On the Job! Head of Minnesota-Colombia project

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

The University of Minnesota Law School is seeking applicants for a Project Director to coordinate a new program of the Law School designed to strengthen the institutional capacity of law schools in Medellín, Colombia, to train future legal practitioners in human rights. The Colombia Project will expand the curriculum, support human rights case work, and build the practice skills of Colombian students so that they can better serve populations affected by human rights violations in Colombia.
The Colombia Project Director will serve as a liaison between the clinical legal faculty at the University of Minnesota Law School and in Colombia.
The successful applicant will have earned a law degree by May 2013 and have bilingual fluency in Spanish and English, among other qualifications.
Details on qualifications sought, duties, and application process is here. Information also available by contacting Vicky Nguyen at humanrts@umn.edu.
Review of applications begins now; the position is open till filled.

Awaiting Monday's ICJ webcast of newest judgment, check out an ICJ archival gem

The International Court of Justice will webcast live its judgment in the case concerning the Territorial and Maritime Dispute (Nicaragua v. Colombia).
The decision will be announced next Monday, November 19, at the Peace Palace in The Hague, Netherlands. The public session begins at 3 p.m. Hague time (9 a.m. Eastern time).
If you can't make it to The Hague, you can watch the hearings  live online. Here's the how-to.
After the fact, the hearings will be available in the multimedia archive here.
As detailed at paras. 145-63 of the ICJ's 2011-2012 annual report, the case arises out of a dispute related to the western Caribbean off the coast of the 2 countries over maritime boundaries and title to certain islands.
While awaiting Monday's webcast, you might want to check out the archival gem I just stumbled over:

video of a Dutch newsreel of the 1st oral arguments before the ICJ, on Feb. 28, 1946, in the Corfu Channel case. Prominent on the bewigged British counsel table was Sir Hartley Shawcross, who also served as Chief British Prosecutor at the 1st Nuremberg trial. Still image of the Corfu hearing at right; video here.

Welcoming Sarah Houlihan & Katherine Romero

It's our great pleasure today to welcome as IntLawGrrls contributors Sarah Houlihan and Katherine Romero, attorney and senior attorney, respectively, in the Bogotá office of the NGO Women’s Link Worldwide.

Sarah Houlihan

► Sarah works primarily on sexual and reproductive rights within Latin America and Africa. She is an Irish qualified barrister, and practiced before the Superior Courts in Ireland before moving to Colombia.
Sarah completed legal internships with the Office of the Prosecutor, International Criminal Tribunal for the former Yugoslavia, and in judicial chambers at the U.S. District Court in Charleston, South Carolina. She holds an LL.M. in International Human Rights Law from the University of Nottingham, as well as a degree in Corporate Law with German, and a postgraduate degree in law from the National University of Ireland, Galway. Sarah recently completed a Diploma in Human and Women's Rights: Legal Strategies for Advocacy at the University of Chile Centre for Human Rights.

Katherine Romero

► Katherine began work with Women’s Link in 2005, in the field of sexual and reproductive rights. She is part of the legal team on LAICIA, a litigation project that worked toward the 2006 liberalization of abortion law in Colombia. Since 2010, Katherine has directed the sexual and reproductive rights program in Latin American and Africa. She is also an occasional speaker for the Inter American Institute of Human Rights.
Katherine graduated with a joint degree in law and political science from the University of the Andes in Bogotá, and holds a Masters in Human Rights Protection from the University of Alcala de Henares, Madrid, Spain. In 2009, Katherine was a visiting attorney at the Inter-American Court of Human Rights.
In their introductory post below, Sarah and Katherine discuss the legal underpinnings of a model aimed at addressing high maternal mortality rates, particularly in the context of deaths from unsafe abortion. The post is drawn from their co-authored report, Maternal Mortality, Unsafe Abortion and the Harm Reduction Model: the Legal Platform.
Heartfelt welcome!

Welcoming Mónica Roa

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

'My job is to work so that justice is adjudicated with a gendered perspective. I think of her every time that I demand equality and justice for women and some would like to behead me. So far we have come, so far we still have to go.'

Heartfelt welcome!

Right to Information Victory in Colombia

(credit)

