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.

Work On! ICRC/Berkeley workshop for law students

(Work On! is an occasional item about workshops, roundtables, and other fora not resulting in publication)

Berkeley Law’s Miller Institute for Global Challenges and the Law , for which I serve as Director of Research and Programs, and the International Committee of the Red Cross are sponsoring a three-and-a-half day workshop on International Humanitarian Law Workshop for Students.
The workshop will be held on January 3-6, 2013 at the University of California-Berkeley Law School. It is free to students enrolled in U.S. law school. Because there is no registration or other fee, the only cost for students will be for travel, lodging, and meals.
This workshop combines lectures and hands-on exercises that guide U.S. law students through an intensive workshop on international humanitarian law, also known as the law of war. The workshop will be led by legal professionals from the ICRC, lawyers for the U.S. armed forces, and law professors who specialize in international humanitarian law. Featured speakers include Beth van Schaack of the U.S. Department of State, Anne Quintin and Andrea Harrison of the ICRC, and yours truly, Kate Jastram of Berkeley Law.
Topics will include:
► Introduction to International Humanitarian Law
► When Does IHL Apply?
► Human Rights and IHL
► Protected Persons
► Internment/Detention
► Armed Conflicts of a Non-International Character
► The IHL/Terrorism Interface
► Implementation and Enforcement of IHL
Registration is limited and competitive. Students are encouraged to apply early, as the workshop does fill up. A maximum of 40 students may attend. Students will receive a Certificate of Completion from the ICRC.
Application deadline is Friday, November 9, 2012. For details, see the workshop's website or contact the Miller Institute at mgcl@law.berkeley.edu.

What's wrong with this picture?

(credit)

The news itself is tragic.
Protracted violence is now so intense in Syria that this weekend a representative of the International Committee of the Red Cross told a Reuters reporter:

"There is a non-international armed conflict in Syria."

That pronouncement goes further than those of the past, in which the ICRC deemed conflict localized rather than nearly countrywide.
But what most caught this reader's eye was the legal implication drawn from that pronouncement.
The article states that a "threshold" has now been crossed, one that now permits "future prosecutions for war crimes." The author links this threshold to the criteria for NIAC -- acronym for "armed conflict not of an international character," to quote Article 3 common to the four 1949 Geneva Conventions on the laws of war.
All this is correct as far as it goes.
But it does not go far enough, and so leaves the risk of inaccurate inference.
What's missing from this account is the fact that international prosecutions do not depend on Geneva rules alone. The early requirement of a "war nexus" was broken long ago, at Beth Van Schaack explained in this article.  Crimes against humanity thus may occur -- may be, and are, prosecuted internationally -- even absent armed conflict. Crimes against humanity are certain acts "committed," to quote Article 7 of the Statute of the International Criminal Court,

'as part of a widespread or systematic attack directed against any civilian population'.

There's evidence that such attacks have taken place in Syria throughout the last year and a half. That means the "threshold" for international investigation and prosecution was crossed a long time ago.
What hinders peace and accountability in Syria is not the presence of some legal barrier. As we've posted in the past, what hinders peace in Syria is the absence of geopolitical will.

Thematic Prosecution of Sex Crimes

The Forum for International Criminal and Humanitarian Law has recently released two books on the international prosecution of sex crimes, entitled Thematic Prosecution of International Sex Crimes and Understanding and Proving International Sex Crimes.
The books, published by Torkel Opsahl Academic EPublisher and edited by Dr. Morten Bergsmo, Senior Researcher at the University of Oslo Faculty of Law, emerged from seminars , about which IntLawGrrl Beth Van Schaack previously posted, that brought together experts to discuss the legal, philosophical and practical issues involved in prosecuting international sex crimes in both international and national courts.
An important purpose of the books is to assist criminal justice personnel contemplating or pursuing sex crime prosecutions. Contributions to the volumes therefore examine existing legal standards and theoretical approaches but also suggest ways to improve upon current theory and practice.
My contribution to the volume on Thematic Prosecution, entitled "An Expressive Rationale for The Thematic Prosecution of Sex Crimes at International Criminal Courts", builds on an essay I wrote for a symposium on Women and International Criminal Law organized by Beth Van Schaack along with IntLawGrrls Diane Marie Amann and Jaya Ramji-Nogales. In this chapter, I examine the philosophical justifications for giving priority to sex crime prosecutions at international courts.
Despite the increased focus on sex crime prosecutions in recent years, no effort has been made, either at the tribunals or in the scholarship, to develop such justifications. Those who prosecute and write about sex crimes generally assume that international courts should focus particular attention on such crimes. Commentators sometimes point to the practical and institutional benefits of thematic sex crime prosecutions. Such prosecutions can, for example, increase an institution’s capacity to address sex crimes by developing relevant investigative and prosecutorial expertise and expanding the applicable law. But a prior normative question must be addressed:

Why should international courts give priority to sex crimes when allocating scarce resources?

