'Nuff Said

(Taking context-optional note of thought-provoking quotes)

(credit)

'I can't wait until people like me are unnecessary.' *

-- In response to the interviewer's question about whether she would seek the Burmese presidency, Aung San Suu Kyi (left) said she thinks that what the people want is a government, leadership, adding that ideally, people like her will soon be out of a job.


*My rough translation back from the interpretation of Suu Kyi's remarks.The podcast of the interview should soon be available here, in the slot for the June 27, 8:20 a.m. invité.

10 to know

(Delighted to welcome back alumna Mireille Delmas-Marty, who in this guest post draws upon her article “10 x 10,” 8 International Journal of Constitutional Law (2010), on which IntLawGrrl Naomi Norberg provided translation and editorial assistance)

My scholarship has been determined mainly by events.
I studied law, primarily French positive law, in the ’60s, and my first publications were textbooks. Though legal systems had begun to internationalize, we did not know it; no one told us, and we did not see.
But I had opened my eyes by 1974, when France began both to “constitutionalize,” by allowing parliamentarians to refer a law to the Conseil Constitutionnel for review, and to “internationalize,” by ratifying the European Convention on Human Rights. These processes destabilized the legal field, by transforming the legal order’s hierarchical, static representation into an interactive, evolutionary one, and by announcing a new humanism, introducing human rights into the legal field.
To accomplish the impossible task that the International Journal of Constitutional Law set for me – “select the 10 most important works which have shaped my intellectual persona” I chose works that aided my research in 3 areas:
► Foreseeability: legal techniques and logics affecting legal formalism
► Legitimacy: ethical values concerning legal humanism
► Effectiveness: actors and powers involved in global governance

1. Raymond Saleilles, École historique et droit naturel
Criticizing the German historical school’s spirit “of immobilization, attachment to the past and almost mystical return to the old customary curiosities of law,” Saleilles suggested increasing objectivity by using legislative analogy, collective legal conscience, and, above all, comparative law. In his view, the “common law” of humanity “contains the principle of universality”– one that has “variable contents” and preserves the concrete applications of “each country’s case law.” Saleilles thus imagined the technique of the “national margin of appreciation” – a key to renewing legal formalism – more than 50 years before the European Court of Human Rights did.

2. Henri Atlan, Les niveaux de l’éthique
To understand how the margin of appreciation can organize pluralism – replacing strictly hierarchical, stable relations with forms that are interactive and evolutive – one must give up binary logic. Imprecision does not preclude rigorous legal reasoning; the use of gradation logics may limit the unforeseeability and judicial arbitrariness of norms.
At the international level, however, consensus on a few major principles does not guarantee agreement on their application. Misunderstandings must be made apparent, and conflicts clarified through “judicial dialogue” and the search for what John Rawls, in Political Liberalism (1993), called “overlapping consensus.”
To consider conflicts that seem irresolvable – corporal punishment and gender-discriminatory practices, for instance – I turned to Atlan’s work on complex systems and bioethics, at the:
► Universal level of pleasure and pain that inspires moral indignation – sometimes effective but easily manipulated.
► Institutional level – though national laws render it foreseeable, it is marked by relativism’s promotion of different.
► Metaethical (or metalegal) level – a universal nature that has yet to be built.
Together, the 3 levels make a path to hybridization.

3. Antonio Cassese, Dissent in Erdemović (ICTY 1997)
Since the first ad hoc tribunals were created, international criminal justice has become a laboratory for observing hybridization. Judges from different traditions blazed a trail the International Criminal Court now follows. International Criminal Tribunal for the former Yugoslavia President Cassese (prior IntLawGrrls posts) did the work of a pioneer. Believing international law no longer follows the traditional, interstate Grotian model but, rather, a suprastate model evocative of Kant’s cosmopolitan vision, he looks for practical applications using the comparative approach. The ICTY had sought to simply “maintain a balance between the accusatory procedure of the common law systems and the inquisitorial procedure of the civil law systems, whilst at the same time ensuring the doing of justice.” But Cassese explained in his Erdemović dissent, international criminal procedures are the result of “the gradual decanting of national criminal concepts and rules into the international receptacle,” not of a corpus of uniform law. Because they “combine and fuse” accusatorial and inquisitorial approaches, “mechanical importation” of concepts from one nation’s law “may alter or distort the specificity of these proceedings” (italics mine). This defines the hybridization process necessary to avoid hegemonic universalism.

4. Hannah Arendt, Condition de l’homme moderne (The Human Condition)
Criticizing Marx’s use of the concept of labor, Arendt distinguishes among Labor, Work, and Action. She enlightens the debate on “human” rights by showing that human life, limited by a beginning and an end, follows a linear movement distinct from nature’s perpetual, cyclical movement. If we accept her idea that birth and death “are not natural occurrences, properly speaking,” we understand that human rights are not natural but rather a protest against nature.
Thus they participate in “humanization,” the ethical evolution process that makes the human species more humane. Human rights law’s fragility, witnessed daily, calls into doubt these rights’ usual presentation as “founding” concepts or “fundamental” rights. Seen as “processes” for transforming legal systems, however, these rights have “extraordinary resiliency.” To be enforceable everywhere, they must be recognized by all cultures. As underscored by Arendt, an IntLawGrrls foremother (prior posts), humanity is pluralistic:

‘No man can be sovereign because not one man, but men, inhabit the earth.’

5. Onuma Yasuaki, “Towards an Intercivilizational Approach to Human Rights”
Human rights universalism was called into question at the 1993 Vienna Conference, namely by the Bangkok Declaration. And despite the active participation, described by Mary Ann Glendon in A World Made New (2001), of persons like the Chinese diplomat Chang Pengchun, the “Universal” Declaration was derived exclusively from Western texts.
Universalism must not be confused with universalization. In this article, Onuma differentiates, clearly, between the Declaration of Asian governments and that of 110 NGOs, which “expressed a universalist perspective, stressing the importance of women’s rights, democratization of the development process and de-militarization.” Rejecting a Western-centric universalism, he believes that an “inter-,” then “trans-” civilizational approach more likely will contribute to the evolution of human rights, because “the strength of the idea of human rights lies in their universalizing power.” He underscores that national cultures“change over time,” and questions “a narrow, liberty-centric notion of human rights.”

6. Paul Ricoeur, Le juste, I & II
In my search for a metalegal level, meeting Ricoeur – as part of a small group defending the sans papiers, immigrant working families facing deportation – was decisive with their families. Our group’s situation resembled what Ricoeur described as “the refusal to be trapped in an apparently restrictive dilemma in which law, as immutable, universal and binding, conflicts with conscience, reputed to be variable, circumstantial, spontaneous and eminently subjective.” We were caught in what he calls “the tragedy of action.”
The conflict of cultures may be called the tragedy of reason. When reason’s supposed universalism escapes us, dialogue is insufficient. In La Nature et la Règle (2005), Ricoeur proposed a “paradigm” of translation, which reconciles “Universalism and the Historical.” He used the image of a sphere: “at the surface the distance is huge, but if I dig deeper, I move closer to the other who is following the same path” This digging deeper is probably also a condition for democratic global governance.