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

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

Fighting Women

Earlier this month, Foreign Affairs published Fighting Mad: Why Women Turn to the FARC -- and How the FARC Turns on Them, an article that offers a stark image of life for women who serve as combatants in Colombian armed groups. Journalist Anne Phillips (who writes under a pseudonym for protective purposes) profiles “Athena,” who was recruited into the FARC, which offered her both an escape from her abusive childhood as well as the promise of gender equality.
Athena recalls the sense of familial belonging she developed as she grew accustomed to the routine of the training camp: attending classes on FARC ideology, learning to use weapons, eating rice and beans three times daily, and singing patriotic folk songs with her comrades. Yet along with these daily activities, women were also expected to provide sexual services to the men in the camp; it was considered part of a woman combatant’s duty to maintain morale among the troops. As a result, Athena became pregnant and underwent the trauma of a forced abortion.
Later, when another female combatant requested Athena’s assistance in escaping the FARC—she, too, was pregnant, and wanted to save her unborn child—Athena left. Through a series of lucky breaks, Athena found herself in a demobilization program where she received counseling, a stipend, and job training. Today she is married with a son, and is pursuing a technical degree. She recalls her experiences in the FARC with palpable disillusionment.
Athena’s experiences are common among women combatants globally who transition from the traditionally woman’s private sphere of home life, to the public sphere when they adopt roles in armed group such as the FARC. These women tend to experience conflicting emotions regarding their involvement. Some sense pride in contributing to society, while others feel betrayal that their sacrifice to the movement may be somehow mitigated by their gender, resulting in their being relegated to an inferior social status. This status becomes especially apparent in considering women’s sexuality; throughout the day, Athena was treated like any other soldier, yet when it came to choices such as whom to sleep with or whether to have a child, these decisions were dictated by her male superiors in the movement.
The topic of female combatants is one that I’ve written on, having blogged on my article False Dichotomies of Transitional Justice last year. I find it striking that Phillips’ portrayal of a female combatant offers the simple and yet, somehow still remarkable takeaway that women can and do adopt the role of combatants in conflict. The emphasis on Athena’s experience as out-of-the-ordinary may underscore the unsaid assumption that in the minds of many readers, women in conflict are typically conceived of as victims of conflict, rather than as perpetrators of violence like Athena.
There is also a great deal we don’t know about Athena’s experience that might reveal more about the intersection of gender and conflict in Colombia. How did she experience the demobilization process? Although 30-40% of the FARC’s forces are female, Colombia has no specific programs aimed at reintegrating female combatants, a failure that will become particularly salient if and when a peace agreement is ever signed with the FARC. According to Colombian government statistics, nearly 6000 women have already gone through the demobilization process, yet no special services have been provided for them when they confront concerns such as taking care of children, fleeing from abusive partners, or navigating a society in which they have not only transgressed societal expectations regarding combat against the state, but in which they have also transgressed gender norms. Has she experienced any stigma or prejudice from community members who know she is a former combatant? Has she been able to open up to anyone about her former life? And, although her hopes for gender equality within the FARC were dashed, how does she now understand her own prospects for gender equality as a Colombian woman? As Colombia and other nations grapple with recovery from armed conflict, awareness of the impact that gender roles have within conflict will be a crucial element of that transitional process.

Supreme Courts limits Torture Victim Protection Act

The U.S. Supreme Court has ruled that the Torture Victim Protection Act does not impose liability against organizations for acts of torture and extrajudicial killing.
Yesterday's decision was issued in Mohamad v. Palestinian Authority, a case filed by a U.S. citizen who was arrested by Palestinian Authority intelligence officers, imprisoned, tortured and ultimately killed.
The Court found that the term “individual," as used in the TVPA, only encompasses natural persons and, as a result, does not impose liability against any organizations. Justice Sonia Sotomayor, writing on behalf of a unanimous Supreme Court, stated in the concluding paragraph:

'The text of the TVPA convinces us that Congress did not extend liability to organizations, sovereign or not. There are no doubt valid arguments for such an extension. But Congress has seen fit to proceed in more modest steps in the Act, and it is not the province of this Branch to do otherwise.'

Crucially, the Court noted that the TVPA still imposes liability on natural-person defendants, including "officers who do not personally execute the torture or extrajudicial killing" but who issue "an order to torture or kill." Citing Chavez v. Carranza – a case that was litigated by the Center for Justice & Accountability, for which I serve as Executive Director – the Court thus reaffirmed that political and military leaders can be liable for their subordinates’ abuses.
We cannot underestimate the importance of ensuring that victims have the right to seek redress and accountability against paramilitary organizations, corporations, and any other entities that are responsible for severe human rights abuses. Human rights crimes are almost always designed, orchestrated, financed and supported by states, organizations, corporations and other non-natural persons.
CJA's clients, all of whom are survivors of torture and other human rights abuses, are often the victims of atrocities committed by paramilitary organizations. The reality on the ground in countries where human rights atrocities flourish is that they are often committed by paramilitary and other organizations.
For example:
► In Doe v. Constant, CJA represents plaintiffs who were targeted by FRAPH (Revolutionary Front for the Advancement and Progress of Haiti), a notorious death squad and paramilitary organization that operated under Haiti’s 1991-1994 military regime. FRAPH brutalized pro-democracy activists employing extrajudicial killings, enforced disappearances, arson, rape, and other forms of torture. Their signature atrocity was the use of sexual violence to punish and intimidate women for their perceived political sympathies or associations. (credit for above left CJA photo of Haitian soldier and civilians)
► Similarly, our clients in Cabrera v. Jiménez Naranjo (aka Macaco) are victims of one of the most violent paramilitary forces in the Americas, the United Self Defense Forces of Colombia (known as the AUC). Since the 1980s, 70,000 civilians have been killed in an internal armed conflict in Colombia. The AUC is responsible for the vast majority of these civilian deaths as well as the forced displacement of millions. Our clients are the surviving families of two civil society activists in Colombia, both members of the Program for Peace and Development in the Middle Magdalena, who were brutally killed by AUC paramilitary forces.