I argue that the philosophical grounding for thematic sex crime prosecutions must be found in the underlying purposes of international criminal courts. While the moral justifications of international prosecutions are widely disputed, there are four primary contenders: retribution, deterrence, restoration, and expression.
In the first part of the chapter, I explain why none of the first three theories precludes giving priority to sex crime prosecutions. In fact, each theory supports such prosecutions, at least under some circumstances. I then explain that the strongest justification for giving priority to sex crimes is found in the expressive rationale for international criminal law. In other words, if international criminal law aims to express global norms it should often seek to promote the norms against sex crimes even at the expense of other important norms. The need for such special emphasis lies in the history of under-enforcement of sex crimes in both national and international fora as well as in the discriminatory expression inherent in the crimes themselves.

Internet in bello: more questions than answers

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

Berkeley Law and the International Committee of the Red Cross recently posted a written summary and full audio file of a November 2011 seminar held in Berkeley on "The Internet in Bello: Cyber War Law, Ethics & Policy."
Among the many speakers and moderators were these: IntLawGrrls' editor emerita  Beth Van Schaack (below right), since March 2012 the Deputy to Stephen J. Rapp, U.S. Ambassador-at-Large in the Office of Global Criminal Justice; Anne Quintin of the ICRC (below left); and yours truly, Berkeley Law’s Kate Jastram. The keynote speaker was Air Force Colonel Gary D. Brown, Staff Judge Advocate for the U.S. Cyber Command, based at Fort Meade, Maryland. (Prior IntLawGrrls posts.)
Reflecting on how jus in bello norms apply, if at all, to cyber security operations, the main themes of the seminar are sketched below.
Characteristic of the uncertainty posed by cyber capabilities in armed conflict, it was a matter of some dispute whether the issue itself is even significant:
► From one perspective, cyber operations are a strategic development of first-order significance, heralding a revolution in military affairs analogous to the dawn of the nuclear age. In addition to posing new threats, cyber may offer unprecedented opportunities to comply with international humanitarian law/the law of armed conflict (typically abbreviated IHL/LOAC).
► Skeptics point to the profit-motivated hype associated with cyber security issues, and argue that there have been very few examples of serious cyber attacks in the accepted legal meaning of the word.
A recurring question is whether "war" is in fact the correct characterization for most hostile cyber activity, and therefore whether the law of armed conflict is the relevant legal framework. It was agreed both that IHL/LOAC applies to cyber operations in armed conflict, and that not all hostile cyber actions should engage this body of law.
It is difficult to analogize from established international law rules to new and rapidly changing technologies. Cyber’s lack of correlation to physical geography, for example, makes application of traditional rules problematic. While IHL/LOAC is too limited to deal with the full range of cyber security activities, and cyber issues must be addressed in other legal frameworks, it is also the case that IHL/LOAC needs to develop to respond to the capabilities and threats of cyber war.
The most promising, and underexplored, possibility is the potential for a more humane method of warfare.
Reviewing the cyber aspects of some basic definitions, it was agreed that cyber operations causing physical damage would constitute an "attack" under Article 49.1 of Additional Protocol I to the Geneva Conventions of 12 August 1949, which was adopted in 1977 and entered into force 1978. (The United States is not a party but accepts many of its provisions as customary international law.)
Article 49.1 states:

'"Attacks" means acts of violence against the adversary, whether in offence or in defence.'

However, views on "neutralization" under Article 52.2 of Additional Protocol I differ. Article 52.2 provides:

Glazier: Nuremberg lens on GTMO commissions

Our colleague David Glazier (left), Professor of Law at Loyola Law School in Los Angeles, is in at the U.S. military base at Guantánamo Bay, Cuba, observing the military commission proceedings against Khalid Sheikh Mohammed and 5 others, alleged to be the authors of the terrorist attacks of September 11, 2001. He wrote just minutes ago that the arraignment hearing's still going on "because the defendants," who reports said caused quite a ruckus in court today, "ultimately refused to waive the reading of the charges."
Will have to wait for a full report on today's proceedings.  But did want to share Dave's excellent account of what transpired yesterday, compiled as an observer for the National Institute of Military Justice – a role that IntLawGrrls Beth Van Schaack, Beth Hillman, and yours truly, along with other NIMJ board members, have fulfilled in the past.
Here's Dave's report, which ends by finding the commissions fall short when viewed in light of the the postwar International Military Tribunal at Nuremberg:

* * *

GUANTÁNAMO, May 4 – I am currently in Guantánamo as the National Institute of Military Justice (NIMJ) observer at the scheduled May 5 arraignment of the five alleged 9/11 co-conspirators. Tonight I had the opportunity to attend back-to-back press conferences by James Connell, the civilian “learned counsel” representing one of the five defendants, Ammar al Baluchi, also known as Ali Abdul Aziz Ali, and the second by Chief Prosecutor Mark Martins, whose prepared statement is already posted at the Lawfare Blog.
Connell addressed the long delay in the prosecution and previous false starts, suggesting that Saturday’s arraignment marked only the beginning of a multi-year process that could still be in progress in ten years time should the Supreme Court strike down the new military commissions as they did once before. But most of his discussion focused on the secrecy of the proceedings, and how he was legally prohibited from saying anything at all about his client’s intention because of the government’s insistence that anything a detainee formerly held in CIA custody said was presumptively classified at the Special Compartmented Intelligence (SCI) level. The ACLU has filed a motion that I think does an excellent job of addressing the impact of this approach on the public’s right to know (full disclosure – I authored a supporting declaration on historic military commission practice but played no role in drafting the actual motion). But the major adverse impact this secrecy has on Guantánamo defense teams’ ability to represent their clients is a topic significantly underreported to date, and Connell’s remarks only scratched the surface of the issue.
Connell also explained the one significant development today – the military judge had intended to conduct an informal session with only counsel present (called an “802 hearing” after the Military Commission Rule 802 addressing the subject). The judge’s staff began notifying the defense counsel of his intention, and according to Connell, attorneys for the first two detainees who were notified both said they would come only if the hearing was recorded so that it could eventually be included in the formal trial record. Shortly thereafter word was sent to the attorneys that there would be no 802 hearing today, meaning that tomorrow’s arraignment will proceed without any formal pre-coordination
Connell was followed by Chief Prosecutor Martins who gave a polished defense of the commissions’ fairness. I think it odd that the individual charged with prosecuting the defendants has taken upon himself the role of head cheerleader for the commission process. One might remember that Morris Davis did this several years ago in his tenure in that job, resulting in significant complaints about his extrajudicial commentary that would have been a subject of some judicial discussion had David Hicks not cut it off by pleading guilty. And Martins should have his focus on fulfilling his ethical responsibilities to do justice in the prosecutions – the Convening Authority certainly can call on other resources such as his own public affairs staff to defend the commissions.
In any event, as a scholar of the military commission process since their announcement in 2001, I found many of Martins’ comments to be less than fully candid. Here just a couple of examples:

On the Job! Santa Clara Law Human Rights Clinical Fellowship

I am pleased to announce that Santa Clara University School of Law is now seeking applications for a Clinical Fellowship with our new International Human Rights Clinic (IHRC).

The IHRC provides a unique educational opportunity for students to gain first-hand, practical experience working on international human rights litigation and advocacy projects. It combines classroom education with supervised case and project management, providing students practical training in advocacy and lawyering skills. The fellow will work with the new Clinical Director, Francisco Rivera, formerly of the Inter-American Court of Human Rights (below right, with his wife, Claudia Josi, who is also a human rights lawyer).

Position Description: The clinical fellowship position is a nine-month academic appointment commencing on Aug. 1,2012, with a possibility for supplemental summer employment. The position maybe renewed for one additional term commencing on Aug. 1, 2013. The fellow will report to the Director of the International Human Rights Clinic and will supervise student work on clinic projects, participate in the planning and conduct of the clinic, assist with teaching a substantive law and legal skills seminar, and assess the development of new clinic projects. The clinical fellow will also be responsible for counseling and mentoring students, including advancing student job opportunities by arranging for students to work with partner organizations on clinic cases.

Essential qualifications:

• JD degree or comparable degree from a law school outside the United States.
• At least two years of experience as a practicing lawyer, including experience with international human rights litigation and/or advocacy.
• Excellent organizational, communication, and writing skills. Enthusiasm and demonstrated interest in student development.
• English fluency is required. Fluency in a second language, particularly Spanish, is desired.
• Prior experience teaching in an international human rights clinic is desired.

Application Procedure:

Applicantsshould send a cover letter and a resume or CV to:

IHRC Clinical Fellowship Search Committee

c/o Ms. Elyse Amberg

Santa Clara University Law School

500 El Camino Real

Santa Clara, CA 95053

Applicationsalso may be sent via e-mail to Ms. Amberg at eamberg@scu.edu.Applications must be received by Friday, March 30, 2012.

Inquiries: Inquiries may be addressedto Professor David Sloss, Director of the Center for Global Law and Policy, at dlsloss@scu.edu.

Santa Clara University is an Equal Opportunity/Affirmative Action employer, committed to excellence through diversity and inclusion, and, in this spirit, particularly welcomes applications from women, persons of color, and members of historically underrepresented groups. The University will provide reasonable accommodations to individuals with a disability.