7. Jürgen Habermas, Après l’état-nation, une nouvelle constellation politique
Habermas’ work was the first to highlight the specificity of the “postnational constellation.” Noting that “our imagination is paralyzed” and that “the institutionalization of procedures that provide for granting and universalizing common interests can hardly occur within the organizational framework of a global state,” Habermas led the way, rethinking the role of civil society and the public political space and elaborating plans for a “cosmopolitan democracy” proper to nonstate forms of organization.
Such governance precludes exclusion; it cannot be based on a common enemy or a shared past. Despite the threat posed by terrorism after 9/11, Habermas’ earlier observation in La Paix perpétuelle: le bicentenaire d’une idée kantienne (1996) still applies: “the globalization of risks objectively united the world a long time ago, making it an involuntary community based on the risks run by all.” We have to transform this involuntary community into a voluntary one, take charge of our common destiny, and imagine not only new tools for global governance, but also new duties, such as the protection of future generations.

8. Stephen Breyer, Pour une démocratie active (Active Liberty)
International courts have proliferated while national judges have become bolder. Even the United States has discovered interdependence. U.S. Supreme Court Justice Breyer (prior posts) embodies an open approach, welcoming references to foreign legal decisions. Yet some have criticized such references, and some members of Congress have introduced bills prohibiting them. Paradoxically, this controversy demonstrates the importance of the community of judges emerging through transnational dialogue.
But judicial dialogue alone is insufficient, where international law is concerned. Dissenting in Medellín v. Texas (2008), Breyer considered that a U.S. treaty obligation to comply with a judgment of the International Court of Justice was enforceable without further congressional action. He wrote that “the majority . . . looks for the wrong thing . . . using the wrong standard . . . in the wrong place . . . it takes a wrong turn,” and concluded that “in a world where commerce, trade, and travel have become ever more international, that is a step in the wrong direction.”

9. Tcheng Chao Yuen, L’évolution de la vie constitutionnelle de la Chine sous l’influence de Sun Yat Sen et de sa doctrine
This 1937 doctoral thesis highlighted for me that the search for new models of governance
is limited neither to the 21st C. nor to the Western world. Its unknown explains how, at the beginning of the 20th C., Sun Yat-sen crossing ancient China’s “constitution” with the Western model to develop a theory of “five powers.” Believing the simultaneously legislative, executive, and judicial powers of the sovereign in China “represented an absolute monarchy, an impossible tyrannical political power in the age of democracy,” Sun wanted to reform this branch while keeping, “as the best elements of ancient institutions,” China’s other 2 branches, the examination and the censorate. This hybridization could have led China to a sui generis review, associating the censorate’s checking function with independent judicial powers, and could have facilitated the emergence of global governance.

10. Édouard Glissant, La cohée du Lamentin
In this work Glissant seeks, as a counterpoint to savage globalization,“supportive diversity.” This is precisely what I seek through “ordering pluralism,” the subject of my prior IntLawGrrls series.
Glissant, who died earlier this year at age 82, urged us to “act in one’s place” while learning to “think with the world.” Legal systems must also learn to “think with the world”: state-identified law cannot respond alone to globalized flows and global risks.
Judicial dialogue is an essential process of coordination, Glissant shows, because “changing by exchanging without losing or denaturing oneself” is to “enlarge our imaginations.” (An excellent response to Justice Antonin Scalia in his debate with Justice Breyer.) Similarly, models developed by crossing accusatorial and inquisitorial procedures, or Western and Chinese powers, could enrich the hybrid with unforeseeable results – “common places” bearing new meanings.
Legal changes could take inspiration from what Glissant calls “tremorous thought”– “the assurance that it is possible to approach such chaos, to last and grow in this unforeseeable”– the only way, perhaps, to transform great legal disorder into a pluralist global order.

A Thinly Cast Veil

(Delighted to welcome back alumna Bonita Meyersfeld, who contributes this guest post regarding a subject on which she's also published an op-ed in South Africa's Mail and Guarding newspaper)

In the middle of last month France introduced legislation banning the wearing in public of face-concealing veils, such as the niqab or burka. Women violating this ban can be stopped by police and given a nominal, but symbolically powerful, fine. People forcing women to wear a veil are subject to a higher fine. (Prior posts on this issue, by IntLawGrrls Naomi Norberg, Siobhán Mullaly, and Beth Van Schaack, are here, here, here, and here.)
This was a sad day, not only for freedom of religion but for equality. Why is this so?
This law is rooted in the longstanding French policy of cultural integration and the pursuit of a uniform French identity.
In truth, the ambition of cultural integration has been more a project of cultural imposition, where the dominant French identity (white, European and Christian) has become the gold standard for all communities living in France. The Paris riots that have beset Parisian communities of African dissent, at the very least, are a tell-tale sign that this cultural integration project is not going terribly well. The reason for this is that the cultural integration project is not about cultural integration as much as it is about the thinly veiled (pun intended) imposition of French (read: European) culture, over foreign (read: African and Arabic) cultures.
This new legislation is also embedded in French insistence that it is a secular society.
This claim is disquieting, insincere and a deep insult to immigrant communities in France. Does France not celebrate Christmas, declaring this a public holiday? And Easter? Does France not put the famous churches, the Sacré-Coeur and Notre Dame (right), at the forefront of its list of treasures, as emblematic of its national identity?
So in short, this law, like the project in which it is imbedded, is not about secularity or the separation of church and state but about cultural uniformity, the rejection of difference and, if we’re honest, a deep discomfort with Islam. (credit for photo at right; credit for above left photo of niqab-wearing woman in Yemen; credit for image bottom left)
Many – including many French authorities – would recoil in horror and reject this argument.
No No, they insist, we ban all overt external signs of religion. In truth, this criterion affects only Muslims and Sikhs, and to a limited degree, Jews. Members of the Christian faith have no religious doctrinal requirement that they wear specific icons or clothing. A small, discrete cross is perfectly acceptable under the new law. In other words, the new law interestingly affects predominantly and disproportionately one religious group only: Muslims.
And what about the Jewish community? The French Jewish community is reportedly one of the least visible Jewish communities in Western Europe. They have learnt to fall below the radar and, where necessary, ‘cover’ their identity.
Which brings us back to the veil.
The French also claim that the law is a feminist initiative, enabling the liberation of women in Muslim communities. Let me be clear: every community, including Muslim communities, have practices that discriminate against women and it is not only appropriate, but a legal requirement under international law that states legislate to ensure that women and men enjoy equality. One of the key features of the women’s rights movement is to ensure that women’s health, well-being, potential and ambitions are not thwarted by the practices of the state, our cultures, our communities or our families – that true equality and meaningful equivalency must become a reality for all women.
But banning the veil does not achieve this.
The consequence of the ban is simple. According to this law, Muslim women in France who wear the veil, either because they choose to do so or because they are forced to do so, may not appear in public without incurring a fine. (But see here.) The law as written is extremely dangerous for women and a blow for immigrant women’s rights, including the right to a dignified existence, the right to health and safety, the right to work and the right to engage in society. It is true that women who wear the burka or niqab are often forced to do so and this is a serious violation of an individual’s autonomy and liberty.
There is also a burning question about how much choice is truly exercised by women who wear face-covering veils. There is a deep feminist concern about the imperative that women, their bodies, and their identities should be covered where their male counterparts are free to expose their faces. Banning the presence of face-covering veils in public, however, is not fit for the purpose of liberating oppressed women and will only exacerbate women’s subjugation in the home. If this subjugation is accompanied by domestic violence, as is the plight for so many women in the world, this ban now further impedes women from accessing help when they need it.
Women’s rights to choose, to be equal, and to flourish in their communities, are not only philosophical ambitions; they exist, quite practically, to ensure that women are informed of their human rights and are able to obtain assistance from the state in cases of discrimination and family or intimate violence.
For some women, the growing European opposition to the veil has generated a form of feminist liberation.
Many Muslim women in France (and other European countries) are wearing the veil as a political statement, as a statement of express choice that they wish to have the right to choose to comply with their religious strictures to wear the veil – or not. And this is at the heart of the French contradiction.
Just as there are some communities that discriminate against women and deny women true choice (and this is by no means limited to Islamic communities), the French state has similarly denied women the choice of wearing face covering veils. And if the French ambition is to mitigate violence within extremist Muslim communities, which is extremely important and necessary, I do not see how impeding a small sect of potentially vulnerable women from entering publicly into society will achieve this.
As we see individual women in France being fined and charged for defying the ban, perhaps we should consider the following:
► If the French endeavour is in the attainment of homogeneity that mitigates communal conflict, then perhaps France should focus on laws and policies that empower rather than impede women’s rights.
► If not, then the ban should be revealed for what it is: a thinly veiled attempt to inform Muslim communities globally that they are not welcome within French borders.
In the meantime, I fear that the pursuit of equality between women and men in France has been impeded.
Liberty, Equality, Fraternity have never rung so hollow.