On February 23

On this day in ...
... 2002 (10 years ago today), an author-activist who was running to become the President of Colombia, Ingrid Betancourt, was kidnapped along with her Vice Presidential candidate, Clara Rojas, while they were campaigning in the southern part of the country. Thus began what would be years in captivity at the hands of the rebel group FARC, or Revolutionary Armed Forces of Colombia – neither woman would be freed till 2008. A 2008 Le Monde story on the ordeal endured by the family of Betancourt, who holds dual Colombian and French citizenship, is here. Subsequently, they published separate, and at times conflicting, books about the hostage years: Rojas' memoir is at left; Betancourt's memoir is at right.

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

The ICC and Gender Justice

SYDNEY – Many insightful commentaries marked the excellent “Justice for All?” conference organized by the University of New South Wales this week. The conference, dedicated to examining the first decade of the work of the International Criminal Court, had a strong focus on exploring the Court’s record in the investigation and prosecution of sexual and gender-based violence.
I blogged Wednesday about the vision of gender justice outlined by Fatou Bensouda, the International Criminal Court’s Prosecutor-elect, in her February 14 speech.
Apart from Bensouda’s announcements, notable commentaries were delivered by:
► IntLawGrrl contributor Brigid Inder, Executive Director of the Women’s Initiatives for Gender Justice. (photo by Michael Anderson of conference panel featuring, from right, Bensouda, Inder, and yours truly, Valerie Oosterveld, courtesy of UNSW)
Inder highlighted the disturbing statistic that, while sexual violence has been charged in 8 out of 15 ICC cases, over 50% of those charges fail when tested at the confirmation of charges stage. This worrisome failure rate is due, she said, to three factors:

1. Insufficient evidence being put forward (namely, over-reliance on open-source materials over direct evidence);
2. Lack of quality evidence; and
3. Inadequate framing of the charges.

Inder argued that the ICC Office of the Prosecutor must boost its institutional capacity to address gender issues.
► Helen Brady (right), Senior Appeals Counsel at the International Criminal Tribunal for the Former Yugoslavia.
She discussed ways in which groundbreaking ICTY jurisprudence on gender issues can and should assist the ICC.
► Dr Kiran Grewal (left), Lecturer in the Department of Sociology and Social Policy at the University of Sydney.
Grewal began with the thought-provoking question “Do more prosecutions of rape by the ICC equal gender justice?”. The ICC’s definition of rape does not include an element of non-consent. She argued that we need to think carefully about whether this creates a binary, under which rape in war is somehow viewed as fundamentally different and worse than rape in peace, even though both forms of sexual violence grow from the same root: discrimination.
► Tina Dolgopol (left), Associate Professor of Law at Flinders University, Adelaide, Australia. (photo credit)
She urged the audience not to view ratification of the Rome Statute of the ICC as the end goal in an advocacy campaign. Rather, domestic law reform must accompany ratification, especially reform of laws that are discriminatory to women and girls. As she noted,

'Our desire to obtain universal ratification of the Rome Statute should not blind us to the physical, mental and sexual brutality that women face in their day-to-day lives'.

In other words, gender justice is necessarily a comprehensive package and is not only about ICC crimes.
► Amrita Kapur (right), an International Legal Advisor with the Women’s Justice Unit in the Judicial System Monitoring Programme of Timor Leste.

On December 8

On this day in ...
... 2004, leaders of Argentina, Bolivia, Brazil, Chile, Colombia, Ecuador, Guyana, Paraguay, Peru, Suriname, Uruguay, and Venezuela signed the Declaración del Cusco sobre la Comunidad Sudamericana de Naciones in the Peruvian city for which this Cusco Declaration is named. The instrument called for the establishment of a Union of South American Nations, or UNASUR, "to be shaped through the gradual convergence of the Andean Community and MERCOSUR and Chile, together with Guyana and Suriname." The Constitutive Treaty of UNASUR (website here) was adopted in 2008 and entered into force this past March.

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

Look On! Women, war, peace

(Look On! takes occasional note of noteworthy productions.)

Tonight will air the 1st episodes of a new series, Women, War & Peace, on many Public Broadcasting Service television stations.
According to the website, the 5 parts will run from now through early November. It will look at a number of conflicts, including in Bosnia, Liberia, Afghanistan, and Colombia. Among the persons featured (along with various Hollywood types) is Leymah Gbowee, who, as posted, was a co-winner last week of the 2011 Nobel Peace Prize.
Check local listings for times in your area. The DVD is available here.
Can only hope this series is well done -- though a post dated October 3 on the home page of the series' rather confusing website gives pause.
The title of the post?
"What's Your Favorite Book on Women in War?"
As if being caught up in armed conflict were some kind of literary opportunity.
PBS ought to know, and do, better.

On September 13

On this day in ...
... 1960, meeting in Colombia, the Council of the Organization of American States adopted the Act of Bogota, recommending Measures for Social Improvement and Economic Development within the Framework of Operation Pan America. (map credit) The OAS Council further approved the Act in a resolution on October 11 of the same year. As stated on the website of the U.S. Agency for International Development, the Act "[c]onceptually set-up" the Alliance for Progress, an organization that would be established the following year (prior post).

(Prior September 13 posts are here, here, here, and here.)