Go, 'Grrl! Beth Van Schaack to State Department

Exciting news:
Our own Beth Van Schaack (right), an IntLawGrrls founding editor and contributor, will become the Deputy to the U.S. Ambassador-At-Large for War Crimes Issues later this month!
Professor of Law at California's Santa Clara University School of Law, Beth will take a leave of absence to serve as the Deputy to Ambassador Stephen Rapp. As we've posted, Rapp has served as the top State Department official on war crimes issues since September 2009. Before that he'd been Chief Prosecutor of the Special Court for Sierra Leone and senior trial counsel for the International Criminal Tribunal for Rwanda.
Succeeding the previous Deputy – IntLawGrrls contributor Diane Orentlicher, who has returned to her professorship at American University Washington College of Law – Beth will help run the State Department's Office of Global Criminal Justice. Formerly called the Office of War Crimes Issues, this office advises Secretary of State Hillary Clinton and, through the inter-agency process, helps formulate U.S. responses to atrocities committed throughout the world.
Beth's portfolio will include working with international tribunals, NGOs, and foreign governments to ensure accountability for international crimes, via transitional justice mechanisms that include not only prosecutions, but also truth commissions and commissions of inquiry.
Can't imagine anyone more qualified for this important position.
As well demonstrated by her many, many prior IntLawGrrls posts – of special note, her series on the crime of aggression and her recent observation of military commissions proceedings at Guantánamo – Beth is an internationally recognized expert in international law. She holds academic and practical experience in subfields most relevant to her new post: international criminal law, international humanitarian law/law of armed conflict, and transitional justice.
Her publications include many law review articles, as well as books like International Criminal Law and Its Enforcement, a Foundation Press casebook coauthored with Ron Slye and now in its 2d edition, and Bringing the Khmer Rouge to Justice: Prosecuting Mass Violence Before the Cambodian Courts (2005), co-edited with another IntLawGrrl founding editor and contributor, Jaya Ramji-Nogales.
In summer 2010, Beth served as Academic Advisor to the United States' interagency delegation, led by Ambassador Rapp and State Department Legal Adviser Harold Koh, to the International Criminal Court Review Conference in Kampala, Uganda.
Beth's engagement with the ICC dates to its founding: After attending Preparatory Committee meetings in New York, Beth managed a team of 10 lawyers and law students who attended the 1998 Rome Conference where the ICC treaty was adopted. As an observer or NGO delegate, she's also attended sessions of the Human Rights Council in Geneva, Switzerland, as well as meetings of other U.N. bodies.
Beth earned her bachelor's degree from Stanford University and her J.D. from Yale Law School. Thereafter, she clerked at the International Criminal Tribunal for the former Yugoslavia and was an Open Society Institute Justice Fellow. She served as Executive Director and as a Staff Attorney at the San Francisco-based Center for Justice & Accountability, which litigates human rights cases. From 1995 onwards, she has served as a Legal Advisor to the Documentation Center of Cambodia. At Santa Clara, she hosted an annual workshop in international humanitarian law along with the International Committee of the Red Cross.
Beth joined the Santa Clara law faculty following private practice with Morrison & Forester LLP, where she practiced in the area of commercial law, international law, and human rights. She was trial counsel for Romagoza v. Garcia, a human rights case that resulted in a plaintiffs' award of $54.6 million, and on the defense team for John Walker Lindh.
We at IntLawGrrls will miss her frequent contributions and unflagging support – even as we send her our very best heartfelt congratulations on her move to Foggy Bottom!

Breaking News: Kiobel to be Re-Argued

SCOTUS blog just announced that Kiobel (see prior posts here) will be re-argued in June on the question of whether the Alien Tort Statute (ATS) allows for U.S. courts to hear cases involving violations of international law committed on foreign soil notwithstanding the statutory presumption against extraterritoriality.  This issue has been lurking in other ATS cases, but it was not squarely presented in the certiorari papers in Kiobel.    Apparently, in reviewing the cert petition in Rio Tinto v. Sarei (which arises out of abuses allegedly committed in Papua New Guinea, see our prior posts here), the Court took note of the issue, which is squarely presented in that case.  The Court has now ordered additional briefing in Kiobel on the question of:

Whether and under what circumstances the Alien Tort Statute, 28 U.S.C. § 1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.  

Needless-to-say, a ruling that the ATS applies only to conduct committed on U.S. soil would largely gut litigation under that Statute.  Indeed, cases involving U.S. defendants have been dismissed on various grounds, including the political question and state secrets doctrines.  A finding that the ATS does not "apply" to extraterritorial conduct also seems inconsistent with the Court's own pronouncement in Sosa v. Alvarez-Machain (prior posts here).  This opinion indicates that the ATS does not involve the application of U.S. law extraterritorially; the Court was quite clear that the ATS creates no cause of action.  Rather, the Court ruled, the ATS allows for the application of international law in a U.S. forum as  a function of U.S. common law.  So, the ATS authorizes adjudicative jurisdiction rather than prescriptive jurisdiction. 

To be sure, the ATS is silent on its geographic reach.  By contrast, the TVPA is more express in this regard; it applies to a defendant acting "under actual or apparent authority, or color of law, of any foreign nation."

The Kiobel plaintiffs are to file their brief by May 3; defendants' response is due June 4.  

Go On! On day of Lubanga verdict, "Atrocity Crimes Litigation 2011: Year in Review" at The Hague