'Nuff Said

(Taking context-optional note of thought-provoking quotes)

Women are off the U.S. diplomatic map. A look at 200 WikiLeaks cables finds no mention of our rights or struggles, says Corinna Barnard, and a recent check of the ... Council on Women and Girls site found a top story about romping reindeer.

-- Women's eNews, in an article citing correspondent Barnard (right) (credit for photo by Michael Priest). Barnard looked at 200 cables dispatched from 40 different countries, working "with a list of stories that Women's eNews had produced about women's rights in Afghanistan, Iraq, Iran, Saudi Arabia and other hot spots to determine whether U.S. diplomats were addressing these issues in any way." She found "nothing about poverty and women, reproductive rights, etc."

'Nuff said

(Taking context-optional note of thought-provoking quotes)

[C]apital punishment today is 'reasonably well adapted to the purposes that it serves, but deterrent crime control and retributive justice are not prominent among them.' Instead, the death penalty promotes 'gratifications,' of 'professional and political users, of the mass media, and of its public audience.' ... [C]apital punishment derives 'its emotional power, its popular interest, and its perennial appeal' from five types of 'death penalty discourse.' They are: (1) political exploitation of the gap between the Furman decision and popular opinion; (2) adversarial legal proceedings featuring cultural tensions between capital punishment and liberal humanism; (3) the political association of capital punishment with larger political and cultural issues, such as civil rights, states’ rights, and crime control; (4) demands for revenge; and (5) the emotional power of imagining killing and death. ... '[T]he American death penalty has been transformed from a penal instrument that puts persons to death to a peculiar institution that puts death into discourse for political and cultural purposes.'

-- Retired U.S. Supreme Court Justice John Paul Stevens (right, credit), summarizing and quoting the conclusions drawn by New York University Professor David Garland in his just-published book, Peculiar Institution: America’s Death Penalty in an Age of Abolition.
In the same review, Stevens restated his own conclusion, which he had announced in his opinion in Baze v. Rees (2008), that

the death penalty represents 'the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes.'

Questions constitutionnelles

Imagine if ex-Presidents were automatic members of the U.S. Supreme Court.
If, that is:
► John Adams had been on the Court that decided Marbury v. Madison, or
► George W. Bush were sitting now, while the Court continues to resolve cases involving post-9/11 policies?
Even ad hoc recusal might seem insufficient to relieve the Court of an unwelcome appearance of potential partiality.
Yet that is the situation in France.

As of right, former Presidents -- today, Valéry Giscard D'Estaing and Jacques Chirac -- serve on the Conseil constitutionnel. Serving along with them are 2 women and 7 additional men, each of whom owes nomination, to a 9-year term, to France's President or to a president of a house of parliament.
Le Monde's just raised questions about that arrangement, suggesting that it may be "obsolete." The Paris-based newspaper also is questioning the absence of any requirement that Conseil members satisfy some standard of judicial competence.
A couple developments have prompted these new questions about the 52-year-old institution:
►1 ex officio member, ex-Président Chirac, remains dogged by a range of legal problems (and see here), some of which were present even during his executive tenure.
► The Conseil is a "constitutional court" now more than ever. As IntLawGrrl Naomi Norberg then posted, it just acquired a judicial review power approaching that which its U.S. counterpart claimed in Marbury: consideration of a citizen's after-the-fact claim of constitutional violation. Since the change took effect in March, the Conseil's constitutional docket has mushroomed. Among the 1st uses of its new power, as Naomi also posted, was a September decision invalidating reforms pushed by the current Président, Nicolas Sarkozy, and enacted, of course, by the parliament.
Time will tell if Le Monde's questions gain traction.

France recognizes NGO's right to sue

Transparency International (logo at left) just won a major victory in the French courts: in a precedent-setting decision, the Cour de cassation ruled Tuesday that NGOs may bring international human rights cases in French courts. In particular, the decision was handed down

in a corruption case calling for an investigation into how luxury assets (properties and cars, as well as bank accounts) were acquired in France by three foreign heads of state - Denis SASSOU NGUESSO (Congo-Brazzaville), Omar BONGO ONDIMBA (Gabon, now deceased), Téodoro OBIANG MBASOGO (Equatorial Guinea) - and their relatives.

The decision is a major milestone in a country where rules are very strict regarding standing, and class actions do not exist:

• it recognizes the legitimacy of using the French courts to help fight corruption elsewhere and the bad government and poverty that result;
• it also recognizes the legitimacy of NGOs to represent people living under corrupt leadership, and more broadly to act as spokespersons for an emerging global citizenry striving for justice in the face of increased economic and financial globalization. Provided, that is, that the NGOs in question satisfy criteria of democracy and transparency.
  

The decision is also a very timely mise en garde to the French government. Since 2007, President Sarkozy has pressured the prosecutor's office to squelch the affair, and Omar Bongo even persuaded Sarkozy to fire one of his cabinet members for having publicly denounced these African leaders' pocketing of funds earmarked for their countries. This case, about which we've posted here, has thus highlighted the lack of separation of powers between the executive and the prosecutor's office, which would be reinforced under Sarkozy's planned reform of the judicial system. In particular, Sarkozy would like to eliminate the juge d'instruction (prior IntLawGrrls posts here, here, and here). The Cour de cassation has just ruled, in essence, that the juge d'instruction is a necessary cog in the wheels of French justice, without which cases like these will most likely not see the light of day.