Read On! Sexuality & law essays

We're pleased to announce that Ashgate Publishing Group in the United Kingdom is publishing a 3-volume Set, The Library of Essays on Sexuality and the Law (top right), this month. (photo credit)
The set is edited by one of us, IntLawGrrls guest/alumna Ruthann Robson (below left), and is targeted at libraries throughout the world. (photo credit) It is very global in focus, de-emphasizing works from U.S. law journals, which tend to be readily available.
Featured:
► Volume I focuses on "Families and Youth." It includes an essay by the other of us, IntLawGrrl Kathleen A. Doty (below right). It's titled From Frette to E.B.: the European Court of Human Rights on gay and lesbian adoption. (prior post) Also featured are pieces on Dutch law, South African law, intersex youth in cases before the Colombia Constitutional Court, lawyering for queer youth, and issues for LGBT people.
► Volume II is entitled "Crime and Punishment," and begins with a discussion by openly gay Justice Michael Kirby (who retired in 2009 from Australia's High Court) about sodomy laws in Commonwealth nations. He argues that they were first imposed by colonial powers and now remain after colonial powers have abolished their own laws. This volume also includes the classic (but still not widely available) essay The Myth of Lesbian Impunity, in which Louis Crompton demonstrated that lesbian sex was not historically immune from criminalization. Featured as well are essays on the criminalization of sex work, hate crimes with sexual minority victims, crimes in which the defendant's sexuality is used to prove the nonsexual crime, and issues of imprisonment and punishment.
► Volume III looks forward to "Sexual Freedom," even as it problematizes the concept. It considers hierarchies of sex in legal frameworks and hierarchies of nationalism in sexual-legal frameworks, asylum, gender identity, as well as legal education, judges, and their discourse and professionals within the legal system.
There are substantial introductions to each volume; they not only discuss the individual pieces but also situate the work within the wider global field of Sexuality and Law.
We hope IntLawGrrls' readers will encourage their school libraries to purchase one or all of the volumes.

On May 21

On this day in ...
... 1851 (160 years ago today), slavery was abolished in Colombia (flag at left). This landmark is commemorated each year as el Día de la Afrocolombianidad, or Afro-Colombian Day. As IntLawGrrls' guest/alumna Gay McDougall last year posted, Colombians of African descent continue to combat the reality that

'the legacy of slavery endures and is manifested in communities that are socially and economically marginalized, facing racist attitudes and structural discrimination.'

(Prior May 21 posts are here, here, here, and here.)

False Dichotomies of Transitional Justice

(It’s an honor to contribute this guest post to IntLawGrrls. Thank you for the opportunity to blog about my article, "False Dichotomies of Transitional Justice, Gender, Conflict and Combatants in Colombia." I recently had the pleasure of discussing this research at the University of Baltimore’s Center for Applied Feminism’s Conference, “Applying Feminism Globally” – I’m grateful to all the organizers and participants of that inspiring gathering. I welcome any comments!)

In Colombia’s decades-long armed conflict, one-fourth to one-third of combatants are female. As in many countries throughout the world, in Colombia, conflict disproportionately affects women’s lives, resulting in high incidences of rape, sexual violence, and widespread economic and social disadvantage.
► Yet if a woman has perpetrated human rights abuses as a combatant, but has also suffered as a victim of rape or sexual violence, is she a perpetrator or a victim?
► If women may be both perpetrators and victims, might this require us to question whether men’s roles are similarly complex?
► And how should transitional justice mechanisms, implemented with the goal of reshaping society after conflict and accounting for past human rights abuses, view these individuals who embody the complexity of human experience during conflict?
These questions highlight the complex and fluid nature of gender identities during conflict. My article posits that transitional justice mechanisms have failed to adequately consider the role of gender in post-conflict societies. I explore this question by exposing three central concerns with the field as inaccurate reflections of the realities experienced by both men and women who are affected by conflict. The false dichotomies exist: (1) between the conflict era and the post conflict era; (2) between public and private space; and (3) between the commonly-employed legal concepts of victim and perpetrator. These dichotomies, I argue, not only affect the way the women exist during and after conflict, but affect men’s identity and relationship to conflict to an equal degree.
In order to explore these dichotomies, this paper traces the evolution of feminist thinking on the topics of transitional justice and international law:
► A first generation focused on developing international criminal law to recognize the special character of sex crimes against women;
► A second generation cautioned that women in post-conflict societies often deny that the sexual violence they experienced was the worst thing that happened to them (in comparison, for example, with the murder of their children or the destruction of their communities); and finally,
► A third, gender-oriented group of scholars now cautions that women may, paradoxically, experience greater autonomy and less domestic violence during conflicts than during the post-conflict status quo.
After tracing the evolution of feminist thinking on transitional justice, I examine the ways in which gender and conflict intersect in Colombia. Building on existing feminist scholarship, I advocate for a gender-oriented perspective on transitional justice, through examining how women who have suffered the horrors of conflict may also have been the perpetrators of some of these horrors. I utilize the experience of female combatants as a lens through which to consider this intersection, as female combatants are an under-reported and under-examined element within many conflicts globally. Additionally, their very presence puts pressure on traditional gender roles, and thereby challenges the three false dichotomies that I claim transitional justice relies upon.
I address the problem of reintegrating female combatants in Colombia’s violent conflict into civil society after they have left armed groups, and also consider what leads these women to join armed groups. In doing so, I demonstrate the centrality of exposing the false assumptions regarding the role of transitional justice in achieving sustainable post-conflict structures, and potentially, in preventing conflict before it begins.
Furthermore, this paper extends these considerations to the role of gender more broadly within society. I propose that if women experience roles as both perpetrators and victims during conflict, then the field of transitional justice will benefit from questioning whether men’s roles may be similarly complex and multi-faceted.
Recognizing that any measure taken to rebuild society after conflict is necessarily imperfect, and is frequently implemented with the imperative to act rapidly, the paper contemplates multiple suggestions for reform that stem from this analysis. Some practices proposed include:
► Disarmament, Demobilization, and Reintegration (DDR) programs that specifically consider the unique needs of male and female combatants;
► Implementation of parallel systems of transitional justice that address needs of distinct sectors of society;
► Societal efforts to counter the multi-layered stigma that women fighters may confront not only because they fought, but because they have transgressed societal expectations regarding gender; and finally,
► Investment in long-term development of rule of law and institution building from a gender-aware perspective.
Although the field of transitional justice has made great strides in addressing harms perpetrated against women in wartime in the aftermath of conflict, it is crucial that transitional justice mechanisms surpass the limitations of these three false dichotomies with regard to the role of gender in conflict. An era in which transitional justice is being implemented provides a tremendous opportunity to transform society. If the opportunity to consider the crucial role that gender plays is ignored, scholars and practitioners of transitional justice risk reinforcing gendered norms that offer men and women constricted opportunities in post-conflict societies. In order for transitional justice mechanisms to achieve success in reordering society to promote just systems that confront past trauma and human rights abuse, it is crucial that these assumptions be questioned both by scholars and practitioners.