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

Pleased to announce an exciting event in which yours truly has the honor of taking part:
The Atrocity Crimes Litigation Year in Review (2011) Conference, billed as a "discussion of atrocity crimes litigation of 2011 with leading practitioners and experts," will be held from 10 a.m. to 4:30 p.m. on Wednesday, March 14, 2012, at the Special Tribunal for Lebanon, Dokter van der Stamstraat 1, in Leidschendam, adjacent to The Hague in the Netherlands. (credit for photo below of tribunal's building)
As this conference begins, we've just learned, Trial Chamber I of the International Criminal Court will "deliver its decision on the innocence or guilt of Thomas Lubanga Dyilo," the 1st person to stand trial at the ICC. That event promises rich discussion at our conference just up the road from the ICC.
The year-in-review conference began several year ago. Its founder, our colleague David Scheffer, held it at his home institution, Northwestern University School of Law in Chicago. This year will be the 1st that the Northwestern Law conference goes to The Hague, home to the ICC, the Special Tribunal for Lebanon, and others among the tribunals to be reviewed.
The day will be web-linked to Northwestern students, and a recording will be available online in due course.
What's more, this year as in the past, the conference proceedings will form a forthcoming issue of the Northwestern Journal of International Human Rights (prior issues available here).
At center stage will be prosecutors and defense lawyers, who will report on, and debate, the year's developments at the various tribunals. My role is to serve as something of a backgrounder and color commentator, then to contribute a year's recap to the Journal. In this annual role, I'm honored to follow a couple IntLawGrrls, Beth Van Schaack (contribution here) and Valerie Oosterveld (contribution here), as well as our colleagues Göran Sluiter (contribution here) and William A. Schabas (contribution here).
Here's the full lineup for this year's event:
Moderator:
► David Scheffer, Mayer Brown/Robert A. Helman Professor of Law, Northwestern University School of Law
Panelists:
► Diane Marie Amann, Emily and Ernest Woodruff Chair in International Law, University of Georgia School of Law
► Caroline Buisman, Defence Counsel, International Criminal Court
► Andrew Cayley, International Co-Prosecutor, Extraordinary Chambers in the Courts of Cambodia
► Sara Criscitelli, Prosecution Coordinator, International Criminal Court
► Mark Harmon, recently retired from his post as Senior Trial Prosecutor, International Criminal Tribunal for the former Yugoslavia
► Brenda Hollis (far left), Chief Prosecutor, Special Court for Sierra Leone (photo credit)
► Hassan Jallow, Chief Prosecutor, International Criminal Tribunal for Rwanda
► Daryl Mundis, Chief of Prosecutions, Special Tribunal for Lebanon
Preregistration is required and closes March 5, 2012; click here.

Removal in store for Salvadoran general

In an unprecedented decision, Immigration Judge James K. Grim sustained all removal charges against General Eugenio Vides Casanova.
The Florida-based judge ruled last Thursday that Vides Casanova, former Minister of Defense of El Salvador, is removable from the United States for:
► Participating in the torture of two clients of the Center for Justice and Accountability, Juan Romagoza and Daniel Alvarado, among many other civilians, and
► Assisting or otherwise participating in the 1980 extrajudicial killing of the four American churchwomen and the 1981 Sheraton Hotel killings of two Americans and a Salvadoran land reform leader, among other massacres and assassinations.
In 1999, CJA, the San Francisco-based NGO about which we've posted, filed an Alien Tort Statute/Torture Victim Protection Act case on behalf of three survivors of torture against Eugenio Vides Casanova and Guillermo Garcia, also a former Minister of Defense of El Salvador. IntLawGrrl Beth Van Schaack was trial counsel in the case. In 2002, a West Palm Beach jury returned a $54.6 million verdict against both defendants. The case later was upheld on appeal, after a surprising reversal by the U.S. Court of Appeals for the Eleventh Circuit of an earlier decision reversing the jury verdict. (Romagoza-Arce et. al. v. Vides and Garcia, 434 F. 3d 1254 (11th Cir. 2006).
In light of the jury verdict, CJA met with representatives of the federal immigration service to request their review of Vides Casanova's and Garcia’s immigration status as lawful permanent residents. Thereafter, similar outreach was made to Department of Homeland Security and the Department of Justice.
In the meantime, CJA and other human rights organizations pressed for a revision of U.S. immigration law to make it easier to remove human rights abusers from the United States. They succeeded, with the enactment in 2004 of a provision in the Intelligence Reform and Terrorism Prevention Act. It allowed for the removal of persons who “ordered, incited, assisted or otherwise participated” in torture or extrajudicial killings. It now includes the crimes of genocide, severe violations of religious freedom, and the recruitment or use of child soldiers. The legislative history specifically mentioned the civil case against the Salvadoran generals. Over the next five years, key members of Congress continued to raise the visibility of the issue.
On October 6, 2009, DHS announced its initiation of removal proceedings against both generals. Vides Casanova’s immigration court hearing occurred in April and May of 2011. Garcia’s has not been scheduled.
In last week's ruling, the immigration judge made specific findings that Vides Casanova, as Director of the National Guard, had participated in the torture of Dr. Romagoza, which occurred during his captivity at the National Guard Headquarters.

Lebanon Tribunal Staffing Update

We noted earlier that the current Chief Prosecutor of the Special Tribunal for Lebanon, Canadian Daniel Bellemare, was stepping down at the end of his term.  It has just been reported that Canadian Norman Farrell (left) is his likely replacement.  It has been reported that Farrell's was the choice of the late Antonio Cassese, former President of the Tribunal, who grew frustrated with the pace of indictments before the Tribunal under Bellemare's watch.  Farrell would come to the STL from the International Criminal Tribunal for the former Yugoslavia where he is deputy prosecutor;  he also worked at the International Criminal Tribunal for Rwanda and the International Committee of the Red Cross.  Ultimately, the U.N. Secretary-General will confirm the appointment.  Daniel David Ntanda Nsereko will replace Judge Cassese.  The STL's mandate has been extended for three more years and in absentia proceedings are expected to commence soon.

Progress in Sri Lanka?

Further to a prior post, it has been reported that the chief of the Sri Lankan Army, Lt. Gen. Jagath Jayasuriya (right, Wikipedia photo), has agreed to investigate potential war crimes committed during the final stages of the civil war with the Liberation Tigers of Tamil Eelam.  The plan appears to be for the appointment of a 5-member "Court of Inquiry" to conduct an initial investigation to be followed, if warranted, by a courts martial to hear war crimes charges.  Authority comes from the powers vested under Regulation 4 of the Courts of Inquiry Regulations and the Regulation 2 of the Army Disciplinary Regulations. 

