals and projects by and for diverse afrodescendent groups and communities.'
In my view, as an observer this autumn of both the U.S. and the Venezuelan elections, the clarity of the national standards, technical audits and accountability measures built into Venezuela’s electoral process stand in stark contrast to the lack of transparency and struggles with voter ID requirements and other forms of suppression in the United States.

Write On! GoJIL issue on indigenous peoples

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

From IntLawGrrls reader Frederike Mielke, a member of the Editorial Board of GoJIL, the Goettingen Journal of International Law, a 5-year-old review edited by students at Germany's University of Goettingen, comes a call for papers.
Specifically, papers are being sought for a forthcoming number of the journal, which will focus on the law and politics of indigenous peoples in international law. Organizers write:
'Indigenous peoples received increasing public and scholarly attention over the last decades. It has been a unique journey from the colonial history to the beginning of their political presence in the United Nations since the 1970s to the UN Declaration on the Rights of Indigenous Peoples in 2007. The UN’s International Year for the World’s Indigenous Peoples in 1993 as well as the following decades of the world’s indigenous peoples from 1995 to 2004 and 2006 to 2015 prove the ongoing need to attend to indigenous peoples’ interests. Today, discourses of indigenous peoples rights and their claim for self-determination are found beyond International Human Rights law: topics such as intellectual property rights, control over the exploitation of natural resources, the protection of traditional knowledge and traditional cultural expressions are on the agenda. Underlying all is the constant debate about a definition and the implementation of indigenous peoples’ rights beyond the Americas, particularly in Asia and Africa. In order to shine a light on the legal and political problems indigenous peoples are facing, we call for authors to submit papers on the topic.'
Deadline for submissions is 1 March 2013. For more information, contact GoJIL editors at info@gojil.eu.

On December 8

On this day in ...
... 1923, in Washington, D.C., diplomats signed the U.S.-Germany Treaty of Friendship, Commerce, and Consular Rights. World War I hostilities between the 2 states had ended with a 1921 bilateral peace treaty (given that the United States had not ratified the multilateral Versailles Treaty).
The 1923 pact represented an effort to strengthen ties, after the "German economy collapsed under the burden of reparations" imposed at Versailles.

(Prior December 8 posts are here, here, here, here, and here.)

Friday, December 7, 2012

Welcoming Rita Maran

It's our immense honor to welcome Dr. Rita Maran (left) as an IntLawGrrls contributor.
As we have posted, Rita has described herself as a "lecturer, author, activist in International Human Rights." She's taught at the University of California, Berkeley. As indicated by this poem that Naomi Roht-Arriaza wrote for Rita's 80th birthday party and published on IntLawGrrls, she is a friend to many of us.
Rita's writings include a June 2008 manual, Human Rights for the University Classroom, a Active in the United Nations Association-USA, and a 1989 book, Torture: The Role of Ideology in the French-Algerian War.
Her activism includes service as a founding member of the Board of Directors of Human Rights Advocates, a Berkeley-based nongovernmental organization, as Advocacy Vice President of the East Bay Chapter of the United Nations Association of the United States, and as an appointed member of the Berkeley Peace & Justice Commission. In her introductory post below, she discusses the background – including a Peace & Justice Commission resolution – that led to the 2012 Berkeley ordinance incorporating CEDAW, the U.N. Convention on the Elimination of All Forms of Discrimination against Women.
Heartfelt welcome!

CEDAW goes local in California – and beyond?

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

This year has seen a measure of "global to local" migration –  a development that I find satisfying, inter alia, in that it integrates international human rights law into domestic law.

Berkeley
The story in Berkeley began in July 2004, when the City Council adopted Resolution No.62,617, directing that the operative articles of Convention on the Elimination of All Forms of Discrimination against Women be made part of Berkeley Municipal Code, and urging ratification of CEDAW by the United States.
The request that the Council do so had originated in a resolution of the Peace & Justice Commission, on which I serve. The Peace & Justice Commission, one of Berkeley's 30-plus commissions, is made up of of citizen-volunteers who serve the city on a wide range of related issues.
Over the years following the Council's 2004 resolution, City departments continued analyses of various aspects –  including the authority, procedures, and budget – were the city to in fact adopt a new law.
The proposed ordinance came before the City Council for a second time on February 14, 2012, eight years after the initial resolution. It was noted in the February discussion that CEDAW had not yet been ratified by the U.S. government, and that the United States was one of only seven member states of the United Nations in that category.
Following further analysis of the resolution by the City Attorney's office, Ordinance 7,224-N.S. of 17 March 2012 added Chapter 13.20, "Adopting the Operative Principles of the United Nations Convention on the Elimination of All Forms of Discrimination against Women," to the Berkeley Municipal Code. The new Berkeley law:
► Serves to "promote equal access to and equity in health care, economic development, educational opportunities and employment for women"; and also
► Addresses "the continuing and critical problem of violence against women."