Bensouda on ICC prosecutions

(Delighted to welcome back alumna Margaret deGuzman, who contributes this guest post)

At last week’s annual meeting of the American Society of International Law, participants were treated to a luncheon presentation by Fatou Bensouda (right), Deputy Prosecutor of the International Criminal Court and candidate for the top job when Luis Moreno Ocampo’s term expires next year. Bensouda presented some opening remarks and then was ably questioned by our own Diane Marie Amann, as well as a few audience members.
In her luncheon dialogue, which is available for web viewing here, Bensouda began by providing an overview of the work of the International Criminal Court Office of the Prosecutor (OTP) in the most active situations before the Court. Illustrating her talk was the map at bottom, which depicts the 114 states parties to the Rome Statute in dark blue, signatory states in light blue, selected situations in yellow, and preliminary examinations in green.
With regard to Libya, Bensouda stated that the OTP has notified those with formal and de facto authority, including Gaddafi, that their crimes will be investigated. The OTP has made clear that warning civilians to leave before attacking civilian areas does not relieve those involved of criminal responsibility. Bensouda emphasized that the OTP is seeking to be as transparent as possible in its dealings with the Libyan leadership.
In discussing the various situations, Bensouda revealed her vision of the ICC’s role in the global legal order: to prevent crimes through deterrence and by “sending messages” about the types of offenses the international community will not tolerate.
In discussing the OTP’s work with regard to the post-election violence in Kenya, for example, Bensouda asserted that the prosecutions will prevent crimes by “sending the message” that those who gain power by violence will be held accountable.
Similarly, she stated that the prosecution of those who killed peacekeepers in Sudan “sends an important message that the Court supports peacekeeping;” and the trial of Thomas Lubanga for recruiting child soldiers in the Democratic Republic of Congo “signals” the seriousness of that crime.
Bensouda also mentioned a situation in which the OTP is seeking to prevent crimes through incapacitation of key actors. She asserted that the arrest last fall of Callixte Mbarushimana, leader of the rebel group the Democratic Forces for the Liberation of Rwanda, was an effort to “destabilize” that organization and thus prevent crimes in Eastern Congo.
Bensouda also described the OTP’s approach to deciding which situations of alleged international crimes the ICC should investigate. The process of determining whether to pursue a formal investigation has become known as the “preliminary examination.”
Last October, the OTP issued a Draft Policy Paper on Preliminary Examinations. Bensouda promised that the final policy statement would be issued soon. Under Article 53 of the ICC Statute, the preliminary examination phase requires the OTP to determine whether a “reasonable basis” exists to proceed in a situation. This “reasonable basis” analysis has three components. It requires the OTP to assess whether:
► (1) crimes within the ICC’s jurisdiction appear to have been committed;
► (2) potential cases within the situation would be admissible (that is, they are sufficiently grave and meet the complementarity requirement that no State with jurisdiction is already acting in good faith); and
► (3) prosecution would not contravene the “interests of justice.”
The most interesting thing about the OTP’s draft policy on preliminary examinations is that it purports to disavow any role for prosecutorial discretion in deciding which situations to investigate. Whereas an earlier draft policy paper talked about the OTP “selecting” situations to investigate, the 2010 paper takes the position that the OTP must investigate if the statutory criteria are met.
Bensouda’s comments confirmed this approach. She noted that when the office began operations, Colombia and the Democratic Republic of Congo were the “gravest” situations within the Court’s jurisdiction; however, no investigation was opened in Colombia because that country was pursuing some national prosecutions. She also reiterated the OTP’s position that no investigation was undertaken with regard to the war crimes committed by British soldiers in Iraq because they were not sufficiently grave to be admissible.
As I have written elsewhere, this assessment seems mistaken – surely war crimes resulting in the deaths of even a small number of civilians are admissible before the ICC. The decision not to investigate the Iraq situation makes more sense if articulated as an exercise of the prosecutor’s discretion to focus on the most serious situations available. The OTP’s current policy, however, seems to preclude such an approach. Moreover, when questioned about the Court’s selection criteria, Bensouda seemed to admit that gravity is sometimes primarily a matter of numbers of victims – as in the Iraq situation – and at other times is conceived as relating more to the nature and impact of the crimes – in particular, what “signal” a particular prosecution is going to send.
Finally, Bensouda stated that there is no timeline for concluding preliminary examinations, and opined that the act of engaging in a preliminary examination itself has a deterrent impact. Echoing her current boss, Bensouda also emphasized that the OTP “has a legal mandate with no flexibility to adjust to political considerations,” a position that has been challenged recently by writers such as Bill Schabas and James Goldston.
Bensouda concluded that the ICC represents a “paradigm shift” from the Westphalian model of state sovereignty to one of international scrutiny and the rule of law.
In the questioning, Bensouda was pressed hardest on the problems associated with the ICC’s exclusive prosecution of African cases. She noted that such criticisms often overlook the victims of the African conflicts, and stated that she would “not apologize” for seeking to give victims a voice. She also sought to justify the emphasis on African situations by reference to the requirements of the ICC Statute, in particular the principle of complementarity. She noted that the OTP always encourages national proceedings but that unfortunately those are “not happening in Africa.” She reminded the audience that three of the African situations were referred by the affected governments themselves.
Nonetheless, when asked whether the ICC’s focus on Africa mitigates in favor of an African as the next prosecutor Bensouda, a native of the Gambia, was (unsurprisingly) supportive!