The announcement comes days after a U.S. delegation visited the country and weeks before Sri Lanka faced potential censure before the Human Rights Council for its failures of accountability.  The army, however, claims that it is merely responding to the recommendations of the Lessons Learnt and Reconciliation Commission (LLRC), an investigative panel formed by the government in response to international pressure. 

Human Rights Watch's Brad Adams, who directs the group's Asia bureau, is skeptical. Of obvious concern is that the announcement is a mere ploy to ward off action at the Council.  Moreover, the Court of Inquiry will be appointed by Jayasuriya, who commanded the security forces in the highly contested Wanni region toward the end of the war.  It will be headed by Major General Chrishantha De Silva, who commands the Security Forces in Killinochchi.

Also contributing to the government's volte face is no doubt the existence of harrowing cellphone video footage showing what appear to be government soldiers executing bound and naked prisoners.  The footage was obtained by Journalists for Democracy in Sri Lanka and was broadcast on Channel 4 in Britain.

In other Sri Lankan news, Shavendra Silva, who commanded the 58th Division of the Sri Lankan Army and is Sri Lanka's Deputy Permanent Representative to the United Nations, had recently been nominated to serve on the U.N. Secretary-General's Senior Advisory Group on Peacekeeping Operations chaired by Canadian Louise Fréchette (right).  Human Rights Watch; the U.N. High Commissioner for Human Rights, Navi Pillay (above left), who is of Tamil descent; and others indicated "concern" over Silva's appointment to the Advisory Group.  Two plaintiffs have filed a lawsuit against Silva under the Alien Tort Statute and the Torture Victim Protection Act, alleging that loved ones had been the victims of torture and summary execution at the hands of troops under Silva's command during the civil war.  The case was dismissed last week on diplomatic immunity grounds (per 22 U.S.C. § 254d).  See Vathsala Devi and Seetharam Sivam v. Shavendra Silva, 2012 U.S. Dist. LEXIS 15840 (S.D.N.Y. February 8, 2012).  Attorneys in the case filed a motion for reconsideration with the court this past Wednesday.  On that day, Fréchette announced that Silva would not be joining the group. 

The High Commission on Human Rights materials on Sri Lanka are available here.

[Hat tip to Elena Landriscina for the update!]

Pressure Increasing on Sri Lanka to Investigate War Crimes

The United States is sending this week a delegation of diplomats to Sri Lanka to encourage the government there to respond to allegations that upwards of 40,000 civilians were killed in the government's campaign to defeat the Tamil Tigers of Tamil Eelam (LTTE). The delegation will apparently include:

• Assistant Secretary of State for Central and South Asian Affairs, Robert Blake
• Under Secretary for Civilian Security, Democracy and Human Rights, Marie Otero (below right)
• Ambassador-at-large for War Crimes Issues, Stephen J. Rapp

The Sri Lankans are not exactly putting out the welcome mat.

The visit comes in advance of the next meeting of the United Nations Human Rights Council in Geneva, which will run February 27 - March 23. It is rumored that the United States, along with others, will be sponsoring a resolution to press Sri Lanka to more credibly investigate alleged war crimes.

By way of background (see prior posts here and here), in a meeting with Secretary-General Ban Ki-Moon, the government of Sri Lanka agreed to take measures to address accountability for war crimes committed during the Sri Lankan civil war, which dragged on from 1972 to 2009. Of particular concern is the conduct of government forces in the brutal final battle that resulted in the collapse of the Liberation Tigers of Tamil Eelam (LTTE). The challenge has been to pin the government down to its commitment in the face of an ethos of triumphalism, institutionalized impunity, entrenched militarism, and ongoing human rights violations (such as restrictions on the media, the retention of wartime special powers measures, and persistent exclusionary policies).
In an effort to ward off a United Nations initiative, the government appointed a truth commission, entitled the Lessons Learnt and Reconciliation Commission, that focused on events following the failure of the 2002 ceasefire. The Commission's report (available here) has been commended for acknowledging grievances and for making credible recommendations on governance and land issues. It also acknowledged some civilian deaths (a departure from the standard government line) and the need for some measure of accountability. But it largely reads like a whitewash when it comes to providing any thorough investigation of violations of international humanitarian and human rights law. For example, the report concluded at para. 4.262:

In evaluating the Sri Lanka experience in the context of allegations of violations of International Humanitarian Law (IHL), the Commission is satisfied that the military strategy that was adopted to secure the LTTE held areas was one that was carefully
conceived, in which the protection of the civilian population was given the highest priority. The Commission also notes in this regard that the movement of the Security Forces in conducting their operations was deliberately slow during the final stages of the conflict, thereby evidencing a carefully worked out strategy of avoiding civilian casualties or minimizing them.

Indeed, Amnesty International called the report "fundamentally flawed."

Meanwhile, the Secretary-General appointed a Commission of Experts, composed of Marzuki Darusman (Indonesia), Yasmin Sooka (former commissioner of South Africa's Truth and Reconciliation Commission, above left), and our colleague Steve Ratner (USA).