San Francisco
The Berkeley experience with CEDAW unabashedly benefits from the example set by the City and County of San Francisco.
Given that CEDAW had not been ratified by the U.S. government, the San Francisco Board of Supervisors took action on the need for legal safeguards on behalf of preventing and ending discrimination against women. The Board held an all-day hearing in October 1997. The resulting Resolution No. 1021-97, duly signed into law by then-Mayor Willie Brown on November 17, 1997, requires city departments to use a gender and human rights analysis to review city policy. Selected San Francisco departments review hiring, funding and service for compliance with the law. (attached below)

After-Effects
► An electronic message, with the 2012 Berkeley law attached, went to U.N. High Commissioner for Human Rights Navi Pillay. Commissioner Pillay sent hearty congratulations, and forwarded the information to the CEDAW Committee that receives reports from the 187 states parties to the Convention on the Elimination of All Forms of Discrimination against Women.
► U.S. Senators Dianne Feinstein and Barbara Boxer, and U.S. Representative Barbara Lee, whose congressional district includes Berkeley, sent letters of congratulations to the city.
► The Mayor's Office of Salt Lake City initiated a conference call with a member of the Berkeley Peace & Justice Commission and a member of the San Francisco Commission on the Status of Women, in order to fact-find details of the process.

Electoral participation: Venezuela & United States

(Part 2 of a 4-part series comparing voting in the United States and Venezuela, in light of the International Covenant on Civil and Political Rights. Part 1 is here; Part 3 is here; Part 4 is here.)

An unprecedented 80.48% of Venezuela’s over 18 million registered voters participated in the presidential elections that took place on October 7 – elections at which, as I posted yesterday, I served as an international observer.
Fifteen years ago in Venezuela, a country with a population of around 27.1 million, only about 13 million voters were registered and eligible to vote. (Photo Credit: Swiss Delegation, CNE Accompañamiento Internacional de las Elecciones del 7 de octubre, 2012, Estado de Monagas, Venezuela)
Dr. Tibisay Lucena, current President of Venezuela's Consejo Nacional Electoral, the election council known as CNE, has engaged in some analysis of the massive shift in levels of participation in her essay, The Venezuelan Experience. Lucena and other members of the CNE, including Vice President Sandra Oblitas, attribute much of the increased participation to the massive investment of the CNE in electoral inclusion in historically disenfranchised urban and rural communities.
Tibisay Lucena
Earlier in 2012, before the registration process closed in April, Tamara Pearson of Venezuelanalysis.com reported that
Sandra Oblitas Ruzza
'CNE set up 1,300 registration tents around the country and in overseas consulates, and 1,360,598 people registered to vote for the first time, while 4,512,000 changed their voting address, according to CNE director Sandra Oblitas.'
Pearson reported that 89% of the new registrations were among youth aged 18 to 25; other new registrations included individuals who had since been granted Venezuelan nationality, people who were unable to register due to rural isolation or perhaps a disability, and people who chose not to register prior to 2012. Only individuals with Venezuelan nationality could vote in the October presidential elections; residents can vote in the upcoming December 16 regional elections.
Oblitas has stated that the gap between those able to vote and those registered had been reduced to 3.5%, a statistic she interpreted as a great advance and a direct result of a broader policy of participatory inclusion. The CNE employs over 400,000 people to staff the electoral mesas, provide on the ground digital technology support, and directly administer the electoral process, and maintains an independent budget of over Bs 2,273,000,000 (US$ 494 million) to carry out both the October 7 and upcoming December 16 regional electoral processes.
In contrast, consider that the highest participation rate in recent years in the United States was estimated at only 61.6% of registered voters, comprising only 57.47% of the entire U.S. voting-age population. That was in the 2008 presidential elections.
Amid reports of lower registered-voter turnout this year – an estimated 57.5% – the popular image of the United States as a leader in the development of open, participatory, democratic institutions is not exactly in alignment with current realities on the ground.
In fact, according to data compiled by the international Institute for Democracy and Electoral Assistance, the United States trails behind 16 Latin American nations in terms of voter turnout, besting only Colombia (45%) and Honduras (53%), two countries that are not well-regarded for any laudable transparency in the electoral process.
The perennial confusion over voter registration in the United States, which may depress registration and participation levels, could be clarified by uniform national standards regarding voter registration. Reforms might take into consideration similar systemic electoral reforms in Latin America.
Along with observations from the Center for Economic and Policy Studies, the National Lawyers Guild International Committee's observations of Venezuelan popular democracy in action – observations in which I took part – stand in marked contrast with media depictions of Venezuela’s government as autocratic.