The International Criminal Court and the Transformation of International Law? Maybe not quite yet . . .

(Delighted to welcome back alumna Leila Nadya Sadat, who contributes this guest post from Paris)

This week, unexpectedly, the Security Council voted unanimously to refer the situation in Libya to the International Criminal Court. That is cause for celebration; but celebration tempered with a strong dose of caution and even some real pessimism about the future.
On the plus side, the ICC is now becoming an international institution that is increasingly seen as a real partner in the maintenance of international peace and security.
Also, on the plus side, as Diane Marie Amann mentioned in an earlier IntLawGrrls post, the U.S. voted for the Resolution, rather than simply abstaining from vetoing it as the U.S. had done with Resolution 1593, referring to the Court the situation in Darfur.
Finally, I entitled this blog entry after my 2002 book of the same name, because one sees in the Resolution glimmers of change — that war is not the only answer to international conflict, that law is a relevant consideration in its resolution and that justice may be a possibility. That would be cause for celebration indeed.
At the same time, there are many worrisome elements in the Resolution which bode ill for the Court and for the referral. The Resolution itself retains two outrageous Bush-administration provisions (while admittedly discarding a third).
First, while deciding in paragraph 5 that the Libyan authorities “shall cooperate fully with and provide any necessary assistance to the Court and the Prosecutor” (even though Libya is not a State Party to the Court) the paragraph continues that “States not party to the Rome Statute have no obligation under the Statute. . . ” and, in paragraph 6, “decides, that national, current or former officials or personnel from a State outside [Libya] . . . shall be subject to the exclusive jurisdiction of that State” for any acts they may commit relating to UN operations in Libya. What an extraordinary display of double standards, given that several members of the Council who voted for the Resolution are not parties to the Rome Statute! Can a rule of law be a rule of law if it applies to some but not all?
The Resolution also provides that the ICC, not the United Nations, shall bear all the expenses relating to the referral, apparently as a way of appeasing the U.S. Congress, many of whose members continue to threaten the Court. So the United States and other non-Party States (China, India, Russia) are using — but not paying for — the ICC as a tool of coercive diplomacy. This is not good news.
Finally, the ICC is already struggling to convince African states that it is not a Court directed at them. The first four referrals all seemed quite sensible; but the fifth, the situation involving Kenya, was far more troublesome, given that the Prosecutor undertook the case on his own initiative, and at least some questioned whether it met the legal standards necessary in terms of subject matter jurisdiction, gravity and complementarity to be pursued at the ICC rather than in Kenya or otherwise. (Prior IntLawGrrls posts available here.) There were also serious questions raised at last summer's ICC Review Conference at Kampala as to whether it would not be preferable to see a proprio motu referral of the Colombia or Afghan situations. A sixth referral involving an African state — even in a case involving the clear commission of atrocities — may encourage the ICC’s detractors in Africa, and the double standards evinced by the Resolution’s text do not assist in this regard.
In the view of this writer, the Libya referral, in and of itself, is a good thing. The atrocities taking place as reported in the media seem clearly to warrant ICC intervention. But the failure of the great powers to fully support this Court, and to use it cynically when and as they please, rather than committing their money, time, energy and political support to helping it grow strong and endure, feeds the perception that this Court is not about justice, but about power, undermining its legitimacy. Thomas Friedman recently opined that President Barack Obama’s 2009 speech in Cairo (above) strengthened the case for democracy in the Arab world as he led others through the salutary example of his own life. Would that Obama will find the same courage to champion the International Criminal Court, and to show the world that Americans believe in accountability too.