Women Under Siege

A short note to publicize the launch of a new website entitled Women Under Siege.  This is a project of the not-for-profit Women’s Media Center.  Its intent is to 

document how rape and other forms of sexualized violence have been used as tools in genocide and conflict throughout the 20th century and into the 21st.

In addition to this documentation, the project also aims to develop and disseminate

an action plan to push for the creation of legal, diplomatic, and public interventions to ensure the United Nations, international tribunals, and other agencies with power ... understand the gender-based threats as a tool of genocide and ... design protocols to intervene and halt gender-based genocide.

It includes a blog with entries like:

• Can we end rape as tool of war? By Gloria Steinem and Lauren Wolfe
• What it's like to cover 'unbearable' stories of rape in Congo By Lynsey Addario

Further to our announcement of the winner of the Katharine and George Alexander Prize at Santa Clara, the site also includes a short video by photojournalists Ofelia de Pablo and Javier Zurita (whose photos grace our entry on the Prize) featuring interviews of survivors and the ongoing forensic and legal investigation surrounding the indictment of Efraín Ríos Montt in Guatemala by Judge Carol Patricia Flores.  The New York Times coverage of the new site is here.  Check it out!

Alexander Prize Winner Announced

I am pleased to announce this year's winner of the Katharine & George Alexander Prize: Almudena Bernabeu of The Center for Justice and Accountability (right). Press release is here.

By way of background (see our prior posts here, here, and here), the Prize is given annually by Santa Clara University School of Law. The Prize is intended to bring recognition to lawyers who have used their legal knowledge and skills to help alleviate injustice and inequity. It is named after its two benefactors—George and Katharine Alexander—whose aim in establishing this Prize is to inspire young lawyers to heed the call of the public interest. Selection criteria include:

• the innovative nature of the programs or other activities undertaken;
• the courage and self-sacrifice required to undertake the work;
• the sustainability of the programs the nominee has implemented; and
• the number of people benefited.

"Almu" is an attorney with The Center for Justice and Accountability (CJA), a not-for-profit human rights law firm based in San Francisco. Almu leads CJA’s Latin America and Transitional Justice Programs. In this capacity, she assists with civil Alien Tort Statute litigation against human rights abusers found in the United States. With this program, she has contributed to a number of cases involving Latin America, including cases against human rights abusers from El Salvador, Colombia, and Peru. Almu also serves as the lead private prosecutor on two human rights cases before the Spanish National Courts. The first case was filed on behalf of survivors of the Guatemalan Genocide and includes Nobel laureate Rigoberta Menchú Tum (right). She and her team’s exhausting and exhaustive work to find evidence in the Guatemalan genocide case is featured in the 2011 documentary Granito, How to Nail A Dictator. The other Spanish case was brought against senior Salvadoran officials for the massacre of six Jesuit priests, their housekeeper, and her daughter in 1989. The victims of this horrific event are honored on my campus with small white crosses in front of our Mission Church (above left).

The picture at right depicts Almu in a village near Quetzaltenango with three witnesses who travelled to Spain to testify in the Guatemalan Genocide Case. This was the first time they had everleft their village. In their testimony, they described the way in which rape was used as an instrument of genocide and crimesagainst humanity--one of the first times gender violence has been featured in a universal jurisdiction case. (Photo credit: Ofelia de Pablo).

The picture at left depicts Almu in the country side of Nebaj, in the mountains of the Ixil, in Northern Quiche, Guatemala. She is with 83 year-old Tiburcio Utuy, a survivor of two massacres and torture by the Guatemalan Army. Almu recounts that he did not hesitate to come to Spain and testify, despite the risks and his age. (Photo credit: Javier Zurita).

S.C. Res. 1325 and National Action Plans

IntLawGrrl Diane Marie Amann blogged over the holidays about the release of the United States National Action Plan on Women, Peace & Security. (See her posts here and here). This is just to briefly note that the Women's International League for Peace & Freedom has compiled all 34 of the existing National Action Plans here. The United States' NAP, which is the result of an Executive Order signed by President Obama entitled "Instituting a National Action Plan on Women, Peace, and Security," is available here.

Lebanon Update: In Absentia Decision & Personnel Changes

The Special Tribunal for Lebanon has released its opinion determining that it will proceed in absentia against the 4 individuals indicted for the assassination of former Prime Minister Rafik Harari.
By way of background, in August, 2011, a pre-trial judge (Daniel Fransen of Belgium, right) made public the amended indictment issued on June 10, 2011, against four co-accused:

1. Salim Jamil Ayyash,
2. Mustafa Amine Badreddine,
3. Hussein Hassan Oneissi and
4. Assad Hassan Sabra.

Prior to that point, the indictment, which was confirmed on June 28, 2011, had at the request of the Prosecutor been under seal in order to “ensure the integrity of the judicial procedure” and enable the search for and apprehension of the accused. (See our prior coverage here). The 9-count indictment—which concerns the assassination of Hariri, the death 21 others, and the injury of 231 others—charges:

• Conspiracy aimed at committing a terrorist act
• Committing a terrorist act by means of an explosive device
• Intentional homicide with premeditation using explosive materials
• Attempted intentional homicide with premeditation by using explosive materials, and
• Being an accomplice to the above.