Breaking News: Aung San Suu Kyi finally free

After spending 15 of the last 21 years in detention, Burmese pro-democracy leader Aung San Suu Kyi has finally been released by the ruling military junta.

French "constitutional thunderbolt"

In a last bit of business before summer vacation, the French Conseil constitutionnel issued a landmark decision holding that the "ordinary" regime of garde-à-vue (pre-arraignment police custody, known as GAV) is unconstitutional. The decision is not the resounding civil rights victory we might like, but it is remarkable in at least a few respects.
It is one of the first decisions based on post-hoc review, unheard of in France until President Nicolas Sarkozy's constitutional law reform package came into effect last summer. Many thought the reform would be ineffectual with respect to citizen-initiated post-hoc constitutional review because the "right" was subject to too many filters. And I doubt Sarkozy suspected his reform would result in one of the primary tools of law and order being held unconstitutional.
But voilà! 36 people subjected to garde-à-vue claimed the regime was unconstitutional, got through the filters, and and won. (See too this paper by IntLawGrrls guest/alumna Jacqueline Hodgson.)
While the Conseil didn't agree with all of the petitioners' arguments, to the French legal community's general astonishment, it declared not just 1 or 2 code provisions unconstitutional, but the entire "ordinary" regime of garde-à-vue. In so doing, the Conseil overturned its own 1993 decision, issued prior to the offending provisions' enactment, that GAV was constitutional.
In what may be considered a slap at Sarkozy's law-and-order policies (put into effect both while he was Interior Minister--top cop--under President Jacques Chirac, as well as under his own presidency), the Conseil:
► Laments the banalization of GAV: in 2009, GAV was ordered 790,000 times, an increase of more than 140% above the 320,000 GAV orders in 1993, when François Mitterand was still president.
► Notes, as controversy swirls around the proposed elimination of the juge d'instruction (prior IntLawGrrls posts here, here, and here), that fewer than 3% of criminal cases are handled by these investigating judges, such that persons are generally tried solely on the basis of the evidence gathered while they are in custody (24-48 hours under the "ordinary" regime). In addition, while the number of polices judiciaires has doubled since 1993, the requirements for becoming one of these detectives have been reduced.
After these general considerations, the Conseil addressed the more specific issues of:
► Whether GAV is incompatible with human dignity (no);
► Whether persons subject to GAV (GAVees) have effective assistance of counsel (no); and
► Whether GAVees' right to silence is sufficiently protected (no).
While GAV is necessary and not an affront to one's dignity (but see my post on the UN Torture Committee's assessment of the French penal system), the "ordinary: regime does not strike an appropriate balance between crime prevention/punishment and the exercise of constitutional rights. In particular:
► GAV may be extended from 24 to 48 hours in all cases, not just those involving offenses meeting a particular level of gravity;
► GAVees may consult with counsel for 30 minutes at the beginning of their GAV, but may not have counsel present during questioning; and
► GAVees are not notified of their right to remain silent.
While the right to remain silent seems like a fairly logical consequence of the right not to incriminate oneself, French law did not require arrestees to be notified of this right until 2000 (in the law on the presumption of innocence), and that requirement was eliminated in 2003. In this just-issued decision, therefore, the Conseil has just effectively told the government that it must reestablish the right to such notification, without which the ineffective assistance of counsel is exacerbated. The Conseil does not say that counsel must always be present during questioning, however; it merely says that a blanket prohibition, like the ability to extend GAV, is too broad.
Unfortunately, the Conseil did not agree with petitioners that allowing the prosecutor to prolong garde-à-vue violates the European Convention on Human Rights, which requires such decisions to be made by an independent, impartial judge (cases on this issue are pending in other French courts and before the European Court of Human Rights, which has so far stopped short of saying the French rule violates the Convention).
The Conseil also refrained from finding the "special" GAV regime -- established to handle terrorism, drug trafficking, and organized crime -- unconstitutional. It declined even though that regime allows for up to 6 days of garde-à-vue, in the very conditions the Conseil deemed unconstitutional under the "ordinary" regime; that is, lack of effective representation, presumption of innocence not sufficiently protected.
Moreover, the Conseil gave the Sarkozy administration 11 months (!) to rewrite the GAV laws in accordance with this decision. As a result, no GAV measures ordered before July 1, 2011, may be challenged on the basis of this decision.

"state authorisation of institutionalised child abuse"

Oliver Twist (image credit) is alive and well and living in juvenile justice centers in the UK! The title of my post is taken from this morning's Guardian article announcing what might be called more torture revelations in the UK: a "brutal guide to punishing jailed youths" has just been disclosed after the parents of two boys who died in a secure training center in 2004 won a freedom of information fight.
Way back in 1982, in a case called Campbell and Cosans, corporal punishment in its schools resulted in the UK's being found guilty of violating the European Convention on Human Right's prohibition on torture and article 2 of Protocol 1. In 1991, the UK ratified the Convention on the Rights of the Child, which the government announces on a dedicated website means the UK must respect the rights listed in the convention of all children in the UK. This includes, among other things, providing "special protection for . . . children in the juvenile justice system." But the training and self-defense manual that tells staff how to deal with unruly children as young as 12 tells them to:

■ "Use an inverted knuckle into the trainee's sternum and drive inward and upward."

■ "Continue to carry alternate elbow strikes to the young person's ribs until a release is achieved."

■ "Drive straight fingers into the young person's face, and then quickly drive the straightened fingers of the same hand downwards into the young person's groin area."

Such instructions do come with at least a couple of warnings, such as:

... the techniques risk giving children a "fracture to the skull" and "temporary or permanent blindness caused by rupture to eyeball or detached retina"; or

... the measures could cause asphyxia. One passage, explaining how to administer a head-hold on children, adds that "if breathing is compromised the situation ceases to be a restraint and becomes a medical emergency".

Suddenly, the torture files released a few days ago aren't such a scoop.

More Torture Files: The United Kingdom Releases Its Own "Torture Papers"

We've blogged on the infamous "torture memo" written by legal advisers telling President George W. Bush that the Torture Convention did not apply to interrogations of Guantánamo detainees. Now the United Kingdom has released 900 papers (so far) revealing Britain's support for and participation in extraordinary renditions and torture.

One of the most startling documents is chapter 32 of MI6's general procedural manual, entitled "Detainees and Detention Operations", which advises officers that among the "particular sensitivities" they need to consider before becoming directly involved in an operation to detain a terrorism suspect is the question of whether "detention, rather than killing, is the objective of the operation".