(Cross-posted at Leila's An American in Paris blog)

International Court of Justice Roundup

In connection with meetings at the Peace Palace (left) last week and the recent visit of Dame Rosalyn Higgins to Santa Clara, I had occasion to take a peek at the current docket of the International Court of Justice. The ICJ has entertained 150 cases since its inception in 1947. At the moment, 16 cases are pending on its docket—more than at any other point in history. I asked Judge Higgins about the more frequent resort to the Court and she credited several factors, including an increased faith in the ability of international law to resolve disputes, a recognition of the Court's ability to render just and efficient outcomes, and greater litigiousness generally.
Among the cases pending before the ICJ (another of whose judges, as we've posted here and here, will be in the Bay Area this week), we see:
► Frontier disputes:

• Territorial and Maritime Dispute (Nicaragua v. Colombia);
• Maritime Dispute (Peru v. Chile); and
• Frontier Dispute (Burkina Faso v. Niger).

► Cases invoking environmental law:

• Aerial Herbicide Spraying (Ecuador v. Colombia); and
• Whaling in the Antarctic (Australia v. Japan).

► Near and dear to my heart, are several cases involving international criminal law:

• Jurisdictional Immunities of the State (Germany v. Italy). This case involves the willingness of Italy to entertain civil claims arising out of WWII that Germany argues are barred by immunity doctrines and were waived in a web of post-war treaties. Greece has recently requested permission to intervene on the ground that its legal interests could be affected by the Court’s decision, because Italy is also accused of enforcing Greek judgments based on occurrences similar to those underlying the main suit. As we’ve blogged before, Italy's counterclaims against Germany were rejected on temporal jurisdictional grounds.
• Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal). This case concerns Senegal's compliance with its obligations to extradite or prosecute the former President of Chad, Hissène Habré. As our readers will recall, after the African Union mandated Senegal to prosecute Habré “on behalf of Africa,” Senegal indicated that it would begin pretrial proceedings once it received the necessary international funding, which is estimated at $11.7 million. Donors met in November 2010 to consider the financing of the prosecution of Habré. For more on the case, see Human Rights Watch's coverage.
• A case squarely presenting the question of the legality of the exercise of universal jurisdiction (a question that was dodged by the majority of the ICJ on non ultra petita grounds in Arrest Warrant of 11 April 2000 (DRC v. Belgium)), was recently withdrawn by the parties. Certain Criminal Proceedings in France (Republic of Congo v. France).

► Cases involving claims of violations of territorial integrity and the prohibition on uses of force:

• Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and
• Armed Activities on the Territory of the Congo (DRC v. Uganda), which remains pending.

► Human rights

• Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia);
• Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation); and
• Ahmadou Sadio Diallo (Guinea v. DRC), an expropriation case.

► Civil jurisdiction

• Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters (Belgium v. Switzerland), involving the enforcement of judgments under the Lugano Convention.

A final dispute that is hard to categorize (though I must admit that the word "petty" came instantly to mind) concerns the continuing fight over the use of the word “Macedonia” by the former Yugoslav Republic of Macedonia. Application of the Interim Accord of 13 September 1995 (Greece v. former Yugoslav Republic of Macedonia). Greece has jealously guarded the term, arguing that the former Yugoslav Republic of Macedonia, which declared its independence in 1991, harbors irredentist territorial ambitions toward Greece’s northern province of Macedonia.
In addition to these contentious cases, there is one matter invoking the Court's advisory jurisdiction. Judgment No.2867 of the Administrative Tribunal of the International Labour Organization upon a Complaint Filed against the International Fund for Agricultural Development relates to a complaint filed against IFAD on a terminated employment contract that went before the ILO.
Busy times at the ICJ indeed.

In Defense of Human Rights Defenders

On this day in 1998, paramilitaries stormed into the office of Jesús María Valle Jaramillo (left), a Colombian lawyer and human rights defender who had been active in denouncing crimes committed by paramilitaries in conjunction with members of the Colombian army. Valle Jaramillo was executed. With him on this day 13 years ago were his sister Nelly Valle Jaramillo and a friend, Carlos Fernando Jaramillo Correa. These two individuals were tied, dragged across the office, and threatened with death.
The victims brought a case against Colombia before the Inter-American human rights system (the Commission and the Court). Remarkably, before the Commission, the state partially admitted its responsibility by omission, apologized, and offered reparations. The victims, however, argued that the terms of the admission denied the State's responsibility for its agents as co-authors, accomplices, or instigators in the alleged violations and thus did not fully contribute to the victims' desires for truth and justice. Accordingly, they pressed the Commission to forward the case to the Court.
Before the Court, Colombia was found responsible by omission for violations of the victims' rights to

• personal liberty (Article 7 of the American Convention on Human Rights),
• humane treatment (Article 5),
• life (Article 4),
• freedom of movement and residence (Article 22) and
• judicial protection (Article 25).