Write On! Dispute resolution forum in Taipei

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

Papers on any topic relating to international law, with a focus on the Asia Pacific, are being sought for International Law and Dispute Resolution: Challenges in the Asia Pacific, a research forum to be held May 15-16, 2013, in Taipei, Taiwan.
Sponsors of the meeting include the Chinese (Taiwan) Society of International Law, the Chinese (Taiwan) Branch of the International Law Association, the Law in the Pacific Rim Region Interest Group of the American Society of International Law, and the Research Center for International Legal Studies at National Chengchi University in Taipei.
Paper proposals must be submitted electronically by  to ila@nccu.edu.tw.
The full call for papers is here.
Deadline is January 20, 2013.

On December 7

On this day in ...
... 1982 (30 years ago today), the 1st execution by lethal injection took place, at the state penitentiary in Huntsville, Texas (state flag at right). Executed was Charles Brooks Jr., who'd been convicted of the murder of an auto mechanic. Brooks was administered a killing dose sodium pentathol intravenously. Today lethal injection is the method preferred by U.S. death penalty jurisdictions; however, as prior posts demonstrate, its use remains the subject of litigation.

(Prior December 7 posts are here, here, here, here, and here.)

Thursday, December 6, 2012

“We Have to Fix That”: The ICCPR, U.S. voting rights & lessons learned from Venezuela's process

(Part 1 of a 4-part series comparing voting in the United States and Venezuela, in light of the International Covenant on Civil and Political Rights. Part 2 is here; Part 3 is here; Part 4 is here.)
'I want to thank every American who participated in this election, whether you voted for the very first time or waited in line for a very long time. By the way, we have to fix that.'
- President Barack Obama, Chicago, Illinois, United States, November 6, 2012

President Obama’s remarks came on the heels of an election he won, despite persistent problems with:
►Restrictions on early voting, voter registration drives, and voter ID legislation, and
►In some cases, third-party voter intimidation in the United States.
What seemed to be an ad-lib in Obama’s victory speech resonated deeply with my observations in the field on Election Day in the United States. And as a captain with the volunteer nonpartisan National Election Protection Coalition Field Program, I heard reports of third-party voter intimidation in southern and central California, and of other forms of voter suppression in Ohio and Arizona.
The statement that "we have to fix that" placed in some contrast my observations this fall in the field in Venezuela – another country that, like the United States, bears the burden of a racially discriminatory past and historical problems with access to a free and fair vote.
On October 7, along with 7 other members of the National Lawyers Guild International Committee delegation and over 200 international parliamentarians, election officials, academics, journalists, and judges, I had the opportunity to observe Venezuela's 2012 Presidential Elections. I was able to get a glimpse as to how Venezuela's democratic process functions on a procedural, technical level. And I saw the International Covenant on Civil and Political Rights in action. In the 4-part series that I begin with this post, I will set forth my own observations and comparisons of the 2012 elections processes in Venezuela and the United States – observations informed by the guarantees of the international civil rights covenant.
Photo Credit: NLG International Committee Delegation 
from the U.S., CNE Accompañamiento Internacional 
de las Elecciones Venezolanas del 7 de octubre, 2012
Article 25 of the ICCPR requires that every citizen shall have the right and opportunity without unreasonable restrictions to take part in the conduct of public affairs, directly or through freely chosen representatives; “to vote and to be elected at genuine periodic elections…by universal and equal suffrage and…by secret ballot, guaranteeing the free expression of the will of the electors;” and “to have access, on general terms of equality, to public service.”
After reviewing the Carter Center’s pre-electoral report examining Venezuela’s electoral process and procedural guarantees, former President Jimmy Carter stated:

Welcoming Olga Martín-Ortega

It's our great pleasure today to welcome Dr. Olga Martín-Ortega (right) as an IntLawGrrls contributor.
Olga is a Reader in Public International Law at the University of Greenwich in the United Kingdom. She holds a law degree from the University of Sevilla in Spain, and received her Ph.D. cum laude in International Human Rights Law from Spain's University of Jaen.
Prior to joining Greenwich, she was Senior Research Fellow and member of the Management Team at the Centre on Human Rights in Conflict, School of Law and Social Sciences, University of East London.
Olga conducts research in the areas of business and human rights, post-conflict reconstruction and transitional justice. Her latest research has focused on the impact of the activities and working methods of multinational enterprises in conflict zones and peacebuilding and transitional justice in Bosnia-Herzegovina and Spain.
Her introductory post today draws lessons from the experience of Bosnia and Herzegovina in multilevel international justice efforts to address war crimes.
Olga is a founding member of the London Transitional Justice Network and the European Society of International Law Interest Group on Business and Human Rights.
Among her publications are: a monograph, Empresas Multinacionales y Derechos Humanos (2008); three co-edited volumes, Peacebuilding and Transitional Justice on the Ground: Victims and Ex-Combatants (2012), Peacebuilding and the Rule of Law in Africa (2010), and Surviving Field Research (2009); and two co-authored textbooks, International Law (2009) and War, Conflict and Human Rights (2009).
Heartfelt welcome!

In Bosnia, Prosecuting War Crimes at Home

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

(credit)
In my article, "Prosecuting war crimes at home: lessons from the War Crimes Chambers of the State Court of Bosnia and Herzegovina", published recently in the International Criminal Law Review, I explore the challenges of multilevel justice for prosecuting international crimes.
It is now nearly twenty years since the establishment of the ad hoc international criminal tribunals, and ten years since the entry into force of the Statute of the International Criminal Court. In these two decades international criminal justice has evolved greatly, both from a substantive and procedural point of view but also with regards to its goals and aspirations.
International justice has transformed from a purely retributive system of justice to one which aspires to bring justice closer to the victim, to contribute to restoration and play a part in reconciliation whilst still upholding international standards of fair and due process.  As it develops further, we will see a complex web of prosecutions at the international level, in hybrid or internationalised bodies, and in national courts, either in centralised bodies or scattered around local courts.
This process of fragmentation inevitably brings challenges to international criminal law.
My article focuses on the experience of prosecuting war crimes in Bosnia and Herzegovina, where the multilevel system is as complex as it can get.
(credit)
In Bosnia and Herzegovina (flag at right), the work begun by the International Criminal Tribunal for the Former Yugoslavia at The Hague is been carried on by the War Crimes Chamber in Sarajevo. In parallel, local courts continue to have jurisdiction over war crimes committed in their territory.
All post-conflict situations are different, and therefore, too, are the institutional and political frameworks within which prosecutions take place. Unfortunately, the crimes are not different, and the need for justice and redress for the victims isn’t, either. In this regard, the Bosnia and Herzegovina experience provides important insights for future practice, both for the international community supporting a complementary system of prosecutions and for national authorities establishing their own procedures.
My article focuses on the work of the War Crimes Chamber, conceived as a national institution with a temporary hybrid nature. Despite the challenges it has had to confront, the work of the War Crimes Chamber can be considered a success. In 6 years, it has:
►  Become a national institution,
►  Completed over a 100 cases, and
►  Been praised by international organisations for complying with international standards of justice.
In this post, I briefly summarise some of the conclusions I reached in my article.

Need for meaningful international-national engagement
The first conclusion regards the nature of the institutions tasked with the prosecution and adjudication of international cases.
The process in Bosnia and Herzegovina represents the first time a hybrid court has become a national institution. The presence of international staff has been crucial to guarantee a good start, from several points of view. In a highly politicised environment, internationals have, in a way, “shielded” the institutions, and taken most of the burden of politically manipulative discourses and attacks that are still prevalent in the country. They have also contributed to capacity-building and to training of their counterparts and for knowledge to be shared, both from a substantive point of view and from the perspective of court and prosecution management.
However, these capacity-building processes are more complex than simply creating sets of training materials, having national staff sitting in seminars, or lecturing them about international humanitarian law.