Reminds me of the McCann v United Kingdom (2005) case before the European Court of Human Rights, in which 3 Irish Republic Army members were summarily shot at point-blank range to make sure there was no possibility they could set off a car bomb. In fact, the UK's struggle against terrorism since 2001 has involved activities that have already been judged to violate the European Convention on Human Rights, in particular the prohibition on torture (see, for example, Chahal v. United Kingdom (1996) on "diplomatic assurances" and torture, and the more recent Saadi v. Italy (2008) decision (prior post); but see, in the UK's favor, its prevention of deportation based on Saadi).
More than just a memo, the torture files come in 4 chapters:
► M16 legal advice;
► Downing Street's role;
► The Whitehall row; and
► The interrogations.
Bonne lecture!

France slammed by UN Torture Committee

In November 2009, France enacted a law designed -- as claimed by President Nicolas Sarkozy's administration -- to recognize prisoners' fundamental rights (inter alia, civil, social, family, health, labor and training rights) in order to promote human dignity and social rehabilitation. In a strong indictment of this administration's policies and practices in the areas of criminal justice and immigration/asylum, the UN Committee Against Torture's latest report indicates that rather than being "exemplary" in the area of human rights, this law, and more broadly the penal policies implemented since the Committee's last review in 2005, are a miserable failure.
The first subject of concern for the Committee is the fact that, though France criminalizes torture and acts of barbarity and violence, it has not brought its legislation into "strict conformity" with the definition of torture provided by the Torture Convention (art. 1). In particular, the Committee notes that such a definition would provide the clarity and foreseeability required of criminal law and satisfy the Convention's obligation to distinguish acts of torture committed, tolerated or instigated by public officials or others acting under color of law from acts of violence committed by non-state actors. The Committee also repeats its recommendation that France make torture an imprescriptible crime (§13).
Secondly, the Committee reproaches France its "priority procedure" for asylum requests, which does not provide for suspensive appeals. Those whose requests are denied may therefore be sent back to countries where they risk torture before their appeals are heard. In 2009, 22% of asylum requests were subject to this procedure (§14).
Thirday, the Committee is concerned with France's 2003 law introducing the concepts of: (1) "internal asylum," "asylum" in an area of the home country where the individual is deemed safe from persecution, applicable, for example, to women seeking protection from gender-based persecution suffered within the tribal setting; and
(2) "safe countries," the concept that countries may be deemed safe for refugees to return if, for example, the armed conflict or political regime from which they fled has ended. The criteria used generally do not protect women from gender-based persecution. The Committee "deplores" France's returning of individuals to countries where they risk torture or other cruel, inhuman or degrading treatment (§§16-18).
With respect to police custody, interrogation and imprisonment (image credit), the Observatoire International des Prisons notes the severity of the Committee's remarks, and summarizes the recommendations -- which are final and cannot be appealed -- as follows:

• The Committee requests that France "consider abrogating" the rétention de sûreté, which allows for indefinite imprisonment of those deemed not safe to release even after they have served their time. Noting in §29 that this extra penalty flouts the principle of legality and is "of a nature to raise questions" as to the prohibition of cruel, inhuman or degrading treatment, the Committee also points to its incidence on prison overpopulation. Finding a "direct corollary" between the current overpopulation and the "numerous criminal laws recently enacted that aim to stiffen penalties and reduce recidivism, the Committee enjoins France to apply penalties other imprisonment more often.
• The Committee aligns itself with several national and European human rights authorities by criticizing France's system of differential detention, which "necessarily" renders the conditions in which sentences are carried out arbitrary: "disciplinary punishment, or denial of access to certain rights while in prison could, by their repetition, absence of justification, and/or the arbitrary way in which they are dispensed, constitute cruel, inhuman or degrading punishment or treatment."
• The Committee once again criticizes the system of full body searches of prisoners, asking that this practice be completely eliminated.
• The Committee warns that the use of Tasers (electrical discharge pistols) may constitute torture. (Prior IntLawGrrls post)
• The Committee is highly preoccupied by the number of suicides in French prisons (more than 15% of the detainees who killed themselves in 2009 were being held in disciplinary quarters as punishment) and requests that isolation be used only exceptionally and for a limited time, in accordance with international norms.
• The Committee is also preoccupied by continued allegations of mistreatment of detainees by officers/guards and requests that each such allegation benefit from a transparent and independent investigation. In this regard, the Committee expresses its concern that the Sarkozy administration's new "Défenseur des droits" (rights defender) replace other authorities designed to protect fundamental rights. It therefore requests the government to ensure the effective and uninterrupted operation of the Contrôleur général, as well as other independent authorities (national mediator, office of children's rights, and the national commission on security ethics).

Lastly, the Committee notes that it was inadequately informed of France's efforts to combat human trafficking and sexual exploitation, and recommends that it adopt a program designed to punish traffickers and to protect and rehabilitate trafficked persons.
The same criticisms and recommendations have been made by the European Court of Human Rights, which found France guilty of violating the prohibition on torture 5 times between 1992 and 2007 in the prison context, and the French National Consultative Committee on Human Rights, which has issued recommendations on, inter alia, implementing the torture convention and on combating human trafficking and sexual exploitation (English version translated by yours truly).
It is time France listened.

Results are in, immigration is down in Europe

Eurostat, the European Statistics office, has published its 2009 report on asylum requests in Europe. The results should warm the heart of any proponent of tighter borders, managed immigration, and "local" asylum solutions (i.e., in or near the asylum seekers' home country):
► Of the total 229,500 asylum requests made in the EU, 166,900, or close to three-quarters (73%), were denied.
France, which calls itself a terre d'asile (land of asylum) as if it were synonymous with terre promise (promised land), received the most requests (47,600). But of the more than 35,000 requests it actually reviewed in 2009, it denied more than 30,000, while Germany refused 17,000 of the roughly 27,000 requests it received. Of the 27 EU member states, only Malta, Portugal and Slovakia granted more requests than they denied. Moreover, the 27% of requests that were not denied did not necessarily result in grants of asylum:
► While 12% of those seeking asylum did obtain it, 4% were given permission to stay in the EU on humanitarian grounds, and 11% were granted only subsidiary protection, which means they may be returned to their home country once it is deemed "safe."
The drawbridge to Fortress Europe (image credit) would therefore seem to be up, perhaps never to come back down.
This will have a disproportionate impact on women (see prior post):
► Subsidiary protection is replacing asylum in cases of gender-based discrimination, such as genital mutilation and forced marriage, whereas the conditions taken into account to determine a country's "safety" do not include indicators of gender-based discrimination.
More and more women and girls are therefore being given a temporary status that deprives them of the ability to easily integrate into and become fully autonomous, contributing citizens of their adoptive countries, where they live under threat of being returned to a country with outward signs of "safety" (end of armed conflict, democratic government) that may be unrelated to these women's personal safety.