Drawing on the conclusions of its prior cases involving Colombia, the Court noted that the state originally encouraged the creation of “self defense” paramilitary groups, but that these groups began to "function beyond the law" and commit human rights abuses. The Court also noted that prior cases demonstrated numerous links between paramilitary groups and members of the armed forces such that the Colombian state bore direct international responsibility for the failure to comply with “its obligation to ensure human rights, [and, thus,] its duty of prevention and protection.” In addition, the Court found that

even though the State has adopted certain legislative measures to prohibit, prevent and sanction the activities of the “self defense” or paramilitary groups, these measures did not translate into the effective deactivation of the danger that the State helped create. [T]his accentuates the State’s special obligations of prevention and protection...

In addition, the Court made note of the special guarantees owed to human rights advocates in light of their work defending and promoting human rights. The Court acknowledged that Colombia had already implemented a series of measures to assist and protect human rights defenders including

• the legal recognition of human rights organizations;
• the formulation and implementation of the National Action Plan on Human Rights and International Humanitarian Law; and
• the provision of police protection to human rights organizations.

Nonetheless, full compliance with the obligation that states create the necessary conditions for the effective enjoyment and exercise of the rights established in the Convention,

is tied intrinsically to the protection and recognition of the importance of the role of human rights defenders, whose work is essential to strengthen democracy and the rule of law.

Thus, where a state is aware of a real and immediate danger to human rights defenders, a State

has the obligation to adopt all reasonable measures required to guarantee the rights to life, to personal liberty, and to personal integrity of those defenders who denounce human rights violations and who are in a situation of special vulnerability such as the internal armed conflict in Colombia.

With respect to reparations, the Court also undertook an interesting discussion of which family members should be recognized as "next of kin", reflecting the civil law's more expansive notions of dependents/beneficiaries.

For more on the risks undertaken by human rights defenders, see the programs at Amnesty International, the International Federation for Human Rights (FIDH), and Human Rights First.

Genocide and crimes against humanity in the national systems of Latin America

(Many thanks to IntLawGirls for inviting me to present my latest article in in this guest post)

As opposed to the other so-called core crimes under international law, genocide is one of the few to be codified in the national judicial systems of most Latin American states long before the adoption of the Rome Statute system. Indeed, the codification process took place from the 1970s onwards and, in some instances, even before. As I discuss in my latest article, "An Overview of the Crime of Genocide in Latin American Jurisdictions", 10 International Criminal Law Review 441 (2010), this history generated disparities between the international and the national definitions.
In general terms, the dolus specialis -- the requisite "intent to destroy, in whole or in part," as stated in Article II of the Convention on the Prevention and Punishment of the Crime of Genocide (1948) -- is inherent to all national provisions on genocide analyzed in my article.
The deviations from the international definition thus revolve around the actus reus, understood as encompassing two other aspects of the Genocide Convention definition:
►The modalities of commission, encompassing, in Article III, genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide, and complicity in genocide; and
► The protected groups included in Article II, namely, "a national, ethnical, racial or religious group, as such."
Deviations from the Genocide Convention definition found in Latin American codes present a common feature: the enlargement of the scope of the protected groups, by including the political group and other, even more general groups.
Such a disparate outcome may be attributed, in my view, to the several decades of confrontation, in many cases amounting to non-international armed conflicts, that were experienced in various countries in Latin America. (In Colombia, the armed conflict, although reduced, is still ongoing.) Such conflicts generally involved a state policy of systematic attack against civilian populations, and in many instances against political groups. By the same token, the so-called "doctrine of national security" that served as a justification for the emergence of repressive regimes in the 1970s was politically motivated and targeted.
Jurisprudence in this area is incomplete.
Notwithstanding the fact that the most relevant Latin American deviations from the international definition refer to the protected groups, jurisprudence has not shed much light either on the underlying rationale or justification for such a deviation or on the scope of interpretation of the deviation. In this connection, my article pays particular attention to constitutional challenges that have been lodged against some of the elements incorporated in the Colombian and Bolivian provisions on genocide. Also receiving attention is a conviction for genocide rendered by the Bolivian Supreme Court (above).
In my view, understanding the status of other international offences is critical to understanding the status of genocide as it is codified in Latin America.
Crimes against humanity were generally unknown in national legislation. Arguably, this did not begin to change until the 2002. The entry into force that year of the Rome Statute of the International Criminal Court (below right) paved the way for serious consideration of the proscription of crimes against humanity in national systems. This situation may explain why some Latin American countries adopted definitions of genocide that deviated from the international standard.
Also significant is the fact that conviction for genocide has historically provoked a strong moral condemnation.
The time is ripe to reflect on the reasons behind the intention to label a particular situation as genocide, given that the codification of the other core crimes has gained momentum.
Some consideration should be devoted to the national implementation of the Rome Statute.
In this vein, it is worth noting that the current trend on implementation in Latin America offers mixed signals as to whether states will opt:
► To maintain the enlarged scope of genocide, on the one hand; or,
► To avoid, on the other hand, perilous juxtapositions that may arise -- mainly with respect to crimes against humanity -- by creating clearer parameters between crimes.
Blending of Latin American history, of the customary aspects of crimes against humanity and its momentum of codification, and of societal perspectives towards the crime of genocide lead to a complex and challenging interaction.