Much of the evidence against the accused is circumstantial and involves call data records from a number of networked and personal mobile phones that show surveillance on Hariri in advance of his death as well as coordination leading up to the assassination and the purchase of the Mitsubishi van that carried the explosives.
After Lebanese authorities failed to locate and apprehend the accused (including by conducting surveillance of last known addresses, serving the indictment on neighborhood leaders (mukhtars), issuing advertisements and public service announcements (see left), releasing an Interpol red notice, and establishing a hotline), the Tribunal ruled that it would proceed in absentia. Article 22 of the Tribunal’s Statute (along with Rule 106) allows such proceedings if the accused has absconded and

all reasonable steps have been taken to secure his or her appearance before the Tribunal and to inform him or her of the charges …

The Head of the Defense Office subsequently assigned permanent counsel to the accused.
This will be the first in absentia trial before an international tribunal since the Nuremberg Tribunal prosecuted Martin Bormann, Hitler’s Chief of Staff. Bormann reputably went into clandestine exile in South America at the close of WWII. (Some accounts indicate he had plastic surgery to conceal his identity). There are others who believe he died in the waning days of the Nazi regime. After being sentenced to death at Nuremberg, he was declared dead by a German court in 1973.
In other news, the contract of Daniel Bellemare, the current chief prosecutor of the Special Tribunal for Lebanon, expires this month.

Quick Cambodia Update

David Scheffer, newly appointed special envoy to Extraordinary Chambers in the Courts of Cambodia (ECCC) by the United Nations (as we reported here) has hit the ground running. Further to our posts (here, here and here) about the impasse at the ECCC over the appointment of reserve Co-Investigating Judge, Laurent Kasper-Ansermet of Switzerland, Scheffer, who traveled to Phnom Penh this week on behalf of the United Nations, has announced that there is no impediment to the Swiss jurist assuming his position and carrying out his functions as Co-Investigating Judge. The Supreme Council of Magistracy had delayed "confirming" Kasper-Ansermet's appointment, apparently on the grounds that he was "unsuitable." The grounds: he had used his Twitter account to discuss the debate over the propriety of pursuing Cases 003 and 004. Scheffer in his remarks also encouraged Kasper-Ansermet to build "credible" case files with respect to the controversial Cases 003 and 004.
In other news, Case 002 involving the surviving regime leaders, continues. Coverage is available on the ECCC's website as well as the Cambodia Trial Monitor. The tribunal recentlyheard testimony from Peoudara Vanthan ("Dara"), deputy director of the Documentation Center of Cambodia (DC-Cam). The defendants have attacked the neutrality of DC-Cam, arguing that its vast documentary holdings should be viewed with suspicion. The questioning seemed to suggest that the Center was prejudiced against the accused and had organized its holdings to facilitate the defendants' prosecution. There were also questions challenging the provenance and subsequent chain of custody of many of the documents, which are decades old.

Mugesera Deported

It has been a busy week for aficionados of International Criminal Law. One development that may have escaped notice concerns our neighbor to the north.

Rwandan Léon Mugesera recently lost appeals filed before provincial and federal courts in Canada seeking to prevent his deportation to Rwanda. Mugesera is known for an inflammatory speech given in 1992 that is believed to have helped trigger the genocide that engulfed Rwanda a year and a half later. After he successfully applied for permanent residence in Canada, Canadian immigration authorities commenced deportation proceedings against him. In 2005, the Supreme Court of Canada reversed an appellate court’s ruling that Mugesera did not deliberately incite murder,hatred or genocide. The Supreme Court concluded that there were “reasonable grounds to believe” that Mugesera committed crimes against humanity—the standard for deportation. The full speech is appended as appendix III to the Supreme Court opinion.
In an effort to avoid deportation, Mugesera invoked the non-refoulement principle, among other arguments, claiming that he would be subjected to persecution in Rwanda if he were returned. He filed an Article 22 individual petition before the Committee Against Torture, the body charged with enforcing the Convention Against Torture, seeking the Committee’s views on his vulnerability to torture. The Committee by letter requested Canadian officials to stay deportation so it could consider the petition. The Quebec Superior Court temporarily stayed the deportation, but then ruled that the Committee lacked the power to constrain states parties because it was limited to offering its views on individual petitions. It also determined that the responding to the Committee was an executive function, rather than a judicial one.

On January 24^th, after a 16 year legal battle, Mugeserawas deported and is now in custody in Kigali. This result, while welcomed by many, remained controversial, as many in Canada argued that Mugesera should have been prosecuted for his underlying crimes (including incitement to genocide) rather than simply deported.  So far, Canada has prosecuted only two individuals under its Crimes Against Humanity and War Crimes Act:

• Désiré Munyaneza and
• Jacques Mungwarere—both Rwandans.

(See our coverage of the Munyaneza case here). The current government has indicated an intention to streamline its laws (particularly the Immigration and Refugee Protection Act) to make deportation even easier. 

For more on Canada’s Crimes Against Humanity and War Crimes program, see here. Good coverage is also available on the website of theCanadian Center for International Justice). (We’ve covered the work of CCIJ before, see here (the effort to prosecute George W. Bush in Canada) and here (on Canada’s war crimes programgenerally and the prosecute v. deport debate)).