Stripping (Women) of Veils, and (Men) of Citizenship

Almost a year ago, I posted on the Sarkozy government's plan to introduce a law prohibiting women from wearing the burqa (right, credit) in public. In February, the government did just that, but on reviewing it, the Conseil d'Etat found there was no "indisputable legal basis" for a comprehensive ban and advised limiting the ban to public buildings. President Sarkozy will nevertheless submit a bill to the council of ministers later this month that contains a blanket ban: "no one may wear in public clothing designed to hide the face," under penalty of a 150-euro fine and/or "citizenship training." The ban would therefore include bandannas and masks worn by protesters, as well as niqabs (left, credit) such as the one worn by a French woman arrested in late April in Nantes for "driving in uncomfortable conditions" (French Vehicle Code art. 412-6). Officers claimed her niqab obstructed her vision; others say motorcycle helmets obstruct vision just as much.
The arrest came shortly after President Sarkozy announced his support for a full ban and intent to try to get around the Conseil d'Etat. Heating up the debate, the Interior Minister announced he would seek to have the woman's companion stripped of his citizenship for possible polygamy and child-welfare benefits fraud, whereupon the Minister of Immigration and National Identity announced plans to provide for a new citizenship-stripping procedure. Such pronouncements have of course been ridiculed: the companion is married to only one of the 4 women with whom he lives and has children. In a land where adultery is not a crime and extramarital relationships, including those that produce children, abound, threatening to strip people of their citizenship for such behavior is comical to say the least. But coming at the same time as Joe Lieberman's plan to strip Americans who join terrorist organizations of their citizenship, you have to wonder if there isn't some kind of nationalist trend afoot: unAmerican, unFrench, un(fill in the nationality) criminal behavior warrants not a criminal penalty, but exclusion from the nationality--a penalty deemed so counter to human dignity that the US Supreme Court held it violated the 8th amendment, as it constituted "the total destruction of the individual's status in organized society" (Trop v Dulles, 1958).
Clearly, a more dignified solution must be found, as anti-Muslim laws stigmatizing women are spreading across Europe. Just last Monday, a veiled woman was stopped in a post office in Novara, in north-western Italy and fined 500 euros for violating Novara's new by-law prohibiting clothing that prevents immediate identification in public. While Italy has banned masks or clothing that makes identification impossible since 1975, the measure is designed to prevent terrorism and the exception for "justified causes" has generally been interpreted as allowing veils. Local governments have begun to introduce stricter measures, however, and the Northern League has submitted a bill to parliament to specifically prohibit Islamic face veils.
Belgium seems poised to win the race to ban veils, however: its law prohibiting masks and veils in public passed in the lower house and is waiting to go before the Senate. Meanwhile, a German Euro-deputy has suggested enforcing such a ban across Europe.
In France, one of the major arguments made against face veils is that they are "an outrage to the dignity of women." Robert Badinter, therefore says he is "entirely in favor" of criminally prosecuting anyone who "pressures a woman into wearing a burqa." This is at least consistent with the principle of protecting women's dignity. But what to do about women who choose to wear veils? And more particularly, women like the driver in Nantes, a French adult convert to Islam whose freedom of choice cannot be said to be compromised by family practices?

CEDAW brings advances in Saudi Arabia

As a child, Tala Hejailan read To Kill a Mockingbird and other books and dreamed of becoming a lawyer. Today, she's a legal consultant waiting for a proposed law to become reality and allow her to become a "real lawyer," fulfilling that childhood dream. The only woman "lawyer" in the commercial law practice where she works, Hejailan cannot represent clients in court because no woman, lawyer or party to a suit, may appear in court unless accompanied by a mahram, a male guardian. A law proposed in February may change that to allow women lawyers to represent clients in family law matters. This would be a boon not only to women who want to be lawyers, but to women needing representation as well: since a woman's mahran is often her husband, she is at a clear disadvantage when seeking divorce or child custody.
The proposed law, which would be limited to family law despite the fact that women are obviously also parties to commercial disputes and subject to criminal conviction, has been under discussion for several years. It would continue efforts to bring Saudi Arabia in line with its obligations under the United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which it joined in 2000. Ratification was subjected to a reservation neutralizing provisions that conflict with Saudi law, however, and it wasn't until 2004 that King Abdullah (left, then crown prince) asked the (all male) Council of Ministers to modify laws to comply with CEDAW. Wisely, he appointed 9 women to advise the council on matters concerning women. He also suggested having women judges join the men on the bench in family courts, but so far, the only progress in this area, significant as it is, is that in 2007, women were given the right to counsel women and three law schools began accepting women students. May the wise King Abdullah and his advisors continue such reforms to that students like Asma Alamdar my realize their dreams of "being a successful law student and [having] a great career in law in Saudi Arabia," practicing "all that they ha[ve] learned, not just part of it."

(credit for still photo of courtroom scene from the movie To Kill a Mockingbird (prior post)

Help Save Academic Freedom

Dear colleagues and readers,
It has come to my attention, as it may have to other readers of the European Journal of International Law, that Joseph Weiler (left), professor of law at NYU with too many titles and directorships to mention, is facing criminal prosecution in France for libel due to his refusal to remove from his website a book review that the book's author claims is not only unfavorable, but libelous. In his editorial "Book Reviewing and Academic Freedom" (in EJIL), which raises important issues concerning the system of scholarly book reviewing, Weiler seeks the support of scholars in various disciplines, particularly those with experience in editing scholarly journals that publish book reviews. Trial is scheduled for June 25, 2010.

Haiti Quake: Next Steps in a Sustainable Response

IntLawGrrls continue to follow developments in Haiti. Posts discussing the 12 January 2010 Haitian earthquake, humanitarian assistance, immigration status for Haitians located in the U.S. and France, human rights and disaster response, and participatory and sustainable recovery and development policies appear here.
Recent or Upcoming Developments
►Montreal Meeting. An international donors meeting on Haiti was held in Montreal, Canada in late January. Haiti was represented by its Prime Minister, Jean-Max Bellerive. The European Union and 14 other countries participated.

►CARICOM Response. CARICOM (the Caribbean Community) pledged its continued support to the Haitian recovery, initially in the area of health, to be followed by support for long-term sustainable development.
►UN New York International Donors’ Conference. The Montreal meeting will be followed by another international donors’ conference at UN headquarters in New York on 31 March 2010.
►Lawyers’ Earthquake Response Network (LERN). U.S.- and Haiti-based lawyers organized a network focused on human rights and other legal issues (sponsored by the Institute for Justice and Democracy in Haiti).

►ASIL Panel. The program committee has just added a late-breaking panel on Haiti at the American Society of International Law 104th Annual Meeting in Washington, DC. (I will chair the panel; also see post on “Women at ASIL” here). The panel is scheduled for Thursday, March 25, at 10:45 (web program will be updated shortly).
Current Priorities
All that Diane Marie Amann, Marjorie Florestal, Naomi Norberg, Jaya Ramji-Nogales, and I have said in earlier posts remains true. Emergency responses must continue as coordinated by the Haitian government and people and the international community under the mandate of the UN Office for Coordination of Humanitarian Affairs. The many NGOs on the ground themselves coordinate through umbrella organizations such as InterAction and use resource sites such as ReliefWeb.
Housing and Sanitation
More than 1 million people in Port-au-Prince and elsewhere in Haiti are living in tent cities or other make-shift shelters as the rainy season and hurricane season approach.
Although tents are an emergency quick fix for those with no other choice, they cannot be a long-term solution. The overcrowded tent cities do not have proper sanitation and potable water distribution facilities. This situation leads to the rapid spread of infectious disease (especially among those who’ve already been injured). Immediate attention must be given to the acquisition and distribution of more sturdy structures, along with the necessary temporary infrastructure for sanitation and water. Because so many things are interrelated, the overcrowding and lack of adequate shelter cannot be addressed without attention to rubble-removal and voluntary decentralization of the population.

The challenges are difficult and of unprecedented scale, but there are international guidelines and strategies for disaster response and recovery. Those guidelines should be implemented and supported by the Haitian government and by the international community.
Disability
As noted in a recent New York Times news story, crush injuries were common after the earthquake. Many amputations resulted from immediate trauma, while others became necessary because of the lack of proper medical facilities and antibiotics in the days and weeks following the quake. Other survivors were blinded, lost hearing, or suffered brain or spinal injuries. Even (especially) in the midst of disaster, the rights of persons with disabilities must be respected, protected, and fulfilled. (See Disability Rights series.)

Local disability resources were devastated by the quake. Haitians now need adaptive equipment (canes, crutches, walkers, rough-terrain wheelchairs, etc.) and trained physical therapists. These resources can help the newly-disabled recover and participate in the rebuilding of the nation. Unless you are a trained physical therapist or health professional, or a non-profit willing to donate appropriate equipment, the best way to help is through existing disability NGOs that already work closely with the people of Haiti.
The following governmental and private organizations provide links to a range of disability NGOs working in Haiti:
►United States International Council on Disability (USICD) (US government site coordinating NGO work).
►Mobility International USA (webpage on Haiti resources).
►PBS Newshour report on the non-profit Whirlwind Wheelchair International ( discusses the group's work to build rough-terrain wheelchairs). As was the case where a large number of amputees resulted from the use of landmines in armed conflicts, responses that are participatory, generate local jobs, training, and owenership, and focus on the empowerment of people with disabilities are to be applauded. Haitian people with disabilities can help build and fit prosthetic devices and wheelchairs, as well as train others in their use.
Those involved in large-scale rebuilding projects for housing, government buildings, or private sector buildings should ensure both accessibility under international standards and durability to withstand the risks of natural disasters.

Note: As this post was being written, news was coming in that an 8.8 earthquake has hit Chile. Our thoughts and solidarity are with all those affected.

Haiti: Human Rights and Human Security

"Earthquake! We see the earth shake! But the soul of the Haitian people, It will never break!"

--Wyclef Jean
The Fundamentals
First things first. Like all IntLawGrrls and people around the world, I express my deepest condolences to the hundreds of thousands who lost loved ones in the Haiti earthquake of 12 January 2010. Our true feelings are beyond written expression.
We—the transnational or global “community”—must continue to support the Haitian people in their struggle for survival against the natural and man-made challenges arrayed against them.
In the first moments and days of crisis and catastrophe, no one (should have) needed legal provisions or principles to understand certain aspects of "the right thing to do." And, from Port-au-Prince, we saw that the vast majority did not. Neighbors and family members used their bare hands, blowtorches, hammers, and whatever tools they could find to answer the cries of those trapped under rubble. Survivors shared what little food or water could be salvaged from destroyed kitchens. Instant caregivers stabilizing broken bones with wood and cardboard and string, then ran through the streets carrying survivors toward emergency help. Pick-up truck and cab drivers became ambulance and hearse drivers.
Husbands and mothers waited for their wives and children, hearing faint voices in reality or only in their hearts and would not give up for days past what seemed to be the limits of survivability. And miracles happened. A 5-year old boy, then a 15-year old girl, did not give up even though trapped under tons of debris.
Self-help, Social Media, and "Old" Media Too
Anxious relatives and friends in New York, Miami, Boston, and other Haitian-American enclaves tried downed phone lines, then flooded Twitter and Facebook with information and requests for information about loved ones. Radio Haiti stayed on the air, relaying information throughout the country and to radio stations in the U.S. People shared information through Skype, and when cellphone networks went back up, even transferred text messages from underneath the rubble to rescue crews.
A Transnational Community
Rescue teams, physicians, nurses, and health workers from Jamaica, Cuba, France, Israel, the United States, Venezuela, Poland, and elsewhere threw their gear into bags and hopped on planes.
Adoption agencies worked with governments to speed through adoptions for children and already vetted prospective parents. Once a few banks and cash transfer agencies opened, remittances from the Haitian diaspora flowed like water into the country—even though the thousands waiting in long lines to receive them often could not gain access. Pre-earthquake estimates put remittances to Haiti from emigrants at 1.5 billion U.S. dollars annually.
Lawyers and law students held training sessions to assist Haitians in the United States obtain “temporary protected status” (TPS). Members of the Congressional Black Caucus and other legislators worked to pass bills aimed at increasing aid or supporting the cancellation of Haiti's foreign debt.
And the U.S. President and First Lady, keenly aware of the ongoing failures surrounding Hurricane Katrina (see posts here), sent strong statements of support, aid appropriations, (controversial) military support, and set up a bipartisan fund for private donations.
Even the news media sometimes dropped their cameras, or used them to direct rescue workers or aid agencies to areas where they were needed. Of course, they were needed everywhere….
Hollywood and New York entertainers used their talent to hold telethons like "Hope for Haiti Now" that kept attention focused, spirits uplifted, and the material support flowing.
In amazing acts of faith, resilience, and defiance, the people, who had nothing but their spirit, sang and marched through ruined streets…
The Impact of History
Nevertheless, human history is also full of the worst expressions of cruelty, self-interest, and ignorance as well. The legacy of such horrors and abuse have left their mark on Haiti as well. Haiti, a former French colony, was initially a place for French planters and colonial elites to grow rich on the backs of African slave laborers. Those kidnapped to the island were often, and quite deliberately, worked to death. The trade in sugar, rum (see IntLawGrrl Marjorie Florestal’s series on “the story of rum” here), and African peoples made the country a focus of international policy and conflict from the beginning.
Astonishingly, only days after the earthquake, a few misguided and uninformed U.S. opinion pieces speculated that the country’s contemporary poverty and lack of disaster response infrastructure should be laid squarely at the feet of “culture” or even religious tradition.
Thankfully, historians, legal and human rights advocates, and Haitian-Americans of all walks of life continue to correct the record. Among other things, the Haitian revolution of 1791-1803, led by Toussaint L’Ouverture (left, image credit here; prior post) resulted in the first successful African-led rebellion against slavery and colonialism in the West. The reverberations of Haiti's independence in 1804 were, and are, enormous: the Louisiana Purchase that opened westward expansion of the United States; a demand that Haiti pay bankrupting war "reparations" to France for lost "property" that included the former slaves themselves; support for African-American and Latin American liberation struggles; U.S. occupation of the country in pursuit of commercial and strategic interests; the encouragement of racial and class divides based on color and language; foreign covert support for ruthless dictators like “Papa Doc” and “Baby Doc” Duvalier and their tontons macoutes; discriminatory migration policies toward Haitian “boat people”; and international aid and economic policies that further undermined economic and human development.
Selected Resources
There are many historical, political, cultural, and legal accounts of Haiti's complex legacy. A few recent opinion-pieces and books follow:
►Sir Hilary Beckles, “The Hate and the Quake—Rebuilding Haiti” The Nation (Barbados)
►Guy-Uriel Charles, “Stop Calling Quake Victims 'Looters'”
►Mark Danner, "To Heal Haiti, Look to History, Not Nature"
►Edwidge Danticat, The Dew-Breaker
►Edwidge Danticat, Brother, I'm Dying
►Paul Farmer, Pathologies of Power: Health, Human Rights, and the New War on the Poor
►Tracy Kidder, Mountains Beyond Mountains: Healing the World: the Quest of Dr. Paul Farmer

►Randall Robinson, An Unbroken Agony: Haiti, from Revolution to the Kidnapping of a President
Guiding Principles
Positive initial reactions to disaster are often motivated by the best of what humanity has to offer. We’ve seen authentic miracles and authentic heroes and heroines go into and come out of the devastation. Their acts of courage and survival are beyond the confines of the law and legality. They rest firmly in morality and the resilience of the human spirit.
But even good intentions can be counter-productive or even harmful if states, humanitarian agencies, and ordinary people abandon the lessons of law and policy entirely. Transnational law helps to provide a much-needed framework for risk-reduction, preparedness, and responses that respect, protect, and fulfill human rights.
Here are a few key points from the “soft law” instruments (that draw on “hard” international treaties and customary norms) such as the “Hyogo Declaration on Disaster Reduction” (prior IntLawGrrls post) and the Guiding Principles on Internal Displacement.
State Responsibility. Although massive mobilization among charitable individuals and humanitarian organizations is essential and to be encouraged at a moment of crisis, the primary responsibility for reducing risk, preparing for disasters, and responding to them, rests with states. Where, as in the case of Haiti, there was significant logistical breakdown of the central government because of the disaster itself, the international community, in the form of the United Nations, must support legitimate governmental capacity in a coordinated way.
Why? NGOs, preferably those that are local or that have built long-term relationships with people on the ground often can move more quickly and determine key areas of need. They also have obligations to respect and protect human rights under the Guiding Principles. But it is governments that have the large-scale and sustainable capacity to provide earthmoving equipment, helicopters, planes, ships, and trucks, and to set up fully-equipped medical triage and treatment areas.
Obviously, individual small states, especially ones with already limited infrastructure, cannot do this alone where the needs of millions are involved. That is why, prior to disaster, all governments should be pressured to comply with their obligations under international human rights and humanitarian law and to assist others in doing so. When called upon by a government in need or by an international body such as the UN, governments around the world should be ready to respond quickly, efficiently, and without inappropriate strings attached.
Preparedness and Risk-reduction
Some lessons have been learned from the South Asian Tsunami, Hurricane Katrina, and other environmental disasters. Although certain disasters cannot be prevented, many can be prepared for. Building codes can be established and enforced, levees can be built to appropriate strength, tsunami warning systems can be established. Trade and agricultural policies that force rural to urban migration and urban overcrowding can be changed. Emergency supplies can be decentralized (a lesson of the tsunami) so that they can be better and more widely distributed even when roads are impassable. Evacuation plans should be in place. Governments and the international community need not wait for the heart-rending photos and videos to appear before taking action.
Coordination
Media and eyewitness reports in Haiti indicate that coordination has been haphazard and slow. Among other things, the UN peacekeeping mission to Haiti lost many of its most experienced people on the ground when a key office building collapsed. The initial outpouring of compassion is crucial, but so is coordination and planning. First responders, aid agencies, community leaders, the news media, local police, and the military must set up triage stations throughout the affected areas, assess the most urgent needs, and drop cross-organization barriers to the exchange of information.
“Vulnerable” Groups
I sometimes resist using the term of art “vulnerable groups” in humanitarian contexts because it seems to reinforce the popular perception that all survivors of disaster or displacement are helpless. The heroism of many Haitian survivors should demonstrate that that is not the case.
Yet, indeed, certain groups tend to be the most targeted or neglected in the days and weeks following a disaster.
Children: Thousands of children lost parents in the disaster. Speaking of culture and community, many are, or will be, cared for by surviving relatives or neighbors. But the Haiti disaster was so extensive that thousands of children may be left without adult care or supervision because so many adults have been killed or severely injured. Providing clean water, emergency medical care, food, and shelter to children must be at the top of the agenda.
As difficult as it is even to write, there are reports of actual or attempted child trafficking of unaccompanied or orphaned children. Needless to say, trafficking in persons is an international crime. It may also be so unthinkable to some that they forget or underestimate the risk. Both legal and practical strategies must be in place to prevent and stop human trafficking, reuniting children with their own relatives or placing them with responsible and loving adoptive parents after careful vetting. These, too, are "guiding principles."
The Elderly. Haitians who have lived to their 80s or 90s are, by definition, tough and resilient. They are also the bearers of culture, history, survival strategies, and family love. These mothers and fathers of the nation will need continuing medical care and emotional support. They will also be among those with the long memories and wisdom necessary to advise on transformative rebuilding.
Women. We've all seen the pictures in Haiti and elsewhere. After a disaster, as food aid and water trucks come in, the strongest young men push forward, leaving many women and children without. We've also seen that some are trying to provide for the women and children in their own families, but humanitarian workers know that distribution of aid to women is a partticular problem. There are reports that women-only aid distributions may finally be starting in Haiti, following the well-known truism that women tend to share the aid they receive within extended families and communities.
People with Disabilities. Unfortunately, the earthquake’s aftermath will increase significantly the number of people living with disabilities in Port-au-Prince and elsewhere in Haiti. Like others, they will need immediate medical care and other basic needs. But in a country where certain basic adaptive needs and jobs of all kinds are in short supply, they may experience social isolation, stigma, employment discrimination, and official neglect. Instead of warehousing the disabled in institutions, emphasis should be placed on rehabilitation, popular education about the capabilities of those with physical or intellectual disabilities, and even the creation of small businesses aimed at local adaptive needs.
Don’t Forget
By now, all readers are aware of the many organizations working toward a better life and human rights for the Haitian people. See posts by IntLawGrrls Diane Marie Amann; Jaya Ramji-Nogales, Naomi Norberg, Marjorie Florestal, and by me here.
Even if we are not in the region, we can pressure our own governments to enact or support just policies toward the country and its people. There will be other catastrophes, unfortunately, but don’t forget the joys and pain of Haiti.
In addition to Partners in Health, Oxfam America, TransAfrica Forum, and other groups previously mentioned in earlier posts, here are a few additional humanitarian and advocacy resources:

► CharityNavigator (to obtain information about charitable organizations)
► Hope for Haiti Now (telethon-based effort)

► Latin American and Caribbean Community Center (Atlanta, Georgia, U.S.-based advocacy organization)
► ReliefWeb (“serving the information needs of the humanitarian community”)

► Save the Children (child-focused humanitarian aid)
►UN Office for the Coordination of Humanitarian Assistance

►UNICEF (UN body focused on children and child development)
►World Food Programme